Document Information

Date: 1981-05-07
By: Roy McMurtry, Government of Ontario
Citation: Letter from R. Roy McMurtry to Jean Chrétien [re Aboriginal and Treaty Rights] (7 May 1981).
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Ontario

Ministry of the Attorney General

May 7, 1981

The Honourable Jean Chretien
Minister of Justice
Justice Building
Wellington and Kent Streets
Ottawa, Ontario
K1A 0H8

Dear Mr. Chretien:

Now that argument before the Supreme Court of Canada on the legal validity of the proposed constitutional amendments has been completed, it is appropriate to bring to your attention certain matters oi serious concern arising from the proposed entrenchment of aboriginal rights.

I

As you know, the Constitution Act, 1981 currently before Parliament provides:

33(1) The aboriginal and treaty rights of the aboriginal peoples of Canada arE hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.

58(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(2) The Constitution of Canada includes (a) the Canada Act; ….

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(The Canada Act, the propose d British statute amending the Constitution of Canada, includes the Constitution Act, 1981 as Schedule B thereto.)

In the result, it appears that every law, federal or provincial, that is inconsistent with the provision of the Constitution which “recognizes” and “affirms” the aboriginal rights and treaty rights of Indians, Inuit and Metis is of no force or effect to the extent of the inconsistency.

This may have, I suggest, very serious and unfortunate consequences for the people of Canada.

In the first place, although the nature of aboriginal rights is a matter of much uncertainty, it appears that they are property rights of a kind.

As I read the proposed provisions, it is at least arguable that these private property rights are to be entrenched in the Constitution in the sense that (in the absence of a future constitutional amendment) they cannot be taken away, or even derogated from, by any legislation ever.

This would mean, for example, that even if it were at a future date the overwhelming will of Parliament that certain lands subject to aboriginal title should be expropriated in the public interest, pursuant to a general or special statute ensuring fairness and just compensation, this could not be done. Even the Constitution of the United States with its enthusiasm for private property rights provides, in the Fifth Amendment, only that “no person shall be …deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”. The right of property is qualified; it can be derogated from if due process of law is afforded and it is subject to expropriation procedures that are fair and result in just compensation.

I would be surprised if there is any nation in the world in which any private property right enjoys under the national constitution the absolute immunity from the law which is apparently contemplated for aboriginal rights in Canada. (It is perhaps surprising that those members of the joint committee who were so vigilant to defeat a proposed amendment which would have entrenched a qualified general right of property were willing to support this this unprecedented elevation of one particular private property right.)

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The potential effect of these provisions on any future negotiations for the settlement of Indian land claims based on aboriginal rights is obvious.

Second, the entrenchment of aboriginal rights in the Constitution in the manner contemplated has the potential of working a very serious injustice against many people and of creating serious disruption in the life of the country.

To take an example, a band (or bands) of Indians in the Ottawa valley has, we are told, a claim of aboriginal title to a large part of that valley in Ontario. If the Indians were able to substantiate their claim, the main defence of private property owners in, for example, Ottawa or Pembroke (and of the federal Crown in respect of, for example Parliament Hill), would be The Limitations Act. That is, they would assert that they and their predecessors in title had been in open, notorious, continuous occupation of the land for at least ten years (in many cases for more than 150 years) and had therefore extinguished the aboriginal right by adverse possession.

It is perhaps an arguable question as to whether The Limitations Act and its predecessors apply in the case of aboriginal title in view of section 91(24) of the B.N.A. Act, 1867. But at least the argument is available and a court might be constrained to accede to it in order to avoid dispossession of the inhabitants of, for example, the City of Ottawa.

Now, pursuant to the proposed entrenchment, it appears that The Limitations Act would not apply.

Third, the proposed entrenchment would probably alter the course of current and future land claims litigation to the detriment of the people of Canada by retrospectively changing the Law many decades after the original events in qu stion occurred and would undoubtedly encourage such litigation based on perceptions of the newly established constitutional rights and, by calling in question the validity of . land grants made pursuant to various pre-confedcration, federal and provincial laws, would contribute to a general cljmate of uncertainty and disruption affecting the lives of many Canadians.

Finally, the proposed entrenchment would profoundly affect the question of whether any Indians are subject to game and fish legislation. Whatever else they may encompass, it is clear that aboriginal

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rights include a right to hunt, trap and fish. In general, the current legal position appears to be· that aboriginal rights to hunt, trap and fish are subject to federal legislation and, if our interpretation of the Kruger case in the Supreme Court of Canada is correct, to provincial legislation. Treaty rights are subject to federal legislation but, by virtue of section 88 of the Indian Act, are not subject to provincial legislation.

If the proposed entrenchment becomes part of the Constitution, both aboriginal and treaty rights will prevail over both federal and provincial legislation. And, if a current Ontario Divisional Court decision to the effect that aboriginal hunting and fishing rights exist unless they are expressly taken away in a treaty were upheld, the effective result would be that all Indians in Canada could hunt and fish to their hearts’ content notwithstanding any federal or provincial law prescribing, for example, prohibited areas, seasons, bag limits or licences.

II

It is clear that the native peoples of Canada have legitimate aspirations for the future and also have sincerely felt grievances arising from certain events and circumstances of the past and present.

Fulfillment of these aspirations must be facilitated and fair resolution of these grievances must be addressed.

But I suggest that this must be accomplished in a way that will not lead to unfairness, disruption, uncertainty and division in Canadian society, continuing unnecessary litigation and unrealizable expectations on the part of native peoples. It is my view that there is a substantial danger that the current provisions, if adopted and continued in their present form, will give rise to such results in some measure.

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Accordingly, I urge you to seriously consider amendments to the aboriginal and treaty rights provisions to remove the dangers inherent in the provisions as they now exist and to ensure the interests of the native peoples in a way that is equitable for all Canadians.

Please provide me with your views at your very earliest opportunity.

Yours very truly,

R. Roy McMurtry,
Attorney General.