Memorandum from Roger Tassé to Jean Chrétien, Native Rights and Section 34 (21 November 1981)
By: Roger Tassé, Government of Canada
Citation: Memorandum from Roger Tassé to Jean Chrétien, Native Rights and Section 34 (21 November 1981).
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November 21, 1981
MEMORANDUM FOR THE MINISTER OF JUSTICE
FROM: The Deputy Minister
Native Rights and Section 34
Mr. McMurtry’s letter makes four points:
1. Section 34 will give “aboriginal and treaty rights” absolute immunity from the law”.
Other critics have argued that section 34 does no more than recognize and affirm the status quo and therefore gives nothing to native peoples. We reject both of these extremes of interpretation as an over simplification of a complex legal problem. The definition of these rights — and whether they still exist in a particular part of the country — and the degree to which they will be subject to other federal and provincial laws — cannot be settled by generalizations but must be dealt with on a case by case basis by the courts.
2. Mr. McMurtry suggests section 34 may upset vested non-native rights — he cites the City of Ottawa and Parliament Hill. In our view, aboriginal rights in densely settled parts of Canada were extinguished many years ago. The constitution will not be interpreted to retroactively upset the vested rights acquired by other people. Where aboriginal rights no longer exist there is nothing to be “recognized and affirmed”. For this reason, in our view, the version of section 34 proposed by Alberta does not alter the legal effect of section 34 as originally proposed to Parliament.
3. Mr. McMurtry says section 34 could alter the course of current and future land claims litigation. Insofar as the defence to such litigation was based on a denial of the concept of aboriginal and treaty rights, section 34 will benefit native peoples — and properly so. The federal government has never challenged the concept of enforceable treaty rights — and since 1973 has . accepted “aboriginal rights” as a proper type of claim to put forward in land claims settlement negotiations.
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4. Mr. McMurtry says that native people will be able to “hunt and fish to their heart’s content notwithstanding any federal or provincial law”
This is really an elaboration of Mr. McMurtry’s first point. We believe natives hunting and fishing for food ought to have priority over non-natives who generally speaking do not rely for their food on hunting and fishing. But this does not exempt native peoples from laws legitimately aimed at conservation of the resource itself (as opposed to conservation of the resource for non-natives). Natives have never claimed the right to hunt down the last living creature. Nor does section 34 allow native peoples to embark on commercial operations involving game or fish free of government regulation.
In summary, Mr. McMurtry’s letter makes numerous and sweeping assumptions about the way in which the courts will approach the solution of these problems. This is a complex area of the law. He will have the opportunity to present his concerns to the Courts. So will the federal government. So will the native peoples. There is no reason to believe the Courts will arrive at a solution that is not fair to all sides.
Some of these legal questions no doubt will be discussed at the First Ministers’ Conference required to be held by section 36 within one year after patriation.