Memorandum from Roger Tassé to Jean Chrétien re Charter of Rights incl. Drafts of Aboriginal Rights Clause (19 December 1980)
By: Roger Tassé, Government of Canada
Citation: Memorandum from Roger Tassé to Jean Chrétien, Charter of Rights – Aboriginal Rights (19 December 1980)
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December 19, 1980
FROM/DE: Deputy Minister
SUBJECT/OBJET: Charter of Rights – Aboriginal Rights
Cabinet decided last week that the Charter of Rights should include, in section 24 (“Undeclared Rights and Freedoms”), a more explicit reference to the rights of native peoples, provided that any such reference would find some measure of acceptance with the key leaders of the native organizations.
To this end, a draft was prepared along the following lines:
“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 may exist in Canada, including any historic treat or other rights or freedoms that may pertain to the aboriginal peoples of Canada.
I spoke with Paul Tellier about floating this wording with key native leaders. His view, which I share, was that it would be unwise to pursue further discussions with the native leaders, since this would only generate new pressures from them for Charter provisions which the government could not accept. In other words, if the government is going to advance a possible amendment to section 24, it is likely best done through floating it in the Joint Committee where it can be accepted or rejected by members without having the native leaders condemn it in advance.
I believe this to be the best approach, since the government cannot accept the proposals that have been advanced by the native groups for guaranteeing aboriginal or treaty rights in the Charter or for the inclusion of the Royal Proclamation of 1763 in the Schedule to the
Canada Act. Either of these approaches would place in jeopardy Parliament’s power to enact laws for “Indians, and Lands reserved for Indians” without consent of the native peoples.
Following our discussion on Wednesday, we have given consideration to an alternate amendment to section 24 which would stress more clearly the preservation of native rights without “constitutionalizing” them. We have concluded that something along the following lines might accomplish this end:
“The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of
(a) any aboriginal, treaty or other rights or freedoms that may pertain to the aboriginal peoples of Canada, including any rights or freedoms that may have been acquired by virtue of the Royal Proclamation of 1763, or
(b) any other rights or freedoms that may exist in Canada.”
This draft would underline the concept of “aboriginal” rights to which the natives attach much importance and, at the same time, stress the Royal Proclamation which the Indians see as their “Bill of Rights”. In addition, it would set apart from the general undeclared rights of Canadians those “rights” that pertain particularly to the native peoples.
Even with these changes, we must realize that the proposed draft will not meet the principal concern of the native leaders who are pressing for a positive statement of aboriginal rights in the Charter. 1hus, in presenting the amendment to the Joint Committee, it will still have to be emphasized that entrenchment of aboriginal rights would be premature since there is no agreement as to the content of such rights. Therefore, the proposed amendment is designed to ensure that, pending negotiation of native rights for inclusion in the Constitution, the Charter rights do not in any way impair the future recognition of native rights.
c.c. Mr. Michael Kirby