(Telex?) from W.R. Bennett to Pierre Trudeau Re Aboriginal and Treaty Rights (20 November 1981)

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Date: 1981-11-20
By: W.R. Bennett, Government of British Columbia
Citation: (Telex?) from W.R. Bennett to Pierre Trudeau (20 November 1981).
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Dear Mr. Prime Minister:

I have been advised by the status Indian tribal councils and associations of status Indian bands representing the majority of Indians in British Columbia that they now no longer oppose the aboriginal rights provision contained in the original federal constitutional resolution. I understand this is now generally the position of treaty and status Indians across the country.

The change of the Indians’ position is very significant in so far as it was a basis for the exclusion of that provision from the November 5, 1981 accord and the inclusion only of present Section 36 by which the subject would be addressed at a meeting between first ministers with the participation of Indian leaders.
Because of this British Columbia is prepared to support reinstatement of aboriginal and treaty rights into the resolution now before the house of commons, provided you and the provinces who were signatories to the accord concur, and provided that the process under present Section 36 remains in place for the precise definition of all aboriginal rights, and for complete identification of the implications which these rights may hold for Canada and for the provinces.

I must remind you that upon British Columbia’s entry into confederation in 1871 British Columbia and Canada agreed that the charge of the Indian and the trusteeship of Indian lands would be solely a matter of federal responsibility. This obligation is clear from both the terms of union between Canada and British Columbia, and Aection 91(24) of the British North America Act, which confers jurisdiction upon Canada.

Further, the courts have determined that only Canada, not the provinces, is competent constitutionally to negotiate or enter into treaties with Indians. The courts have also found that whatever Aboriginal rights exist for Indians the obligations in respect of and for the fulfilment of them lie with the Crown in right of Canada.

I have made particular reference to British Columbia’s terms of Union with Canada and the British North America Act which clearly imposes on the Government of Canada full responsibility to discharge any obligations to Indians as may arise from the exercise of Canada’s treaty-making process. Accordingly, if as the result of the process by which the definition of aboriginal rights is clarified, any obligation arise, it will be clear responsibility of Canada to fully compensate the people and the province of British Columbia in the fulfilment of any treaty or settlement negotiated by Canada with the Aboriginal people.

W R Bennett

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