UK, HC, “Aboriginal Rights Commission”, vol 18 (1982), cols 770-831
By: UK (House of Commons)
Citation: UK, HC, “Aboriginal Rights Commission“, vol 18 (1982), cols 770-831.
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- An Aboriginal Rights Commission constituted under Part IV A shall be funded out of moneys accumulated before this Act comes into force for the use and benefit of the aboriginal peoples of Canada, or any of them, provided that the consent of the duly authorised representatives of the said peoples to that funding has been first had and obtained.
- The Commission shall consist of a chairman and not more than eleven other members appointed by the Governor General, including not less than six members appointed after consultation with and with the approval of those of the aboriginal peoples of Canada duly authorised in accordance with paragraph 5 below, and not less than two members who have appropriate knowledge and experience of matters in relation to the discharge of the functions of the Commission.
- It shall be the duty of the Commission—
- (a)to take all appropriate steps necessary as soon as reasonably possible and from time to time to identify and 771 define and determine the aboriginal, treaty or other rights or freedoms respectively of each of the aboriginal peoples of Canada for inclusion by virtue of their determination in the Constitution of Canada under Part IV A;
- (b)to protect the said aboriginal, treaty or other rights or freedoms;
- (c)to discover any breaches thereof or any discrimination against them;
- (d)to monitor and investigate any matters in relation thereto;
- (e)to institute such proceedings (as they may think fit) in the courts of Canada in connection therewith on behalf of all or any of the aboriginal peoples of Canada;
- (f)to consider and report upon all legislation (including provincial legislation and proposed legislation) affecting the said peoples;
- (g)to report upon and publish their findings from time to time and at least once’a year;
- (h)to establish a research unit to discover and obtain all such documents, treaties, papers, records, books and similar material (or copies thereof howsoever reproduced) relating to the aboriginal peoples of Canada as may reasonably be ascertained and to preserve, collate, register, index and publish the results of their research and to make the material so obtained (or copies thereof) available to members of the public by way of reference, on microfilm or otherwise;
- (i)to make recommendations in connection with their functions as to—
- (i)the repeal, amendment or alteration of, or further provision for, the Constitution of Canada or any Act or order made thereunder affecting the aboriginal peoples of Canada including the Indian Acts and provincial legislation;
- (ii)future legislation which shall, in relation to the aboriginal peoples of Canada, provide for legal and equitable settlement of their land claims by an independent tribunal, for proper and fair procedures relating thereto and the payment to them of proper and fair compensation under rules to be provided for the purposes;
- (iii)the alteration of, or provision for the organisation and distribution of government departments or administrative or similar bodies with responsibility for the affairs of the aboriginal peoples of Canada, or any of them.
- The commission may accept financial assistance otherwise than out of moneys provided under paragraph 1 towards the defraying of their expenses.
- (1) For the purposes of paragraph 1 and 2, those of aboriginal peoples of Canada empowered to give their consent, to consult with the Governor General and to approve the appointment of certain members of the Commission shall be—
- (i)in the case of Indians, those duly authorised to do so by The First Nations Assembly of Canada at a special meeting summoned for the purpose;
- (ii)in the case of other aboriginal peoples of Canada, respectively, those duly authorised to do so by a majority of authorised representatives of the appropriate class or category of such peoples at special meetings summoned for the purpose.
- In this Schedule, ‘The First Nations Assembly of Canada’ means the Chiefs of the Indian tribes, bands and Nations of Canada.”.’.
- New clause 1—Commencement (No. 1)
- New clause 2—Commencement (No. 2)
- Amendment No. 23, new schedule—The Rights of the Aboriginal Peoples of Canada
Mr. Powell It was a long grouping of amendments that you have just announced, Mr. Weatherill, as your selection to the Committee. It cannot be denied that on careful examination they proved to have a certain consanguinity, although sometimes the consanguinity is rather remote. Therefore, I hope that it may be possible, if other hon. Members feel that the main points at issue are more clearly made by amendments other than the first, for those to be called, if so desired, at a later stage for Division. 772It is my conviction that the House and this Committee are an unrivalled instrument for the investigation and examination of constitutional truth, that we are a great educational establishment in our own right and that we rarely part from any major constitutional issue raised by a Bill placed before us without becoming wiser before the conclusion of the proceedings. However, I would not—nor would the most generous admirer of this House—argue that we are an instrument of swift education. Indeed, it has often proved to be the case that some of the constitutional axioms that have been established in debates in the House over the years, and indeed centuries, have been the subject of constant, reiterated and even repetitive examination before their indefeasible truth was accepted generally, either in the House or out of doors.
Therefore, it is good that, though at relatively aloft notice—I shall not recur to what has just passed—after the extremely brief Second Reading—brief in relation to the importance of the constitutional issues—we have an opportunity, although rather restricted, to re-examine them more at leisure and on a wider plane. I said that our opportunity was restricted. Indeed the form of the amendment that I have moved is a reminder of the restrictions under which we are examining the Bill. The manner in which clause 1 has been drawn—it was probably not drawn that way accidentally—makes it impossible for the Committee to do what it would do had the clause been differently drafted or to treat the schedule to this Bill to the same examination to which we treat the schedules of other Bills laid before us.
As you pointed out, Mr. Weatherill, in your introductory ruling, the Bill is so drawn that schedule B is on a take-it-or-leave-it basis, or at any rate becomes so when the House has departed from the Question. That clause 1 stand part of the Bill. It is for that reason, among others, that the Committee heard with particular satisfaction and relief your ruling that the debate on the Question, That clause 1 stand part of the Bill would not only be, despite our amendments, a substantive debate, but that in that debate matters that would otherwise have been the subject of individual amendments to the schedule would not be out of order.
That important and helpful ruling is an illustration of the difficulties in which we are placed by the form of the Bill and the manner in which it has been drawn, although it is, of course, impossible to dissociate this Bill and the manner of its drafting from the whole historical and constitutional setting. Even if it were possible for us to have given our attention to the schedule in the manner in which we are able to attend to the schedules to ordinary Bills, we would still be debating and examining At under considerable constraint. After all, schedule B is the Bill. A Government would fare ill who adopted the method of accelerating their legislation through the House by drafting their major, controversial legislation in the form of the Canada Bill and then blandly informing the House that if it liked to look at the schedule it could do so now and then in due course in so far as amendments might be accepted by the Chair.
Of course, we are legislating—we are legislating substantively—in the sense that the legislation will come to rest, however briefly, on the statute book of the United Kingdom. Therefore, it is not unreasonable to point out that we are legislating under great difficulties, in that we have what ought to be the Bill as a schedule to it. The 773result is that we do not have our normal Committee procedure, whereby, after considering amendments, if there be such, to a particular clause, the clause itself, perhaps as amended, its validity and its relationship to the whole scope of the Bill can be considered. It is worth putting on record that, although substantively legislating, we are being gravely restricted in our opportunity to attend to the extraordinarily important matters in the Bill and especially in schedule 2.
The amendments, although they stand on the Notice Paper in the ingenious form which under your direction, Mr. Weatherill, was suggested to hon. Members by that superior wisdom that lurks in various nooks and crannies of the Palace of Westminster, all come back in a certain sense to certain specific major constitutional questions which were raised but not answered on Second Reading last week. It is important, and it is our duty both to ourselves and to those who sent this legislation from across the Atlantic, that before we make much progress we get those specific questions clearly and specifically answered. They are as follows.
If we had so legislated as to annul the restrictions in the Statute of Westminster—if we had, as the jargon goes, simply patriated the British North America Act and our residual right to legislate for Canada—would it not have been possible for the Parliament of Canada to have passed this legislation itself if it thought fit? Assuming that this House was willing, as it has been for a long time, to relinquish to the Parliament of Canada that right to legislate for Canada which, at Canada’s request, we have retained, I ask: if we had relinquished that right before passing the remainder of this legislation, would the Parliament of Canada have been competent to pass this constitutional legislation?
I see the hon. Member for Islington, South and Finsbury (Mr. Cunningham), who is a deep thinker on these matters, indicating what in Hansard language is known as dissent. If “No” be the answer, we are faced with the extraordinary consequence that the House can give up a right to legislate for Canada which then disappears from the face of the earth and does not pass anywhere else. I follow the train of thought of the hon. Member for Islington, South and Finsbury; but see where it leads. It leads to the conclusion that Canada will be a country incapable of legislating for itself with that plenitude with which this Parliament has been able to legislate for Canada.
Mr. George CunninghamSurely that is what we have done in virtually every Commonwealth country to which we have given a constitution. We have not created a Parliament that has the plenitude of power that this Parliament enjoys. We have created federal constitutions where power is divided. In Australia, we have provided for referendums. What we are doing in this case is normal.
Mr. Powell Many Commonwealth countries will be surprised to learn that in the view of the hon. Member for Islington, South and Finsbury they do not have sovereign Parliaments. I am aware of the arguably as yet unsolved and arguably as yet undebated impasse in Australia where legislative powers of the States were derived directly from this House as was the legislative power of the Commonwealth Parliament. But if the hon. Gentleman will forgive me for saying so, it is preposterous for him 774to assert—and the value of our dialogue, if it has one, is only if it elicits from the Government a more authoritative view than either the hon. Gentleman or I can purport to put forward—that we must tell those wholly independent Commonwealth countries in no way inferior or subordinate one to the other that they are in fact inferior and subordinate to the mother country in being unable, presumably in perpetuity, to legislate their own constitutions.
I return to my first question, to repeat and to leave it. Is it not the case that if we had appropriately amended the Statute of Westminster so as to relinquish our retained right to legislate for Canada, the Canadian Parliament could have made the law of Canada anything that we can make the law of Canada by this or any other Bill that we can pass in this House?
- Mr. Kevin McNamara(Kingston upon Hull, Central) Surely the point of the decision by the Supreme Court in Canada was that a constitution is law plus convention. The problem that we faced was not the legal difficulties but the conventional difficulties of the transfer that, whether we liked it or not, we had a responsibility under the Statute of Westminster. If we had merely amended the Statute of Westminster without the consent of those parties in Canada who had entrusted us with that power, we would have been intervening in the internal affairs of that country to an extent that would have been an attack on the plenitude of power that the right hon. Gentleman is suggesting we give them.
Mr. Powell There is a paradox which will not have escaped the hon. Gentleman in saying that we are intervening in the affairs of another country by declining to intervene in their affairs. Nevertheless, the distinction which the hon. Gentleman draws, on the lines of the ruling by the Canadian Supreme Court, between convention and law is real and important. However unrestrictedly the House asserts the sovereignty of Parliament, we also recognise that we are bound by certain considerations over which one cannot appeal to law, which in the last resort cannot even be defined by law, but which in practice restrict and govern our behaviour as reasonable men seeking to legislate for reasonable men.
The intervention of the hon. Member for Kingston upon Hull, Central (Mr. McNamara) brings me directly to my second question. Is there any part of this legislation that we are making for Canada that the Canadian Parliament has no power subsequently to amend? Is it not true that there is nothing in this legislation—
Mr. James Callaghan(Cardiff, South-East) The right hon. Gentleman knows the answer to that.
Mr. Powell If the right hon. Member for Cardiff, South-East (Mr. Callaghan) will forgive me for amplifying his sotto voce, he says “The right hon. Gentleman knows the answer”. I assure him that the right hon. Gentleman concerned is putting the questions not only in good faith but with intense inquisitiveness as to the answers and the grounds upon which they will be based.
Mr. James CallaghanThe right hon. Gentleman was not supposed to hear what I said.
Mr. Powell In that case, the right hon. Gentleman, like Wotan in “The Ring”, claims the right to declare: What I have not said, forever remain it unspoken”. An examination of the legislation itself—we shall come to these points in detail later—raises this question acutely. 775Indeed, it goes far to imply an answer to my second question; for in perusal of the schedule, hon. Members will have noted the provision for a constitutional convention to be held after 15 years.
Subject to correction, the implication of that provision in the schedule is that it is possible for a legislative authority in Canada, if it can obtain the assent which all legislative authority requires, to amend the provisions of the schedule. We are therefore writing into the schedule provisions that look forward to the possibility not merely of amendment in accordance with the provisions governing amendment in the schedule as drafted, but to amendment that could amend or repeal those very limitations and conditions apparently placed on the ways, the manner and the modalities by which the constitution may in future be amended. The constitution and the schedule presented to us look to the possibility—I would say more than that, they look to the intention—of future amendment of the terms, limitations and restrictions in the schedule. Otherwise, it is extremely difficult to attach any meaning to the provision to which I have referred.
If there is a legislative authority in Canada—as is presumed by those provisions, and as I assume, although the hon. Member for Islington, South and Finsbury does not—which is capable of amending this legislation, although in obedience to convention or sweet reasonableness or bowing to the various balancing pressures within that country it may refrain from using that power, it seems to me to follow that the Canadian Parliament can alter whatever we enact by the Bill. In my submission, at least, we are passing for Canada legislation that we could have given Canada the full power to pass for itself and which is in no way entrenched, in that there is nothing in the provisions which cannot subsequently be modified, amended or repealed by a legislative authority in Canada.
If that is so—and, if I were a Canadian, I should be appalled to be confronted by this House with the denial that my country has a sovereign Parliament—it becomes all the more permissible, if that were necessary, for us to attend to what we are doing, because, for some reason, we are being asked to do for Canada what Canada could do for itself.
It may be that among the reasons why we are being so asked is the belief sedulously created in Canada that what we do can have a sacrosanct character that protects it against any further or ulterior action in Canada. If that is not the case, it is incumbent upon us not only to consider what we do here and what we place momentarily on our statute book but to ensure that we do not give a false impression of entrenching or guaranteeing rights and liberties that it is impossible for us to entrench or to guarantee.
That brings me, I hope not after too long a journey, to the wording of paragraph 1 of schedule B, to which I seek to introduce a preliminary amendment. The schedule reads: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it”, but it does not stop there. It continues: subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. I wonder—and this is germane to my amendment—just what kind of guarantee is conveyed by such a provision. If the rights and freedoms are guaranteed, we should understand what is meant by their being guaranteed 776subject…to such…limits…as can be demonstrably justified in a free and democratic society. Is this a justiciable wording? That is to say, is it the meaning and intention of those who have asked us to make that wording law that it shall be the courts in Canada that will decide whether the justification is demonstrable?
Mr. George CunninghamThe right hon. Gentleman will know that those words have been much argued about in Canada, on the grounds that he mentions. He will also recollect, however, that those words or words virtually identical with them are part of the European Convention on Human Rights which, to the limit to which it. is justiciable in this country–that is, to some extent—is subject to court interpretation. Therefore, although it may seem odd in Canada, it should not seem odd that those words should be justiciable in this country.
Mr. Powell I realised, although I am obliged to the hon. Member for Islington, South and Finsbury for reminding me of it, that these words had occurred elsewhere and in a context that has my unreserved detestation and rejection—the subordination of this country to the decisions of a foreign court and the habit of the subjects of the Crown to appeal against the court; of the Crown to an external court. The reminder that I have received from the hon. Member does not in any way reconcile me to these words or make them more palatable.
Nor does the reminder help to answer the specific question which I am, in a sense, putting to the people of Canada at the moment when they have removed their constitutional law, or are removing it, from the statute book of another country and taking it home, as they say. The question is: in their country are the sovereign political decisions in the future intended to be taken by judges or by their representatives in Parliament assembled? Surely I do not need to say that this is not a quibble. In this place of all places one does not need to say that.
The natural meaning of what we might be thought to be doing by enacting part I of schedule B is giving to the judges of a court the ultimate political decisions as to what is “a free society”, what is “a democratic society”, what is “justifiable” in such a society and what is “demonstrable”.
I hope that I do not discern any movements or indications of impatience in you, Mr. Weatherill. I trust at least that it is not tedium on your part.
The ChairmanI hasten to assure the right hon. Member that it is not impatience. Rather, I am waiting for him to talk to his amendment. I guess that he is paving the way towards his amendment, which brings parts I and II into clause 1.
Mr. Powell I had wondered whether such thoughts were passing through your mind, Mr. Weatherill. But the meaning of the term “guarantees” in paragraph 1 of part I is germane to the validity or desirability of the amendment that I have introduced, because I seek to widen the scope of the term Canadian Charter of Rights and Freedoms and to widen it in a particular way. To justify that, and in doing so, not to mislead any of those who might otherwise be misled by such a proposition, it is necessary to understand what is and what is not guaranteed, and what is the meaning of guarantee in the context of part I. Otherwise, I do not see how the Committee could form a judgment on the question of whether that terminology should extend to part II as well as to part I of the schedule.
777I sum up my conclusion on the nature of the guarantee, the extension of which is the purpose of the amendment. My object is to elicit correction or confirmation from a source of some authority. My conclusion is that Canada has no intention, and no notion that intends, to be a country where the political decisions are taken on the judicial bench.
I know that there are contexts in which it might be argued that they have that situation already and perhaps are vainly attempting to continue it by the Bill. But that it is the intention of the Canadians that what is a “free and democratic society”, what can be “justified” in it, what can “demonstrably” be justified in it and what limits can therefore be “prescribed by law” in that country ought to be taken, not by their elected representatives but by a court, is something which hitherto had not occurred to me. If that is so, then we ought, on behalf of those who have asked us so to legislate, to face the fact that there is, and there will be, little real or natural meaning in the term “guarantees” in paragraph 1 of part I.
I know that the schedule contains provisions which specifically say that the legislative authorities can neglect, and can legislate notwithstanding, portions of the Charter of Rights and Freedoms, notably the portions contained in paragraph 2 to 7. Perhaps the deliberate omission of paragraph 1 of part I from that exclusion could have conveyed the notion to some—and we are talking about real people, many of whom are anxious, and many of whom may be confused as to what is going on—that there is some unique effective guarantee contained in part 1 of the schedule.
It so happens that the schedule is at present drawn to limit the expression “Charter of Rights and Freedoms” to the contents of part I. I cannot, I think, have been the only hon. Member studying this schedule who, when he read part II, found himself puzzled and disquieted that that part had been excluded from the definition of the Charter of Rights and Freedoms, for part II, headed Rights of the Aboriginal Peoples of Canada happens to be an affirmation—we shall come to certain parts of the wording later on— the aboriginal and treaty rights of the aboriginal peoples of Canada”. Therefore, it is a fair question for the House to ask: why was that part of this schedule not thought to be appropriate to be part of the Charter of Rights and Freedoms? It is no use saying that the Charter of Rights and Freedoms is not concerned with the rights of the aboriginal peoples. There are several sections in part I which deal with the rights of the aboriginal peoples. I have looked with some care at those sections to see whether, somehow, they made part II superfluous. I could not conclude that they did. Indeed, if part II is superfluous, then why is part II in the schedule anyhow?
We have two causes of doubt which I think we ought to remove. The second of my amendments, the Committee may be relieved to hear, is wholly consequential to my first. I see the Minister of State nod. That is the first agreement that I have elicited from the Treasury Bench. I hope it is an augury of good things to come. At least some common ground has been established with the Foreign Office Minister on the Front Bench.
We have to establish two matters. We have to establish what jusification, if any, there could be for excluding part 778II from the charter. Surely, by doing that, one undermines any confidence that the charter is intended to give or convey to the aboriginal peoples. It seems to be a step which might almost have been designed to instil doubts and hesitation, so specifically to have excluded part II. If, as I hope, the Committee agrees that part II should be part of the charter, we should make clear how extensively the sense of the word “guarantees” in association with the charter is limited both by what I believe to be the constitutional position of the Canadian legislature in future and also by what I believe to be the political facts that are tacitly and, in some cases, explicitly acknowledged in the wording of the schedule.
I shall now direct my attention briefly and appropriately at this stage to amendment No. 17 which proposes that the word “existing” should be left out of paragraph 35 in part II of the schedule.
Mr. George CunninghamWill the right hon. Gentleman answer this question? What difference does it make whether part II is part of the description of the Canadian Charter of Rights and Freedoms? Does it not mean only that part II is not subject to the words in section 1 which say that they are to be interpreted subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society? Does this not mean that part II, dealing specifically with aboriginal rights, is free from that limitation while part I is subject to the limitation? Is part II not therefore in a privileged position compared to part I? Is there any other difference?
Mr. Powell The hon. Member for Islington, South and Finsbury has entered upon a most ingenious train of thought. This will become news, perhaps headline news today or tomorrow—I forget which day it is now in Canada—when the newspapers learn that the effect of their charter of rights and liberties is actually restrictive and that the other parts of the constitution are guaranteed more effectively and subject to less limitation and dubiety than the parts described as the charter of liberties. This is a most alarming point, to which I hope an answer will be given.
The hon. Member for Islington, South and Finsbury underlines the labile nature of this concept “guarantee” in section 1 of the schedule. It becomes all the more incumbent upon hon. Members to draw to the attention of those for whom we are legislating the extraordinarily inefficacious character fo the wording that an attempt has been made to devise with whatever objectives—whether those that I apprehend or those suggested by the hon. Member for Islington, South and Finsbury.
The insertion of the word “existing, ” which nowhere else that I have found in the document appears in connection with the aboriginal and treaty rights of the aboriginal peoples of Canada, has not surprisingly been the subject of considerable anxious debate and questioning. I can see at least two reasons why that word would be better away than present. Are the existing rights rights that may in future be determined to have existed now? I think that it must be so. If either a court decision or a legislative Act pronounces upon the state of the rights of the aboriginal peoples at this moment, or at the moment of this legislation coming into effect, the consequence of the word “existing” would be restrictive. Far from conveying the implication that whatever they have now is 779preserved in perpetuity, it would actually open a loophole to the meaning and interpretation of their rights being limited by subsequent judicial or legislative action.
The other difficulty that I find in the word “existing”, which makes me wonder why it was inserted, when the clause apparently would have been effective and intelligible without it, is that it appears to recognise and affirm only existing rights and not any such rights as may in future either be found to exist or be conferred upon the aboriginal peoples. Whatever the effect of “existing”—whether it is retrospective or prospective—it seems to me to take and not to give. We should be satisfied that this is not the effect before the schedule containing that word is accepted.
Sir Bernard BraineThe whole Committee is indebted to the right hon. Member for Down, South (Mr. Powell) for focusing with his customary brilliance upon the real issue before us, for this group of amendments is concerned with that part of schedule B to the Bill that purports to entrench the aboriginal and treaty rights of the native peoples of Canada. I refer, of course, to section 35 which is described as Recognition of existing aboriginal and treaty rights”. It defines the aboriginal peoples of Canada as the Indian. Inuit and Métis peoples of Canada”. In part I of schedule B on the new Canadian Charter of Rights and Freedoms, we find the only other guarantee of native rights. This is section 25, which sets out to ensure that no other rights and freedoms within the charter shall derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada”. Specific mention is then made in section 25 of any”— that is the word to watch— rights or freedoms that have been recognised by the Royal Proclamation of October 7 1763; and any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement”. We are not debating an amendment to section 25. I shall only say in passing, therefore, that the section is vague to the point of implying that there may be no aboriginal rights at all.
Section 35 qualifies the affirmation of aboriginal and treaty rights by referring to them as “existing” rights. The hon. Member for Hackney, Central (Mr. Davis), speaking last week with his usual clarity and incisiveness, described the highly unsatisfactory nature of this qualifying adjective. I shall have something to add to what he said.
Both sections are of central importance to the native peoples. They were recognised as being so by the Master of the Rolls, Lord Denning, in his judgment last month. Both are of immediate concern to the Committee because they touch upon the rights of the native peoples of Canada; and until this Bill is passed, any change in the constitution affecting their rights is our responsibility. Let there be no doubt about that.
The rights to which the native peoples of Canada are entitled are set out in the International Covenant of Civil and Political Rights, which has been ratified by the United Kingdom and by Canada. I shall seek to establish, I hope to the satisfaction of the Committee, that the provisions of section 35 are inadequate for the protection of Canada’s native peoples and are inconsistent with the provisions of the covenant. Parliament has an obligation, which the 780United Kingdom accepted under the covenant, to ensure that the provisions of any law which we have the power to enact are consistent with the covenant.
While I wish to concern myself specifically with an amendment to clause 1, section 35 of schedule B, it is necessary and would be helpful to the Committee if I were permitted to make a general observation on the relationships between the amendments tabled in my name and those tabled by the hon. Member for Walsall. South (Mr. George), the right hon. Member for Battersea, North (Mr. Jay) and the right hon. Member for Western Isles (Mr. Stewart).
The amendments we have proposed to section 1 of schedule B have all been designed as an entity; they interlock with one another to achieve our single purpose: the protection of native rights in such a way that this Bill is compatible with both our international human rights obligations—which are also obligations upon Canada—and, at the same time, is compatible with the sovereignty of Canada as a federal State embracing peoples of diverse cultures.
These are not frivolous amendments. They do not, in any way, seek to impugn the Bill. They are constructive and their inclusion, as a whole, in the Canada Act would provide a much better constitution which would reflect with honour the unique relationship between the native peoples, who rightly call themselves “the first nations” of Canada, and the Europeans who settled there from the seventeenth century onwards. This relationship of distinct peoples is, after all, the cornerstone on which modern Canada was built. One of the greatest achievements of British statesmenship in the early nineteenth century was the building of trust and co-operation between Upper and Lower Canada—between two very different peoples, Lower Canada comprising French Catholics based on Roman law and Upper Canada comprising Anglo-Saxons and Scots Protestants based on the common law. Here were two distinct peoples; the conquered and the conquerors.
As Edmund Burke said: Magnanimity is not seldom the truest wisdom in politics. Modern Canada is the fulfillment of that maxim. Canadians have laboured long and hard to fulfil that initial honourable contact between two distinct peoples.
Because, in a constitutional matter of this importance, touching as it does on the relations between two friendly countries, it is necessary to avoid misunderstanding, with leave of the Committee, II should like to comment on the suggestion that we ought not to discuss these matters. My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) took me to task gently enough last week on Second Reading for interfering in the internal affairs of an independent country. He accused me of misrepresenting the Master of the Rolls whom I had quoted as saying that Canada was not a wholly independent country.
With respect, that is precisely what Lord Denning said. I quoted his words and, as I recall, so did the hon. Member for Walsall, South. I shall repeat those words so that there may be no doubt about Lord Denning’s remarks. He said: In strict constitutional law, the Dominion of Canada is not completely independent”—
The ChairmanOrder. Mr. Speaker has already ruled on this point and it would be more profitable if the hon. Gentleman addressed himself to the amendment.
Sir Bernard BraineI am not pursuing the point at any length, Sir, but it is necessary—
The ChairmanThe fact that the baby is only a small one does not make any difference.
Sir Bernard BraineI shall mention aspects which touch on our responsibilities, but I wanted to remove, as there is a much wider audience for this Bill than we would perhaps normally expect, any doubt about the correctness of my arguments: For the moment, suffice it to say that Lord Denning made it clear, pointing a finger at this Parliament, that jurisdiction over Canadian affairs remained for the time being with this Parliament.
It was bad enough to be told by a Canadian Minister that we had no option but to hold our noses and pass this legislation. I make no comment on that suggestion save to say that—
The ChairmanOrder. None of the hon. Gentleman’s remarks is relevant to the amendment. Perhaps the hon. Gentleman would return to that aspect.
Sir Bernard BraineI am prepared to leave the matter, so long as it is fully understood by the Committee that we have a perfect right to discuss in great detail the obligations still on us in respect of the aboriginal peoples of Canada. I accept your ruling, Mr. Weatherill. Whether the Committee has a right in law and constitutional convention to amend the Bill and whether we seek to exercise that right is, of course, a matter for political judgment and each hon. Member must decide that for himself.
I now turn to the text of section 35 of schedule B. This is of central importance. It asserts in the Canadian constitution that there are special rights which a particular group of Canadians should have reserved to them, unlike other Canadian citizens. The section thus concedes that the native peoples of Canada are cthnically and culturally distinct peoples who deserve a separate status within Canada.
The Chairman of Ways and Means rightly grouped these amendments with others closely related to them. However, the matter I wish to deal with primarily is the extent to which section 35 adequately protects the rights of Canada’s native peoples.
There is today an international yardstick by which legislation which affects human rights can be judged. It is the International Covenant on Civil and Political Rights. The right hon. Member for Down, South may not particularly care that we are subordinate to an international convention of that sort. However, it exists and we support it. I am not referring here to some tenuous statement of intent or declaration of principle which may, when inconvenient, be ignored. The international covenant entered into force on 23 March 1976. It has been ratified by the United Kingdom and by the Government of Canada. It is binding on our two countries.
My hon. and learned Friend the Member for Solihull (Mr. Grieve) attempted last week to dismiss our concern about the rights of the native peoples of Canada by stating that the Queen must be advised in these matters by her Canadian Ministers. With respect, he over-simplified the problem. We must take responsibility for legislation enacted in our Parliament. Our Government have ratified the international covenant and I shall show how the Bill contravenes it. The Bill is merely a faithful copy, in two 782languages, of a resolution of the Canadian Parliament. That body does not have to give legislative affect to its own resolution. That responsibility is ours and ours alone. We are asked to pass the Bill and we will be responsible for what it contains. That responsibility needs to be spelt out.
As a State which is a party to the covenant, the United Kingdom has undertaken to take the necessary steps, in accordance with our constitutional processes, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the covenant. We cannot escape that responsibility. If we rubber-stamp a charter of rights for Canada that contravenes the covenant which the United Kingdom has ratified, we shall be in breach of the covenant.
On Second Reading, my hon. Friend the Member for Holland with Boston (Mr. Body) rightly said: So long as we choose to be fettered by those covenants…we should recoil from any legislation that infringes upon them. To do otherwise would be dishonourable—even disreputable.—[Official Report, 17 February 1982; Vol. 18, c. 362.]
That is a serious charge to make.
Article I of the covenant expressly states: that all peoples have the right of self-determination, that, by virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development”. Admittedly claims to self-determination in different conditions around the world have often given rise to problems. There are usually two principal problems. The first problem is the definition of “people”. What constitutes a people who in the terms of the covenant should have the right to determine their own destiny?
The second problem, which is politically the more difficult, is the conflict which so often arises between a claim to self-determination and the territorial integrity of an established State.
The first problem—whether we are dealing with a distinguishable people—does not arise. The native peoples of Canada are distinct from the majority of the Canadian population of European origin. The Indian and Inuit communities have their own languages, cultures, customs and religions. The Royal Proclamation emphatically described them as separate peoples. Indeed, it described them as nations. The British North America Act gives them a separate status in Section 91. That separate status is reinforced by the Indian Acts. It is recognised by the very amendment to which I am speaking. It cannot be disputed that the native communities of Canada are peoples in the fullest meaning of the covenant.
The second problem, which is often the more contentious of the two and is the threat to territorial integrity, presents us with no difficulty in this instance. As I said on Second Reading, the native peoples have not appealed to us to support them in any claim for secession. Whenever Canada has found itself in danger, when these islands have found themselves in danger and when the Empire and Commonwealth have been in danger, Indians have flocked to the colours.
There is no question of the territorial integrity of Canada being put at risk by what we propose on behalf of the Indian peoples. If the native peoples demand a form of self-government, it is self-government within the sovereignty of Canada. I submit that the Indian peoples have a right to that. They have already a degree of self-government under the Indian Acts. They are entitled to negotiate with the Canadian Government. A greater degree of self-government will achieve for them the most 783important objective, which is the continuation in future generations of their distinct identity. They cry out to us to help protect them from assimilation with the Canadian majority of European origin. In so doing they pose no threat to the integrity of Canada. Their right to continue to flourish as Indian, Métis and Inuit peoples is fully recognised by the covenant.
Article 27 of the covenant states: In these States in which ethnic religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right…to enjoy their own culture, to profess and practise their own religion, or to use their own language. They should not be denied that right and we should not make it more difficult for them to preserve their separate identity by failing to do our duty in this place while there is still time.
The Committee must consider how the Bill, which I repeat it is our responsibility to enact, succeeds in safeguarding these basic human rights which we have a solemn obligation to protect under the covenant. What does the section that seeks to affirm these rights say? It states that existing rights of the Indian peoples of Canada are recognised and affirmed. What are these existing rights? Do they merely amount to the right of these people to continue to live in future in their existing state of deprivation? Is the right of the native peoples to suffer continuing erosion of their land, their land titles and their treaty rights under the Acts of the Canadian Parliament? Is it their right to stand still and meekly accept the discriminatory provisions of the Indian Acts, the Territorial Land Act and other measures which have so gravely prejudiced them?
Is it the right of the Indian peoples to continue to live with existing discriminations against native education languages, cultures and customs? Is it their right to continue with an existing employment rate of 68 per cent? Is it their right to continue with their existing life expectancy, which is 20 years lower than that of the average Canadian? Is it their right to continue to suffer the existing suicide rate, that most cruel measure of any community’s despair, which is out of all proportion to the national average? Is it their right to continue to receive their existing derisory share of federal expenditure, which over the past 14 years has increased by a mere 14 per cent. in real terms, compared with 129 per cent. in other federal programmes?
Will the affirmation of existing rights under the Bill mean a continuation of the Canadian Government’s transparent failure in the past to pay any real compensation for acquisition of native interests in land and resources? I am not inventing this because I am quoting from the rulings of Canadian courts and statements by Canadian Ministers. The facts are there for all who wish to see them.
Mr. GrimondI have great sympathy for what the hon. Gentleman is saying. He has read out a list of most serious infringements of the rights of the Indian peoples. Is it the hon. Gentleman’s contention that they could appeal to this Parliament or this Government against the infringement of their rights? If so, did they do so; and if so, what did we do about it?
Sir Bernard BraineI do not wish to detain the Committee much longer. However, there are many things that can be done. In a sense we are talking not merely to one another, although this is British legislation. Surely we are talking to Canada itself. One hopes that what we say 784in this place will find some echo in Ottawa, or in the provincial capitals across the country. There are many things that can be done but the one thing that we should not do is pass this proposed legislation without question.
Mr. Clinton DavisBearing in mind the constitutional conference that is to take place shortly after the constitution is patriated, does the hon. Gentleman agree that it is a matter of considerable concern that the anxieties of the Indian peoples should be articulated here so that they might be better taken note of at the constitutional conference?
Sir Bernard BraineYes, I agree entirely. When the hon. Gentleman addresses the Committee I hope that he will develop that argument.
I have great regard and affection for Canada. I have many friends in Canada and it gives me no pleasure to ask these questions and to recite the catalogue of discrimination and deprivation. I have done so because the limitation imposed by the word “existing” has to be seen for what it is and because this Parliament cannot escape its obligations under the international covenant. If we do not face that obligation fairly today, we shall have no further opportunity hereafter.
If native grievances are not clearly expressed in the Committee—nothing that I have said is not supported by statements made by or on behalf of the Canadian Government—we shall be rightfully accused at the bar of world opinion as having connived at the perpetuation of injustice. We shall be shown to have casually disregarded our solemn duty to legislate in accordance with obligations under the covenant.
The Committee has already heard the strange and chequered history of what is now before us as section 35. An affirmation of native rights did not form part of the resolution that was introduced in the Canadian House of Commons on 6 October 1980. Hon. Members may recall that this was the first appearance of the unilateral bid by the Canadian Prime Minister to patriate the constitution.
As a result of strenuous and dedicated lobbying by native interests, the Joint Committee of the Canadian Commons and Senate agreed unanimously on 30 January 1981 to include certain guarantees of aboriginal rights in the agreement. That was good. The agreement was regarded as a great achievement by the Minister for Indian Affairs, the Hon. John Munro. It established once and for all, he said, the Indian people’s position in Canada by enshrining aboriginal treaty rights in the fundamental laws of Canada.
Significantly, in view of what was to happen, he added—the Committee should know this—that he was concerned that, unless the resolution was approved, the native people’s rights would become tokens in the process of negotiation. Significantly, too, he expressed concern also that Premier Blakeney of Saskatchewan would not support the charter. He found it surprising, as Premier Blakeney had always been a friend to the native peoples.
Section 35 of schedule B to the Bill subsequently appeared in the resolution, which I shall describe as the unilateral resolution, of the Canadian Parliament of April 1981. It was then numbered section 34 and it read as follows: The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed. 785It did not contain the intrusive word “existing”. We all know the fate of the unilateral resolution. Strenuous lobbying was conducted against it by the dissenting provinces. The reasons were many and I do not wish to go into them now. Many of us were assailed by representatives of the provincial Governments in London. Some of us had the pleasure and privilege of meeting the premiers themselves.
Suffice it to say that no mention was made to us in those representations about native rights and their effect upon the provinces. There was very little manifestation in those days of lobbying by Indian interests. The hon. Member for Walsall, South, to his great credit, was alone in putting their case at the time. He put it cogently and indefatigably, as I am sure he will again do in this Committee.
Behind the scenes we know how the provincial capitals, particularly in the West, were alive with foreboding at the implications of what was then section 34. A private and significant exchange of correspondence in May 1981, immediately after the unilateral resolution in the Canadian Parliament, throws light on what was going on. The Toronto Globe and Mail of 19 November 1981 published a letter written by the Honourable Roy McMurtry, the Attorney-General of Ontario, to the Honourable Jean Chretien, the federal Minister of Justice. In retrospect it is interesting to observe that Ontario was not one of the eight dissenting provinces.
In his letter Mr. McMurtry revealed clearly the anxiety of his provincial Government about the implications of the former version of section 35. He wrote concerning the affirmation of native rights that it appears that every law, federal or provincial, that is inconsistent with the provision of the Constitution which recognises and affirms the aboriginal rights and the treaty rights of Indians, Inuit and Metis, is of no force or effect to the extent of the inconsistency. He said that, although the nature of the aboriginal rights was a matter of uncertainty, it appeared that they were property rights of a kind. He said: This would mean that even if it were at a future date the overwhelming will of Parliament that certain land subject to aboriginal title should be expropriated in the public interest…this would not be done. It is clear that the provinces were horrified that Indian rights to land and, indeed, as he went on to explain in his letter, Indian treaty rights to hunting, trapping and fishing, might become immune from legislation in a new Canadian constitution. It is evident that the provinces which have major control over the resources in Canada’s federal constitution were not prepared to concede that any aboriginal or treaty rights to land should be entrenched. The truth was that treaty and aboriginal rights which had been solemnly conferred on the native peoples of Canada by the Crown and which are part of the constitution of Canada had been overlaid in the past by the Federal Parliament for the benefit of the provinces.
The provinces were determined to ensure that a continuation of this process of erosion of native rights would not, if they could help it, be stopped dead in its tracks by constitutional entrenchment. At the same time it became clear that a Canada Bill based on a unilateral resolution would probably founder. The Governor-General of Canada has since stated that he would have used his prerogative to disallow it. As a consequence the Canadian Prime Minister was forced to renegotiate with 786the dissenting provinces. The price was paid. It was no more proper entrenchment of Indian rights. So it was that the foreboding of the Minister of Indian Affairs in the constitutional resolution debate of February 1981 came to pass. Aboriginal interests and treaty rights became a token in the course of negotiation.
Mr. Nicholas Winterton(Macclesfield) Is my hon. Friend not saying in short that the Federal Government have negotiated with the Government of Canada under Mr. Trudeau an agreement in which the aboriginal, native and Indian peoples of Canada and their future have been totally sacrificed?
Sir Bernard BraineI would not use such a word as “totally” in this context. We are dealing with a civilised and friendly country where in the course of time—one would have hoped before this request was made to us and before this legislation was brought to us—all this would have been settled. I do not despair of the matter, even now, being resolved. The question has to be answered.
In the tense situation that developed in September and October last year, concessions were made by the Canadian Prime Minister to the dissenting premiers. We all knew that this controversial Bill was going to come before us and there was widespread relief in the House when it was announced that agreement had been reached. Few hon. Members realised what the representatives of the native peoples noted immediately. The clause which affirmed and recognised their rights had been dropped altogether. I do not despair, because there was an immediate outcry in Canada. Public opinion asserted itself. There were protests from many who were not Indian or Inuit. The native peoples have their friends in Canada. Every hon. Member received letters; certainly I have received hundreds of letters in recent months from people all over Canada.
When the new resolution was completed the old section 34 was put back again, but it was not in exactly the same form. Now the affirmation of aboriginal and treaty rights was qualified by the word “existing”. One word, one single adjective, sufficed to satisfy the provincial premiers where they had been dissatisfied for months. How was it that this simple addition set provincial fears at rest? Why was the inclusion of this word sufficient to seal the agreement to patriate the Canadian constitution which had so long eluded the Canadian Prime Minister?
I do not wish to repeat what I said on Second Reading, but we have the assurance of the Canadian Minister of Justice that we should not worry about this word. He told his Parliament that it did not change the substance of what was previously proposed. It was said that the word was meaningless. Then why was it not dropped altogether? Why was section 35 not allowed to return to its pristine form, the form in which it had caused the Attorney-General of Ontario such concern?
Is the answer perhaps that the addition of the word “existing” draws the line as regards native claims to land and to self-government within Canada’s sovereignty? In this way the little that has been achieved in the past by native interests, the little that remains to them after a century’s erosion of their acknowledged rights, this tiny remaining portion of what they are entitled to, will be fixed immutably by the constitutional law of Canada. No unsatisfied claims arising out of the past will any longer be entertained by the Canadian courts. Past injustices will go without impartial remedy.
787The fears of the Honourable Roy McMurtry and of many provincial leaders will be set at rest. There will no longer be any fear that Canadians may be called to account for their extinguishment in past decades of native rights to land and of expression of native rights to self-determination. The final settlement of the native problem and the final resolution of the role of the aboriginal people of Canada will be reached in the future under the provisions of this Bill.
I have no doubt that much will be said in the course of this Committee stage about the amending formula and the constitutional conference which native representatives will be invited to attend, yet the fact remains that nothing in the Bill gives the native peoples any power to resist change in their status which may be to their disadvantage. The point is that their consent to a futher curtailment of their rights is not required.
Therefore, the will of the Canadian Parliament, if it happens to accord with the interests of seven out of the ten provinces, is enough to extinguish once and for all the little that the Bill will have left them. Even the Governor-General, the executive arm of the Crown in Canada, will be unable to exercise his prerogative on their behalf. The Crown’s representative in Ottawa, with responsibility for the solemn and binding obligations under the Royal Proclamation of 1763, will have no option under this constitution but to act on the advice of his Canadian Ministers.
There is no guarantee in the Bill that the Crown’s promises to the native peoples will not be broken. Despite Lord Denning’s reaffirmation of their rights, the native peoples of Canada have no faith that the promises made to their forebears will remain unbroken. I say that with great sadness. The founding fathers of Canada had dreams of what Canada might become. When I was a boy Canada loomed large in our minds as an example of magnanimity, of different peoples working together to create a great new nation State. Did not Wilfred Laurier say that the twentieth century would belong to Canada?
Canada was founded on a dream, the fulfilment of which we have all hoped to see in our lifetime, yet the native peoples today fear that for them the sun will cease to rise and the rivers cease to flow. Lord Denning urged that no Parliament should lessen the worth of the Crown’s guarantees to the native peoples of Canada. If, therefore, we are to do what is right, the amendments to which I speak should become part of the constitution of Canada.
Mr. Clinton DavisWe have listened to two powerful speeches. The right hon. Member for Down, South (Mr. Powell) hoped that he would receive an answer from the Government to the many questions that he posed. I do not intend to take up those questions, because I want to direct my remarks to the two amendments to which my name is attached. I have a feeling that the right hon. Gentleman will be disappointed and that we shall all be disappointed. On the basis of the Lord Privy Seal’s remarks recently, I suspect that the Government’s attitude will be that we must allow the Canadians to get on with the matter and that it is not one for us.
I believe that that premise is materially faulty in a number of respects. Clearly we have an obligation to legislate. That is why we are here and why we shall spend several hours discussing these matters in Committee. We therefore have an obligation to ensure that our parliamentary procedures are not simply rubber-stamping what other people wish to have done. 788I agree in a number of material particulars, though not wholly, with the hon. Member for Essex, South-East (Sir B. Braine). We have a duty to try to clear up some of the mysteries of these constitutional proposals and, it is Lo be hoped, persuade the federal Government—one of our closest allies, one of our closest friends—to be a little more forthcoming than they have been.
Those who take part in these debates fervently want to see the problems to which the hon. Gentleman referred resolved once and for all. We want to see the Canadian peoples as a whole tackling those problems and eliminating the suspicions, doubts and anxieties of the Indian people. We also want them to eliminate the grotesque poverty which stalks the very existence o f those people and which is acknowledged by members of the Federal Government—not least Mr. Chretien, the Minister for Justice, who has played such an important part in the development of these constitutional proposals. We want to see all the peoples of Canada rejoicing in the constitution that is to be patriated.
It is unfortunate, to say the least, that, as I said on Second Reading, the Indian peoples have a real sense of grievance about not having been consulted properly, or at all, and that they have no feeling that they are to be consulted realistically in the future. It is sad that they should have those apprehensions about the future. hope that in the next few weeks, while the matter is still before Parliament, some of those anxieties will be allayed. That is why we are debating these matters and why we are articulating those grievances. I hope that the United Kingdom Government will take the matter seriously and not simply say “This is no concern of ours.”
I have a suspicion that some members of the federal Government view the observations of some of us as being offensive to them. They say that we have no right to interfere in their internal affairs. I hope that they will not continue to regard these debates in that way, because we seek to be constructive and positive. We recognise that ultimately the problem is theirs, without any shadow of doubt. It is for them and the Indian peoples to resolve. We in this House cannot resolve them, but underlying all this there is the feeling on the part of the aboriginal peoples that their voice has not been effectively heard in the debates in Canada thus far. That is why we are articulating genuinely, and I believe reasonably, that point of view.
It is not the view of all the Canadian peoples that the debates in this House constitute interference in Canada’s affairs or that they should be regarded as offensive. An editorial in the Toronto Globe and Mail of 19 February said: Canadian history is being made in Westminster. The British Parliament is doing what we are certain it would do…Westminster was also concerned about the position of Canada’s native peoples, because many of the treaties and agreements with them were made on behalf of the British Government, and British parliamentarians felt the responsibility to ensure they would be resolved fairly…But some who spoke to Canada’s Bill quite rightly urged fairness upon the Canadian government, which has not always behaved responsibly or even honestly towards the native peoples. That is a contentious matter, and I shall not comment further upon it. The following passage is the most germane to our debate: There are critics who are arguing rather foolishly that the British debate represents the worst kind of interference in Canadian affairs. This is nonsense. The British retained the BNA Act only because Canadian Federal and Provincial governments 789could not themselves agree on how it could be transported. As Prime Minister Pierre Trudeau proposed to act, the constitution would have been amended and patriated unilaterally by the central government, which would have left the provinces in rout and the native peoples in distress, and would have basically divided the whole of Canada”. That is the view of the editor of a highly authoritative and responsible newspaper in Canada. I hope, therefore, that the Canadian Government will not take amiss what we are saying, because it is not intended in that way.
I want to address myself to the two amendments in my name and the names of my right hon. and hon. Friends. I turn immediately to the question of the importation of the word “existing”, to which the hon. Member for Essex, South-East spoke movingly. There is no doubt that considerable concern was expressed not only in this House but in the Canadian House of Commons about the importation of the word. What does it mean? Does it qualify aboriginal and treaty rights, or does it merely make explicit what was implicit, as the Minister of Justice stated in the Canadian House of Commons?
It is a serious matter which I have discussed with the Minister of Justice, members of the NDP and representatives of the Indian peoples. The answers given by the Minister of Justice, who is a distinguished lawyer as well as a distinguished politician, have been less than satisfactory. I would be surprised if he were satisfied with the replies.
I submit that the House is entitled to a better explanation than has been given hitherto. The hon. Member for Essex, South-East traced the history of the unhappy importation of the word into section 35. First, the section did not appear and its omission caused enormous affront to Indian peoples and to many wider sections of the community. It then appeared but was not approved by the provincial Governments and was deleted. Few could say that that was other than a surrender to the provincial Governments, who were apprehensive about the clause being introduced.
That establishes how vulnerable section 35 can be to an amendment as a matter of political policy. We have to ask why it was removed. The reason given by the Attorney-General, Mr. McMurtry, when he wrote to the Minister of Justice was that too much protection was given to aboriginal and treaty rights. The hon. Gentleman cited his letter.
It follows that the section with the word “existing” could be further amended under the amending formula, and one of the mischiefs is that the Indian peoples would have no opportunity to voice their concern. Under the first accord a referendum was provided in which they would have been able to participate and express their disquiet, but that is out of the way now, so it is not unnatural that many Indian representatives are deeply alarmed about this process. They were not consulted and there is no question of their consent having been given.
The Indian peoples recall the words of Prime Minister Trudeau in 1969, when he said that Indians should not be encouraged to feel that their treaties should last for ever within Canada. So far as the preservation of aboriginal rights and the restoration of them is concerned, the answer is “No”.
It is argued by federal Ministers that the Prime Minister has undergone a change of thought, and I sincerly hope that is the case. In the many discussions that I had, that 790speech was brought up again and again. It may be said that that is a useful political debating point, and perhaps it is, but I sense that there is more to it than that.
When I was in British Columbia my attention was drawn to an exchange of correspondence with and the interrogation of Mr. Williams, who was at one time Minister of Labour, and I believe is now Attorney-General. The British Columbia Human Rights Commission wrote to him on 23 November 1977. I shall not quote the whole of the letter, but it said: All of the legal arguments against the existence of aboriginal title are based either on the assertion that the Crown gained ownership of the land by force (that is, by conquest) or that the Crown could subsequently extinguish aboriginal title without compensation. Whether or not these arguments are still debatable in strictly legal terms, we believe there can be no doubt that they violate our standards of morality and justice. The British Columbia Human Rights Commission is an independent body nominated by the provincial Government of British Columbia.
When Mr. Williams was interrogated about the matter he was specifically asked: Does the Government agree that the Nishga people do have an aboriginal right to their lands? This was his reply: No, the Government— that is to say the British Columbian Government— does not. This matter was tested in the Courts of Canada in the Calder case and the decision of the Court of Appeal in this Province is the decision presently extinct. I am not sure that that is the right word, but that is how it reads in the script.
Mr. Williams is not the only legal authority to assert that view. Many provincial Governments, including the Government of Alberta, have a similar point of view. The word “existing” was clearly a vital part of the second accord. It could not be meaningless, as Mr. Chrétien has claimed. The Indian peoples believe that the introduction of the term represents a sinister turn of events.
I referred earlier to Bill C48, which has been enacted, but has not yet come into operation and which the Indians claim will subtract their oil and gas rights in the territories that are the subjects of aboriginal rights. They say that the Bill could be enacted to their detriment, despite assertions to the contrary from time to time in the constitutional proposals. It may be that the Indians’ case is not right, or it may be that they are right. There may be something in between, but it needs to be cleared up. Is the legislation inconsistent with the constitution? I believe that the Minister should make some inquiries. Perhaps he can express the view of the Canadian Government, which could not be anything but helpful.
We are dealing not with a theoretical issue, but with one that touches the confidence of the aboriginal peoples in the federal and provincial Governments and which is deeply implicated in human rights and natural justice. Aboriginal and treaty rights are of the utmost importance to aboriginal peoples, and anything that undermines their recognition is something that they take seriously, and we should too.
On Second Reading the hon. Member for Inverness (Mr. Johnston) said: As a country it has an extremely good record in human rights. That is correct as it relates to international matters. They are taking a rather more satisfactory attitude to El Salvador and the farcical elections than are Ministers in the House. The hon. Gentleman went on to say: 791It does not deny the economic, social or cultural difficulties of the Indians. That the Canadian Parliament or a potential Canadian Government would act in the way that some people fear is unlikely. It is clear that the Bill gives to the Parliament of Canada the right to amend or change the aboriginal treaty rights. That does not mean that the Parliament of Canada intends to abrogate those rights, any more than we in the House would unreasonably abrogate the rights of British citizens.—[Official Report, 17 February 1982; Vol. 18, c. 337.]
The hon. Gentleman has absolute faith in the Canadian Parliament, both at federal and provincial level, to do nothing of the sort. I hope that he is right. I am sure that the hon. Member for Essex, South-East hopes passionately that the hon. Gentleman is right. However, unfortunately, there is strong evidence, at least historically, that he is wrong. He may have been incorrect about the way in which the aboriginal peoples were treated in the negotiations leading to the Bill.
Sir Bernard BraineI only hope that we are both right, but I recall that in 1867 many Indians were given the right to vote. It was a Canadian Parliament that took that right from them in 1887. It was only in 1960 that the vote was restored. Fundamental human rights must be entrenched.
Mr. DavisThat is right. It was not until 1969 that the Indians had the right to vote in provincial Parliament elections. It would be wrong for us to take anything away from the federal Government or provincial Governments, which eventually saw that there was a monstrous injustice. They rightly decided to put the situation right.
I do not always agree with Lord Denning’s judgments. All of us can extract from his judgments what we like. There are plenty of interesting remarks to draw on. The following remark is of outstanding importance: No Parliament should do anything to lessen the worth of these guarantees. Those are the rights upon which the Indian peoples have relied.
I wonder whether the confidence placed by Lord Denning in the federal Government and the provincial Governments would have been so forthcoming if my anxieties about Bill C48 had been before him. Clearly they were not.
We have a duty to ventilate these matters. We still have that duty, because we must consider the terms of the Bill. During the debate in Committee in the House of Commons in Canada, New Democratic Party Members and others—Mr. Warren Allmand and some members of the Progressive Conservative Party—expressed anxiety about the word “existing”.
I shall refer to some comments made by Mr. Fulton of the NDP, who is that party’s critic on constitutional matters. He said: The time has come for their view of the laws, land title and tradition to be entrenched in the foundation laws of this nation. The cultural, social and economic expression of aboriginal rights through self determination through cultural activities and so forth will surpass, in my view, what we can even imagine today. He rightly said that the issue of aboriginal rights was the oldest question of human rights in Canada.
By any standards, Mr. Fulton’s speech was remarkable. I shall not quote from it at length. He said that there was no intention of entrenching aboriginal rights, despite the claims of federal Ministers. Was Mr. Fulton right, or wrong? He was not appropriately answered during that debate. The history of the treatment of Indians’ rights has 792been chequered. The hon. Member for Essex, South-East spoke of the vote, one of the most precious rights that can be accorded to anyone in a democratic society.
During my visit to Canada I met many people—business people, trade unionists and so on, liberals in every sense of the word—
Mr. J. Enoch Powell Not in every sense of the word.
Mr. DavisIn many senses of the word. Those people underlined the anxieties felt by the Indian peoples. I was asked why they did not become absorbed in the mainstream of society like everyone else—like the Poles, the Swedes, the Irish and so on. I thought that that question was profoundly depressing. Those people were missing the point of what Indian society was all about. They were missing the point that it was the British North America Act that made express provision to safeguard the affairs of aboriginal people, the first nations of Canada. Yet time and again that question was asked. Nothing that could be said by Indians, by me—I am not an expert in that area—or by others who felt strongly seemed to have any effect.
That is a widely held view in Canada among the white peoples and it is a view that the Canadian Government must take into account. When people talk about the mainstream of society, they are really talking about a society that sometimes trundles over historic rights in the pursuit of money and the goals of the twentieth and twenty-first centuries.
That is one of the most miserable parts of the dialogue—or lack of dialogue—currently taking place. Without a resource base the Indian peoples cannot establish their identity, though that would be of enormous value to the whole Canadian nation. In theirview, that resource base is being threatened today, particularly by the importation of the word “existing”, which should never have appeared. That is conceded by many people, including the Canadian Government. One cannot deny that over the years the Indians have been denied natural justice. They do not see why they should continue to be denied natural justice.
No one can expect the Canadian Government to put right the wrongs of generations at one fell swoop, but it is incumbent upon them to provide greater reassurances than have been given hitherto.
The Royal Proclamation should appear in the constitution. I do not know whether we have gone about it in the right way. Perhaps the amendment has been drafted inexpertly. However, we are not talking about the drafting, because it will not matter. We know that the Government will vote down any amendment in any event.
The Royal Proclamation goes to the roots of the protection of Indian rights. It was mentioned over and over again in Lord Denning’s judgment. I shall not weary the Committee with that. The trouble is that the Royal Proclamation of 1763 is prey to the amending formula. That is why we believe that it should be specifically mentioned in the constitution. I hope that the comments that we make in the House will bring home our anxieties to our friends in the federal Government and perhaps make more meaningful the constitutional discussions, in which the Indians should be properly represented and heard when the constitution is patriated.
Sir Anthony Kershaw(Stroud) In spite of the elaborate rhetoric and sincere eloquence that we have 793heard today, discussion on these amendments is, for constitutional reasons, wholly and entirely misconceived. The reason why Canada cannot amend its own constitution at the moment depends not on some philosophic interpretation of the sovereignty of this Parliament or of the Canadian Parliament but on section 4 and section 7(1) of the Statute of Westminster.
Sir Bernard BraineOn a point of order, Mr. Armstrong. I apologise to my hon. Friend and it is with great reluctance that I interrupt his speech. I was ruled out of order when I sought to refer to the question whether it was right and proper for us to discuss this aspect of the Bill, and in particular the point that my hon. Friend has just raised. I was ruled out of order on the proper ground that Mr. Speaker himself had ruled that it was proper for us to discuss these matters. As I was ruled out of order, I hope that my hon. Friend will not proceed on a basis which attacks the ruling of the Chair and the readiness of other hon. Members to abide by it.
The Second Deputy Chairman (Mr. Ernest Armstrong)I am sure that the hon. Member for Stroud (Sir A. Kershaw) will come to the merits and demerits of the amendments. He has not been out of order up to now.
Sir Anthony KershawI am obliged, Mr. Armstrong. My hon. Friend the Member for Essex, South-East (Sir B. Braine) has misunderstood, or probably was not listening to, what I said. I did not at any time suggest that the amendments were out of order. If they were, we would not be discussing them.
Our conduct in this matter depends on law and conventions. The conventions are based on unwavering precedent, supported by the Supreme Court of Canada. The law provides that the request must come from the Government and Parliament of Canada, and so it has. The law and conventions together insist that if the request is supported by the clearly expressed wishes of Canadians as a whole, bearing in mind the federal nature of that community, we should pass the request. We can reasonably assume that they have so decided in Canada. To amend, as we are seeking to do by the amendments, is to do something that Canada has not asked us to do and which therefore we have no power to do, whether we like it or not. The inability of the House of Commons to amend has never before been questioned by it. I refer to the last occasion of merit, in 1946, when the Secretary of State for Dominion Affairs, Lord Addison, said words to that effect. I am not aware of an occasion when we have sought to amend a request from Canada.
Mr. George CunninghamI thought I heard the hon. Gentleman say that, as a matter of law, we do not have the power to act without a request from Ottawa. That is not the case, because we are amending the British North America Acts and a measure which does that escapes the requirement of a request for consent from the Dominion. Surely the hon. Gentleman agrees with that.
Sir Anthony KershawI agree with that. On the face of the law, we can legislate for Canada as much as we please, but under the law and conventions taken together we cannot. Therefore, I suggest that these amendments are not valid.
In spite of my opinion, I venture to trespass into a subject which has been fully discussed by the hon. Member for Hackney, Central (Mr. Davis) and by my hon. Friend the Member for Essex, South-East. That concerns the Indians. I am in difficulty here for the same reason. It should be clear to all who have studied the matter that the Indians have their rights and treaties, but their treaties with the Crown are with the Crown of Canada. When those treaties were made, the Crown was not divided. Since then, Canada has become independent, and the Crown is now divided. The Crown of Canada is a different persona from the Crown of the United Kingdom.
For 100 years, no Indians have come to this country to ask our courts for any redress. When my hon. Friend the Member for Essex, South-East was asked by the right hon. Member for Orkney and Shetland (Mr. Grimond) whether they had come, he carefully avoided answering the question—clearly, because the answer would have been embarrassing to his case. The fact is that the Indians have never come to the British courts because they did not consider them the appropriate forum, and they were right.
No doubt the conference that is foreshadowed by the Canadian Government about and with the Indians and other peoples will bring some comfort to the Indians. However, it is absurd for this House to set itself up as the guardians of the Indian peoples. We know nothing about them. The hon. Member for Hackney, Central may know something about them, although I doubt whether his opinion is any use. I heard his astonishing remarks the other day when he defended his right to discuss the Indians of Canada by saying that we could defend our right to discuss Poland and South Africa. The Canadian Government would be surprised to be compared with the military Government of Poland and the Government of South Africa.
Mr. Clinton DavisI was replying to an intervention, and my reflections may not have been the most prudent. I always make prudent reflections in this House, but not on that occasion. It is unfortunate that I equated the situation with El Salvador—not with Poland; I did not refer to Poland. However, the hon. Gentleman should address himself more to the fundamental issue of human rights. I would not object if people from outside this country reflected on the way in which we deal with our black communities here. We might learn something. Does not the hon. Gentleman agree that the House is concerned with human rights, even when we suggest that to some extent our friends may be engaging in aberrant conduct?
Sir Anthony KershawAs usual, the hon. Gentleman is most generous. We all say silly things at times. Of course the House of Commons is concerned with human rights. There is little to which we attach greater importance. However, the House of Commons is not a court which can decide about the human rights of the Canadian Indians. I never heard such an absurd proposition. There are other places and venues to which they can go to establish that matter.
Is my hon. Friend aware that one of the reasons why it seems reasonable to some of us that the House should discuss Indian rights is that up to now the Indians believe—it may be an erroneous concept—that they still had a direct line of contact with the Crown in this country? That was their view. It may be erroneous.
Sir Anthony Kershaw
My hon. Friend says that, but that concept is erroneous. Their line is to the Crown of Canada, not to the Crown in this country.
Some right hon. and hon. Members may have a great knowledge of the Indians, but the House as a whole has no such knowledge. For that reason, and because we have no way—either now, or in the future in a new constitutional position—of seeing that whatever we may decide here about Indians is translated in Canada, I suggest that this is an absurd stance, and one which the Committee should not adopt.
I regret to say that I am in almost total disagreement with the hon. Member for Stroud (Sir A. Kershaw), the Chairman of the Select Committee. The very fact that we are taking time to debate a Bill at the request of the Government of Canada means that we have a right to discuss its contents, and to propose amendments and new clauses. We would simply be wasting time if we were simply—as perhaps the Canadian Government thought the House would do—to put a rubber stamp on it. Many of us are not prepared to put a rubber stamp on the existing situation.
I shall direct my remarks to new clause 1 in particular and shall speak entirely about the rights of the Indian people. My view is very much that of the hon. Member for Essex, South-East (Sir B. Braine), that they are not adequately protected in the Bill.
Sir Bernard Braine
To be perfectly fair to Canada, and to acknowledge what has already been said there, does not the right hon. Gentleman agree that the Supreme Court of Canada accepted that the legal competence of our Parliament remains unimpaired, and it is for it alone to determine if and how it will act”?
That was a helpful intervention. There is another point of view that does not contradict that. The people of Canada, who feel as much friendship towards Britain as Britain feels towards them, would think that Parliament was failing in its obligation if it did not express legitimate concerns. It is not, as some have suggested, just we who are speaking to Canada. To a certain extent Canada is speaking to us.
A survey was recently conducted for the Department of Indian Affairs and Northern Development on Canadian attitudes towards the Indian peoples. The survey showed that 51 per cent. of Canadians agreed that the federal Government had too much control over the lives of Indians while 32 per cent. disagreed. Sixty-four per cent. believed that Indians should control their own government on the Indian reserves, while 28 per cent. disagreed. More than 90 per cent. of those questioned believed that Indians must assume greater responsibility for improving their situation. If that has any proximity to the truth, those surveyed hold a view similar to ours.
My new clause goes further than that of my hon. Friend the Member for Hackney, Central (Mr. Davis). It empowers the Secretary of State to lay an order for approval by both Houses before the provisions of the Act come into operation. Therefore, it means that certain action should be taken before the Bill is enacted. That is why, in new clause 1, I propose: The Secretary of State shall not lay before Parliament a draft of an Order in Council to be made under this section unless—
- (a)it appears to him that a formal novation of the treaty obligations of the Crown of Great Britain and Ireland to 796 the Indian nations of Canada has been effected with the full and free consent of the Indian peoples as required by international law and in fulfilment of the solemn and sacred nature of the promises contained in the treaties, and
- (b)it appears to him that a constitutional conference has been held for the purpose of obtaining the full and free consent of the Indian nations to the constitutional proposals directly affecting them”.
I am concerned entirely with the position of the Indians. There is no doubt that the Bill—as has been pointed out by the hon. Member for Essex, South-East—has some grave weaknesses. Aboriginal and treaty rights are not guaranteed, protected, or entrenched. The hon. Member for Stroud referred—I sought to intervene but he did not permit it at that stage—to the possibility that the Canadian Government might decide to amend all this at some stage. We must consider that. The right hon. Member for Down, South (Mr. Powell) said that there was nothing that entrenched the rights and freedoms of the Indian peoples. Therefore, I have set out the purpose of new clause 1. In addition, I fully support new clause 2 and its schedule, to which the hon. Member for Sevenoaks (Mr. Wolfson) will no doubt refer.
Mr. George Cunningham
The right hon. Gentleman said that there was nothing in the provisions that entrenched the rights and freedoms of the Indian peoples. On reflection, does the right hon. Gentleman still hold that view? “Entrenches” normally refers to a provision in a constitution that cannot be amended by a simple majority of the legislature of the country involved. Having read the Bill, surely the right hon. Gentleman does not believe that these provisions can be amended by a simple majority of the federal Parliament in Ottawa.
Other interpretations can be made of the word “entrenchment”. I am speaking principally about the rights of the Indian peoples. After all, there is no requirement in the Bill for Indian consent. Clause 37 refers to the Prime Minister’s conference to identify and define the rights of aboriginal people. No right is imposed on the Government to take legislative action to implement and protect Indian rights. Should legislative action result, Indian consent will not be required, but merely that of the federal and provincial Governments. Since Indian representatives can participate only in one constitutional item, the gains may well be meagre because Indians cannot participate in other items that will impact significantly on their rights.
Therefore, by “entrenchment” I mean on the rights of the Indian peoples, even though they are a minority and may constitute no more than 500, 000 in total. Whatever the hon. Member for Islington, South and Finsbury (Mr. Cunningham) may say, they have looked to the Crown for protection. They believed that the Crown was their ultimate protection. It may be argued that the Indians have got it wrong. Indeed, a case came before the Court of Appeal and Lord Denning gave his ruling. However, there is no doubt that the Indian peoples did not question—until the Select Committee’s first report—whether they had a right to speak directly to the Crown in Britain, as opposed to that in Canada.
After the Dominion of Canada had been established in 1867, a series of treaties—Nos. 1 to 11—in a similar form were concluded with the Indian nations in the name of the British Crown between 1871 and 1921. Those treaties covered a vast expanse of territory extending for the 797Great Lakes westward to the Rocky Mountains and north to the Arctic ocean. Treaties made during the reign of Queen Victoria were expressed to be between Her Most Gracious Majesty the Queen of Great Britain and Ireland…of the one part and (specified Indian nations) of the other part. Hon. Members may say that we did not mean that. No Act has sought to make it clear to the Indian people that the rights that they sought hold and the commitments that we entered into should not be abolished without legislation.
Mr. George Cunningham
Will the right hon. Gentleman consider the fact that in 1914 the Empire went to war as one? Britain declared war, and that brought in all the dominions. There was no separate declaration of war by Canada, South Africa, or the others. In 1939 that was not the case. There were separate declarations of war. As the right hon. Gentleman said, the Crown had been divided. The Crown in right of the United Kingdom, the Crown in right of Canada, South Africa and the other dominions declared war separately. That was an apparent change that everyone know about. The Commonwealth Conference of 1926 and the Statute of Westminster gave legal effect to it. That happened between 1914 and 1939. The Statute of Westminster divided the Crown. The Indians of Canada have a relationship to the Crown, but the Crown in right of Canada, not of the United Kingdom.
I accept that that point has been adjudicated on by Lord Denning, Master of the Rolls. He did so only last month. The Indians presented their case in the sincere belief that the Crown still meant the Crown in the United Kingdom and not simply the Crown in Canada.
The hon. Gentleman shakes his head, presumably because he suggests that the Indians were naive. However, he knows that the Indian people sought to present their case to the Select Committee when it held a series of meetings on this issue. They were not allowed to do so, any more than their representatives were heard by Her Majesty’s Government. That is why, before the Bill leaves the House, there must be absolute certainty that the House is being fair to the Indians on their rights to their own nationhood, their culture, their own forms of self-government and their many other rights—a few of which I shall touch upon if I am not asked too often to give way.
Sir Anthony Kershaw
The Select Committee did not hear the Canadian Indians orally, but a large amount of written evidence from them was considered. We believed it right to hear only British witnesses, as I explained on Second Reading.
It is extraordinary, but it was not until after 21 January 1981, when the first report of the Foreign Affairs Committee—of which the hon. Member for Stroud was Chairman—was presented that the claim by the Foreign and Commonwealth Office that the United Kingdom had no treaty or other obligations to the Canadian Indians came to light. Wise hon. and learned Members may think otherwise, but the Indian people, through their traditional chiefs, did not believe that the power had passed from the Crown. That is why 78 of the chiefs, represented in the Chancery Division, were putting 798their case forward. As I said earlier, it was recognised by the learned judge that this issue raised important constitutional questions that should be dealt with by the court as quickly as possible.
That is an important question which must be dealt with and an answer found. If my right hon. Friend is right, and the Indian nations were suddenly faced with a fait accompli as a result of the Select Committee report, why has litigation never been brought under English jurisdiction by the Indian nations? Local courts in Canada had found against Indian claims on occasions, and for them on others. Therefore, it seems that until now the Indians were prepared to accept the domestic jurisdiction of the Canadian judiciary.
It is not for me to say why they did not decide to litigate in the British courts. They may well have been advised to do so. It may have been sensible for them to do so when on other occasions they felt their rights challenged. I am saying that the Indian chiefs and those who represent Indians across Canada did not believe or accept that all those treaty rights had been ended.
Mr. George Cunningham
My right hon. Friend knows very well that I spent two years at the British High Commission in Ottawa. It was not uncommon for us to receive representations from Indian bodies in Canada invoking the relationship with the Crown. If someone in Britain thought that he could get something by appealing to the cour de cassation in Paris, he would do so. However, there was never doubt about the response that they received from the British Government, whether the request was sent to London, to the Palace, to the Foreign Office, to the High Commission in Ottawa or to any of the provincial offices. The answer was “No. Your relationship is with the Crown in right of Canada and Britain does not come into it.” So it is not the case that no one had said that to the Indians before. It was said over and over again. They knew perfectly well before they asked.
I cannot question whether, when at the High Commission, my hon. Friend or his seniors said this or that. What I do know from the Indians whom I have met and spoken to on many occasions was that they believed that they had a treaty relationship with the British Crown and that they regarded the Canadian Government as agents of the British Crown. If they believed that, even with all the sophistication that exists behind me and in front of me, this Parliament has a right and obligation to see that the Indians, if there is to be any change in the treaties forged with them, must be part of the consultative processes.
Even the hon. Member for Islington, South and Finsbury, who has been intervening in a most helpful way, will not argue that the Indians agreed, accepted, were consulted on or signed a piece of paper which swore away the treaty rights that they had gained from negotiations with the British Government and the Crown. Of course they did not agree. My hon. Friend knows that they did not. That is why I say in the new clause that there should be agreement with the Indian peoples. Everyone recognises that that has not happened.
The Joint Council of Chiefs and the executive of the National Indian Brotherhood, representing all the registered Indians in Canada, have passed a resolution which fully supports the new clause that appears on the Notice Paper in my name, as well as the new clause that 799appears in the name of the hon. Member for Sevenoaks. We recognise that a small minority of people in Canada not only feel that they have been misled and that perhaps their rights have been eroded, but that we are passing through Parliament a Bill that does not protect them. Of course, many of the rights that are derived from the treaties include matters that are essential to their way of life.
There are Indian land rights and reserves, including mining and water rights, their own form of self-government, including the Indian judicial system and law, the protection of culture and language, hunting, fishing, trapping and gathering. There are many rights that have been promised to the Indians but which they feel are in question.
Many hon. Members will have received individual or collective representations from Indian chiefs. They write in moving terms, which may easily be glossed over by hon. Members who say that they should know better. Chief Robert Manuel, president of the Union of British Columbia Indian Chiefs, writes as follows: The land is our culture. We teach our children our ancient Indian ways through hunting, trapping and fishing. On a spiritual plane, we live in communion with the animal kingdom and accept our responsibility as protector and custodian of the gentle balances of nature. He goes on to express deep concern about what may happen.
As my hon. Friend the Member for Hackney, Central rightly said, the rights have not been spelt out. As the right hon. Member for Down, South said, section 35 is not in the charter of rights. We ought to know the Canadian Government’s view of those rights. They should be set out clearly and understood in Canada, by the Indians, in this Parliament and by the British public who have accepted the responsibility. Those rights should be known before we take the final step of patriating the constitution to Canada.
The Canada Bill adversely affects the Indian nations in two ways. First, it removes constitutional protections originally set in place as permanent guarantees by the Crown and Parliament. Secondly, it provides the federal and provincial Governments of Canada with a mechanism to extinguish Indian rights. As the hon. Member for Essex, South-East, who is no longer in the Chamber, has said, over the years there have been examples of ways in which Indian rights have been eroded. As I said on Second Reading, in other parts of the world native and aboriginal peoples have seen their culture, their traditions, their history and their local forms of self-government destroyed and stamped upon by the sophisticated mass because their rights were not properly protected.
If I speak passionately today, it is because I believe that this Parliament has the right and the duty to ensure—this is our last chance to do so—that the rights of the minority Indian populations of Canada are guaranteed. That is the purpose of my new clause.
Mr. Mark Wolfson(Sevenoaks)
I am glad to have the opportunity to speak after the right hon. Member for Norfolk, North (Mr. Ennals) and to deal with new clause 2.
The clause would delay the coming into operation of the Canada Act until certain steps had been taken, but it would not delay the passing of the Bill. Similar provisions allowing the Scotland and Wales Acts of 1978 to be brought into force or repealed by order, depending on the 800results of referendums in Scotland and Wales, provide a precedent as they, too, concerned important constitutional proposals.
If new clause 2 and the new schedule in amendment No. 23 were included in the Bill, the sequence of events would be as follows. The Canada Bill would become an Act of Parliament, although not yet in operation either in the United Kingdom or Canada. The Canadian Government would then have to pass legislation and take other steps to satisfy the conditions set out in the new schedule. When those conditions appeared to have been satisfied the British Secretary of State would lay a draft Order in Council before Parliament and there would be an opportunity for both Houses to discuss it. Until each House was satisfied, the Canada Act could not come into operation. That puts the effect of new clause 2 in plain English.
The new schedule seeks to establish an improved and more specific framework in Canadian law to protect the rights of the aboriginal people of Canada. I fully accept that it is for the Canadian Parliament to decide how this is to be achieved, but the new schedule provides a guideline on what has most concerned this House.
Indians fear that an unfettered federal Government. and provincial Governments exercising their rights could wipe out the Indian culture, language, way of life and land rights extremely rapidly. Those fears are real and should not be dismissed. The assimilation policy naturally leads to that conclusion and is in sharp contrast—I would say in total contrast—to the aspirations of the Indian people.
On Second Reading, I pointed out that majorities throughout the world are rapidly waking up to the importance, in terms both of human rights and of value to a country’s culture, of nurturing and developing the existing culture of native peoples. That new factor on the world scene, which has developed rapidly in the past 10 years, provides additional reason, if any is needed, for us to debate the issue now.
Section 35, as other hon. Members have said, has had a chequered history. It demonstrates that the Indian people in Canada are at risk in the natural course of arguments and discussions which are bound to take place between the federal and provincial Governments as Canada continues to develop and her constitution evolves. It is the Indian people who could lose in those debates.
The Indian case is now confidently stated and the Indian people are speaking more clearly than ever with one voice. I wish to spend a moment or two on this issue because it is one that has been aired in this debate and on Second Reading.
The Indians appeared to have difficulty in putting a concerted point of view. I agree that when the lobby first came to London the Indians had difficulty. There were many different points of view, some of them apparently conflicting but, not surprisingly, the necessity to argue their case effectively before this Bill came to Parliament has enabled them to put forward a much clearer and more concerted point of view than ever before. That is another reason why it is right that we should be considering their position in this Committee.
I wish to demonstrate, in their own words, how the Indians have achieved a clarity in putting forward their argument. I shall quote from a declaration of Indian rights. This document is signed by the Joint Council of the 801National Indian Brotherhood and is dated 18 November 1981. It was part of the catalytic effect of needing to put an argument together before the debate took place in the House of Commons.
I am glad that the hon. Gentleman has mentioned the declaration, which showed the extraordinary extent to which the Indian peoples—who have often been accused of divisions, which is not surprising since communications are difficult in such a huge country—have come together. It is remarkable that they were able to do so in November of last year to put forward their case with clarity and unanimity.
I am indebted to the right hon. Gentleman.
If the House finds the language of this declaration flowery, let there be no harm in that, for this is the Indians’ declaration, in their own words. It tells of what they feel and why they feel it. It is a declaration of their place in Canada today, directly linked to the wilderness Canada of long ago. It is a declaration of the place that they reasonably want to hold in the Canada of tomorrow. It reads: We the Original Peoples of this Land know that the Creator put us here. The Creator gave us Laws that govern all our relationships to live in harmony with nature and mankind. The Laws of the Creator defined our rights and responsibilities. The Creator gave us our spiritual beliefs, our Languages, our culture, and a place on Mother Earth which provided us with all our needs. The Creator has given the right to govern ourselves and the right to self-determination. The declaration goes on to set out the principles on which the treaty and aboriginal rights are based. I shall not quote every detail, but three short paragraphs demonstrate the nub of the Indian point of view: Any amendments to the constitution of Canada in relation to any constitutional matters which affect the aboriginal peoples, including the identification or definition of the rights of any of those peoples, shall be made only with the consent of the governing Council, Grand Council or Assembly of the aboriginal peoples affected by such amendment, identification or definition. Does not that make the point that has already been aired by several speakers today that, at present, the Indians have no system whereby they are adequately consulted about changes which affect them? They wish to be involved in such discussions and that seems to me a reasonable wish.
The declaration goes on: A Treaty and Aboriginal Rights Protection Office shall be established; A declaration that Indian Governmental powers and responsibilities exist as a permanent, integral fact in the Canadian polity. The House will agree that that is, by any standards, a clear and moving statement of where the Indian nations, the first nations of Canada, stand.
It is clear in Canada that there is real and reasonable concern about the way in which the Canadian Government have treated Indians in the past. Articles from the Toronto Globe and Mail have already been quoted in support of that.
I now want to address myself specifically to the three paragraphs in the new schedule. The first paragraph deals with treaty rights. It says: 802″Formal acceptance and confirmation of all aboriginal, treaty and other rights and freedoms recognised by the Royal Proclamation of 7th October 1763 and recognised and confirmed by—
- (a)the various treaties made between the Crown and nations or tribes of Indians; and
- (b)the various settlements and agreements made or entered into by the Crown with Indian peoples, including declarations and judgments accepted by Indian peoples.
At present, the Indians do not feel that under the Bill as it stands their aboriginal and treaty rights are properly guaranteed because section 35 merely recognises and affirms them. It does no more than acknowledge and confirm the existence of these rights at the time of the enactment of the Canada Bill. There is a further demonstration of this uncertainty about their rights in the insistence of the provincial premiers in applying the word “existing” to aboriginal and treaty rights.
Secondly, the exact nature of treaty and aboriginal rights is further diluted in the Bill because status Indians are lumped in with the Metis who have no recognised treaty and aboriginal rights. Indians believe that the proposals before Parliament fail to protect their rights under the treaties. What they are asking is that a patriated constitution should spell out in detail Indian rights, and should entrench them.
Sir John Biggs-Davison(Epping Forest)
Has my hon. Friend left his exposition of the new schedule?
No, I have not.
Sir John Biggs-Davison
When my hon. Friend speaks of the right of access to the Crown, presumably he means the Crown in right of Canada and in effect the governor-general.
I wish to make clear that I am still dealing with the first paragraph of new schedule 23. I am trying to clarify why the Indians feel uneasy. A patriated constitution must spell out in detail Indian rights and must entrench them. Only in this way can the Crown’s obligations towards the Indians be fulfilled. This is all the more crucial if the patriated constitution causes a shift in balance between the provinces and the federal Parliament.
It is inequitable that only the views of one party to the treaties have been sought. From the Indian perspective, the Crown originally was being allowed to use their lands and obligations were extracted from the Crown in return for that grant. The Crown may use and share Indian lands provided that it carries out its treaty commitments. The Indian argument is that it is to turn history around to speak of the Indians being permitted by the Crown to continue to use their own lands.
Mr. Nicholas Winterton
Can my hon. Friend be more specific? I believe that the whole argument revolves around the mineral rights that undoubtedly exist within territories and lands over which the Indians have rights. They believe that the rights to the land could easily be revoked under the Bill as it stands. Is this my hon. Friend’s analysis? Does he share my concern that the Indian peoples and the aboriginal peoples of Canada could be deprived of valuable mineral resources on which they are sitting and over which they have rights? As my hon. Friend has indicated, the Bill appears to turn completely round the original agreement that was the basis of the treaty between the Indian peoples of Canada and the Crown of Great Britain.
I am such indebted to my hon. Friend. I agree that mineral rights are crucial to the argument. At present, and in the past, the Indian peoples have been particularly concerned with hunting and fishing rights. Those rights were relevant at the time to their way of life. As their way of life changes, so mineral rights become increasingly important. It is interesting that only in recent years have the Navaho Indians in the United States, after many attempts, secured effective rulings in the courts that give them a share of mineral rights in their territories. It has taken them a long time. Examples from Canada appear to be lacking.
Mr. Nicholas Winterton
It is surely the experience of the American Indians that explains why the Canadian Indians are so concerned. The Indian peoples of the United States have been virtually decimated. Their numbers are now so few that they are scarcely of relevance in people’s minds. This is not an experience that the Canadian Indians wish to go through.
The likelihood of decimation is, I think, no longer relevant. I used the example of the Navaho Indians’ success in achieving recognition of their rights in order to strengthen the argument that we must ensure that rights exist for the Canadian Indians before the Bill is returned to Canada.
The second paragraph of my new schedule refers to Formal recognition of the inherent right to Indian government within the Canadian confederation”. This is concerned with ways in which the Indian people could be involved within the federation that would produce some opportunity for self-government. The question for many people is whether this proposal is realistic and whether there are examples to demonstrate how the idea could be developed. My answer is “Yes”. In Saskatchewan, there has been effective development of Indian self-government in its relationship with the provincial Government. I would commend that example to the House as a route down which provincial and federal Governments might move.
I should like to develop discussion of the Crown in Canada as opposed to the British Crown. In the Indian mind, it is only perhaps now, as a result of debates taking place in this House, that a real understanding of the position of the Indian people in relation to the Crown is beginning to be understood. It is not reasonable to argue that it should have been obvious to them since 1928. It was not obvious to them. We are dealing with the reality rather than what we believe should be the situation. It is perhaps not surprising that the situation was not clear. No action, so far as I can discover, was taken to put the facts clearly to the Canadian Indians when the change took place. From my experience when I lived and worked with the Indians, they made a great deal of their relationship with the British Crown. There was an old fashioned loyalty to the Queen in Britain that the Committee should not easily dismiss.
I turn now to the final paragraph of my new schedule that refers to the identification, definition and implementation of the rights referred to in the first two paragraphs. This boils down to the essential need for the Indian people to have a more positive involvement with the Canadian Government over decisions that will be taken by the Canadian Government and the Canadian Parliament which affect their rights and their position.
At present, they are deeply concerned that the planned constitutional conference may not give them the 804opportunity to air their views and give them a proper standing at the conference. The federal Government will be there in the shape of the Prime Minister. The povinc ial Government will be there in the shape of the provincial Prime Ministers. But the other nation, in Canada the first nation, will not, as things stand, have any direct representation. It wishes for a place at the conference table.
It is up to Canada and the Canadian Government to decide how best this desire of the Indian people can be achieved. However, it seems to me correct and right that this House, through the new clause and the new schedule, should demonstrate clearly to Canada our concern about the situation as it now stands and our wish that improvements should be made.
It is a great pleasure to follow the hon. Member for Sevenoaks (Mr. Wolfson). The hon. Gentleman typifies a large number of hon. Members who have a real knowledge and experience not only of Canada but of Indian peoples. We are dealing with a group of people who live far away, yet there is considerable knowledge of their way of life and their aspirations, not just as a result of the lobbying that they have undertaken since July 1979 but also because hon. Members have received an enormous number of letters from Indians and from people who have a great affinity with the native peoples of Canada.
Hon. Members often adopt a mood of self-congratulation. However, last week’s debate was excellent in that Parliament gained considerable knowledge on various aspects of the Bill. We can be rightly proud of that debate. As someone who has been involved with the native peoples since they began then- campaigning two and a half years ago, I am pleased with their progress. It was started and sustained by a small number of people whose campaign was blowing in the wind. It has now almost become mainstream political activity. The whole of last week’s debate centred round the rights of native peoples.
I am proud that the House of Commons was and still is prepared to give a good hearing to native people’s claims. Perhaps last week’s vote against the Bill was not as high as I or many people hoped or anticipated it would be. However, it was important to listen to the natives’ demands because, as the hon. Member for Sevenoaks appreciates, they hold the Crown in enormous affection. When they visited Britain in July 1979, they sported medallions given to them by Indian agents on behalf of kings and queens. One wonders cynically what was exchanged for those medallions. However, they hold the monarchy in enormous esteem. It is an indictment of the Canadian governmental system that the Indians seek recourse to our courts and to persuade hon. Members and members of the House of Lords. Perhaps the Canadians should examine their consciences over that aspect.
The irony of the debate on Indian rights is that North America was supposedly discovered by Europeans who apparently gave them control of that vast continent. Of course, the continent was discovered 30, 000 years previously, by the Indians. In the views of many jurists and politicians, aboriginal rights, therefore, needed to be protected. Native Canadians cannot be lumped together with the immigrants who arrived over the past 400 or 500 years—English, French, Greeks and more recently the Asian Indians. They are not the same as those people; they 805are different not just culturally, linguistically, geographically and in moral attitudes, but because they were there 30, 000 years before the other immigrants came. Those differences give them rights which must be entrenched in any constitution. They have certainly not been entrenched up to now.
I do not criticise the Chair, but I was disappointed with the grouping of amendments. To spare the Committee the tedium of listening to eight speeches on my amendments, I hoped to deal with two sets of amendments—those to section 35 relating to the use of “existing”, and those concerning the conference to be established after the legislation is passed. I hope that I shall be able to speak towards the end of the debate and conclude with the other subjects in which I am interested.
I shall not speak at a length which may be compared with that of “Gone with the Wind”, but it may save time if I divide my remarks into two parts, like that great film as shown by the BBC at Christmas.
Hon. Members last week and today asked why we are involving ourselves in the Canadian constitution, and why we are concerned about Canadian Indians. There are many explanations, and hon. Members have referred to the human rights arguments, which are overwhelming. The trouble with academics and politicians is that they tend to confine their conceptions and analyses of human rights to Argentinians, South Africans, Poles and Russians. We tend to forget people on whom has been perpetrated one of the greatest international crimes of modern history—the destruction of the ways of life of indigenous populations, not just in the Americas but in Australasia, Africa and China. We also tend to forget what Stalin did to the tribal indigenous peoples of the Soviet Union. His actions were an appalling disgrace, and yet we tend to forget them.
The Canadian natives are a neglected people. The British have certainly played their part in this neglect. The indigenous people of Tasmania no longer exist, due almost completely to the activities of our predecessors. There is a growing concern about the way in which we and our predecessors treated indigenous peoples. We treated them shamefully, and that must be reflected in legislation. The Indian people are campaigning not only within their own country—by “own country” I mean the lands they once controlled, albeit in an aboriginal sense—but in foreign countries. It is testimony to the growing maturation and sophistication of these indigenous peoples that they have the confidence to travel across the Atlantic to try to persuade British Members of Parliament. In addition, they are using international laws and institutions to support their cause.
Human rights are an obligation on all States. Rights are conferred on people by being born and not simply by living within a specific society. Canada has, rightly, a good reputation in human rights and I believe, therefore, that it will stand at the bar of international and domestic opinion for the way in which it has treated the native peoples of Canada.
The moral and human rights arguments about why we should be involved with native peoples are very strong. Many hon. Members have remarked on the legal arguments. Lord Denning pronounced against the Indians’ legal claims and said that the obligations were on the 806Crown in Canada and not on the Crown within the United Kingdom. If people are so certain, as many of them appear to be, let a definitive judgment be made by the House of Lords. If that view is correct, the argument will be completely answered. If it is not decided by the House of Lords, and if we legislate regardless of such a possible ruling, the Indian people will feel that their rights have not been fully acknowledged. In that way, the French Canadians living in Quebec will consider—this is almost a self-fulfilling prophesy—that the English-speaking nations are ganging up on them.
Therefore, until the House of Lords tells me otherwise, I shall argue that we have a legal obligation towards the native peoples of Canada. It may be disheartening for Canadians and embarrassing for hon. Members to admit such an obligation. However, Lord Denning said: To my mind, in strict constitutional law, the Dominion of Canada is not completely independent”. That historic anachronism, which will be ended shortly, allows us legally as well as morally the right of debate.
Canada’s treatment of native peoples has led them to come to the United Kingdom. I was delighted to hear the hon. Member for Sevenoaks talk last week about his experience among the Nishgas. He realises what many Canadians do not realise, and that is the richness and diversity of the various bands and tribes within Canada. He referred to their rather flowery language. The Indians may not have a written record of their past and they may not have produced a Shakespeare, but they have an abundance of language and a richness in culture that those of us who visited the exhibition “Sacred Circles” two or three years ago fully appreciate.
That which is happening among native peoples in Canada is happening among native peoples in America, South America and Australia. They now realise that they must fulfil their destiny and their obligations to the members of their bands and tribes to determine their own destiny. Perhaps the aspiration of the conquerors, the conquistadores of Spain and Portugal, was to obliterate and annihilate those whom they dominated in the Americas. However, those who were not disposed of were Christianised and taught the ways of a so-called higher civilisation. These people realise that they had a culture and that it was not obliterated by a dominant white culture.
There is now a renaissance and a resurgence. These peoples governed themselves in the past and they did so more competently than they have been governed subsequently under the paternalistic Indian Acts in the United States of America and Canada. They now seek to play a greater part in the running of their own affairs. If Canada does not recognise that and continues paternalistically to treat the native peoples as their wards, governing them by Indian Acts while only allowing them some limited self-government, Canada will face considerable problems in future.
I applaud the way in which the various organisations have been campaigning. In many instances they have faced disappointment and failure. Whatever happens in the United Kingdom, whether we win of lose any votes that take place in the House of Commons or in another place, I believe that their campaigning in the United Kingdom will be seen by future generations as an important stage in their political development and in the inevitability of the Indian nations of Canada playing an infinitely greater role in the governing of their affairs than hitherto they have been permitted.
807It is clear that there is sympathy for the Indian nations among Canadian Members of Parliament. In reports of debates in the Canadian House of Commons over the past two years we come across the names of Manly and Fulton, who are prepared, often against the wishes of their peers and contemporaries, to put the case of the native peoples.
The Canadian Parliament did not do justice to the native peoples of Canada. Nowhere is that more obvious than in the shameful section 35. The section is an ambiguous and inadequate soluton to the historical and widespread erosion of Canadian aboriginal rights, which include rights of land entitlement, rights to mineral resources on and under the surface and rights to have their aboriginal and treaty obligations fulfilled. These rights have been largely trampled upon and ignored in the long and tragic history of the North American Indians.
Those of us who have read “Bury my Heart at Wounded Knee” remember the quotation from Sitting Bull, when he said: There was one promise the whites made that they kept. They said that they would take our land and they took it”. Perhaps the treatment of the Indians in Canada was not as shameful as the treatment of the Indians south of the border. With a few exceptions it was not a violent conquest, but it was a conquest. The way in which the whites sought to assimilate them into the dominant culture—sometimes it was done paternalistically, sometimes it was done with the best of motives and sometimes it was done out of pure malice—amounted to a strange combination of motives among politicians and administrators. To meet the major task of righting the wrongs imposed on the native peoples of Canada, the Canadian Government and Parliament offered only a paltry and watered down piece of legislation. According to one Canadian Member of Parliament, Jim Fulton, it was reached amidst
last minute treachery by 11 men whose smiling, outward reassurance put the knife to over 1 million aboriginal Canadians. There are 13 legal definitions of “native person”. These include the Inuit or Eskimo, the full-blooded status Indian, the non-status Indian and the near 1 million Metis, or those of mixed blood. They have their different organisations, including the Native Council of Canada that represents those of mixed bloods, the National Indian Brotherhood that represents the status Indians and the ITC, or Inuit Tapirisat, representing the Eskimos. They are united in believing that a fast one was pulled on them by the Canadian Government.
The history of the entrenchment clause has been narrated. I hope that hon. Members will be under no illusion about what was done to these peoples in Canada by the Canadian Government and Parliament. I am pleased to say that many of them recognise what was done and have a continuing sense of guilt.
What was done to the Indians in the last century was nothing compared to what is being done to them now. We are being used. We are victims of the relationship between the Government of Canada and the provinces of Canada and the native peoples. As my hon. Friend the Member for Hackney, Central (Mr. Davis) has said as spokesman for the Opposition, we are being used as part of the process of tricking the Indians of Canada out of more land. One would think that they had been relegated to a sufficiently small land mass to allow them the sanctity of the area which they had been accorded as a result of treaties or 808other relationships. In his eloquence Jim Fulton talks of the agreement between the Government and the provinces. He has said that it bears the savage tatters of First Ministers’ consensus. I shall examine briefly the chequered history of section 35. As I do so the Committee will recognise that the inadequacy of the guarantees to the aboriginal peoples is the result of a deliberate and calculated Government programme designed to assimilate the native peoples and to extinguish over a period their remaining treaty and aboriginal rights.
Moreover, the legislation that emerged from Canada had no real Indian consent. There was no real Indian consultation and participation in the legislative process.
Can we feel any sense of surprise that the aboriginal peoples are sceptical about this ignoble compromise? Is it any surprise that they mistrust it? Can we fault them for doubting the words of Canadian politicians, who gave them repeated assurances that the inclusion of “existing” was superfluous and made no difference and that their rights were not going to be diminished? They have every right to be sceptical and mistrustful. We have an obligation to the Indian peoples of Canada to seek assurances that their legitimate aboriginal, treaty and other rights will be upheld. That is what we ask.
Section 35 has had a sordid history. As it stands, it is materially defective and inadequate, both in itself and by reason of its vulnerability to the amending formula under part V. Despite assurances, Indian rights are not entrenched in the constitution. Nor are they secure from legislative amendment. Initially they were not entrenched in the constitution but then they went in. The Minister of Indian Affairs, then John Munro, said: Unless the resolution is approved by this House, the aboriginal interests and treaty rights will become tokens in the process negotiation. So it was Mr. Munro who wanted to see a better relationship with the Indians. As a result aboriginal rights were ostensibly entrenched within the constitution.
Some native peoples were happy at what appeared to be entrenchment but unfortunately the history of the Indian nations is such that any benefits that accrue to them may easily be taken away. This is what happened as a result of the infamous accord which stripped the section of substance and bowed to provincial fears that aboriginal protection would be detrimental to provincial Interests. Between April and November 1981 the provinces and the federal Government, but not, I hasten to add, the aboriginal peoples, were engaged in the discussions that led to the so-called accord which became the second resolution and the founding of the Canada Bill.
During these negotiations the provinces succeeded in having the section that I have referred to deleted from the constitutional proposals. In this way the federal Government gave in to provincial pressure, thus proving the vulnerability of the section as a matter of policy. So the section without entrenched rights lacked any substantive guarantee that Indian rights would be preserved.
Many Canadian Members of Parliament were deeply ashamed of what had happened as a result of the so-called accord between the federal and provincial Governments. The Honourable Warren Allmand, Liberal, said: If we can entrench certain rights regarding the French and English languages, fundamental freedoms, democratic rights, 809mobility rights, equalisation and, now, the right to resources, then surely there is no reason why we cannot entrench at this time certain basic Indian and Inuit rights as well. The Honourable Jim Fulton said: Various comments have been made since the statement made by the Minister of Justice in the House last night. The addition of that word has been described by one famous Canadian as `quintessentially a liberal compromise. The changes to Section 34’— as it was in the previous Bill— add unnecessary ambiguity to it. It symbolically impairs the section’. I think that is most crucial because the native people have been treacherously dealt with, not only in terms of the original resolution with no positive statement, but on November 5 when the first ministers never said publicly, either in their own provinces or when they came to Ottawa, that it was their intention to dump it. Another Member of Parliament, Jim Manly, indicated the perfidy of the Canadian Government and the provinces. As a result of campaigning there was again the ostensible inclusion of the entrenchment of aboriginal rights but with the addition of the word “existing”. This is what we shall be voting upon later.
Another deficiency in what had happened was the lack of consent by the Indian peoples. When the hon. Member for Stroud (Sir A. Kershaw), the Chairman of the Select Committee on Foreign Affairs, began the investigation into patriation it was realised only by a small number of people that provincial consent was a prerequisite to this Parliament legislating. Now that the provinces, with the exception of Quebec, have got what they want, why should there not be consent secured from the native peoples who should have a greater input into decision-making in Canada in regard to the constitution?
I have before me an affidavit signed by Del Riley, president of the National Indian Brotherhood, which represents 300, 000 status Indians. He is a man of considerable knowledge of relations between native peoples and the Government. He said that as an observer to previous conferences of First Ministers the Brotherhood was precluded from participating in the discussion… The draft of the Constitution Resolution which emerged from the All-Party Committee did not fully reflect the Indian position as put forward by the Brotherhood. The Brotherhood thereafter continued its attempt to ensure that aboriginal and treaty rights would be properly entrenched in the Constitution by intensifying its lobbying of Parliamentarians but without success. He goes on to say that there was not consultation. The affidavit proves that consultation did not take place.
As regards the affidavit he said: the manner in which the word ‘existing’ was included in clause 35 of the Constitution Resolution betrays a lack of good will towards Indian rights on the part of the provincial governments and of the Government of Canada. If hon. Members want evidence of the treachery and of the way in which the provinces felt that the protection of aboriginal rights would be to their detriment, they should read an article in the Toronto Globe and Mail in regard to a leaked document. Many hon. Members have files bulging with leaked documents from Canada. This one gave details of a letter in which the Attorney-General of Ontario, Roy McMurtry, indicated to Mr. Chretien that the entrenchment of aboriginal rights would be to him a disaster. The letter shows the obstacles that are in front of the native peoples in Canada.
The provinces feared that aboriginal and treaty rights, if honoured, would be to their detriment. Therefore, they 810opposed protective legislation. The inclusion of the word “existing” is resisted strongly by the Indians. It follows that there can be no confidence that the section, even with its imperfections, will survive the use of the amending formula, not only because it has once been removed but also because of the reason for its removal. It is therefore vitally important to the Committee that section 35 not only be improved by removing its vagueness and imperfections but that it is entrenched. Amendment No. 41 would achieve that objective.
It would protect the section through a requirement that no proclamation shall be issued by the Governor-General, who in Lord Denning’s judgment has a special responsibility for Crown obligations, affecting rights or freedoms of the aboriginal peoples without their assent.
I believe that the reaffirmation of the Royal Proclamation as an entrenched provision of the Canadian constitution and Lord Denning’s insistence that no Parliament should do anything to lessen the worth of these guarantees put the need for such entrenchment in the constitution beyond doubt. In my view, the words “No Parliament”. in Lord Denning’s judgment refer to the United Kingdom Parliament, too. That reference also makes it clear that we have the power to legislate no less than the federal Government and the provincial legislatures have under the amending formula.
A strong case has been made that the word “existing” is detrimental to Indian interests. I have seen a letter written by the legal adviser to the National Indian Brotherhood, Mr. Badcock, who says: ‘existing’…modifies the phrase ‘aboriginal and treaty rights’ in a vague and uncertain manner. This gives the courts discretion narrowly to interpret aboriginal rights. It is most likely, he says, that they will interpret the clause to cover only aboriginal and treaty rights that could be demonstrated by evidence to have been in existence at the time of patriation. He also says: the word ‘existing’ would probably be interpreted to mean only such rights as were written down at the time of patriation, such as treaty rights, or such aboriginal rights as were recognized by the federal and provincial governments at that time. The Indians are very worried about that, with every justification.
Professor Douglas Sanders, a distinguished Canadian academic, a specialist in Canadian law relating to the native peoples, has, in a brief that a number of hon. Members have seen, added his considerable weight to the argument that the use of the word “existing” will be detrimental to Indians. He says that it is detrimental from a number of perspectives, not least that it will perpetuate the differential treatment of the various Indian, Inuit and Metis peoples of Canada. He says: Under Canadian law, aboriginal people fall into at least thirteen differing legal categories, not three. The inclusion of the word ‘existing’ in the section would appear to entrench the differential treatment that presently exists in Canadian law within each of the three categories, ‘Indian’, ‘Inuit’ and `Metis’. This is particularly true of Indian hunting rights, which indeed exist differentially within Canada.
Professor Sanders, too, fears that the Federal Government and certain provincial Governments have taken Indian aboriginal rights to land, effectively without compensation, in parts of the country. The Governments in such circumstances do not recognise any claim for 811compensation. In parts of Canada-and I believe particularly in British Columbia-no past claims will be recognised: Those who have lost the most will get nothing. Professor Sanders also says: Differential treatment also exists in relation to reserves. Indian ownership of subsurface rights is recognised only in certain regions. In British Columbia the province is able to take up to one-twentieth of reserve lands for public purposes without compensation (something not permitted in other parts of Canada). Enough has been said by academics, politicians and Indians themselves to show that the inclusion of the word “existing” is a disaster. It must be removed. Even if we are not successful in the vote, I hope that the Committee will vote in such a way as to show the Canadians that they must reconsider the matter, as many of their own Members of Parliament have urged them to do.
I urge the Minister to seek advice on section 35. We could be unwitting partners with the Canadian Government in a process that is—to use a word that has become popular—duplicitous. The matter relates to the Canadian Lands, Oil and Gas Act, passed by the House of Commons and Senate on 18 December 1981, just before Christmas. All sorts of pieces of legislative skullduggery are passed when a House is rising. I shall not go into the legal complexities, other than to say that the Act comes into force in part by proclamation.
What is worrying is that the Canadian Government deliberately passed that legislation in such a way that if it comes into force in the interval between the Royal Assent for this Bill and the bringing into effect of schedule B there will be a disastrous effect on the Indians, particularly in the light of the use of the word “existing”. That will put the word in an entirely new context, confirming to the Indians what they have known all along, that the Government of Canada are seeking to use their power to damage the Indians’ fundamental rights.
The Indians fear a process by which their culture and identity will gradually be eroded. We in this House must try to avert that. Even though we may not have the power to defeat a Government, we may at least be able to influence the way in which decisions are made in Canada.
My second amendment is part of a group of amendments that I have tabled pertaining to section 37 and the constitutional conference, a conference that Lord Denning and some hon. Members believe will accord the native peoples the rights to which they are entitled. I have a less tolerant view of what may happen, and more cynicism than Lord Denning had.
Can my hon. Friend, who has been following these matters very carefully—more carefully than I have—give any explanation why it was decided to have a constitutional conference a year after the Bill’s coming into effect, rather than a year before this Parliament was presented with it? Why did the Canadian Government decide to do things that strange way round?
I shall come to that matter shortly. I repeat what I said earlier—that the Indian nations of Canada have not been recognised as such. They are tolerated and are still treated in a paternalistic and patronising way. People are saying “The Indians are presenting an extreme case. They should simply accept that they are Canadians like the rest of us and accept their 812lot in life.” But the Indians realise that their future is at stake and that they should have been consulted. Had they been consulted, and had agreement resulted from the consultation, much more legitimacy would have been bestowed on the constitution than it has now. Many people will believe that the Canadian legislature, this House and the House of Lords have been railroaded, have been used, to deny even further the legitimate aboriginal rights.
This part of my speech deals explicitly with amendments 34, 35, and 37 to 39. The aboriginal peoples of Canada want a positive assertion that their native rights exist, that they existed in the past and that they will continue to do so in the future.
The reluctance of the federal Government to do that in the Act does not allay Indian doubts and fears about the policies of the federal Government and the provincial Governments. The Indians feel that it is essential that their contribution and involvement at the proposed constitutional conference is real and meaningful, and there is evidence to suggest that it will be neither, because the history of consultation has been a history of bogus consultation.
I know that some hon. Members attended the First Ministers’ conferences as delegates, and I have spoken to Indians who attended as observers. The Canadian Government like to say that they invited Indians to attend as observers, but one distinguished Indian, who was formerly president of the National Indian Brotherhood, said that he might just as well have watched on television, as that was the extent of his observer status.
The Indians and the Native Council of Canada want real involvement by native peoples in the conference one year after patriation. Rights cannot be seen to be protected merely by the assertion that they have not been taken away. If the rights are not protected and the natives cannot define them, that, I believe, will be seen as detrimental to their interests.
In the context of the proposed constitutional conference involving the federal Government and the provincial Governments, the Indians know to their cost how little reliance they can place upon most of the provincial Governments. As I said last week, our predecessors, the Select Committee on Aborigines, in 1837 warned the House against conferring powers on provincial legislatures to deal with Indians. They cannot be relied upon. The closer the provincial legislature is to the Indians, the greater the likelihood that Indian land will be stolen and the greater opportunity for local politicians to take away the Indian people’s diminishing rights. That was advice well taken, and although the Indians have no great trust in the federal Government, the trust that they have in most of the provincial Governments is infinitely and justifiably less.
The provinces are less sympathetic than the federal Government towards native rights. If any future conference is to consist of the provincial Governments and the federal Government, with Indians looking on as spectators to determine Indian rights, one should not be surprised if the Indians are incredibly dubious about whether it will be to their advantage.
Section 37, unamended, does not explicitly set out NA ho the Indian representatives at the conference should be. There will be a great opportunity for the federal Government to continue the process of divide and rule. The Indians may not be as one. How could one expect it in a vast continent where they are so divided in terms of 813organisation, distance and ethnic background. Some tribes have nothing in common linguistically or physically, and it is not surprising that there are differences in perception and history. It is something on which the federal Government is able to play as part of the process of divide and rule; a process that they have perfected, along with ourselves, in mastering that nefarious practice. I doubt whether such a conference will be anything but a disaster for the native peoples.
Mr. J. Enoch Powell
Is the hon. Gentleman not alarmed by the purposes that are laid down for the conference in section 37(2), namely, to identify and define the rights to be included in the constitution of Canada? As I understand it, that part of the Bill is the constitution of Canada, and it is not impossible to interpret it in the sense that there are no rights at all unless and until they have been identified and defined by such a conference. Does the hon. Member not regard those words as potentially going far to take away anything that is conceded in the rest of the document?
I shall comment shortly on the point raised by the right hon. Gentleman. In my amendments 34, 35, 37, 38 and 39 I have sought to improve the situation of the Indians. Amendment 34 relates to the conference, which should include the Prime Minister and the representatives of the aboriginal peoples, and exclude the provinces.
Amendment 35 lays down that if there is no agreement an aboriginal rights commission should be established, which can then do the job in a much more neutral way than by the provinces and the federal Government together hatching their plots.
Amendment 37 lays down that the representatives of the Indian peoples should take an active part in the conference and make a real contribution, not the bogus contribution that many of us fear under present circumstances. Many native groups say that if the legislatioon goes through they will play no part in the bogus conference, which will be stacked against them, and where their rights, far from being extended, are likely to be diminished.
Amendment 38 deals with who the representatives are to be.
Amendment 39 goes into greater detail about the aboriginal rights commission. I have divided one of the amendments to ensure that the aboriginal rights commission is taken out of the reach of the repeal section 35, which ends the constitutional conference one year after the Act comes into force. That has the effect of saying that the Indians issue might never have existed. The fact that the Indians and other groups are not mentioned in the second 15-year conference lends weight to the assumption that the federal Government and the provincial Governments think that there will be no Indian problem 15 years from now. In other words, it will be a process of paper genocide. It will be a process of termination—not extermination, which failed—by which their Indianness and their aboriginal rights will be extinguished and their assimilation will be completed. The Indian will have been destroyed.
It is ironic that about the same period had elapsed since the infamous speech by President Trudeau in the late 8141960s. The White Paper that was published in 1969 verified that he felt that the Indians should be assimilated within a few years. This is the second attempt at assimilation. The Indians are aware of that. We should make the people of Canada aware of it, because a crime of enormous magnitude will be committed, one of which Canadians should feel ashamed, should they be tricked into supporting it.
A constitutional conference one year after the passage of the Bill is wholly inadequate. The Canadian Indians must be in a strong negotiating position. Under section 37 their position is weak. I shall briefly examine how hopeless and inadequate the constitutional conference to discuss aboriginal rights is likely to be. In the first place, the conference is between the Prime Minister and the provinces, as stated in section 37(1) and (2). The aboriginal peoples are invited merely to participate in discussions. Their treaty and other rights are at stake, yet the parties that agreed to remove section 35 and which control the amending formula will effectively adjudicate at the conference under section 37(2). That is a biased jury, if ever I came across one.
Originally, the conference was to be an annual event. Under the first resolution it was to be annual, but again, with no consultation with the aboriginal peoples, that was reduced to one year at most. Under the contrived effect of section 37(1) and section 54, it simply ceases to exist. Part IV is repealed one year after the Act comes into force. There is not even any indication of how long the aboriginal peoples will participate at the bogus conference. It could be a few days or weeks. We do not know what the agenda will comprise, except that it presupposes that a decision will have been taken beforehand on what matters directly affect the aboriginal peoples of Canada. The agenda is specific in one respect. It includes the identification and definition of aboriginal rights—presumably they will be imposed by the amending formula under section 38 by agreement between the federal Government and provincial Governments. They are not proposals for discussion of the identification and definition of aboriginal rights. The aboriginal peoples are merely participants in those discussions. The meeting could be brief, with the federal proposals on the table for the Indians to take or leave. The gun will be levelled at their heads. Historical evidence clearly supports what they fear. It has happened in the past and could happen again.
Does my hon. Friend agree that the term “constitutional conference” is a misnomer? Normally when countries gain their independence a constitutional conference means that decisions will be taken. In this case, because Canada is what it is as a result of those decisions, one expects legislation and a Bill of Rights, but in part IV there is no requirement for any action except a conference.
My right hon. Friend’s analysis confirms my analysis and that of other hon. Members. It will be a bogus conference.
Sir Bernard Braine
Does the hon. Gentleman agree that constitutional conferences, as we have understood them in this Parliament and in our long history of decolonisation, have always preceded legislation?
I endorse the hon. Gentleman’s remarks.
The amendment proposed to section 37 would confine the conference to the federal Government and the aboriginal peoples, as it should be. It would exclude the 815provinces whose contribution would be detrimental to a meaningful agreement. That would make it a conference with round-the-table discussions on a proper basis. If agreement could not be reached at that conference, the definition and identification of aboriginal rights would be left to an independent commission, with proper duties and powers, appointed by the Governor-General. That is laid down in my amendment.
The amendments propose the right way to proceed, though I doubt whether this House or the Canadian Government would endorse that view. My amendments would meet many of the objections that the native peoples are voicing. Members of the Canadian Parliament have expressed considerable anxiety about the wording of the provisions for the conference. Mr. Jim Fulton of the New Democratic Party was appalled at the proposal. He said: Surely no Member of the House after voting unanimously to entrench a positive affirmation of aboriginal and treaty rights to apply in a chequer-board fashion in some Provinces and not in others, surely no Member of the House would want native organisations to participate in the constitutional conference set out in Part IV Section 37(2), with the prospect of up to three Provinces opting out of the agreement achieved at such a meeting. Surely this is tantamount to political blackmail. —I emphasise those words— and is at great variance from the good faith negotiations extended to this House. Jim Fulton has spoken most eloquently on this issue. A leaked document headed “For Ministers’ eyes only stated: There is also strong belief among the native leadership that Indian title, rather than being extinguished, should be continued, which is diametrically opposed to existing federal policy. I hope that hon. Members will ponder over that.
Against that background, it is understandable that the aboriginal peoples have great doubts about the success of this conference. It is essential that a commission should be formed in the event of the conference not reaching a general consensus. Therefore, I hope that my hon. Friends will look carefully at my amendment.
I apologise for taking so long on the first of my contributions. I shall crave your indulgence further, Mr. Weatherill, and hope that as you have heard only a few of my words you will not be prejudiced against calling me again. I asked to be listened to attentively, as I have been—I am most appreciative of that—because the House rightly spent a whole parliamentary day last Friday debating dogs. I believe that the native peoples of Canada deserve more consideration.
The two matters with which I have dealt, reinforced by what other hon. Members have said, are, first, that the word “existing” in section 35 is a disaster and must be removed, and, secondly, that the constitutional conference, with the likelihood of the Indians looking on as mere observers, will not advance their interests. It is likely to be part of the process by which their cultural, political and economic identity are even more detrimentally dealt with.
Therefore, when the time comes, I hope that the House will show the people of Canada and Canadian Members of Parliament that we have rumbled what is going on and, even though we may not be successful in the vote, at least a few consciences will have been pricked and perhaps the native peoples of Canada will have their real rights entrenched by Members of Parliament in Canada. Perhaps those in Canada who have a conscience about the way the 816native people have been treated will welcome our intervention. They may be kicking us now, but I suspect that they may thank us in the future.
The House is indebted to my hon. Friend the Member for Walsall, South (Mr. George) for his speech. We look forward with keen interest to what he will say in his second instalment. He made a passionate appeal to the body that should be at the Bar of the House today, and that is the Canadian Government. l cannot accept my hon. Friend’s invitation to join him in the Lobby, for reasons that I shall explain, but he has performed a service to the House and to the Canadian people by the manner in which he treated the subject
What would be the effect of the amendments if they were carried? It would be to amend the Act. However, to do that would be to alter the request that has come from Canada and to undermine what the Select Committee proposed as being the test cif acceptability for any request from the Canadian Parliament to this House.
Will my hon. Friend explain why he feels that it is inappropriate to consider any changes to the requests that we have received? To say that is surely to endorse a previous conclusion that this Parliament would be expected to put a rubber stamp on the requests that it receives. Perhaps my hon. Friend will explain why he feels that it would be wrong to do anything other than accept the invitation that has been put before us.
With respect to my right hon. Friend, I did not say that we should not do anything other than accept the invitation that was put before us. What we can do, of course, is to reject the resolution. That is one possibility.
I said that I do not believe that it would be right or proper for us to amend the Bill as such. Of course, we can do that. Mr. Speaker said that amendments can be accepted. We can vote on them and we can carry them. What then do we return to Canada? It would not be what the Canadians requested of the House, but something that we think would be better for Canada. That is neoimperialism with a vengeance. In my view, it would be quite wrong to do that. It would not be right in practice, or according to convention, for us to amend and then return the Bill. However, there is nothing to stop us from doing that. There is nothing to stop us from repealing the Statute of Westminster or any of the British North America Acts. However, we know and understand that there are political realities in the situation, and for that reason I do not believe that we can amend what is in the Bill.
I regret that very much. We see the Labour Party going along with a Bill which will give a second non-elected Chamber in perpetuity, whose members can lose their powers only if they themselves agree. So there is an entrenched second Chamber. It would be a bold man who said that any Senate would willingly vote itself out of existence.
The Bill contains provisions which, carried to their logical conclusion, could make impossible in Canada some of the things that I hold dear. The closed shop is but one illustration. However, I suspect that that is a matter for the Canadians. I do not believe that we should seek to amend the Bill in that regard.
Of course, we could reject the Bill. However, that is not on the cards, so we are left in the position of accepting the Bill. That does not, could not and should not mean that 817many amendments to the Bill should not be tabled for us to try to discover what is in the Government’s mind and, more particularly, what is in the mind of the Canadian Government.
Basically, we are debating an issue in which the principal party is not taking part. If experience on the Select Committee is anything to go by, I have a feeling that those of us who table searching amendments will fire questions at the Government only to be told that we have to accept what is there.
Mr. D. N. Campbell-Savours(Workington)
Is my hon. Friend suggesting that we could or should be patriating the constitution whatever it could have said?
No, I am not saying that. I am saying that the Select Committee, and I as a member of that Select Committee, accepted—on the logic of the case, and as a result of the passage of the Statute of Westminster—that it would not be right to refuse a request for patriation if the formula was broadly acceptable to the federal and provincial Governments of Canada as seeming to take a Commonwealth view of the situation. I am saying that that is so, whatever misgivings the House might have about the contents of the charter or the constitution.
Why does not my hon. Friend include the Indians? Can he explain why, in reaching that conclusion with which he concurs, the Select Committee did not feel it important that the Indian nations should also be satisfied participants? Why does he leave them out of his consideration? It seems most unfair and unreasonable.
I shall come to the question of the Indians in my own time. In some ways, the Select Committee played a part in the inclusion of the Indian question on the agenda. Although I may not like elements within this patriation proposal, it is a matter for the Canadians and not for us provided that there is general agreement in Canada according to the terms of the Statute of Westminster. Rightly or wrongly, fortunately or unfortunately, the Indians were not party to the Statute of Westminster. That is fairly obvious.
It has been rightly argued that the powers of the Crown in respect of the Indian peoples passed to the Canadian Government, if not at the creation of the federation, by the time of the Statute of Westminster. Indeed, the power retained in the Statute of Westminster related solely and directly to the powers between the provincial Governments and the federal Government. The role of the Indians was not considered at all. Because of that anachronism we can now discuss the position of the Indian people. It is right that we should discuss it, but we must see it within the context of today.
My right hon. Friend the Member for Norwich, North (Mr. Ennals) asked why we did not look at the question of the Indians. I have explained part of the reason. In addition, we examined whether the Indians had ever challenged in our courts the premise put to us by the Foreign and Commonwealth Office. The answer was that there had not been any challenge or court case. On the basis of the evidence that we received, it would have been right for the Select Committee to have stated merely that this matter had gone to Canada. However, despite the 818legalistic position, we had great sympathy with many of the views expressed and we gave a nod and a wink to the Canadian Government to signify that we felt that the issue had to be resolved. That is found in the Select Committee’s first report. In our final report, we went even further. We considered Indian rights. Partly as a result of intensive lobbying we spent much time on the Indian question. Again, we concluded that we had no conventional or legal rights. Nevertheless, we strengthened our position when we spoke about a constitutional conference being the proper forum.
That brings me to our absent friends, the Canadian Government. The House, like the Select Committee, has been most shamefully treated by the Canadian Government. Originally, a Foreign Office brief on the legal position was sent to the Select Committee. It was a travesty that was riddled with holes and was found to be so by the Canadian Supreme Court. However, the Foreign Office was prepared to be the Canadian Government’s post box. On Second Reading and in today’s debate there have been many appeals for a Government statement, on behalf of the Canadian Government, on how the Indian question should be approached at the conference. So far, there has been a deafening silence.
Although many hon. Members asked the Government last week for a statement, they have not told us their view of the Indian people’s position. The suspicions and fears felt by the native peoples of Canada have not met with any response. I do not go along with those who say that the Indian peoples face genocide. However, a policy of enforced assimilation may lead not to literal genocide but to cultural genocide. That is the real fear. The Canadian Government must show the House and the world that they will try to meet the legitimate fears of the minorities. In many ways, the task is difficult.
A friend of mine taught Indian children in northern Canada. One of the pupils in her class threatened to scalp her. The practice of scalping was not prevalent in that tribe, but that young man had picked up the idea from watching television.
In many ways that is the real threat to the Indian people and, perhaps, even to the Quebecois—the threat of the cultural assimilation and the disappearance of all the things that they hold dear. The different traditions, ways of life, languages and customs will disappear in the mass-produced culture that comes from the goggle-box and the transistor radio. The Canadian Government have a duty to tell us that those fears are unfounded and that they can give certain guarantees even before a constitutional conference takes place. Yet, as far as we are aware, the Canadian Government are not doing that.
My hon. Friend the Member for Walsall, South has already told the House that legislation went through the Canadian Parliament between the constitutional conference and the presentation of the Bill which could take away from the Indian people many of their mineral rights. The Canadian Government appear to be demonstrating a lack of good faith in such matters. For example, there has already been considerable discussion on the interpretation of the word “existing” in the context of the existing rights of the aboriginal and Indian people. Does that mean “existing” in regard to rights exercised now, or “existing” at the time they were first granted? Or does it mean existing in the sense that the rights are in a sort of limbo and have never been exercised but could emerge? We have been given no interpretation. However, we know that the 819word is causing more unhappiness and unease among the aboriginal people than perhaps it is worth. The Canadian Government must deal with that.
There is another reason why I shall not be voting for the amendments. If what my hon. Friends and Government hon. Members have said is accurate, even if we carry the amendments and we patriate, and even if the Canadian Government accept them, which are brave assumptions, the existing amending formula could derogate all the rights and claims sought by the Indians because they have no part in the amending formula. The provinces and the Houses of the Canadian Parliament do. The majorities in the Houses of the Canadian Parliament and in the provincial Governments can easily amend the position. Once again, we are left with the good faith of the Canadian Government. The problem is that those mainly concerned with the amendments do not believe that they can trust in the good faith of the Canadian Government.
What can we do about the amendments? I still hope that when the Minister replies he can put forward a case so convincing and strong that we perforce will accept that the Canadian Government have authorised him to say X, Y and Z. I hope that that will happen, but I have a feeling that it will not. Even if it does not, the exercise upon which we have embarked so far this evening—it is still early—should be carefully noted by the Canadian Government. As my hon. Friend the Member for Walsall, South said, Canada has an enviable international record in her role as a protagonist of the United Nations, in the present Prime Minister’s role in the North-South dialogue, in her role in overseas development, as a restraining influence upon the West in so many of its disputes and as a leading contender in trying to find a settlement in Namibia and elsewhere.
It would be terrible if Canada’s career abroad were to be besmirched by its treatment of people at home. I hope that, even at this late stage in the matters that have been before the House in one form or another for the past two and a half years, the Government will, if not to salve their own conscience at least as part of their duty to the House receive an undertaking from Canada that it could pass on the hon. Members to show how the matters will receive the attention of the Canadian Government when the conference is held. If the conference takes place and the worst predictions of my hon. Friend the Member for Walsall, South are borne out, not only the good name of Canada but ours will be at risk. Therefore, if we say, rightly, that we cannot amend and we are left with the choice of rejecting or passing the Bill, and we pass it, we should do so with some clear undertakings from the Canadian Government that they will honour not only the letter of the legislation but, more importantly, the spirit.
The Indian case has been advanced with great passion by hon. Members on both sides of the House. However, the Indians can overstate their case. They do not have a right of veto over the development of that enormous country. They have a right to discuss, to take part and to reach agreements, but they cannot claim a right of veto. Even if we attempt to insert the right of veto in some of the forms suggested by my hon. Friends, the amended formula contained in the Bill prevents that from happening effectively.
Therefore, the Indians should try to spell out what they regard as their bargaining position. The tragedy is that, all 820along the line, while other people have been stating their position, never once have we had an equal courtesy from the Canadian Government. I trust that the Canadian Government will wake up to their responsibilities in this matter.
Mr. George Robertson(Hamilton)
This has beer a long, important and informed debate on what is clearly an important issue and a significant Bill. There has been sober discussion of a number of points that concern hon. Members, although the legislation will apply to another country.
The hon. Member for Islington, South and Finsbury (Mr. Cunningham) and the hon. Member for Stroud (Sir A. Kershaw), the Chairman of the Select Committee on Foreign Affairs, said in intervention and speech respectively that the House was over-reaching itself in discussing issues concerning Indian rights. My hon. Friend the Member for Kingston upon Hull, Central (Mr. McNamara) said much the same in advocating that there should be no amendment to the Bill, but he did not go as far as other hon. Members in questioning the legal, moral and, in some cases, political right to discuss or seek to amend the Bill.
Hon. Members have powerfully advanced the argument that the House should be conscious of its responsibilities to the decision taken by the federal Government of Canada to the concordat reached by the majority of the provinces and to the political consensus sought in the Bill. If there are residual objections to aspects of the Bill—and anxieties have been raised during the debate—it is still legitimate for the House to say, as my right hon. Friend the Member for Hackney, Central (Mr. Davis) said, that, as it is our duty and responsibility to pass the legislation, we should not simply rubber stamp what has been passed to us by the Canadian Government.
The arguments advanced by the hon. Member for Islington, South and Finsbury and the hon. Member for Stroud are of some significance. I was struck by the argument advanced by the hon. Member for Stroud that our ability to influence the future of this legislation was confined to debating the Bill at this stage, and that whatever the outcome, whatever the form of the Canada Act, if it is eventually passed and whatever our views on the wording, we shall have no power to supervise or monitor the progress of anything that we might wish to change. We should bear in mind that we can do no more than raise these subjects now. If the Bill is enacted, we shall cease to have any responsibility for future monitoring or for what results from it.
Is it therefore fitting for the House to discuss the issues that have been raised today? My hon. Friend the Member for Hackney, Central concentrated on aboriginal rights. Although the right hon. Member for Down, South (Mr. Powell) raised a different issue, that of aboriginal rights has played a major part in the debate, so I shall deal wirh it.
Has the House of Commons the right to pass an opinion on the Bill as it has arrived from Canada? I believe that we have a right to express a view upon it, even if we choose not to divide the House or if, individually, we choose not to seek to amend it.
We have that right, first, because we have been asked not simply to patriate the Canadian constitution, but to approve other aspects of the Bill of Rights within the Bill. Had the Canadian Government simply wished the 821patriation of their constitution and the right to make their own decisions without a view being expressed by this House, it would have been a simple matter to achieve that through the processes of legislation, but they chose a different purpose and a different vehicle. Having been asked to consider that, it is inevitable that in so doing the House of Commons may express a view on the matters included in the Bill of Rights.
Secondly, the words of Lord Denning, the Master of the Rolls, have been quoted many times today, that it is important not to lessen the worth of the guarantees given to the aboriginal people. That, too, is an area in which we have a view to express, as many of the guarantees to which he referred were given by British Parliaments and British parliamentarians. If the guarantees are to be enshrined in the new Canadian constitution, surely at this stage British parliamentarians have the right to express a view about the status, worth and interpretation of those guarantees.
My right hon. Friend the Member for Norwich, North (Mr. Ennals) raised the question whether it would be right and proper, even if we so chose, simply to rubber-stamp the view of another Government, however legitimate. I do not underestimate the legitimacy or the right of that Government to reach those conclusions, but is it right that we should simply act as their rubber stamp in patriating their constitution?
The subject of aboriginal rights has been debated at great length by well-informed hon. Members. I do not seek to emulate or to add to the speeches of the hon. Member for Essex, South-East (Sir B. Braine) and my hon. Friend the Member for Walsall, South (Mr. George) in their authoritative expression of the concern still perceived by some of the aboriginal peoples in Canada. Hon. Members have a right to express the views which have been so strongly put to British parliamentarians, even if the majority of Members have no interest in amending the constitution before us.
Clearly there is a perceived threat to the interests of the Indians and other aboriginal peoples. There is a perceived threat to the identity of their culture and the interests for which they still stand. Even if the Canadian Government believe that those fears are being overplayed, we can surely hope that today the British Government, on behalf of the sponsoring Government, will give some reassurance to hon. Members who so eloquently put the case for the Indian nations of Canada.
My hon. Friend the Member for Hackney, Central stressed the word “existing”, which has appeared in section 35 since the original resolution. This is clearly a matter of concern to hon. Members who have spoken and to others who have associated themselves with the case put forward on behalf of the Indian nation. The necessary reassurance can perhaps come only from the Canadian Government, but as the British Government are responsible for progress on the Bill today it is right and proper that we should have some reassurance on the points raised so that some of the fears may be allayed.
Even if there were no other merit in having these issues raised here, the constitutional conference that will discuss this matter again in Canada will have the backdrop of the opinion of the British House of Commons to look on as it conducts its deliberations. I do not seek to go over any 822of the ground covered at some length by my hon. Friend the Member for Walsall, South who has his own interpretation and fears. There is only one authority that can reassure him and the people who have expressed their concern. Only the British Government can articulate a view at the Dispatch Box that might allay some of these apprehensions or misapprehensions.
I am conscious of the fact this evening that, in considering this issue in a long, detailed, balanced and sober debate, we are in at the birth of a historic development for the future of Canada. One must be conscious not only of our past responsibility—some would even have said glory—to the Commonwealth, but of the fact that we are concerned about our future relationship with the sovereign Government of Canada and with its people, who have traditional links with this country. Many of them have personal and social links as well.
We must not be seen to be seeking to interfere with or to patronise their democratic rights or processes, although, in the process, we may be expressing our personal views about what we see as their direction. Our attitude is, perhaps, ambivalent. The British Parliament can argue, on the one hand, that it has no legal right to discuss these matters because there is a sovereign Parliament that will have to take the decisions and carry the responsibility, and on the other hand that it has a responsibility because this legislation is before us.
That may seem a technical balancing act, but perhaps it is an approach that will be appreciated by the people of Canada if they are interested in the deliberations of the British House of Commons when considering the Canada Bill. It is legitimate and proper for the House of Commons to register a view, even if we do not feel that it is necessary or right to press the matter to a vote, which might be misunderstood by people who are not privy to the intricacies of the procedures of the House.
Although my hon. Friends will not seek to divide the House on our amendments Nos. 28 and 30, we still think that it is right and proper for the House to express a view. We look to the Government for reassurance on the points that have been put forward genuinely and reasonably by hon. Members on this important occasion.
The Minister of State, Foreign and Commonwealth Office (Mr. Richard Luce)
I am glad to speak after the hon. Member for Hamilton (Mr. Robertson). I believe that it was his maiden speech from the Opposition Front Bench as spokesman on foreign affairs. I listened to his speech with interest because he seemed to have thought through carefully the implications of the Bill. What he had to say was worth listening to, as indeed has been the debate today and the debate that we had on Second Reading last week. It was wide-ranging, with speeches that struck deep in emotion and showed a great stength of feeling about human rights.
Whatever the variations of opinions there has also been strong feeling about the importance of our relations with Canada. What struck me was that from whatever view point anyone has spoken today, such as my hon. Friend the Member for Essex, South-East (Sir B. Braine), the right hon. Member for Norwich, North (Mr. Ennals) and the right hon. Member for Down, South (Mr. Powell), at no time was there any hostility to the people of Canada.
On the contrary, I believe, what shines through the debate is the great feeling of friendliness towards that country and the great feeling of historic ties and present 823connections that we have with its people. There is a very real desire not only to continue the relationship but to see it strengthened. I have listened with great care to the views expressed on this group of amendments particularly with regard to the position of the Indians. Articulate and strong views have been expressed on their behalf.
I feel, like everyone else, that human rights, whether in this country or anywhere else, are a matter of supreme importance. About four years ago, I wrote a pamphlet on the subject. I attach great importance to it. Everyone has a right to express views as strongly as they wish.
I am sure that our friends in Canada will have noted the feelings of the Committee as a whole. As the hon. Member for Hamilton has already remarked, if the debate has served any purpose, it has ensured our right—the Speaker has allowed us to debate the issues—to express opinions which will have been noted carefully by the Canadian people and by the Canadian Government. I shall stick my neck out and say that I sometimes wish, having listened to this debate and the Second Reading debate, that we could debate domestic affairs in the same splendid manner in which we debate matters with other countries.
I have to start my response by restating the limitations on what I can say as a Minister representing Her Majesty’s Government in relation to points of substance that have been raised. Certain hon. Members have pressed me to say certain things which would go into details of the constitution in substance. For reasons that I shall give, I believe that it would be wrong for me to do so on behalf of the British Government. On most occasions when we debate legislation in the Chamber, Ministers are eager to respond and explain why certain clauses have been included. I may be wrong. I recall a year ago sitting opposite the right hon. Member for Down, South on the Committee considering the British Nationality Bill. We debated issues for four months. I was reasonably eager to reply but began to lose my nerve after a little while.
On this occasion, however, I adopt a different view. Although the House is familiar with it, I should like to refer to it again. We cannot ignore—it is the key, fundamental part of the Bill—the request and consent convention provided for in the Statute of Westminster 1931. It is the view of the Government, as we have made clear on several occasions, including last week on Second Reading, that in matters affecting the content of the Canadian constitution this House acts only on the advice and with the consent of the Canadian Parliament. This follows from the view that the content of the Canadian constitution is now, and has for many years, been essentially an internal Canadian matter and internal Canadian matters are to be determined in the final analysis by the Canadian Parliament taking due account of the relevant Canadian conventions.
The constitutional position is recited in the third preambular paragraph to the Statute of Westminster. Its terms are that: it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion. The House has passed 14 previous Acts amending the British North America Act not just since 1931 but in all cases since 1886. This has been done at the request and with the consent of the Canadian Parliament. It would accordingly not be right for me as a Minister of the United 824Kingdom Government in London to comment on any questions on the substance of constitutional proposals out in schedule B to the Bill. It follows that it would equally not be right for me to discuss the substance of the amendments proposed by hon. Members that relate to schedule B.
The House will recall hearing from my hon. Friend the Member for Stroud (Sir A. Kershaw), Chairman of the Foreign Affairs Committee, that this was also the view of the Foreign Affairs Committee which in its conclusions 11(ii) and (iv) of its first report went further and stated that Parliament should not undertake any deliberations about the suitability for the peoples of Canada of requesting constitutional proposals or enact amendments not consented to by the Canadian Government and Parliament.
My right hon. Friend the Lord Privy Seal said in his opening speech on Second Reading that the Government’s advice to the House, in conformity with the long established convention enshrined in the preamble to the Statute of Westminster 1931, was that the British Parliament only legislates on matters affecting the Canadian constitution at the request and with the consent of the Canadian Parliament. Any amendments to the Canada Bill which may be put forward should not be passed by the House. I thought that that was, at least by implication, endorsed by the right hon. Member for Leeds, East (Mr. Healey) in his opening speech on Second Reading. He said on 17 February: although I do not wish to block or amend the Bill because I agree with what the right hon. Gentleman has said on that: it should be passed as it stands. If it were to be amended that could open a major and unnecessary constitutional crisis between us in Britain and the people of Canada.—[Official Report, 17 February 1982; Vol. 18, c. 302.]
We accept that view although, of course, in no way should I deny the right of the House, which has already been allowed by the Chairman, to debate these matters in general.
Mr. Clinton Davis
To put the record right, my tight hon. Friend the Member for Leeds, East (Mr. Healey) made it clear, did he not, that he had reservations about questions of aboriginal rights and he thought it was right that we should articulate those reservations in Committee? We have done that, but we have no intention on the Opposition Front Bench of dividing on those matters.
I am grateful to the hon. Gentleman. That is very much what the right hon. Member for Leeds, East said and, in fairness, what the hon. Member for Hackney, Central (Mr. Davis) said throughout. It is the House’s right to ventilate the anxieties and feelings of certain interests in Canada. It is not for me in any way to seek to deny the right of the House to do that.
All the amendments dealing with the Indian and aboriginal peoples are concerned, in one way or another, with the rights of the aboriginal people of Canada, which are understandably of interest to many hon. Members. However, as my right hon. Friend the Lord Privy Seal stated in the House on 17 February, when opening the debate on Second Reading: it has consistently been the view of the Government, and has been given in evidence to the Foreign Affairs Committee and repeatedly been explained to all those representing Indian interests, that any treaty or other obligations which still subsisted became the responsibility of the Government of Canada with the attainment of independence, at the latest with the Statute of Westminster 1931, and that it is to the Government of Canada that the Indians must look for the solution of any of their 825problems.—[Official Report, 17 February 1982; Vol. 18, c. 297.]
These points were brought out during a forceful exchange. At one moment my hon. Friend the Member for Stroud spoke and there were various interventions during the interesting speech of the right hon. Member for Norwich, North by the hon. Member for Islington, South and Finsbury (Mr. Cunningham) on that point. The House knows, and is aware that it is firmly this Government’s view, that it is to the Government of Canada that the Indians must look for solutions to their problems.
In the Select Committee’s Third Report, which was published last month, the Committee, having carefully studied the arguments advanced by the representatives and advisers of various Indian organisations, said that it found no reason to change the views that it expressed in its First Report. In paragraph 9 of its Third Report the Committee stated: The fact is that Indian rights and affairs have been an exclusive responsibility of the Canadian Government and Parliament for generations. 9.30 pm
The issue was considered by the British Court of Appeal, from which the Indian Association of Alberta had sought a declaration that the policy of the British Government was wrong in law. The Committee will recall that on 28 January the Court of Appeal rejected unanimously the Alberta Indians’ application and gave it as its opinion that any obligations of the Crown to the Indians of Canada are now owed by the Crown in right of Canada and not by the Crown in right of the United Kingdom.
As the Select Committee stated in paragraph 9 of its Third Report, For at least fifty years, the UK Government and Parliament have lacked even residual constitutional authority to intervene in relation to those rights and affairs. I am obliged to conclude, in company with both the Select Committee on Foreign Affairs and the Court of Appeal, as well as with a number of hon. Members, that any dissatisfaction expressed by the Indian people, as has been voiced forcefully tonight by many hon. Members on both sides of the Chamber, with the provisions of the Bill can be pursued by them only with the Government of Canada and in the courts of Canada. The Committee will be aware that it is Her Majesty’s Government’s view that it is not for us to judge the rights or wrongs of the situation of the Indian peoples and the implications under Canadian law of the proposals in the Canada Bill.
I hope that I am not anticipating something that the right hon. Gentleman will shortly be saying. However, did Her Majesty’s Government discuss in any way the substance of the main amendments with the Government of Canada? Secondly, did the Canadian Government give Her Majesty’s Government any specific message that they can give to hon. Members in this place who might be worried about the situation?
The answer that I must give to the hon. Gentleman is “No”. The Bill gives expression to a resolution passed by the federally elected Parliament of Canada, which is answerable to all the people of Canada. The Government do not believe that it would be proper for us to interfere in what the Canadian Parliament considers to be appropriate for its electors.
Sir Bernard Braine
What my hon. Friend has said so far will not be contested by many of us. However, there is a new element. Both Britain and Canada are parties to the International Convention on Human Rights. If it be charged that Canada is in violation of the rights of the Indians and other native peoples, how can we as a party to the convention ignore that charge in passing the Bill? We can wash our hands of legal responsibilities in respect of the Crown, but what of the importance and significance of the international convention? Are we not bound to observe its provisions?
As I said at the beginning—I know my hon. Friend was here—I attach as great importance as he does to the general question of human rights and the various provisions in international covenants. He raised this matter earlier. The Government do not accept the charge that my hon. Friend has made. His main argument appeared to be that the safeguards provided for in the Bill for the benefit of the Indian people of Canada were insufficient to comply with the principle expressed in the covenant that all peoples have the right of self-determination.
It would not be right for me to embark on a lengthy explanation of the concept of self-determination. Indeed, that concept is incapable of exact definition. To claim that the United Kingdom would be in breach of the international covenant if the Bill is enacted in its present form and without the additional safeguards proposed is misconceived. In answer to my hon. Friend, to whom I owe an answer, I could not accept the charge or the suggestion—”charge” may be too strong a word—that he has made.
For these reasons I must ask the Committee to reject the various amendments and new clauses relating to the rights of the aboriginal people of Canada. In no way do I seek to diminish the significance or importance of the contributions that have been made to the debate by many hon. Members. My hon. Friend the Member for Sevenoaks (Mr. Wolfson) spoke again, as did the hon. Member for Kingston upon Hull, Central (Mr. McNamara). The hon. Member for Walsall, South (Mr. George) also made a lengthy speech.
Ultimately I ask the Committee to recall that it is the Canadian federal Parliament that has asked us to undertake this request and consent provision. These are the people who have been elected by the people of Canada to determine and interpret their own policies, their own laws and their own desires. It might, therefore, be appropriate for me to terminate my remarks by reading out the opening text of the resolution regarding the constitution of Canada, adopted by the House of Commons in Canada on 2 December 1981. It says: THAT, WHEREAS in the past certain amendments to the Constitution of Canada have been made by the Parliament of the United Kingdom at the request and with the consent of Canada;
AND WHEREAS it is in accord with the status of Canada as an independent state that Canadians be able to amend their Constitution in Canada in all respects;
AND WHEREAS it is also desirable to provide in the Constitution of Canada for the recognition of certain fundamental rights and freedoms and to make other amendments to that Constitution;
A respectful address be presented to Her Majesty the Queen in the following words: To the Queen’s Most Excellent Majesty: Most Gracious Sovereign: We, Your Majesty’s loyal subjects, the House of Commons of Canada in Parliament assembled, respectfully approach Your 827Majesty, requesting that you may graciously be pleased to cause to be laid before the Parliament of the United Kingdom a measure containing the recitals and clauses hereinafter set forth This was the text of the opening part of the resolution passed by the federally elected Parliament of Canada by an overwhelming majority and with the support of the vast majority of all the members of all the parties in Canada.
With that in mind and because of the views that I have expressed on behalf of the Government about the Statute of Westminster and our duties under it, I call upon the Committee not to respond to the amendments or to support the new clauses.
I apologise for speaking again so soon after making a lengthy speech. I have something of a conscience on this matter.
In the space of about 15 minutes I should like to speak to another amendment in my name, amendment No. 42, relating to section 50. The section would grant the provinces exclusive power in each province to make laws in relation to non-renewable natural resources, including oil and gas, as well as minerals, forestry and electrical energy. It would empower the provinces to tax in respect of such resources, again exclusively. The words “in the province” do not exclude Indian reserves or lands over which there are outstanding land claims as respects aboriginal title.
Aboriginal peoples need an economic base to preserve their identity. If laws are passed by the provinces compulsorily to acquire resource-rich lands reserves or lands subject to aboriginal title, and/or to tax the product of those lands, that will be detrimental to native peoples. They might cut across the provisions under the consititution which would prevail against other provisions or legislation subsidiary to the British North America Acts or subordinate legislation. I mentioned earlier the oil and gas legislation, which clearly shows that the provinces have their eyes on the resources on and under the surface of aboriginal lands. Should we pass this legislation, that will assist them in acquiring the land that they covet. There are no criteria for determining the basis of compensation to be paid under the constitution.
The dangers for Indian and aboriginal peoples inherent in section 50 are clear. They are evidenced by the notorious McMurtry letter. If laws are made under section 50 before land claims are settled, the basis of the negotiations for settlement will be undermined. Only the then value of the land and resources will be taken into account. That is why I believe that there is a need for amendments to sections 50, 37 and 49 and schedule B, relating to legislation and land claims. Section 25b of the charter, which is concluded in vague and “future” terms, would be of no avail, the laws already having been passed by them under section 50.
I should like to say a few words about section 37 and schedule B relating to land title, claims for compensation and extinguishment of the official Ministry of Indian Affairs survey. I refer hon. Members to a document called “Indian Conditions of 1980”. At page 99 we read: The existence of unsettled land claims, unsatisfied treaty obligations and grievances concerning improper past administration have been recognized by government. Financial support is provided and mechanisms are in place so that claims can now be negotiated. Will this be remedied?
There is a long history behind the significance attached to the question of Indian title by the provinces in 1981. I 828refer to the correspondence between the Attorney-General of Ontario, Mr. McMurtry, and the Minister of Justice, Mr. Jean Chretien reported In the Toronto Globe and Mail of 19 November last year. That history goes back to the earliest days of the nineteenth century.
Subject to the question whether the treaties were entered into on a basis of such inequality as to vitiate them —the terms on which they were entered into were remarkably one-sided and against the Indians; they are all much the same, being based upon a consistent policy —many people believe that when the treaties were made the land mentioned as ceded and surrendered became Crown land, and that in return the Crown undertook obligations, set out in the treaties, to the Indians. Lord Denning developed that theme, at pages 11 to 14 of his judgment. He emphasised that, although title was extinguished by the ceding of land in treaty areas, in other areas—that is, in Indian reserves —where the land was not ceded the Indians retained a title superior to all others and that title was guaranteed to them by the Crown. Apart from the entrenched Royal Proclamation, which must be adequately protected from the amending formula together with the other Crown obligations to the aboriginal peoples, there are two main categories of Crown obligations by way of guarantees to the Indian peoples. First, there are treaty obligations and, secondly, there is the title to land in non-ceded areas. There is evidence that the federal Government arid Parliament have failed to discharge their guarantees and obligations.
I refer hon. Members to case law-Hamlet of Baker Lake, R. v Sikyea and R. v George. Canadian Members of Parliament in the debate of November 1981 repeated the same tragic history of injustice and unfair dealing. Mr. Manly, in the debate of 26 November, column 13342 of the Canadian Hansard said: It all boils down to money. It is worth observing that none of the accusations have been effectively denied. It is implied that the provisions of the constitution will cater for things to come. It fits in with Government policy as its manifest defects show and will enable that policy to be achieved. Hence the need for protection to be built in to the constitution which is being presented to the United Kingdom Parliament for it to enact. It is based on the accord to which the aboriginal peoples were neither parties nor consulted.
Underlying Indian reserves are vast quantities of mineral, oil and gas deposits which are vulnerable to compulsory legislation. The cultural identity of the peoples cannot survive without an adequate economic base. The land claims made by the Indians are a vital part of that base. There has been no serious attempt to settle them before patriation, presumably because the capacity to achieve the policy has been inhibited by the possible use by the Governor-General of the Royal Prerogative to refer compulsory purchase bills which would compulsorily acquire land overlaid by the superior and guaranteed Indian title in the Supreme Court.
I wish hon. Members in their spare time could look at the references to aboriginal title which the Indians are seeking to have dealt with properly, initially by the Canadian Government and now by the British Government and Parliament.
Sir Bernard Braine
The hon. Gentleman is making very serious assertions. Am I right in saying that the 829Canadian courts have commented on the inability thus far of the Canadian Parliament to protect Indian land rights? I believe he mentioned one particular case. I believe that this should be explained to the Committee lest it be thought that this is a matter we can lightly pass over because we have no jurisdiction over Indian affairs in Canada. The point I tried to establish earlier was that we have a responsibility before we enact legislation as we are signatories to an international convention. It is quite clear from this situation—if I am correct, I ask the hon. Gentleman, who knows much more about this than any of us, to expound on it—that Canada itself is in violation of the international covenant. We are passing legislation, knowing that in advance. Is that right?
The hon. Gentleman spoke last week and today on Canada’s obligations under human rights legislation. Nobody has spoken in a more eloquent and fanciful fashion than he. He has raised an important point. Some judges in Canada have clearly indicated by a number of decisions the need for proper legislation to entrench aboriginal rights. There are some notorious cases where Indian rights have been further eroded.
If one talks about Indians’ rights one must look carefully at the concept of aboriginal rights and the treaties they signed with the Crown and also, despite the admonition and dissent expressed by the Minister, at the concept of human rights and international covenants.
Canada rightly has a good reputation on human rights. In numerous instances Canadians have been critical of other countries. For instance, the ambassador, a former Secretary of State for External Affairs, speaking in 1976 to the General Assembly of the United Nations, said: No state is immune to criticism in this regard. Although some manage to deflect attention while others become the centre of attraction, Canada will speak out to the best of her knowledge without regard for power or favour”. Canada is prepared to castigate other countries for the violation of human rights. It should not be so frightened and dog-in-a-manger about denying the rights of hon. Members in Great Britain to criticise the enormous gulf between human rights legislation that Canadians have signed and their acts in that country. Human rights are not something that apply just to other countries. They begin, but do not end, in the confines of one’s own country.
If Parliament has done anything in the debate so far, it is to show that the treaties signed in good faith by the Indians must be honoured. If the House and the Canadian Parliament can do more to honour those treaty obligations, the debate here and in Canada will have been worthwhile. I hope that the human rights arguments will not be dismissed, as is the tendency, to use Bentham’s words, as “nonsense upon stilts.” Human rights are important and legislation must be taken seriously into account.
I am grateful for the attention that has been given by the House to Indian rights. There was a time two and a half years ago when anyone espousing the cause of Indians would be greeted by sighs and by people believing that the Indians’ vocabulary is limited and that all Indians are like Tonto, the Lone Ranger’s PPS. Generally speaking, Indians are articulate and able to express their views. They have expressed their views at delegations, public meetings and when lobbying Members of Parliament.
Perhaps some avenues of influence have been closed as a result of defeats of amendments in the House and 830because of measures taken in the House of Lords. However, it is certain that the campaign that they have mounted is but one stage in a broader campaign that will embrace the United Nations and many international organisations. They will take their case not only to a domestic public but to an international public. Indians and aboriginal peoples throughout the world will do likewise.
It is imperative that legislators in countries that are obstensibly democratic, civilised and Christian accept that there are tribal peoples within the boundaries of their own lands who desperately require the support that should be given to them. To dismiss the human rights campaign as nonsense is shortsighted.
I hope that we will be able to express our dissatisfaction with the Government’s response by voting on one of the amendments. I do not expect support from the official Front Bench, but I hope that hon. Members will take part in the vote, although we may not win. Thus aboriginal peoples will see that we strove as far as we could to impress upon the rest of the legislature the importance of Parliament accepting human rights and legal arguments, that Indians are not to be ignored. They will be ignored in Canada to the detriment of Canada.
Mr. J. Enoch Powell
It would hardly be reasonable to complain if the Minister did not reply to many of the most pointed of the questions that have been addressed to him during the debate, because, after all, he based himself on a constitutional position which, by definition and logic, positively excluded the possibility of his answering those questions.
I think that the Minister was mistaken, because I believe that the Government have taken too limited and restricted a constitutional view of what is happening with the passage of the Bill through Parliament. It is not true that in debating the Bill we are concerning ourselves with other people’s business. We are in the deepest sense concerned with our own business, with the nature of Parliament and with what the sovereignty of Parliament means.
Canada still has at this moment something that we have never known—a written constitution. It has had a written constitution by its own will, by deliberately leaving its constitutional law upon the statute book of this House. That being so, it was natural that a self-governing Canada should require that this House should, in all reason, from time to time comply with such requests as Canada might make for the amendment of the written constitution that stands upon our statute book.
What has happened now is different in kind. That is the point that the Government have failed to apprehend. An overwhelming majority of the Assembly—we have heard read out the impressive and interesting preamble of a resolution of the Canadian House of Commons—has resolved in future to take the unrestricted amendment of its constitution—and therefore the making of it—into its own hands. Therefore, it has asked in terms for patriation.
At the same time, having arrived at a formulation and passed it through its own legislative, it has asked us to put that legislation on our own statute book by our own legislative act. It is that essential difference from anything that has ever happened before that not merely entitles but obliges the House for its honour and for the benefit of all concerned to apply itself as best it can to the content of what it is doing.
831In the six to eight hours of debate on the schedule, we have attached ourselves to that work. We, and possibly others, have learnt more than was understood before about the contents and implications of the schedule to the Bill. That work is not complete, and I hope that we shall have the opportunity to carry that to a conclusion before we part with the Bill. However, let no one so far misunderstand as to say, either outside or inside the House, that we are interfering with Canada. We are doing our own business and we are doing that very thing that the Canadian Government asked us to do coincident with recalling into their own power their own constitution.
There are amendments other than amendment No. 2 on which it may be more convenient for hon. Members to express an opinion. Therefore, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Clinton Davis
On a point of order, Mr. Weatherill. I was under the impression that for the convenience of the Committee we would deal with the group of amendments that have just been debated and debate the remaining amendments next week. It might help if the Chief Whip were to tell us the positon. It would be convenient to know what the Government intend to do about the amendments and Third Reading. There is a motion on Third Reading. I hope that the Government are in a position to make it abundantly plain that the situation can be resolved—
It being Ten o’clock, THE CHAIRMAN left the Chair to report Progress and ask leave to sit again.
Committee report Progress.