Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 46 - Evidence
OTTAWA, Wednesday, February 5, 1997
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 3:17 p.m. to consider its order of reference pursuant to subsection 18(3) of the Firearms Act, to examine the regulations drafted in accordance with section 118 of that act.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Good afternoon, honourable senators. We are continuing our consideration of the regulations pursuant to section 118 of the Firearms Act. We are delighted this afternoon to have, from the Grand Council of the Cree (of Quebec), the Cree Regional Authority and the Cree Trappers' Association, Mr. Philip Awashish and Mr. Rick Cuciurean; also with us is Madam Deborah Friedman, who is the legal counsel.
Welcome to all three of you. We look forward to your presentation and then, of course, we will have some questions to put before you. Please begin.
Mr. Philip Awashish, Former Deputy Grand Chief, Grand Council of the Cree: On behalf of the Cree Nation, Eeyou Astchee, we thank you for this occasion to submit our comments and our recommendations respecting the firearms regulations.
In 1995, the Grand Council of the Cree, the Cree Regional Authority and the Cree Trappers' Association made a joint submission to the House of Commons Standing Committee on Justice and Legal Affairs and the Senate committee in regards to the firearms legislation. In those submissions, we strongly submitted a number of fundamental amendments to the proposed act which were imperative to bring the legislation on line with those aboriginal and treaty rights guaranteed under the James Bay Northern Quebec Agreement.
Following our intervention before the House of Commons and Senate committees, the Government of Canada decided to accept some of the proposed changes. The government had indicated that many of the other changes we originally sought to the legislation could be dealt with through regulations adopted by the Governor in Council.
However, a review of the proposed regulations indicates that these inconsistencies, which we first amplified, between the act and our constitutionally protected aboriginal and treaty rights have not been corrected. In fact, the current regulations generally and, most significantly, the provisions contained in the Aboriginal Peoples of Canada Adaptation Regulations and the Firearms Fees Regulations, to name a few, continue to represent the flagrant violation of the Cree aboriginal and treaty rights. As such, they are unconstitutional.
Accordingly, we are here today to forcefully reiterate our concerns respecting the restrictions on our use of firearms, the protection of our traditional way of life and, most significantly, the protection of our treaty rights as guaranteed under the James Bay Northern Quebec Agreement.
Madam Chair, we respectfully submit to you that the Senate committee proceed with the following five amendments to the regulations. These adaptations must be made if the proposed regulations are to be constitutional and to make any practical sense in the Cree communities. First, the regulations would be amended to specifically state that any individual who is entitled to hunt, trap or fish pursuant to an aboriginal or treaty right be automatically eligible to hold an acquisition or possession licence and to obtain a registration certificate for his or her firearms for a nominal fee.
The right to hunt, trap or fish is an inherent right of aboriginal people which has always been recognized by treaty.
As the Firearms Fees Regulations are drafted, only hunters who require a firearm to hunt in order to sustain themselves or their families are exempt from the fees payable for a licence and registration certificate.
The right to hunt, trap and fish under section 24 of the agreement is not simply limited to those Cree who hunt and trap for sustenance, but is a right that extends to all beneficiaries under the agreement. Such individuals may be working in the wage economy or actively participating in many traditional hunting activities in our communities. Therefore, the notion that only sustenance hunters, within the narrow meaning ascribed to the term under the regulations, are exempted from licensing and registration fees seriously undermines the scope of the Cree right to hunt, fish and trap.
As indicated, the right of the Cree to possess a firearm to hunt for personal and community use arises by virtue of their status as beneficiaries under the James Bay Northern Quebec Agreement, and not by reason of the fact that they may require a gun to hunt or trap in order to sustain themselves or their families. Therefore, although the Firearms Fees Regulations provide a fee exemption to sustenance hunters, this adaptation does not go far enough to respect the intent, purpose and nature of our people's aboriginal treaty rights.
Furthermore, the present fee structure would cause serious hardship on those aboriginals who do not fall within the fees exemption provision. Once the regulations are in force, a registration fee of $10 to $18 for any purchase, trade, gift or inheritance of firearm would apply. Moreover, where an aboriginal individual has one or more guns on or after January 1, 1998, all of which are legitimately used and required for hunting and trapping, the cost to license these firearms shall range from $10 to $60. Such fees would clearly result in excessive costs to aboriginal hunters and trappers.
Moreover, the fees themselves do not enhance the Cree right to harvest and are not, therefore, congruent with Cree treaty rights in the manner approved of recently by the Supreme Court of Canada in Côté. In that case, the Supreme Court held that regulations requiring aboriginals to pay a small fee to gain entry by vehicle to a hunting zone covered by treaty rights are properly chargeable against an aboriginal entering such an area by vehicle. However, the court rooted its decision on the fact that the particular fee did not impose a financial burden, since the revenue generated from that fee was to be used exclusively to maintain the roads in the hunting area, as distinguished from a fee which constitutes a revenue-generating government tax or administrative fee.
Therefore, we understand the decision in Côté to mean that the firearms fees for registering and licensing a non-restricted firearm amount to a prima facie infringement of our people's treaty rights on the grounds that they are administrative fees and not user fees that would be applied to the benefit of the Cree people.
In this light, we remind the committee that the James Bay Northern Quebec Agreement specifically states that any restraint on aboriginal treaty harvesting rights, by virtue of requiring a permit, licence or similar authorization, must be issued at a nominal cost. The Grand Council of the Cree of Quebec, the Cree Regional Authority and the Cree Trappers' Association have always considered nominal cost to mean not more than $1. Consequently, any amount payable for a licence and registration certificates that exceeds a cost of $1 is a direct violation of the foregoing aboriginal treaty right and is totally unacceptable.
To resolve this blatant violation of Cree treaty rights, we request that new provisions be inserted in the Firearms Fees Regulations to ensure that the fees exemptions contemplated in sections 7 and 12 are extended to aboriginal individuals to which the Aboriginal Peoples of Canada Adaptation Regulations apply.
Second, respecting the requirement that individuals take and pass the firearms safety course, we recommend that the regulations be specifically adapted for aboriginal peoples by providing that, where such a course is required, it shall be offered at a nominal cost.
There are certain criteria provided for under the regulations, which include some exemptions, but we strongly disagree with limiting the course waiver to only individuals who, in the discretion of a chief firearms officer, meet the criteria outlined in the regulations. As well, the criteria set out in the regulations are vague and will undoubtedly lead to inconsistent application. For instance, what meaning shall be ascribed to such terms as "at a cost that is reasonable in the circumstances" or "without due cost or hardship?"
Simply stated, it is our understanding that any cost for the course to any individual with harvesting rights under the applicable treaties that exceeds $1 is unreasonable and is an indirect violation of treaty rights.
Paragraph 24.3.18 of the James Bay Northern Quebec Agreement clearly states that the native people shall receive such leases, permits, licences or other authorizations at a nominal fee.
Third, we request that the Government of Canada go further in its adaptation of the provisions of the regulations dealing with licensing requirements for non-restricted firearms. Specifically, we recommend that the government agree to fund to aboriginal peoples those costs associated with the licensing requirements.
We draw your attention to paragraph 24.3.30 of the James Bay Northern Quebec Agreement, which clearly prescribes that the federal government shall make regulations -- and I quote:
...with a minimum of impact on the Native people and harvesting activities by taking into account the impact on such factors as Native cash incomes.
However, as the regulations are presently drafted, rather than causing the least interference with aboriginal treaty rights to harvest, in reality they will cause a substantial interference with the exercise of such rights. By example, the regulations require that any individual who wishes to obtain either a possession or acquisition licence provide a photograph with the application. Most northern Cree communities do not have ready access to photographic facilities in order to comply with this application requirement. In fact, of the nine Cree communities, only one has photographic facilities. For the other communities, the cost of producing photographs would be in the order of $80,000.
Moreover, as the regulations now stand, many aboriginals will be required to take the Canadian Firearms Safety Course as a prerequisite to obtaining an acquisition licence. Some may argue that the obligation to take the course is not an unreasonable restraint on the aboriginal right to hunt, trap and fish. We strongly disagree. For instance, there are no budgets for classroom space, instructor fees or course materials in the Cree communities. We estimate that it would cost an additional $500,000 to fund a safety course in the Cree communities.
Given the practical reality of remote northern Cree communities, is the government prepared to provide the necessary resources and funding to facilitate the implementation of these regulations? Will the federal government undertake to provide photographic facilities that will comply with the Government of Quebec's photo identification standards? Will the government accept responsibility to fund the implementation and administration of the Firearms Safety Course in Cree communities?
These questions are posed because, in the absence of available resources provided in a timely fashion, our people may be deprived of their right to hunt as a result of an inability to comply with all the registration and licensing requirements imposed by the regulations. Accordingly, the amendment we are proposing could take the form of a provision which sets out the Government of Canada's responsibility to fund, within the aboriginal communities, both the acquisition of photographic equipment and the implementation and administration of the firearms safety course.
Fourth, we request that the Government of Canada modify the regulations so as to permit the Cree local governments to dispense the firearms safety courses and issue firearms licences and registration certificates. Insofar as basic firearm safety knowledge is required to be a prerequisite for the possession and use of a firearm, the Cree local authorities are in the best position to dispense such knowledge and certify that the same has been disseminated.
Therefore, we urge that the regulations be amended to provide for the appointment of aboriginal firearms officers, who shall have the same powers and authority as a chief firearms officer.
For the isolated aboriginal in Northern Quebec, the appointment of a local aboriginal firearms officer would be the only realistic and effective method of ensuring both the proper licensing of individuals and the registration of firearms under the act and the regulations as now conceived. Administering from afar the general licensing scheme, and in particular the process for alternative certification as provided for in the Aboriginal Peoples of Canada Adaptation Regulations, is simply not practical.
Most importantly, we reiterate that the James Bay Northern Quebec Agreement specifically provides, where the exercise of the right to harvest shall be subject to obtaining permits or licences, that they shall be received through the respective native local governments.
Lastly, and in the alternative, we request the automatic and free licensing of all Cree beneficiaries; that is, all Cree beneficiaries under the James Bay Northern Quebec Agreement. This recommendation constitutes the most practical means for the federal government to respect the particular obligation it has made to the Cree in the James Bay Northern Quebec Agreement.
We remind the committee of the decision of the Supreme Court of Canada in the landmark case of Sparrow, where the court affirmed a special and historical role of aboriginal peoples in the Canadian Constitution and stated that the honour of the Crown depends on maintaining and protecting this fiduciary relationship.
For all of the reasons we have highlighted today, the proposed regulatory scheme, with its excessive licensing and registration fees and licensing requirements, would cause undue hardship to our people. Based on the reasoning of Supreme Court in Sparrow, this prima facie violation of our treaty rights cannot be justified because the infringement amounts to an unreasonable limitation on our rights and effectively denies our people the preferred means of exercising their right to hunt, fish and trap in the territory.
If Parliament wishes to ensure that the regulations are compatible with the aboriginal and treaty rights of the Cree of Eeyou Astchee, we wish to stress that the recommendations that we are proposing are fundamental and, therefore, should be expressly articulated in the subordinate legislation. As senators, you have a special responsibility to uphold the constitution of this country and to guarantee that Canada honours its obligations to the Cree of Quebec by taking into account our rights and interests articulated under the James Bay Northern Quebec Agreement.
In concluding, we hope the committee recognizes the spirit of compromise in which these amendments have been proposed. We are confident that these amendments will in no way undermine the overall effectiveness and purpose of the licensing and registration regulations -- far from it. They will in fact further the aim of the legislation by rendering the legislation, through its adapted regulations, more practical and thus result in an increased level of compliance by aboriginal people.
The Chair: Before we begin with questions from the senators, let me make it perfectly clear that we have the right to recommend that changes be made to the regulations; however, we do not have the power to amend the regulations ourselves. The act did not give us that authority. The act gives us the authority to examine the regulations and to make recommendations to the Minister of Justice.
Senator Beaudoin: I understand that you have five amendments and, having regard to what the chair has stated, of course you recommend five changes. There is in the Firearms Act the famous section 2(3). I remember well that we discussed that at length. Section 2(3) states:
For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.
Do I understand that your five amendments are considered as part of your treaty rights enshrined under section 35, or are they based on something else; for example, because you disagree with the act or with the regulations?
We must accept the act as it is, because it is adopted and the regulations must comply with and come under the act; therefore, within the ambit of the act. To that extent, we cannot change them. On the other hand, if they are based on treaty rights or collective rights of aboriginal nations, then it is another story. The courts will construe those regulations as not abrogating or derogating from your collective rights enshrined in the constitution.
Since we will make some recommendations, we must know under what legal authority they are made. Are they of a nature protected by your rights or are they for some other reasons?
Perhaps this question should be addressed to your legal adviser, Madam Friedman.
Ms Deborah Friedman, Grand Council of the Cree, the Cree Regional Authority and the Cree Trappers' Association, Legal Counsel: The first thing that you are referring to is subsection 2(3) in the act, which is often referred to as the non-derogation clause, a general provision which provides that nothing in the act is intended to derogate or abrogate from existing aboriginal and treaty rights. There is some question about how one will interpret that provision should it ever be before the courts. At this time, it is premature.
However, the recommendations we are proposing here today are being made to ensure that there is not any derogation or abrogation from existing treaty rights.
At present, there is an agreement between the Cree of Quebec, the Government of Canada and Quebec which provides for existing treaty rights that are now entrenched under section 35(1) of the Canadian Constitution. What we are asking for today is simply to ensure that there is consistency, that there is congruency between the treaty rights that exist presently and the provisions that exist in the regulations. It is very clear that we are here to discuss the regulations. We cannot now go back to make amendments to the legislation; this is not the forum.
However, to avoid any conflicts, the recommendations that we are proposing will ensure consistency so that we do not find ourselves in court in two years from now to establish that there is a conflict. We are trying to avoid those provisions; we have come here in a conciliatory manner in order to avoid exactly that long-term legal battle, where it would be before the courts.
If what you are asking is under what basis we propose these recommendations, it is on the basis that the objective of this act is very clearly set out in subsection 2(3), which is not intended to abrogate or derogate from existing rights. We are here to ensure that that objective is being met through the recommendations we are proposing to the regulations.
Senator Beaudoin: Of course, it is a basic rule of interpretation and the courts will decide what they intend to decide. At this stage, because there is nothing before the courts now, you must be quite sure that no collective rights are abrogated, and I understand that. And if ever we come to the conclusion that one is abrogated, the court will decide.
If I follow your reasoning, your reasoning is based, to a certain extent, on your collective rights, your treaty rights or aboriginal rights, enshrined in section 2(3)3?
Ms Friedman: There are some very clear provisions in the James Bay Northern Quebec Agreement, parts of which have been provided in our written submissions to this committee, which provide very clearly that any fees that will be charged, any permits that will be required, will be at a nominal cost. Chapter 24 clearly provides, if you have regulations or legislation of a general application for the purpose of weapon control, which is the language used in the agreement, that that is permitted, so long as the focus is for public safety, public security.
I do not wish to get into a debate on whether or not the full content of this act itself or the regulations can be characterized as for public safety and public security; however, let us assume that it is. It is still clearly prescribed in the James Bay Northern Quebec Agreement that if regulations are put in place for weapon control for public security and you require people to hold permits and licences, then they must be nominally priced.
It is also clearly provided that if you will be dispensing these licences and permits for the purpose of weapon control, for public safety, then it must be dispensed with at the local government level, the native local community government. What we are asking is that consistent regulations be put in place.
We have had representatives before both the Senate and House of Commons committees with regards to the legislation. These changes were not made in the legislation, to the act itself. It is imperative that it must be made at the regulatory stage; if not, it will proceed to court. It is very clear from the decision in Côté, and I would actually strongly recommend all the senators take a look at that decision.
Senator Beaudoin: Excuse me, which decision?
Ms Friedman: A recent Supreme Court of Canada decision, R. v. Côté. It was a similar issue that was before the Supreme Court very recently with regards to fees. If you must charge a fee for something, that fee must be a user fee that will go back into the community. This was obiter in the case, but it was very clearly provided that that fee was okay, that it was not an abrogation of a treaty right, of an aboriginal right to hunt, because the fee collected went right back into providing for improvement in the roads that were being used to access this hunting zone.
What we are looking at right now is a fee that is an administrative fee; it will not go to the direct benefit, in this particular case, the Cree of Quebec. I think the jurisprudence is very clear on that point. We are asking for some consistency in terms of the regulations.
Senator Beaudoin: You rely on the jurisprudence?
Ms Friedman: I rely on the James Bay Northern Quebec Agreement, but the jurisprudence is also clear and consistent: that if you have a fee, it must go directly to the benefit of the community that that fee is being charged against. We are talking in the context of aboriginals.
Senator Moore: Mr. Awashish, I read your submission earlier today. I found it to be very informative; I also found the approach therein very practical.
Was the Cree community consulted by federal officials in the development of the legislation as it pertains to the Cree and its traditional way of life and harvesting the wildlife?
Mr. Awashish: In the review of the regulations themselves, I will simply comment on our brief. We want to stress the importance of the practical implications of the regulations. There are certain problems that we have raised in our brief, and we have made certain recommendations to deal with the practical problems. The Cree hunters and trappers themselves have been consulted on the various problems respecting the regulations.
To be frank, from the point of view of Cree trappers and hunters, it is difficult to grasp the necessity of the firearms legislation and the regulations. Trappers have asked why there is a bill in the first place and what we are doing with these regulations now in front of us. The answer to those questions is that the legislation was necessary because of what has taken place in what we call "the south:" their need to control the use of firearms in criminal activities. People simply do not see or hear about these activities from day to day up north. They feel penalized for the need to control firearms primarily because of activities in the south. That is not to say that the north is free of crime; but the use of firearms in crime up north is very rare.
Thus, is has been hard for the trappers to grasp the necessity of the bill. Nevertheless, we have tried to deal with the objective of the legislation, that is, the objective of public safety, to see, at a minimum, what kind of recommendations we are prepared to submit, so that the implementation of these regulations will not seriously infringe upon the right of the trapper or the hunter to hunt and fish and trap in their trap lines.
Senator Moore: Did anybody come to your community to talk to the trappers association; did anybody come to speak with you in advance? I know you are here today with your recommendations, but did anybody sit down and talk to you beforehand? Were you asked: How would this work in your community? What impact will it have? Do you have any suggestions for us?
Did that discourse take place, or were you just caused to come here now because the legislation was put before you?
The Chair: Before we get the answer to that, Senator Moore, because you were not here when the bill was passed, I want to put on the record that there was a consultation process on Bill C-68 between the introduction of the bill and the passage of the bill, and there has been an ongoing consultation process. Whether or not that process was adequate I will turn over to the witnesses before us today to answer the question. However, those were the stages.
Ms Friedman: If I could just add one small point. There was a consultation process, however, the Cree of Quebec had always reserved their right -- it was a without prejudice consultation -- in the event that the recommendations that are being proposed here today are consistent with the comments that have been put before any committee that has come before the Cree communities to discuss the impact of the act itself and the regulations. Unfortunately, the recommendations that we propose today are the same recommendations that were put before the committee with regard to the legislation. At that time, we were told: "Do not worry. There is section 117(u), and we will adapt regulations that will meet your concerns." The proposed regulations have come forward and, unfortunately, the same inconsistencies and conflicts still exist.
I believe that the Grand Council of the Cree, the Cree Regional Authority and the Cree Trappers' Association have demonstrated their intent in having a conciliatory approach. That is why we are here with practical recommendations, recommendations that can be put in place that would certainly, at minimum, meet some of the most clear and flagrant violations to the James Bay Northern Quebec Agreement.
Senator Gigantès: Ms Friedman, you speak of a normal fee. What do you mean by "normal?"
Ms Friedman: Nominal.
Senator Gigantès: Nominal?
Ms Friedman: Nominal, yes.
Senator Gigantès: I misheard. Forgive me.
Ms Friedman: Which is the language that appears in the James Bay Northern Quebec Agreement, a nominal fee.
Senator Gigantès: By "nominal," you mean something very little?
Ms Friedman: To my understanding of the jurisprudence, "nominal" has tended to be interpreted to mean $1, or less.
Senator Gigantès: All right. My other area of concern -- and I would be grateful if you could give me some information, Mr. Awashish -- is the following: The statistics we were shown about firearms as an instrument of homicides in aboriginal areas indicated that such homicides, or accidents or suicides, with the use of firearms were several times higher in aboriginal areas than in other areas.
Mr. Rick Cuciurean, Cree Trappers' Association: The answer to that is very simple: In the north, there are more guns per capita than there are in the south. If you look at the number of deaths or accidents by motor vehicles in the City of Ottawa, it is much higher than the number of deaths or accidents by motor vehicles as of February 7, 1997 in Whapmagoostui, where I do not think anyone has died by a car accident.
If the people in Great Whale knew how dangerous vehicles were, they would outlaw cars, snowmobiles and motorcycles from their villages. They would not tolerate the carnage in the southern communities by motor vehicle accidents, murder, or whatever.
It is simply a statistical function of the availability of firearms in the north when the firearms are used routinely as tools for hunting. From time to time, they get misused; but the number of firearms per capita in the north is 30 times higher than the number of firearms per capita in Ottawa and the South.
Senator Gigantès: What I am hearing you say is that the more firearms there are, the more fatalities that will occur.
Mr. Cuciurean: Exactly. If you fly every day, the chance of you dying in an airplane crash is higher. If I always walk, I will never die in an airplane crash.
Hunters and trappers need guns to do their jobs; guns are the tools of their trade. And on occasion, accidents, suicides and murders do occur, but they are very low in proportion to the number of firearms, rifles, shotguns in the Cree communities.
Senator Gigantès: I am afraid one could make the same argument about the carnage from all the vehicles. They are proportionate to the large number of motor vehicles, which does not excuse the wrong use of a motor vehicle by somebody who is under the influence. You do not excuse the use of a firearm to commit a crime. We are told in those statistics -- they may be wrong for all I know, because I did not do the survey -- that there is a much higher use of firearms for domestic violence.
Mr. Cuciurean: I can give you the statistics for the Cree community. I do not have them with me today, but I will fax them to you tomorrow.
It is very low. In the statistics from the Cree Health Board and from the Cree Trappers' Association, you will find a much higher incidence of alcohol abuse and domestic violence, something like 97 per cent, than you will of gun use in domestic violence. A man can hurt his spouse with his hands, with a knife, or whatever, when he is drunk enough; alcohol is the largest problem in the north, I would submit.
Senator Milne: I have been reading through the Aboriginal Peoples of Canada Adaptation Regulations and I do not see any mention of fees whatsoever. However, I do have a very clear recollection that fees were completely waived for sustenance hunters. Does that not mean that your fees would be nil?
Mr. Awashish: We understand the recommendation from the minister that the requirement for payment of fees would be exempted for sustenance hunters. It would amount to zero. We have gone further by recommending, first of all, that the regulations be amended to state that any individual, whether they are just simply limited to people or individuals who are hunting for sustenance, be exempted. We requested the automatic and free licensing of all the Cree beneficiaries under the James Bay Northern Quebec Agreement. We also have recommended that if the regulations must apply that they be amended so that all the Cree beneficiaries must be taken into account for eligibility rather than restricting it to simply hunters or individuals who hunt or trap for sustenance.
Senator Milne: Mr. Awashish, are you not talking then about going from a system of no fee whatsoever to a nominal fee?
Mr. Awashish: If there are any fees to be charged in registering and licensing firearms, we have recommended that they should be nominal. That is what is provided for under the James Bay Northern Quebec Agreement. In the alternative, we have suggested an automatic and free licensing.
Senator Milne: So you would prefer free, and I understand that that is what is already there? Obviously, I am confused.
Ms Friedman: Yes. What you are referring to, which is very true, are sections 7 and 12 of the fees regulations, which provides that a sustenance hunter, whether aboriginal or non-aboriginal, will be exempt from the fee requirement for licences and that the fee required for registration certificates will be waived.
What we are saying here is that the James Bay Northern Quebec Agreement provides certain rights to all beneficiaries. There is no distinction made in the James Bay Northern Quebec Agreement between those people who are sustenance hunters and those who are not. In other words, it does not set out that only sustenance hunters have these rights to harvest that shall not be abrogated, that shall not be limited except by laws of general application, et cetera.
What we are saying is that it is fine that you have addressed the issue of sustenance hunters -- it is questionable how that will be applied in practicality, what type of definition will be accorded to it, how that term will be interpreted -- but if you want to respect the spirit, the intent, of our James Bay Northern Quebec Agreement, it is to ensure that there are fees that are, at most, nominal fees to all beneficiaries, not just sustenance hunters.
I do not know, madam senator, if that clarifies your point.
Senator Milne: What I am reading here says that the individual is a member of one of the aboriginal peoples of Canada, a member of an aboriginal community, and engages in the traditional hunting practices of that individual's aboriginal community.
Ms Friedman: I think I would have Mr. Cuciurean respond as to how the term "sustenance hunter" has often been interpreted.
Mr. Cuciurean: First of all, we must remember that although this is a federal law, it is applied by the provinces. In Quebec, a means tests is applied in order to determine if someone is a sustenance hunter. It is also at the discretion of the chief firearms officer of the province to decide if the means test has been properly filled out, signed and certified, and whatnot.
The problem is that the Cree' right to hunt comes from the James Bay Northern Quebec Agreement and that agreement applies to all Cree beneficiaries. There is no means test, no question about whether they hunt three, four or five days a week -- nothing like that -- or where or for whom they work. All Cree have the right to hunt, and this is the basis on which we argue that the licensing should be free to all Cree.
Senator Milne: Or with a nominal fee?
Mr. Cuciurean: Or for $1 -- but all Cree for $1.
Senator Milne: I am also interested in point number 4 on the "Summary of Proposed Recommendations," which can be found at the back of your written submissions. Please tell us a little bit more about permitting the Cree local governments to dispense the firearms safety course and to issue the licence; in other words, that you have an aboriginal firearms officer in the community. Perhaps you could tell us something more about that, because that is not something that we have considered at all.
Mr. Cuciurean: The province administers the law under the current legislation and regulations. In the James Bay Agreement, it is crystal clear, I think, that in these matters aboriginal local government should administer licences, authorizations, permits and leases, and they should be available at the local level.
Senator Milne: Perhaps I could interrupt you for a minute. What I am trying to do is to get you on the record about this, because the fact that you have included it in your written paper here but have not verbally stated it means that it is not on the record of the committee, and I would like to get this on the record of the committee.
Mr. Cuciurean: For example, in Quebec, the chief firearms officer is on the record as stating that he will not name aboriginal people to be firearms officers, that he will only name SQ officers; they are the only ones that would be acceptable to him. We have tried under C-17 to have aboriginal firearms officers in the Cree territory, people who would speak Cree, people who would know the members of their community, people who could apply the regulations to the satisfaction of everyone and get the law to function.
Basically what we are asking for here is that if the law must apply that it be structured in a practical way: that there be Cree firearms officers, that there be forms printed out in Cree, that there be video tapes made in Cree, that the law be drafted in Cree, that the communities be able to administer and apply their regulations to the best of their ability of course. That is not possible today under the proposed regulations. You cannot do that today. We are asking that somebody listen to the Cree about this matter. It is not possible today under the legislation and under the regulations. In fact I would argue that you cannot do it without changing the legislation anyway, but I am not a lawyer.
Senator Pearson: What you have raised are a lot of practical issues, for which I have a great deal of sympathy. There is no reason why you should be paying more money or inconvenienced more than people would otherwise be, so I have a couple of practical questions.
When you talk about the question of the photograph on the licence, do most of your members in Quebec have a driver's licence?
Mr. Cuciurean: Yes. How it works in the Cree communities with respect to the health card, which also has a picture, and the Quebec driver's licence is that for people who live in remote communities, their cards contain the message "this card is legal without the photograph" in the space where the photo should be. However, there is nothing in the legislation and nothing in the regulations that would allow something like that at this time.
Senator Pearson: It gives a precedence of some sort.
Mr. Cuciurean: Yes, and we have sent copies of letters from Assurance-maladie to the Canadian Firearms Centre to show them how it could be done. However, their argument is that you need a national, a universal system; that it can be only one way and that they cannot change anything.
Senator Pearson: I understand the nature of the beneficiary. I am not quite sure who all of the beneficiaries are. Are they all living in the north, or are some of them living in the south?
Mr. Awashish: The beneficiaries of the James Bay Agreement are defined by section 3 of the James Bay Northern Quebec Agreement. Essentially, for the Cree people, a beneficiary is any person who is of Cree ancestry. One must also keep in mind that the James Bay Northern Quebec Agreement was also signed by the Inuit of Northern Quebec, so they are also beneficiaries of the James Bay Northern Quebec Agreement. However, we are making this presentation simply on behalf of the Cree beneficiaries.
Senator Pearson: Are all of the Cree in the north, or have some of them moved out? And if some have moved out, are they still considered beneficiaries? How does that work?
Mr. Awashish: The majority, and when I say majority I am talking about 95 per cent, reside in the northern territory, that is, in the Cree territory, what we call Eeyou Astchee. There are a small percentage that do live outside of the territory; they live in Montreal or Ottawa or other parts of the country. There are some, quite a number, of Cree beneficiaries who are temporarily out of the territory, either for employment or for academic reasons.
Senator Pearson: My recollection, from the time we discussed this at the time of the passing of the bill, is that the right to hunt, and so on, applies to your lands; that it does not apply to the right to hunt in Montreal?
Ms Friedman: That is correct.
Mr. Awashish: The James Bay Northern Quebec Agreement applies to a defined territory, but we do have aboriginal rights outside of the territory.
The Chair: I might refer members to the sections, because Senator Pearson raised them, on photographs, which are on page 6 of the recommendations. As I read those recommendations, as well as your comments, a sophisticated system would not be required to take the photographs. It would seem to me that any 35-millimetre camera, or even a Polaroid camera, could take the photograph required for those particular regulations. All it says is that you have a full front view, that it be on a plain background, which means a wall, and that the applicant's head be at least 30 millimetres or 1.375 inches.
I do not quite understand what the objection is on the photograph. I certainly know what the objection is on the driver's licence and on the medicare card, because that is a particular form of photograph that is done by a particular photographic machine. But it is my understanding that that is not what is required here.
Mr. Cuciurean: Once again, I will explain that the law is drawn up by the Government of Canada but applied by the provinces. The Province of Quebec has defined what you have just read to mean two passport photographs only. This is the only acceptable photo. If you include a photograph that has been done with a 35-millimetre camera, in black and white, it will be returned to you with the message that it is unacceptable. You will be asked to submit two passport photographs which include a date stamp and the signature of the photography company, certifying that you are the person that they gave it to, and all this sort of thing.
The cost for one of these cameras is $1,376. It will take photographs that meet the SQ standards. We have only one of these cameras in our nine communities, so we need eight more.
The other cost is that of the photos. If you go to Jean Coutu here on O'Connor Street in Ottawa, it costs about $4.50 to get a passport photo. In Whapmagoostui, the best we can do it for is $10 per person. That is the cheapest; that is the best we can do. We need 8,000 photographs, so $80,000.
Senator Gigantès: I do not know that this is feasible, but supposing the federal government said we will pay the $80,000?
Mr. Cuciurean: That is why we are here. It is not in the regulations or in the legislation, and they have not said it yet.
Senator Gigantès: You do not object to the photograph, per se; you object to the cost of the photograph?
Mr. Cuciurean: As well as the licences, the permits and the courses. They are asking $53 a course. For the 8,000 permits required by the Cres, we are looking at somewhere between $1.5 to $2 million to get all the necessary rigmarole, not just the photos. The issue of the photos is only the tip of the iceberg.
Senator Watt: The point that I wish to highlight, which Philip Awashish has already highlighted, with respect to the James Bay Northern Quebec Agreement is that it is correct to say that the agreement is very explicit in terms of rules of the game vis-à-vis hunting, accessing rifles, et cetera; it is very clear within the James Bay Northern Quebec Agreement.
The reason that the agreement is clear on that issue is that the negotiations were done by the actual hunters. I remember Philip Awashish heading that particular section of the negotiations leading up to 1975. That also applies to the Inuit. It is the provincial government that is administering that, policing that.
If the constitutional rights which flow from section 35 are to be honoured and respected, they should not be abrogated or derogated through legislative avenues in any shape or form.
I made my views very clear before the bill was passed, but I was not heard. I had a meeting with the minister more than once to try to persuade him to see the other side of the coin. I even suggested a proposal to the effect that perhaps it should be viewed as a two-tier system -- one for the north and one for the south.
With respect to the beneficiaries, you do not want the same people to be placed in the different sets of categories. In other words, you want the rights that were obtained through the James Bay Northern Quebec Agreement to be protected. The only way that that can be protected is to make sure that all of the beneficiaries benefit from this, that the regulations apply in the same way, so that groups of aboriginals from the same community do not get slotted into different categories. That is what I believe you are trying to say here.
I am sure you know of this business of the people who fall under the Indian Act and the people who do not fall under the Indian Act. If we are not careful, that is what we will be creating here. We will be setting up what you call a checkerboard across the board. That is not what the aboriginal people want. Whatever is going to apply must apply to them all. I think there is a misunderstanding, even with our own Senate colleagues, of what applies, what does not apply.
I believe there was also a promise that was made by the government that they would not levy fees on aboriginals. I believe that that was not honoured, unfortunately, and they decided to deal with it in the sense of subsistence.
The Chair: Sustenance.
Senator Watt: If I understand correctly what that means, that is even weaker than subsistence, is it not?
The Chair: It has quite a different meaning actually, Senator Watt.
Senator Watt: It might have a different meaning, but that is also confusing the people because all of us, when we are in the north, are subsistence hunters, every one of us.
Senator Pearson: That is what I think sustenance means.
Senator Watt: You see me practically every week. You do not know what I do when I go home -- who I provide for and what other person I am responsible to keep alive. Those are the types of things that we must take into consideration when the law is about to be applied to us. We want to make sure that it does not overrule our daily practice, because it could mean life and death; it could also mean bread and butter.
By saying that, is this what you are concerned with when you are using the word "beneficiary," that you will want the beneficiary scheme apply to everybody? You do not want to end up with a checkerboard across the board. That is one of your main themes; you raise in your recommendation that you would like the authorities to be placed under the hands of local government, municipalities I would imagine or band council, whatever. I believe, in the recommendations put forth today, they talked about a leader in the community, an elder, to be given the responsibility to help to determine whether the law is being broken.
That is a very similar concept to what you are proposing, but if I understood you correctly you want the governing structure, as opposed to the individual, to have that responsibility. Is that what you are saying?
Ms Friedman: What we are saying is the James Bay Northern Quebec Agreement clearly provides that if you dispense with licence permits or other authorizations, which might be interpreted to include such indirect authorizations required, such as the Canadian Safety Course, then they are to be dispensed with through the Cree local government. What we are asking, if you must require licensing and registration, is that the chief firearms officer, instead of being appointed by the provincial authorities, be someone who is an aboriginal firearms officer. Who better to dispense licences and permits in a remote Northern Quebec community than an aboriginal firearms officer? Who better to assess the criteria that is set out right now for alternative certification than an aboriginal firearms officer, as opposed to a member of the SQ?
Senator Watt: Something that concerns me is that in a set of proposed regulations, those one or two individuals who are given that responsibility -- assume that goes through. Even if the local authority takes that responsibility, and having a governing responsibility, you realize that the non-derogation clause that exists within that bill is not a shield, it does not protect you, but only gives you an opportunity to fight your case. If you have done wrongly, did not correspond with the regulations, you can still be taken to court and examined by the court to see whether you are breaking the law, which will be dealt with on a case-by-case basis. It does not really give you the protection, even if you have it within your own autonomic government, because the law applies what is on top. Are you familiar with that? You are not worried about that?
Ms Friedman: I am not quite clear on exactly what the question is.
Senator Watt: I am just asking you whether you are aware of that.
Ms Friedman: It is our interpretation that the non-derogation clause is a general provision which states, as such, that generally the objective of this legislation, by means of this section, is not to abrogate or derogate from existing aboriginal or treaty rights. Whether or not we must go to court to establish, through jurisprudence, that our rights have been broken and require the courts to correct the problems that we cannot seem to resolve through regulatory adjustments is something else, but it is a general provision which I think has yet to be interpreted.
Senator Watt: What you are saying in a sense then is that you do not like what happened but you are willing to try it out in the way that you have made the proposal? If the regulations are accompanied with the proposal that you have made, you are willing to try it out?
Mr. Awashish: We place emphasis on the implementation of the regulations to the extent possible through the local government authorities and also through the appointment of the aboriginal firearms officer. Our assumptions are based on our own experiences that local authorities, native authorities, and aboriginal officers in general, do respect the rights of aboriginal peoples to hunt and fish. I would assume that the same respect would carry on in the implementation of the regulations themselves to the extent possible to the local governments; the Cree local governments, and through the aboriginal firearms officers, that they will continue to respect the hunting, fishing and trapping rights of Cree peoples while maintaining the objective of firearms control for ensuring public safety.
We are prepared to stand by our recommendations. We reserve the right, as you know, Senator Watt, that the Cree would take alternative courses or measures to protect their rights. The recommendations that we tabled today are a minimum requirement to ensure that the regulations themselves do not infringe upon our aboriginal treaty rights. The legislation itself has already been passed and we do not consider any legislation sacred. Jurisprudence, as in the past, has either clarified or changed the legislation.
The Chair: For the edification of all members, I asked my researcher to bring me a dictionary, in order to clarify the difference between the words "sustenance" and "subsistence." Subject to interpretation, which in turn is subject to questioning, I would suggest that "sustenance" in fact has the more broad meaning. "Subsistence" is really the art or the state of keeping alive or the means of keeping alive, which would imply, if you were a subsistence hunter, that it was your only source of economic activity. If you were a sustenance hunter, you would be supplying yourself or being supplied with food; the definition would not be so narrow as to say that it was your only form of economic activity.
By using the word "sustenance," I think what the government has done is to make it a broader definition than would have been required by the definition of "subsistence." Subject to that, Senator Watt, the dictionary is open to question, and I am certainly open to question on that particular issue.
Senator Watt: We will take whichever is the stronger word.
The Chair: I think the government has in fact used the stronger word in protection of aboriginal people in these particular circumstances; but, again, that is open for further discussion.
Mr. Cuciurean: There are two quick points, if you do not mind, that I wish to make. I wanted to mention to Senator Milne, when we talked about the waiving of licence fees for sustenance hunters, as I read the regulations, there is no waiving of fees for their gun registration. Such a person would obtain a licence for himself. But then if he owned guns or obtained guns during the application of this law, he must pay the gun registration fees. There is no waiving for sustenance hunters, as I read it.
Senator Moore, you were asking questions about consultation. I was thinking about this as the discussion went on. The word "consultation" is a trick word, one which has been used many times by the government. The Cree have participated in many consultations. We have had many exchanges and many meetings. The government tells us what they want to implement, and why, and we tell them what we need and why, but it seems to me that none of the Cree recommendations were included.
Today is the seventh time the Cree are presenting these recommendations to the Government of Canada, asking to have them implemented. The hooker is, as Senator Beaudoin pointed out at the beginning of the talk, that it is fine for the government to go ahead and bulldoze these things through; that it is then left to the Cree to pay their lawyers, take their time and take the next seven years fighting in court for some very simple principles, like the right of beneficiaries to obtain their permits free.
I am not a lawyer, but I do not understand how anyone can argue with what the James Bay Agreement states and thereby why we are, for the seventh time, asking that beneficiaries obtain free licences. This is the seventh time, and we are still being told that we must wait to see what the jurisprudence will be.
The government of the day and the minister are being very cavalier. They are saying that the onus is now on the Cree to take this thing to the Supreme Court, to fork over $500,000 or $1 million in court fees and court costs.
The seventh time -- how many times must this be stated? We are gentlemen and we are trying to be nice about it; but somehow, nothing happens. It is just very frustrating for everyone concerned.
I would submit that this forum is a form of consultation. The Cree are coming here consulting you and telling you the law, as currently drafted, needs to be cleaned up, needs to be tuned up. What will happen, in fact, is that we will leave here and the legislation, in 15 days from today in the House, will go through with no amendments and no recommendations; nothing will happen. Everyone will say that the Indians are just making trouble or they are whining, or whatever.
That is what will happen, because we have done this previously. These requests that we are making today are not new. This is not the first time we have been here. Madam Chair was in the committee, and so was Senator Watt, when we presented these same recommendations. What we got was Senator Beaudoin's famous clause, which in my opinion, not being a lawyer, is really a minimal, bare-bones protection. And the Cree now must spend $1 million in the courts to gain the protection of that non-derogation clause. The government throws it in to save face, or whatever, and the Cree must pay the cost of protecting their treaty rights.
The Chair: Mr. Cuciurean, two things: First of all, do not pre-empt this committee. I think I can reasonably assure you there will be some recommendations from this committee to the Minister of Justice about these regulations. Second, with respect to your comment about registration, there is in fact a waiver fee.
Mr. Cuciurean: Excuse me, I was wrong.
The Chair: Just for your information, that can be found in the registration certificates applications; it is not found in the aboriginal section. It could easily have been missed by anybody. But just so that you know and that senators know, in the document you have received that information can be found on page 62; just for your interest.
Senator Beaudoin: When I referred to section 2(3), my intention was to bring that to your attention because we had a long discussion many months ago on this and I think it is in favour of the aboriginal people. Of course I realize as a lawyer that it costs money to go before the courts.
Another thing that has been brought to my attention is section 117(u). It states:
117. The Governor in Council may make regulations
(u) respecting the manner in which any provision of this Act or the regulations applies to any of the aboriginal peoples of Canada, and adapting any such provision for the purposes of that application;
That is very good for you, I think.
Mr. Cuciurean: If it is used.
Senator Beaudoin: Well, I just bring that to your attention. I realize that the regulations are very important to you. At the time the act was adopted, the question of the aboriginal rights took hours and hours. We paid a lot of attention to this. And you deserve such attention, there is no doubt in the world about that.
I bring that to your attention to say that we are quite interested by the fact that for you aboriginal rights in the field of firearms is of great importance.
The Chair: Senators, our second witnesses this afternoon are from the Mamit Innuat First Nations.
It will come as a surprise to our previous witnesses, but in fact I have the draft report on some recommendations based on witnesses that we have heard before today. What I would like to do later this afternoon, honourable senators, is to distribute that draft report to you, ask you for your direction vis-à-vis the witnesses we will have heard from this afternoon, and then to meet tomorrow to approve the draft report.
Mr. Bellefleur will speak first.
[Translation]
Mr. Guy Bellefleur, Spokesperson, Mamit Innuat First Nations: Honourable senators, I am pleased to be here this afternoon to share with you the concerns of our people about the regulations arising from the Firearms Act.
My name is Guy Bellefleur and I am the spokesperson for the Mamit Innuat First Nations. With me is Armand Mckenzie, counsel for the Mamit Innuat First Nations.
The First Nations of Mamit Innuat -- which signifies the people of the East -- include the four Innu communities on the Lower North Shore. Quebeckers refer to us as the Montagnais nation, that is the Mingan, the Natashquan, the La Romaine and the Pakua Shipi who together account for a total of 2,500 people. The Mamit Innuat First Nations enjoy territorial rights to approximately 250,000 square kilometres of Nitassinan, the territory known today to outsiders as the Quebec-Labrador peninsula. The Mamit Innuat First Nations have lived on and governed this land continuously for thousands of years.
Despite the abusive occupation and use of our land, and despite the actions and laws of the government of the dominant society, the Mamit Innuat First Nations continue today to affirm as a people and as a nation with its own laws jurisdiction over the territory of Nitassinan. In so doing, the Mamit Innuat First Nations are exercising their right to self-determination.
The Mamit Innuat First Nations belong to the great proud and strong Innu nation which has lived in Nitassinan in harmony with the environment and the wonders of the creator. The Innu are recognized as a people in international law and possess all of the attributes associated with this status, namely a language, culture and common history, along with a distinct system of government which ensures Innu jurisdiction over the territory. The Innu have always governed Nitassinan as a nation.
Since the arrival of the Europeans, the Mamit Innuat First Nations have maintained relations with the new arrivals on a nation-to-nation basis. However, their status and their rights to Nitassinan have never been spelled out clearly in a treaty between the government and the Mamit Innuat First Nations. The Crown and later the Government of Canada signed treaties with other aboriginal nations to clarify the rights and jurisdiction of each party. Not so with the Mamit Innuat First Nations. This explains why we are currently engaged as equal nations in territorial and governmental negotiations with a view to clarifying the jurisdictions and territorial sovereignty of our respective governments.
The Mamit Innuat First Nations greatly depend on traditional hunting and fishing activities. Our nation does not think of guns as firearms, but rather as tools for surviving and exercising aboriginal rights. The new firearms legislation as well as the attendant regulations would restrict our use of and access to the tools with which we exercise our hunting and trapping rights. This legislation restricts our authority to regulate hunting and trapping activities and imposes unjustifiable limitations on the way we exercise our distinct culture, customs and traditions, in particular group caribou hunting.
The federal government has acted aggressively in this matter to adopt and impose legislation and regulations, despite repeated attempts by the Assembly of First Nations to get the government to explain to First Nations how this legislation will affect aboriginal treaty rights. As a result of the pressure brought to bear by the Assembly of First Nations on the federal Justice Minister, some consultation, albeit superficial, has taken place and the requirements respecting consultation set out by the Supreme Court of Canada in Sparrow have not been fulfilled.
We were given information about the Firearms Act, but we were not allowed to alter in any significant way the impact of this legislation and the regulations on our traditional way of life. Indeed, the impact is far from minor. For the same reasons, we fully support the position of the Assembly of First Nations which believes that Firearms Act and the regulations constitute an unwarranted attack on the aboriginal and treaty rights of First Nations. Like the AFN, we consider this legislation and these regulations to be unconstitutional. With this legislation, the Liberal government is not even fulfilling the requirement set out in Sparrow which states that aboriginal peoples must be consulted when policies or laws affecting their aboriginal rights are to be implemented.
During our consultations with the Justice Minister, even though we clearly indicated to representatives of the Canadian Firearms Centre that First Nations had the right to be exempted from the provisions of the Act, we nonetheless issued a substantial number of recommendations designed to limit the harmful effects of this act. We must reluctantly conclude, however, that many of these recommendations have been relegated to the back burner so as not to offend federal and provincial colonial authorities. These are the recommendations that we made:
that the Minister, on the recommendation of the AFN, appoint a national aboriginal firearms officer who would comply with the same financing conditions as provincial firearms officers and who would enjoy the same powers, including the power to appoint aboriginal firearms officers at the regional or community level, to issue licences, to administer firearms safety courses and to allocate funds for activities carried out at the community level;
that First Nations be exempted from having to pay the fees associated with firearms safety courses, licences and registration certificates;
that elders automatically be entitled to receive a licence;
that bilateral financing agreements be worked out between the federal government and aboriginal groups with a view to reimbursing administration and implementation charges which must necessarily be incurred.
Your governments were simply not receptive to these and to several other recommendations.
We therefore recommend that the Government of Canada recognize that Mamit Innuat and the First Nations of Canada have their own traditional laws governing the safe handling of firearms and that it recognize the jurisdiction of Mamit Innuat over this matter.
We urge you to call upon federal Justice Minister Allan Rock to create a Mamit Innuat Canada table to clarify the jurisdiction of Mamit Innuat over firearms and to discuss Innu regulations in this area.
We urge you to call upon the federal Justice Minister to initiate a process for negotiating appropriate arrangements between Canada and Mamit Innuat for the application of Mamit Innuat First Nations laws to the process of controlling firearms.
Honourable senators, as you examine the firearms regulations, you must recognize a number of principles, namely that aboriginal peoples have the right to govern their own hunting, fishing and traditional activities, as hunting is an integral part of the culture and way of life of aboriginal peoples.
Possession of a firearm for the purposes of engaging in a traditional activity is recognized as an aboriginal or treaty right.
The new firearms legislation prejudicially affects aboriginal and treaty rights, especially by imposing unjustified conditions on aboriginal hunters wishing to obtain a firearms licence or permit.
Mamit Innuat concurs with the need to reduce violence and restrict access to offensive weapons. However, it does not feel that the new firearms legislation is the appropriate mechanism for countering violence in our Innu communities and believes that it will increase the risk of having our citizens run afoul of Canadian laws. It is all well and good for you to want to resolve the problems associated with violence in your society, particularly in the large cities. However, this initiative should not further criminalize aboriginal peoples.
Senator Beaudoin: I have a very general question for you. Basically, your philosophy is clear: firearms are essential to your people, they mean something different to you and as such, perhaps somewhat different regulations should apply to you.
However, I do see that some sections of the regulations are adapted to the circumstances of aboriginal peoples. Earlier on, I referred to section 117(u) of the Act which states that regulations may be adapted, and to section 2(3) which says that the courts must interpret the Act in such a way as not to abrogate the rights of aboriginal peoples. Can anything further be done? I do not know. At least we are doing the minimum. It is good that you are coming here to make recommendations to us. If you feel that we are not going far enough, then as the chairman said, this will be brought to the Justice Minister's attention. I want to thank you for coming to share your views with us. This is important. I have no further questions for you. I can see that your's is a truly unique situation.
Mr. Bellefleur: In response to your comments, Senator Beaudoin, it is clear that the members of our community continue to lead a nomadic or semi-nomadic live. There are people like my father who have never been to school. They do not speak a second language, be it English or French. They have been educated in a traditional way and taught to live off of the land. When you translate "firearm" in the Innu language, it refers to a an object used to commit a crime. In our Innu language, "firearm" does not have the same meaning. It is a tool that we use to ensure our survival and we know full well that firearms are dangerous.
When I was first taught to use a firearm, I spent several months with my grandparents. They taught me how to use a gun. They spoke to my father and together they decided how old I should be before I started using a firearm. Our parents were the ones who made this decision, not police officers or government officials. They know when the time is right for a child to possess a firearm. If an outsider were to decide if a child or the elders should be allowed to have a firearms licence, it is clear that the values that we hold and the respect we have for our elders and our parents could disappear. Our parents are the ones who teach us how to use a firearm and we want to preserve these values.
With respect to the sections that you mentioned, I have read the regulations and I think our counsel is in a better position to answer these questions. I reread the regulations this morning and I believe that certain conditions are attached to these provisions. Since we live in remote regions, the closest SQ detachment is located 400 km from the community that I live in, with another community 600 km away. A number of communities have no landing strips and planes can land only when mother nature cooperates. We are rather far removed from the firearms officer.
To give you an example, I once lodged a complaint with the SQ. I was told that they did not have any way of getting to our communities and that they were planning to come here in one or two months' time. However, the people who committed the offences will not likely be around in a month or two. Therefore, we do not get any service from the SQ.
We do have an aboriginal police force, but its jurisdiction is rather limited. I do not wish to get into this subject. Instead, I will let Mr. Armand Mckenzie discuss the provision you mentioned.
[English]
The Chair: Mr. Mckenzie, before you answer senator Beaudoin's question, have any of those regulations addressed any of the concerns expressed by the Inuit people?
Mr. Armand Mckenzie, Legal Counsel, Mamit Innuat First Nations: I do not think so because before those regulations were put in place we made a number of important recommendations to guarantee certain protections to the aboriginal rights in the application of the law and the regulations. We met the people from the Canadian Firearms Centre. It seems to me that we did not get any answers to some of the recommendations we made, or the answer was that our recommendations could not be put in place because, for instance, the powers of the provincial government could not be "contravened."
When we talk about, for instance, a native chief firearms officer -- I will follow the ideas that were submitted by the Cree before our presentation -- it is an important recommendation, but we cannot do it in the law, in the Firearms Act, and I guess we cannot do it either under those regulations. It is important to have a native chiefs firearms officer because we know best how to deal with our people; we know their needs, in terms of hunting and traditional life activities and in terms of firearms.
I met Mr. Beaudoin at the Royal Commission this weekend in Montreal at McGill University. If we want to start to look at indigenous peoples of this country as equals, as partners of the Confederation, we should start to act as such, including in respect of those regulations. We should at least recognize the fact that the indigenous people of this country have the right to an indigenous firearms officer who will control or manage the law and the regulations.
We have tried to look at the regulations, at how we can fit into those regulations. We cannot do it. National Chief Ovide Mercredi said yesterday to the House of Commons that we cannot improve a bad law in the regulations. That is basically the position that was affirmed by the national chief, Ovide Mercredi.
In the consultation process with the Canadian Firearms Centre, we tried to improve the law or to improve some aspects of the law. And it is the same with the regulations, Mr. Bellefleur mentioned.
[Translation]
I examined the regulations and we all agreed that they did not comply with the criteria set out by the Supreme Court of Canada in Sparrow to the effect that unwarranted conditions must not be placed on aboriginal peoples which would prevent them from exercising their rights. That is what we are seeing here. This legislation and the regulations will place a heavier burden on aboriginal communities in that they will be forced to acquire firearms licences. If you only knew how hard we have been trying to have a firearms safety course offered in our communities. It takes a great deal of energy, time and money. Indeed, I could repeat every single argument put forward earlier by the Cree whom we support. The administration of these regulations creates a number of problems. We do not see why there should not be an aboriginal firearms officer who would oversee the administration of the Act to ensure that its provisions are adapted to us and implemented in a more flexible manner. Not only would this save the federal government money, but it would also facilitate the administration of the Act and the regulations, and make it easier as well for aboriginal peoples to obtain licences. This would also make it easier to comply with all of the administrative conditions set out in the regulations for obtaining a firearm.
[English]
The Chair: Yes, you have. I am sure you are aware that the Firearms Act allows for the appointment of an aboriginal firearms officers, but it has to be done by the province, not by the federal government.
Mr. Mckenzie: Do you mean under this current legislation? We made some presentations to Pierre Vincent, the chief firearms officer in the Province of Quebec.
To prove what we say, I will refer to a resolution made by the Assembly of First Nations of Quebec, Labrador. I will not read all of it. Basically, this resolution invites the Minister of Justice of Canada to appoint a chief firearms officer for the Province of Quebec. The Cree and the other indigenous people or Indian people tried to have a chief firearms officer who is of aboriginal ancestry. This was not possible because the Government of Quebec administers the act in a very discretionary way on a number of issues at this moment. It is not possible, even if the law provides for it. I believe you, but it is not the case. I do not know if this is "distinct society," or whatever.
The Chair: The reality is that there are certain provincial powers in this county. I think we are all aware of the difficulties sometimes. However, there is the authority in the act for an aboriginal firearms officer to be appointed, but the appointment must be made by the province.
Senator Watt: This is not directed to the witnesses but directed to you, Madam Chair. Since you mentioned the authorities, it is in the hands of provincial governments to implement this. Is the provincial government in agreement with the federal government that they would appoint local firearms officers, or they do not wish to?
The Chair: I cannot answer that, Senator Watt. All I can tell you is what is in the act, whereby the authority exists. I do not know how that authority will be exercised.
Mr. Mckenzie: Just to complete on the appointment of firearms officers, I guess what we must understand is that the federal government has a fiduciary responsibility towards the indigenous people that live in the Province of Quebec; and the federal government has jurisdiction under section 91(24) of the Constitution Act over Indians and land reserved for Indians. If we want to look at the spectrum of the Royal Commission's report, we must start to look to indigenous people as partners in the Confederation and not look at those peoples as citizens of a province. It is possible to have bilateral arrangements between the federal government and the indigenous peoples that live in the Province of Quebec over a number of issues, including the appointment of a chief firearms officer.
[Translation]
Mr. Mckenzie: I would like to discuss further a comment made by the honourable senator concerning section 2(3) of the Act which deals with aboriginal and treaty rights. It is all well and good to have these provisions and section 117(u), but this is of no benefit to aboriginal peoples at the present time. I will explain to you why this is so. As the Cree have just stated, if we cannot obtain the changes that we want to the laws and regulations, we will be forced to take this matter to the courts. The Justice Department's position before the courts is that we do not have aboriginal rights in a number of areas. The provision which states that aboriginal rights must not be affected does not give us any rights. From a legal standpoint, this is an empty provision. Why? Because the federal Justice Department will do everything possible to deny aboriginal rights before the courts. That is why these provisions are inadequate. While they represent a minimum effort, the regulations should have gone further. Aboriginal groups which appeared before this committee and the House of Commons committee made a considerable number of simple recommendations which can facilitate the administration of the Act. Once again, we urge you to contact Justice Minister Allan Rock and to ask him to take the recommendations of aboriginal peoples into account. If the legislation must be amended so that the federal government and aboriginal peoples can get together to appoint aboriginal firearms officers, then so be it.
M. Bellefleur: Madam Chair, we would like to thank you for inviting us to present our views to the committee. Since we live in a remote region, transportation is a problem for us. It is even more of a problem for us when we look at how these regulations are drafted, when we explain to our people, to the hunters or trappers, that they are prohibited from engaging in a particular activity because of a particular provision in the legislation. They do not understand this. As I said, my father never attended school. When we explain to them that outside authorities are restricting their right to possess or purchase new firearms, of course they will want to know who these people are because they cannot see them. The only time we see these people is when a crisis erupts. Otherwise, they do not come to consult us or to explain to us laws which affect the rights of the Mamit Innuat First Nations.
Mr. Mckenzie: We left Sept-Îles this morning to catch our flight and we must leave to go back at 6:15 p.m. The costs involved in making representations to committees are enormous. We often hope that our representations will have positive results.
On the subject of licences -- the Cree talked about licensing costs earlier -- we would recommend that the regulations respecting licences be improved. We made a similar recommendation when we met with officials from the Canadian Firearms Centre. In our opinion, the government must not make the mistake of lumping together subsistence hunters and aboriginal peoples. Admittedly, aboriginal peoples are subsistence hunters, but the fact remains that the rights of non native subsistence hunters are not enshrined in the Constitution Act, 1982.
As a lawyer and bureaucrat who ventures out several times into the territory to hunt, how do I stand up to this criterion? Am I a subsistence hunter? As a native, I would like to be exempted from having to pay fees. I would like to obtain a firearms licence. However, as a subsistence hunter, this would be impossible. Why? Because I do not engage is subsistence hunting. I am a lawyer and I could not do that.
This is true of a good many citizens. This is where the discretionary power of the SQ firearms officer who is a non native comes into play. A white person will tell me: all right, you do not engage in hunting activities. He will look at Mr. Bellefleur or at an elder in our community and say: All right, you hunt and you exercise your aboriginal rights and therefore we will waive the fees. This will not happen in my case or in the case of many other individuals.
Do not make the mistake of lumping together subsistence hunters and aboriginal people. Subsistence hunters do not enjoy aboriginal rights as enshrined in the Constitution Act, 1982.
[English]
The Chair: Mr. Mckenzie, I do not know whether you were here when we in fact distinguished between the two words "subsistence" and "sustenance." The word actually is "sustenance" and has a broader meaning than "subsistence." I think that you might qualify, I hope you would qualify, under the word "sustenance"; however, hopefully, as a lawyer, one whom I hope has more and more success, you will not qualify under "subsistence."
Mr. Mckenzie: In French, there is no difference between "sustenance" and "subsistence." It is the same word. That might cause a little problem.
The Chair: Indeed, it may. Perhaps we had better bring that to the government's attention in that particular circumstance.
I do want to point out that as witnesses before this committee we do have the authority to pay some of your expenses in appearing before us and we would be pleased to do so.
Mr. Mckenzie: Both?
The Chair: It is only for one per representation. However, the House of Commons has the same rules, and you appeared before them. Perhaps we can get one and one, and manage to get you both paid for in these particular circumstances.
The committee continued in camera.