Proceedings of the Special Committee on
Bill C-20

Issue 5 - Evidence (afternoon sitting)

OTTAWA, Monday, June 12, 2000

The Special Senate Committee on Bill C-20, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, met this day at 1:39 p.m., to give consideration to the bill

Senator Joan Fraser (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I see quorum. The seventh meeting of the Special Senate Committee on Bill C-20 is now in session. I should like to welcome all of you, including the television audience, to our hearings. Welcome to the Senate.

Today we continue our consideration of Bill C-20, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.

[Translation]

The bill was passed by the House of Commons on March 15, 2000, and was read in the Senate for the first time on March 21. It was then read for the second time on May 18th, which means that the Senate has approved the principle of the bill. Bill C-20 was then sent to this special committee for thorough consideration.

[English]

That consideration continues today with the appearance of representatives from the Assembly of First Nations, the Grand Council of the Crees, and du Conseil de la Nation Innu Matimekush-Lac John. Mr. Claude Ryan, of Quebec, will follow these witnesses from these organizations later this afternoon.

The witnesses will each make an opening statement and that will be followed by a question and answer period. I should note that I believe that some of you have advisors with you and there was not enough room to accommodate everyone at the table. If at any time in the proceedings you wish to refer to an advisor or would rather have one of them answer the question because it is of a technical nature, please feel free to do so. We are sorry our table is not larger. We would thank you very much for being here today. We know it was not easy for all of you to get together. We look forward to our presentation, please proceed.

Mr. Phil Fontaine, National Chief, Assembly of First Nations: Honourable senators, thank you for inviting me to appear before you today. I hope to reiterate a number of matters we raised when the bill was before the House of Commons and, as well, to add perspectives developed since then.

Since 1982, constitutional reform, whether done directly or indirectly, by convention and necessity, has required the full, complete and equal participation of the First Nations of this land at each and every stage of the process and at all resulting negotiating tables.

The Meech Lake Accord failed at the hands of Elijah Harper and the Assembly of Manitoba Chiefs, because First Nations were not consulted in its formulation or proposals and because the accord referenced only two founding nations, omitting recognition of the First Nations as the first peoples of Canada, and as sovereign, self-determining and self-governing authorities.

The accord was insulting to First Nations as governments, and demeaning in failing to recognize the need for our active and equal participation in determining the constitutional future of Canada.

In 1992, the Charlottetown Agreement process recognized the rights of First Nations as we sat together as equals at the tables that produced the accord. Failure of the accord in no way diminishes the constitutional precedent there confirmed which required the full, equal and meaningful participation of First Nations in direct and indirect constitutional reform, and in any future design of this land.

In fact, the Canadian Constitution itself recognizes and protects the unique relationship of the First Nations of this country with the Government of Canada and the provinces. Section 35 of the Constitution Act, 1982, recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada. It is now generally accepted that section 35 includes First Nations rights of self-government. That is certainly also a cornerstone of the policy of the federal government.

The historic treaties, entered into nation to nation, will have borne no other interpretation in any event, thus, First Nations, like the provinces and federal Government of Canada, are uniquely described, recognized and affirmed constitutionally as the principle governments having self-governing rights in this land. Under Canada's own Constitution, no proceeding, procedure or institution can affect those rights positively or negatively without the full, equal and meaningful participation of the First Nations.

The Supreme Court Secession Reference included consideration of international law as well as Canadian law. In the eyes of international law, First Nations are peoples with a right to self-determination. Therefore, the legal, political and territorial status of First Nations in Quebec and in Canada cannot be affected without the full, equal and meaningful participation of the First Nations of Quebec and Canada. Moreover, section 35.1 of the Constitution Act, 1982, is of similar effect. Because it is referenced less commonly than section 35, I set it out here in full as follows:

The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the "Constitution Act, 1867", to section 25 of this Act or to this Part,

(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and

(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in discussions on that item.

Section 25 of the Constitution Act, 1982, guarantees that the Charter of Rights and Freedoms shall not be construed so as to abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada.

Section 91.24 of the Constitution Act, 1867, gives constitutional authority and concurrent fiduciary obligation in legislative matters concerning Indians and lands reserved to Indians to the federal government. The reference to this part in section 35(1) includes section 35 itself. Section 35(1) therefore clearly requires and mandates First Nation participation in any and all matters which have impact on the constitutional presence and rights of First Nations in this land.

In fact the nation-to-nation treaties between our people for the sharing of jurisdiction in this land, our first presence in this land and our aboriginal title, all converge in the same result. Within the context of these opening remarks, and with the caveats I will momentarily suggest, I say to this committee on behalf of the Assembly of First Nations that we support legislation that protects Canadians and assists First Nations in resisting any attempt to affect the constitutional, governmental or territorial integrity of Canada or the First Nations without the full participation and consent of all Canadians, and in particular of First Nations.

The First Nations of Canada favour legislation that protects First Nation citizens from a unilateral declaration of independence by Quebec or any other province. We also reiterate that no group or government in Canada has greater cause for, right to, or means of, secession than do the First Nations of this land. While we may often be seen as convenient allies, or pawns of one or the other two levels of government in this country, please make no mistake: We are supportive and collegial out of our belief in the value of this land as Canada, our rights and presence as self-determining peoples within it, and our right to choose independently whether or not and under what circumstances to continue to be a part of and respectful of the constitutional and territorial integrity of Canada or any province.

No other order of government has the right to take our people with it if they leave. No other order of government has the right to renege on or minimize its fiduciary obligations to our people. No other order of government and no non-aboriginal referendum process can have any impact on our people without our full, complete, equal and meaningful participation and consent.

Therefore, if one asks the question: "With whom must decisions be made about the clarity or appropriateness of referenda, what might be the terms and conditions of negotiation, and what might be the outcomes from those negotiations?", it is our view that the answers are straightforward. One of the parties must be the First Nations of this land. Whether one starts from the technical perspective of the provisions of section 35.1 of the Constitution, or the political and historic rights of First Nations to self-government, recognizing the historic treaties in section 35 of the Constitution or in the principles of international law, reference by the Supreme Court of Canada in the Reference re Secession of Quebec, there can be and will be no legitimacy to any process, to any action, to any negotiation, or to any recognition, either domestically or internationally, without the prior, full, and meaningful participation and consent of the first peoples of this land.

That participation and consent requires that First Nations be consulted in the initial determination on clarity, or a clear expression of a referendum question in the determination of whether or not a sufficient political will has been expressed by a provincial population in a referendum, and in any ensuing negotiation on terms or amendments required for any province to secede from Canada.

Originally, as you know, Bill C-20 did not explicitly provide reference to our participation as political actors, except in subclause 2 of clause 3, which specified that the rights, interests and territorial claims of the aboriginal peoples of Canada was one of the issues to be addressed by the Government of Canada in the negotiations leading to the proposal of a constitutional amendment. That would have relegated First Nations to a role of silent witnesses, or spectators, not principal governments. That role was not acceptable and so we worked tirelessly to ensure that the bill was amended to include our rights of participation as co-governors of this land.

Those efforts resulted in amendments to subclause 1(5), and subclause 2(3), which now require consultation with our people both on the questions of clarity of a referendum question and whether or not there has been a clear expression of will by a clear majority of the population of the province wishing to secede. We also requested amendment of subclause 3(1) to explicitly recognize that we must be full parties to any negotiations prior to amendment of the Constitution of Canada involving a province to secede. In our view, subclause 3(1) ought to have been amended to read as follows:

It is recognized that there is no right under the Constitution of Canada to affect the secession of a province unilaterally and that, therefore, an amendment to the Constitution of Canada would be required for any province to secede from Canada, which in turn would require negotiations involving at least the governments of all of the provinces, the Aboriginal Peoples of Canada and the Government of Canada.

Reference might also be made to particularizing the participation of the aboriginal peoples of the particular province proposing secession.

The Prime Minister and his government chose not to formally amend subclause 3(1) but rather have, after some negotiation, chosen to effect the intent of that amendment through a formal statement by Minister Dion in Hansard on third reading as follows:

The National Chief of the Assembly of First Nations, Mr. Phil Fontaine, indicated that he is satisfied with these modifications, but was disappointed that the role of Aboriginal representatives in negotiations on secession had not been more clearly defined.

On this matter, and I want to stress this, the reason why Subsection 3(1) of the Clarity Act mentions among the participants in possible future negotiations on secession only the governments of all of the provinces and the Government of Canada is that these are the only political actors to which the Court assigned an obligation to negotiate in the event of clear support for secession.

But neither the Court nor Bill C-20 rules out the possibility of other political actors participating in those negotiations, including the representatives of the aboriginal people of Canada. Simply put, it was not for C-20 to go beyond The Senate Court's reference by creating an obligation for actors other than those to which the Court assigned such an obligation.

I want to add that according to the Constitution Act of 1982, the federal and provincial governments are bound by an agreement in principle by virtue of which representatives of the aboriginal peoples would be invited to participate in discussions on any constitutional amendments that would affect the provisions of the Constitution that are mentioned in Subsection 35.1.

The Clarity Act respects that principle by clearly stipulating that negotiations on secession would include at least the governments of the provinces and the Government of Canada, and I stress at least.

We accept the fact that the historical, constitutional record, for all purposes, including justiciable purposes, now requires our full, complete and equal participation in any negotiations proposing to amend the Constitution of Canada. However, out of an abundance of caution, we would urge the Senate of Canada to propose an amendment to the legislation, in the terms just referenced, formalizing that mandate in the legislation itself.

We do not want to make more of that issue than is required. We support Bill C-20 as a legislative code designed not only to prevent unilateral secession of a province, but also to ensure that there is reason and clarity in the processes of consultation, the questions there asked, and the expression of political opinion required to effect so serious an event. Given the assurances of Minister Dion, the Prime Minister, and others, we are satisfied that the constitutional record requiring our participation is clear so that we will not be the cause of the failure of Bill C-20. As I have said, protection of our own peoples and our peoples' protection of Canada are too important to be the subject of unthoughtful politics.

However, in the event that amendments are proposed to the legislation and are found acceptable, we believe that it is incumbent upon the Senate, as it is on the House, to ensure that our participation as full, equal and meaningful participants is enshrined in the legislation itself.

I have with me today my colleague and legal counsel Mr. Jack R. London, QC. He and I will respond to any questions that you may have or engage in dialogue on these very important matters. Thank you.

Dr. Ted Moses, Grand Chief, Grand Council of the Crees: On behalf of the Grand Council of the Crees, I thank you for this opportunity to appear before the Special Senate Committee on Bill C-20.

The Grand Council of the Crees has a long history of active involvement in respect of the Quebec secession issue. We have identified and we continue to use every peaceful and democratic means available to bring our human rights concerns to the attention of Canadians and the international community.

We have published two books on the subject. We have participated internationally in human rights standard-setting forums where matters of self-determination and secession have been examined. We also were an intervener in the Quebec secession reference to the Supreme Court of Canada.

Prior to the October 1995 Quebec referendum, we implemented a public consultation process in our communities on the secession question and we held our own Cree referendum. Over 96 per cent voted that the James Bay Crees and their traditional territory must not be separated from Canada without Cree consent. This result was publicized in Quebec and other parts of Canada. As we later verified via a public opinion poll, our votes influenced the views of people in Quebec to vote in favour of staying in Canada.

Most recently, we have prepared two extensive briefs that have already been distributed to the distinguished members of the Special Senate Committee. Our brief on the clarity bill was submitted to the House of Commons, but it is still relevant to this committee as it outlines our overall concerns.

With the valued help of New Democratic MP Bill Blaikie and the support of Mr. Irwin Cotler, the Grand Council of the Crees obtained two of the amendments that it recommended on Bill C-20. We appreciate that the House of Commons will consult with aboriginal peoples in the future on what is a clear question and a clear majority. However, our proposed amendments on the critical issue of aboriginal participation in future secession negotiations must still be addressed.

The second brief that we submitted to you relates to Quebec's Bill 99 respecting the exercise of the fundamental rights and prerogatives of the Quebec people and the Quebec state. In our view, it is essential to read Bill 99, as amended, together with the federal clarity bill in order to put the whole secession issue into a realistic perspective.

Bill 99 was recently withdrawn by the Government of Quebec and a new amended version, "Bill 99 Reprint," was tabled in the National Assembly. The amended version, if adopted, still violates our human rights in much the same manner as the original bill. It still illegally and illegitimately seeks to ensure that the James Bay Crees and other aboriginal peoples in Quebec would never have the right to choose to stay in Canada, with our territories, should Quebec attempt to secede. It still seeks to deny the validity of our own democratic referendums on secession and other matters.

Rather than recognize that there are numerous different peoples and cultures in the province -- including Quebecers and aboriginal peoples -- Bill 99 seeks to recreate a single "Quebec people." It is fictitious in that it forcibly encompasses everyone. Yet, for purposes of self-determination, we cannot be included as part of a single province-wide people, without our consent. Nevertheless, Bill 99 seeks to strip aboriginal peoples of their distinct status as peoples and their human right to self-determination and self-identification.

The Quebec government and others have tried to confuse the issue by claiming that we deny that a Quebec -- or French Canadian -- people exists. However, our position is, and has always been, that all peoples in Quebec must be equally respected. It is not for us to tell others how to identify themselves.

We say that the Quebec government and the National Assembly have no authority under Canadian constitutional law or international law to force us to identify as part of a single Quebec people. Premier Bouchard is not the grand chief of the Crees, I am, and I do not pretend to be the grand chief of Quebecers. The creation, in the bill, of a single people throughout the province, is clearly a self-serving fiction.

The Grand Council of the Crees strongly supports fair and balanced rules to govern any secession process. Quebec's Bill 99 is the best evidence to date that such rules are essential. These rules must fully respect the judgment of the Supreme Court of Canada and the secession reference. Quebec's Bill 99 is, potentially, the most prejudicial action against the James Bay Cree since 1898 and 1912. At that time, the federal and Quebec governments annexed our vast traditional territory to the province, without our knowledge or consent.

By refusing to explicitly ensure the participation of aboriginal people's in future secession negotiations, the federal government violates its fiduciary responsibility. It is contributing to our vulnerability in a most grave situation. The government opens the door to future governments refusing us our right to direct and active involvement in secession negotiations in Canada.

In his appearance before the senate committee, Intergovernmental Affairs Minister Stéphane Dion confirmed that, in the view of the federal government, section 35.1 of the Constitution Act, 1982 mandates aboriginal peoples' presence and participation at any future secession negotiation table. Why, then, does the minister refuse to reflect this constitutional reality and obligation in the clarity bill in respect of our right to participation? Why are we kept in the dark regarding the clarity bill?

It is important to note that aboriginal peoples' participation rights are not dependent on whether or not section 35.1 is part of the constitutional amendment procedures. First, as our brief on the clarity bill describes -- in heading V, pages 98-107 -- there exist diverse grounds for concluding that aboriginal peoples have a right to participation.

Second, the Supreme Court of Canada has repeatedly stipulated in the secession reference that secession negotiations must be principled. Clearly, it would not be principled for federal and provincial governments to seek to circumvent their constitutional commitments enshrined in section 35.1.

As our participation in Canada and internationally makes clear, we take the issue of Quebec succession extremely seriously. We realize that the destiny of present and future generations of Crees, as well as the future of our traditional territory, is at stake. The James Bay Cree people have lived in, occupied and governed Eeyou Istchee for thousands of years, and we continue to do so. We have a long history and profound connection with our territory. These are historical facts of huge significance. No non-aboriginal people or government in Canada can make these claims.

Furthermore, the James Bay and Northern Quebec Agreement was approved by the governments and legislatures of both Canada and Quebec. According to this treaty, all parties agree to a permanent federal arrangement in our area and other vast regions in northern Quebec. No change to this federal context can be made without Cree consent. The federal government cannot circumvent our role as a full and equal party to this treaty by casting doubts to our participation in the secession process under the clarity bill.

For us, failure to include explicitly aboriginal peoples' participation in the clarity bill generates tremendous insecurity and uncertainty. In any secession negotiations, our marginalization, if not our exclusion, becomes a startling and cruel possibility.

As aboriginal peoples, we are well aware of the destructive effects of marginalization. It has been recurrently used by governments to dispossess us of our status and rights. Marginalization is the very antithesis of participatory or representative democracy. It is a cowardly government strategy. It prays on the disenfranchised and the vulnerable. If is often inflicted with the false sense of caring and trust.

For example, in November 1981 negotiations on patriation of Canada's Constitution, federal officials assured us that our rights would be secure in our absence. Yet, constitutional recognition of our aboriginal and treaty rights, as well as the equality rights of women and the disabled, were traded away by the Government of Canada in making a deal with nine of the provinces. It took a massive nation-wide effort by all those affected to restore these fundamental rights as part of the patriation legislation.

In the secession context, the federal government seems afraid to empower aboriginal peoples with rights and powers that we already inherently have. What harm would come to Canada if our constitutional rights were unequivocally affirmed so that we may defend ourselves in this country against secession?

During the secession reference, the Attorney General of Canada pleaded with the Supreme Court, and urged the justices not to elaborate upon the rights of aboriginal peoples in this reference. The government repeatedly assured the court that it would honour its constitutional and fiduciary obligations to aboriginal peoples in the secession context. The court states in the secession reference that the legal framework for secession negotiations emphasizes constitutional responsibilities as much as it does constitutional rights.

For the federal government to entrench fundamental imbalances in the clarity bill is an abdication of the government's fiduciary responsibilities. To expressly omit the participation of aboriginal peoples in future secession negotiations is more than an act of marginalization, it is also a betrayal of the Supreme Court's trust.

Currently, the James Bay Cree people are being confronted by one of the most colonial actions any people could ever experience. A government in Quebec claims it can transfer us like a herd of cattle into a new country. The federal government, our so-called "fiduciary," is in effect collaborating in this ruthless process.

If the Quebec government succeeds in this grand plan, I will loose my country. I will lose my Constitution. I will lose my lands. All of these have never been defined according to Quebec's geographical boundaries. In this urgent context, the federal government must not seek to weaken us -- to tie our hands -- by excluding express aboriginal participation from the clarity bill.

We understand that the federal government is presently pressuring senators to cast aside their own judgment and simply vote to pass the clarity bill. The bottom line for the government is that the Senate should rubber-stamp the draft legislation of the House of Commons.

We take issue with such a government approach. It implies that the Senate has no useful and honourable purpose. It implies that the Senate is irrelevant. In this extraordinary context of secession, there can be little question that the Senate can play a crucial role. No one can doubt the existing constitutional role of the Senate in the process of adopting laws such as the clarity bill. No one can doubt that the Constitution mandates the Senate to fully assess such draft laws, consistent with underlying constitutional principles and values, including democracy, federalism, and protection of aboriginal and treaty rights. Moreover, as one of the two institutions comprising the Parliament of Canada, the Senate has a constitutional and fiduciary responsibility to aboriginal peoples.

In regard to the clarity bill, we urge this Special Senate Committee to exercise its constitutional responsibility and support our proposed amendments. The bill must be modified so as to ensure a just and final participation in any future secession negotiations. By safeguarding the status and position of aboriginal peoples in the Quebec secession context, Canada as a whole will be strengthened.

[Translation]

Chief Jacques Gauthier, Matimekush-Lac John Innu Nation Council.

[The witness spoke in Inuktitut.]

Thank you for your invitation. In its examination of reports presented by States subscribing to the International Covenant on Civil and Political Rights -- to which Canada is a signatory -- the United Nations Human Rights Committee made the following observation to the Canadian delegation when Canada's report was presented in New York on April 6th, 1999:

The Committee, while taking note of the concept of self-determination as applied by Canada to the aboriginal peoples, regrets that no explanation was given by the delegation concerning the elements that make up that concept, and urges the State party to report adequately on implementation of article 1 of the Covenant in its next periodic report.

The bill that you are considering is, in our view, a test of Canada's willingness to consider aboriginal peoples living in the province of Quebec as full participants in the debate surrounding Quebec secession.

Bill C-20 is a test that will show whether Canada has upheld its international commitment to give meaning to the concept of self-determination and how it applies to the first peoples on Canadian soil.

It goes without saying that, for the Innu people, Canada's commitments and obligations where we are concerned consist basically of a series of actions, decisions, laws and government policies that, to this point, have done nothing more than confirm that Canada is not living up to its trust obligations, as recognized by common law, Canadian legislation, and entrenched in the Royal Proclamation of 1763 and section 35 of the Constitution Act of 1982.

Will Bill C-20 represent for aboriginal peoples another example of Canada's failure to live up to its continuing responsibility under the British North America Act for Indians and lands reserved for Indians?

Everything leads us to think that that might be the case, when we think about what the Innu people have already been subjected to in the way of government action, policies and laws.

I would like to take this opportunity today to give two concrete examples that prevent me, as an Innu leader, from believing that Canada intends to fully meet its obligations under international law regarding respect for the basic human rights of aboriginal people living in the province of Quebec, including their right to self-determination and to native traditional territory.

You recently considered Bill C-9 on the Nisga'a land settlement. It seems that the passage of this bill is seen by Canadians as something to celebrate and a symbol of a compromise between the historical presence of aboriginal people in North America and the sovereignty of the Crown.

Ironically, this law has something in common with another law that symbolizes not joy or enthusiasm, but rather shame and dishonour for Canada today; I am talking about Bill C-9, generally known as the James Bay and Northern Quebec Native Claims Settlement Act.

Twenty-five years ago, elders of my people came here to this Parliament to ask for justice. They came with the same message as we are coming here today with: Do not decide the fate of aboriginal peoples and of their traditional territory without their consent. Unfortunately, no one heard or listened to this message in order to understand it.

Then Prime Minister Pierre Elliott Trudeau ran up the steps of Parliament and told our elders: "Do not worry, tell your people that we are going to look after your territory." We should have realized that what he meant was: "We are going to extinguish your aboriginal rights to your territory without your consent."

For those who are not familiar with the details surrounding the James Bay and Northern Quebec Agreement, Parliament passed a bill in March 1977 to implement this treaty with the Crees and Inuit of Northern Quebec.

According to the Canadian government, this legislation has the effect of extinguishing all native claims, rights, title and interests, whatever they may be, in and to the Territory, of all Indians and all Innuit, wherever they may be.

In Canada's eyes, according to what your government claims, that law extinguishes the existing rights of aboriginal peoples on the territory covered by the James Bay Agreement; it applies to everyone, without exception, including those who are not signatories to the agreement.

Canada claims that this legislation also applies to the Innu of Matimekush-Lac John, although we did not sign the agreement. The Innu of Matimekush-Lac John have always occupied and continue to occupy a considerable part, some 100,000 square kilometres, of the territory covered by the James Bay Agreement.

But the territorial rights of the Innu are put in jeopardy by legislation passed by your Parliament, something that goes against the Canadian Charter of Rights and Freedoms and Canada's international obligations in the area of basic human rights.

As is the case with Bill C-20, Canada has a duty to change and amend its legislation on aboriginal peoples and their territory so as to comply with evolving standards in international and national law, standards that are increasingly requiring States to respect territorial rights and basic human rights of aboriginal peoples.

The extinguishment of aboriginal people's rights and this Canadian legislation that extinguishes the territorial rights of non-signatory Indians must be corrected and abandoned.

We join with the Chairperson of the UN Working Group on Indigenous Populations, Ms. Erica-Irene Daes, in urging Canada to officially renounce its discriminatory legal doctrines and policies that deny the human rights of aboriginal peoples or limit these rights where land and resources are concerned.

In particular, in the context of the International Decade for the World's Indigenous People, Canada should adopt amending legislation to change its doctrines and policies that unilaterally extinguish the rights and land title of aboriginal peoples.

There have been many reports, programs and policies, provincial, national and international decisions that have called for the abandonment of this discriminatory policy of extinguishment, exhaustive definition and conversion of the rights of aboriginal peoples. Canada runs a great risk in maintaining such a policy, given the opinions and expert advice issued by recognized and credible provincial, national and international institutions.

After supposedly extinguishing our rights to our territory, Canada is now working with Quebec to create an Innuit territorial government behind our backs. Still without our consent, Canada has signed a political agreement with Quebec and the Innuit, confirmed by an Order in Council on the part of the Quebec cabinet, to study the creation of an Innuit territorial government in compliance with Quebec's jurisdiction and territorial integrity and effective management by the Quebec government.

As I am speaking to you, the Travelling Commission on Nunavik is in Schefferville gathering feedback. Our opinion is clear. Once again, Canada is showing the utmost disdain for the fundamental human rights of the Innu.

It is not enough that Canada has denied my people its territory, but now it is giving foreign governments jurisdiction over our national territory. We do not need to go to Palestine to understand the notion of "occupied territory." In our view, this term, as it is used in the international context, can be applied meaningfully and directly to the situation of my people.

In carrying out its constitutional responsibilities toward aboriginal peoples, the honour of the Crown is always involved and no appearance of sharp dealing should be sanctioned. As for its international responsibilities, Canada has a duty to meet its obligations under the various human rights covenants and conventions.

As we see things, Canada has failed lamentably to fulfil its obligations under domestic and international law by not defending what the Supreme Court of Canada, in the Delgamuukw case, called one of the most central of native interests, their interest in their lands.

In terms of Canada's national and international legal obligations, the legislation to extinguish the national territorial rights of the Innu people and the creation of an Innuit regional government on Innu territory are just two examples among many which show that Canada has failed in its obligation to obtain the consent of the Innu that I represent on whether they agree that their territory should be handed over to other people.

Regardless of how the situation is handled, senators, your government will be held accountable to international opinion in the aftermath of any Quebec secession.

The international community will want to know what the fate and role of the First Peoples of this territory will be during negotiations if Quebec decides to secede.

In fairness, and with all due respect for this institution, if Bill C-20 is amended to enable non-elected members of the Senate to decide the fate of a country through their constitutional power, why would it not be possible for aboriginal people living in Quebec to freely determine their political status, in keeping with their inherent and recognized rights under the constitution of Canada and international law? Members of the Senate, on these fundamental issues, there can be no discriminatory policies or preferential treatment.

The Chair: Before giving the floor to my colleagues, I would like a clarification. When you say that the Innu occupy some 100,000 square kilometres of territory covered by the James Bay Agreement, can you tell us where your territory is located?

Mr. McKenzie: We share a territory with the James Bay Cree. There are territories that overlap. We occupy the eastern watershed of Lake Caniapiscau and the Crees the western watershed.

Of course, just so that you understand our situation clearly, we were not signatories to the James Bay Agreement with the Crees and Inuit of Northern Quebec. In spite of that fact, the law implementing the James Bay Agreement had the effect of extinguishing our Aboriginal rights. It is very important to understand the basic issue here. In my opinion, the common thread in all the representations made by aboriginal leaders is the need for consent.

[English]

Consent is required if we want to effect any of our aboriginal rights or title to the land, to our traditional territory. There is a common thread.

In our brief we gave two examples of how Canada has failed the Innu people -- examples of how Canada has failed to fully respect its fiduciary duty to our people in our community. We believe that, with Bill C-20, we must not repeat the mistakes of the past.

You have, in your hands, the powers and the abilities, the legal and constitutional power, to hear and understand the message of the aboriginal peoples, the indigenous peoples of this country, which is that consent is required regarding our aboriginal right and title. We are peoples. For that reason, we have the right to decide our political future and to make decisions about our natural resources and our territory.

Senator Beaudoin: My first question is to Dr. Moses. If I understood correctly what you said, under section 91.24 there is obviously a fiduciary obligation of the Government of Canada and the governmental authority of Canada to protect aboriginal rights. Do I understand that, in that, the Senate is included in the role of a fiduciary?

Mr. Moses: Yes, you are absolutely right. Our position is that the Senate is a part of the governmental structure in Canada, and that it has extended responsibility of a fiduciary nature towards the people of Canada, and particularly the aboriginal peoples of Canada.

[Translation]

Senator Beaudoin: You talked about an equal right for the Senate and the House of Commons, from a legislative standpoint, concerning the protection of Aboriginal rights. Is that correct?

Mr. McKenzie: I share the legal opinion expressed by the Grand Council of the Cree concerning the scope of the fiduciary duty both of the House of Commons and the Senate as institutions of the Crown. You know as I do that the relations between the native peoples and the Crown are based on fiduciary relations. There can be no dishonest dealing with native peoples. You have a fundamental role which is a constitutional responsibility concerning our fate.

What we are saying is that if the non-elected members of the Senate can decide the fate of a country based on their constitutional power -- the Senate does have constitutional powers and privileges -- then why can the native peoples not decide their fate and their political future? Why should we be like cattle transferred from one jurisdiction to another? We are not actors in the Canadian Confederation. We must be actors in the elaboration of any constitutional change.

Senator Beaudoin: You certainly are political actors.

Mr. McKenzie: "Political actors" implies decision-making. In my opinion, that goes beyond consultation.

Senator Beaudoin: If I understand, you are blaming the Senate for not having played that role in 1977. Is that it?

Mr. McKenzie: Exactly. The Cree representatives were in New York at the Human Rights Committee during the examination of Canada's report concerning its commitments with respect to the international pact on civil and political rights. So Canada is accountable on the world stage. The Minister Hedy Fry was present last April. She was asked how she intended to implement the native peoples' right to self-determination.

You have a unique opportunity, today, to give some meaning to the native peoples' right to self-determination so that it becomes significant for native peoples.

You have that power in your hands, you have the authority and jurisdiction. The example we have as the Innu of Canada is one of a total failure, of blatant disregard for Canada's constitutional responsibility towards the people we represent, the Innu. There was a unilateral extinguishment of the rights of native peoples in 1977. We did not sign the James Bay Agreement. Despite that, an act of Parliament was passed by the House of Commons and the Senate also after the Standing Committee on Indian Affairs heard our elders, 25 years ago, and after discussing things with the Prime Minister of the day, Mr. Pierre Elliott Trudeau. Legend has it that we met him on the steps of the Parliament Building, outside, where he told us everything was fine: "No problem, we are taking care of you." What that amounted to for us, was the extinguishment of our rights over the territory without the consent of the Innu. We do not want this kind of experience to be repeated.

We have another example concerning the participation of the Government of Canada in the creation of a regional Inuit government that is just above us, some ten minutes from where we come. There are no Inuit on that territory. They are Innu. The people there are Indian. Canada and Quebec are going to set up a regional government that respects Quebec's jurisdiction and the integrity of Quebec's territory as well as the Quebec government's principle of receptivity over this territory and that is being done without our consent. We have two concrete examples where Canada failed in its duty. We are asking you not to avoid fulfilling your responsibilities concerning our future as a native people.

[English]

Senator Beaudoin: Chief Fontaine, when you refer to the applicable formula of amendment, are you referring to the unanimity clause, section 41? In other words, if I follow your reasoning, it is so important that, if ever the Constitution were amended after successful negotiation, the only formula of amendment that would be applicable is the one enshrined in section 41, that is, unanimity.

Mr. Fontaine: That is correct, senator.

Senator Hervieux-Payette: Although I did not follow the day-to-day discussion on this bill in the House of Commons, I have not seen that the provinces have collectively asked to be included in the process outlined in this bill in the way that you have. You say that you want to be treated as a partner. I want clarification on the constitutional discussion that might follow a clear question and a clear answer.

The Senate and the First Nations seem to be in the same position as far as their role in determining the clarity of the question is concerned. We will be consulted, but the last word will belong to the House of Commons. If the bill were amended to give you full participation, like the House of Commons, we would be justified in asking for that for the Senate.

I want to know if I have correctly understood your view on Bill C-20 versus future constitutional amendments regarding legislation other than Bill C-20.

Mr. Moses: We are talking about the role of aboriginal peoples as political actors. Regardless of how we look at it, we do not see ourselves as political actors in the clarity bill. We consider the bill to be deficient to the extent that it does not address all the principles upon which the Supreme Court of Canada pronounced in the reference case. It makes reference to political actors, but it does not say that the political actors are limited to the House of Commons in the Parliament of Canada or to the Government of Quebec and the National Assembly. It is not restricted to that. It makes reference to political actors in the broadest sense.

In the bill we see the exclusion of the aboriginal peoples as political actors when it is so fundamental that, in a secession process, the basic human rights of the aboriginal peoples could be violated.

Senator Hervieux-Payette: Like the provinces and the Senate, you find the consultation process to be insufficient. What would be the mechanism for that kind of inclusion in the bill? It says in the bill that the provinces, the aboriginal peoples, and the Senate must be consulted. Perhaps you have consulted the provinces. That is why I am asking the question. Why do they not form a common front and ask to be part of the process? Why do they not appear before our committee and claim the same right?

Mr. Moses: I can only answer questions pertaining to aboriginal peoples. We go beyond just the sense of consultation. Consultation can be construed as just a telephone call or the submission of a document. We are talking about active and real participation in the process: being at the negotiating table, being able to defend our rights, and being able to speak out on the situation of aboriginal peoples.

Senator Hervieux-Payette: To give you an example, when we negotiated NAFTA the provinces were not necessarily sitting at the table, but they were part of the consultative process because some of the subject matter was of provincial concern. At the end of the day, those who finalized the North American Free Trade Agreement were the representatives of the government. Is this not a similar position?

Mr. Moses: I appreciate the analogy, but we are talking here about the fundamental rights of aboriginal peoples. On a matter of such paramountcy and importance we need to be direct participants. We need to be there to speak out in defence of our rights. We cannot put all our trust and confidence in the government to do so.

Senator Hervieux-Payette: There should be an efficient way, within the regulatory framework of the bill, of specifying how, when, and to what extent you would be consulted. It should be done efficiently. We cannot consult for six months, say, four months after the referendum has taken place. We have to find a mechanism by which, if a province puts a question on the table, we will have an answer within a certain time frame.

[Translation]

Mr. McKenzie: Before giving the floor to Chief Fontaine, I would like to answer your question. There is a difference between the provinces. The provinces have a certain number of powers already guaranteed in the Constitution. The provinces are riding around in automobiles compared to us. We are still riding around in ox-drawn carts and we are trying to advance to make sure that we can have some control over political decisions. I am not worried for the provinces, they will know what to do if secession happens. On the other hand, our concern is to ensure that in the Act, there is really an expression to the effect that Canada and the Senate are acting in accordance with international law and constitutional law and that the representatives are political actors who have a voice in their political future. That is the angle it should be looked at rather than a regulatory framework. I think that the proper amendments have to be moved by the proper council and the assembly.

Senator Hervieux-Payette: I hope that there is at least a similar mechanism you could give us on how you would like to be consulted. There are ways of consulting, like during a general election; rules are established to know whether the formula is compatible or not with the legislation.

During a referendum, there is some ambiguity when we talk about the native people: there is the Assembly of First Nations, the Cree and the Innu. Are the Cree and Innu automatically part of the Assembly of First Nations?

[English]

Mr. Fontaine: I will answer one part of the question, senator, if you do not mind.

The Assembly of First Nations is recognized as the political representative for 633 First Nations in Canada. It is a chiefs' organization. So when we speak, we speak according to the mandate that is provided us by the chiefs of Canada.

Senator Hervieux-Payette: Through the federation.

Mr. Fontaine: That is right. It is a chiefs' organization. Dr. Ted Moses is Grand Chief for the Crees in Quebec.

Mr. Moses: We are democratically elected by the people.

Mr. Fontaine: Each of us speaks in his own right. Unfortunately, we are as confused as you are, sometimes, about who speaks for Canada. We try to make some sense of that as best we can.

In terms of regulatory framework and a mechanism, there are three important considerations as far as we are concerned.

The first is that we have a treaty relationship with Canada. We define the relationship between Canada and the First Peoples very clearly.

Senator Hervieux-Payette: That is our own NAFTA.

Mr. Fontaine: That is right. In fact, it defines the relationship better than we have seen or heard from different quarters. We should never minimize the importance of our treaties and the treaty relationship.

The second is that international law speaks very clearly about the rights and interests of the first peoples, and that Canada cannot ignore the interests of its first peoples.

The third consideration is that, as to the Constitution and amendments to the Constitution, the process is very clear. Section 35.1 speaks to that matter. We have no doubt that Canada will respect that. We will be part of the process at every stage of the way.

Senator Chalifoux: I would like to thank you all very much for your presentations and your insightful opinions on the issues relating to this bill.

I should like to clarify one further matter. I am not a lawyer. I am an aboriginal woman. I am an elder. I was appointed an elder in the Metis nation many years ago. The Prime Minister chose to appoint me to this place. One of my major roles in the Senate is the same as that required of me as an elder in the Métis nation. My mandate is to speak for and look after the concerns of my region, my people, and the people who do not have a voice. In my Métis nation, the role of the elder also has to take into consideration the rule of natural justice.

When I consider this bill, I see two things. First, it is meant to ensure that a clear question is asked, because the questions that were asked before were very unclear and very confusing. In my opinion, the people in the northern part of Quebec did not have a say in any of it.

The other aspect of this bill is that there must be a clear majority, and that has to be decided upon. Those are the only two issues I see being dealt with in this bill.

On my first examination of the bill I was somewhat upset because I saw that the Senate would play only a consultative role. Thanks to Chief Fontaine and those of you who appeared before the committee of the other place, some amendments were made to ensure that the aboriginal people were included. In subclause 1(5) of the bill we see the following words:

...any formal statements or resolutions by the government or legislative assembly of any province or territory of Canada, any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of the Aboriginal peoples of Canada, especially those in the province whose government is proposing the referendum on secession, and any other views it considers to be relevant.

After your appearance before the house committee, as I understand it, Mr. Fontaine, you worked with Bill Blakey to get that amendment. Would that not satisfy or, at least, help to assist you? You have been put in the same role as the Senate has, that is, you have a consultation portfolio. That subsection states:

...any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of the Aboriginal peoples of Canada...

You are in the same position as the Senate.

Will that assist you if further amendments cannot be put forward?

Mr. Fontaine: Let me make one point very clear. I may not have responded to that in the questions raised by the previous intervenors.

Consultation is of critical importance. The First Nations have to be engaged in all the decisions the governments of the land makes that affect all Canadians, including the first peoples. It is not enough to say, "We will consult with you." That is clear on the part of all. We need to be engaged in the decision-making processes.

We have examples where the two levels of government have been discussing a range of issues which impact on the interests of all peoples, including ourselves. We may be talking about the social union or the children's agenda or the discussions now ongoing between provincial and federal health ministers. Those are areas of critical importance to us. They affect us. There needs to be a way of ensuring that the interests of the first peoples are given due consideration. In fact, we should be at the table.

When we talk about the interests of Canada, that includes all her peoples. Here I am referencing our rights.

It is important that the Senate, as a legitimate institution of Parliament, speaks out on issues beyond the one we are talking about here today. Your voice must be very clearly heard, for example, on poverty, which is one of the biggest challenges that we face as a country. We must eradicate mass poverty from our communities. We see many manifestations of that poverty. We can talk about housing crises and health crises. The real crisis behind those is the grinding poverty endured by our first peoples. The list goes on.

It is incumbent upon the Senate to speak out on poverty because it speaks about Canada's future. If we cannot deal with this issue, we cannot deal with the other issues. Poverty is about Canada's future in a very real sense. The United Nations, for the fifth year in a row, has deemed Canada as the number one country in the world using the human development index, but if you isolate the conditions of aboriginal people, we rank 63. That is the real issue here and, when we talk about Canada's future, that is Canada's future. We need to deal with poverty urgently and as quickly as we can. That is a long answer to a very short question.

Mr. Moses: We are hearing comments on consultation and participation. Earlier, I expressed appreciation for the House of Commons' offer to consult aboriginal peoples in the future on what is a clear question and what is a clear majority. That is one aspect but, here, what is failing in the legislation and what we are proposing in the amendments, is the critical issue of aboriginal participation in future secession negotiations. Participation must be addressed. It is fine to be consulted, but then there has to be an obligation in the legislation to invite aboriginal peoples, particularly in the province in which secession is being proposed, to become full, equal and direct participants in those negotiations.

There are many bases on which we can draw. The aboriginal peoples claim the right to participate in any future secession negotiation along with the federal and provincial political actors, as stated by the Supreme Court of Canada. We are a constitutional entity with a right to participate. We are distinct peoples with the right of self-determination. We signed treaties with the Government of Canada and, in this case, with the Government of Quebec.

Any alteration or modification to those treaties requires the consent of the Cree people. As an example, there are 13 amendments by way of complimentary agreements to the James Bay and Northern Quebec Agreement involving the Cree and the Inuit of northern Quebec. That clearly justifies that Cree consent is required to amend any treaties.

I can give other examples, but I will not belabour the point. We are saying that there is an element of participation in future secession negotiations which is not provided here. Our proposed amendments are directed to that issue.

Senator Chalifoux: Subclause 3(2) of the bill states:

No Minister of the Crown shall propose a constitutional amendment to effect the secession of a province from Canada unless the Government of Canada has addressed, in its negotiations, the terms of secession that are relevant in the circumstances, including the division of assets and liabilities, any changes to the borders of the province, the rights, interests and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights.

What is your response to that? Does that help to address some of your concerns?

Mr. Fontaine: Regarding the three clauses, we, of course, are very concerned with the exclusion in the original draft legislation. As you can well appreciate -- and I know I am preaching to the converted here -- this issue affects the interests and rights of all.

We approached the government and other interested parties about making what we considered to be the appropriate amendments to those clauses. Given our understanding of Section 35.1, that any constitutional process and any amendments to the Constitution must by law include the aboriginal peoples, we felt that we would not be excluded. Thus we needed to establish that we would be engaged as fully as other parties in terms of determining the question and its appropriateness and the issue of the majority.

I referred to that assurance in my presentation. I thought that we had advanced our position significantly in this regard.

Senator Kinsella: The Senate's constitutional and fiduciary responsibility to the aboriginal peoples was a terribly important reminder that the witnesses gave us this afternoon. Perhaps it is more important that we focus on that than focusing on the consultative role that is being proposed for the Senate.

It seems to me, Chief Fontaine, that everyone is on side regarding the clarity of the question. However, the real issue is that the negotiations which the court says are obligatory will affect the rights of the aboriginal peoples in the seceding province and, indeed, in other provinces, just they will affect the rights of the many other peoples of Canada.

I was somewhat surprised that the bill came out of the House of Commons without the amendment that you are proposing here today. It seems to me to deal with the meat of the issue. If you are not at the table, how can you ever protect the rights of your people?

I would like to turn your attention to paragraph 82 of the Supreme Court's advisory opinion where they drew our attention, as you have already mentioned, to section 35 of the Constitution Act, 1982. They also made reference to the Sparrow decision in which we had more development of the meaningfulness of that right.

What catches my attention is the wording in the last line where the court states:

The protection of these rights, so recently and arduously achieved, whether looked at in their own right or as part of the larger concern with minorities, reflects an important underlying constitutional value.

Honourable senators, that seems to me to be the value issue that challenges us as senators. The witnesses are telling us: "That constitutional value speaks to our need to be at the table to negotiate the rights of our people in this cataclysmic circumstance to which the bill ultimately speaks."

Chief, would you agree with me that there are many principles that the court has articulated which speak directly to the right of your people to be negotiating the rights of your people in the circumstances envisaged by this bill?

Mr. Moses: As we have tried to point out to members of this committee, we want to participate fully, directly and equally in future negotiations related to secession. You have made reference to certain paragraphs of the Supreme Court decision. I would point to paragraphs 104, 106 and 149 where the Supreme Court made clear that any future secession negotiations must be "principled." Therefore, our full and direct participation cannot be circumvented.

It is in this light that the amendments proposed by the Grand Council are consistent with aboriginal peoples' treaty, constitutional and human rights, including the right to self-determination. It was in this vein that we proposed the amendments to the clarity bill. These amendments would exclusively provide the aboriginal peoples of Canada, especially those in the province proposing to secede, to be participants in any future secession negotiations. The aboriginal peoples of Quebec have the right to represent our own special interests. We are the only aboriginal peoples threatened with forcible inclusion in any future independent Quebec. It is from that perspective that we propose the amendments.

Mr. Fontaine: If our understanding regarding the constitutional requirements for the participation of aboriginal people in any matter regarding the Constitution is the same as yours, then we have made reference to section 35.1 that clearly requires a mandate. I refer you to our brief where it is stated:

Section 35.1, therefore, clearly requires and mandates First Nation participation in any and all matters which have impact on the constitutional presence and rights of First Nations in this land. In fact, the nation-to-nation treaties between our peoples for the sharing of jurisdiction in this land, our first presence in this land and our aboriginal title all converge in the same result.

We feel that there is no other way than to have the aboriginal peoples at the table.

Mr. McKenzie: I believe that you have raised two fundamental issues here. First, you talk about fiduciary duties and then you talk about the constitutional values of this country. I see around this table proud Canadians. I assume that you are proud to be part of this country and to be part of this government and this institution, the Senate of Canada. When I travel with my colleagues outside Canada to argue for our fundamental human rights as indigenous peoples, for instance at the United Nations or any other international forum dealing with indigenous peoples and human rights, I always see the Canadian delegation trying to convince the other states in the forum that they are treating well the indigenous peoples living in Canada. However, I think you have a unique opportunity here to help those Canadian delegations abroad understand how indigenous people can be political actors and partners in dealing with constitutional matters and fundamental human rights.

Denmark is at the forefront in dealing with indigenous peoples, as are Finland, Sweden and New Zealand. Those countries are trying to deal with their own indigenous peoples. You have an opportunity to respect that constitutional value that you value so much and which is made reference to in the secession reference case. Respect for aboriginal rights is part of one of the constitutional values of this country.

You mentioned the fiduciary duty and obligation of the Senate. I think the Senate has a fiduciary duty toward our people. You have made reference to the case law dealing with aboriginal peoples. In Delgamuukw, part of the fiduciary duty regarding whether the Crown respects or not the rights of indigenous peoples when dealing with territories, land and resources is that there must be consent. There must be the consent of the indigenous people of First Nations when dealing with development regarding the territories. Consent is part of the fiduciary duty of the Crown of which you are a part since you are representatives of the Crown.

I believe you mentioned two fundamental values that support the fact that aboriginal people must be full partners with the capacity to decide whether or not they should be part of an independent Quebec.

Mr. Fontaine: Madam Chairman, I wish to make two points. The first point is in response to questions that have been raised. Perhaps I have misunderstood the intent of the questions. I read a suggestion in a couple of the questions that have been raised here about our positions, that is, the position of Grand Chief Moses and the position of my other colleagues. There is absolutely no deviation from this point: We are of one mind when it comes to our role in determining Canada's future. We are of one mind on that issue. We see that as an important requirement. There is no chink in the armour here. There is no use trying to pick us off one by one. That point must be made clearly.

The other point deals with the reference to a fiduciary duty and the obligations that carries. There is a difference between the fiduciary duty and how one looks after another. We are really speaking about our participation, which goes beyond the fiduciary duty. We are talking about representing our own interests and doing all we can to protect our rights at the table.

While we may have been happier with an explicit acceptance of our position on the third amendment, the fact is that section 35.1 is clear about our participation. International law speaks clearly to the rights and interests of first peoples. Our treaties also reaffirm the importance and the absolute necessity of that. There is no circumventing having the First Nations at the table.

Mr. Romeo Saganash, Director of Quebec Relations, Grand Council of the Crees: I wish to add a couple of essential points in response to the important question that was asked by the Senator Kinsella. One of the essential issues that must be raised is the fact that we claim in our brief, and I think it is confirmed in the ruling of the Supreme Court in the secession reference, that our reading is that neither Parliament nor the Government of Canada has the discretion to determine who is a political actor and who can be included in negotiations. It is not up to the Government of Canada to determine that. It is the framework established by the Supreme Court that determines that. It confirms our right to participate.

That is also based on the principles formulated by the Supreme Court. When the Supreme Court talks about federalism it is not solely referring to the Government of Canada and the provinces, it also talks about one of the pillars of the Constitution of Canada, being the aboriginal peoples. The rule of law and protection of aboriginal rights and treaty rights will be violated if the aboriginal peoples, especially in the Province of Quebec, are not included in the secession negotiations. We must make that clear at this table.

Second, the Government of Canada, through the voice of the Attorney General of Canada, promised the Supreme Court of Canada that it would uphold its fiduciary responsibility towards aboriginal peoples. That promise has been broken by the present draft legislation that is before you today because it does not include aboriginal peoples as full, equal and direct participants in secession negotiations. We may argue, yes, that under section 35 that obligation already exists, but we need to make that explicit in the bill in order to reassure the aboriginal peoples.

To return to the earlier question posed by Senator Beaudoin with respect to the fiduciary responsibility of Parliament, not only by virtue of section 91.24 but also under section 35, I will give you a more clear example of this. When the legislation to approve and give effect to the James Bay and Northern Quebec Agreement was passed by Parliament, it specifically mentioned that Parliament will continue to have that special relationship with the Cree people and the Inuit people. It did not speak about the Government of Canada. It did not speak about the Minister of Indian Affairs or the Minister of Intergovernmental Relations. It spoke about the Parliament of Canada. The latest information I have is that Parliament includes the Senate.

Senator Kroft: I would return to the point where National Chief Fontaine was a moment or two ago, and express my perception as to the lack of definition that goes on and has gone on in the course of the discussion for the last hour or so. Whenever we talk about being part of the negotiations or about being at the table, it seems to me that, we have moved beyond the scope of Bill C-20. Bill C-20 arose from the reference, and the reference answered questions, and the questions were designed to determine whether or not there is a right to a unilateral declaration of independence of Quebec. The court said no, here is why, and in order to bring clarity to it we put this question. That is all this bill does. This bill does not set up the framework for discussions, it does not determine who should be there, it does not determine the agenda for those discussions. Obviously, by implication, we know if we were into that situation there would be a great deal of discussion.

I understand the need and the constant desire that we all have. Perhaps we, as senators, are also looking for reinforcement of our role in the system. The reality is though, is it not, that we all have a constitutionally determined role because, in the end, there would be a negotiation that would be long, complex and multifaceted, and if we ever got to the point of secession we would be dealing with a constitutional amendment. That process, and that constitutional amendment process, is covered in the place of the Senate. Those rules were determined in 1982. In terms of aboriginal peoples, those rules are determined and protected in the Constitution by section 35.

I ask that in fairness to the bill, and in fairness to understanding the purpose and objectives of the bill, we do not so inflate it in our contemplation that it becomes a table on which everything must be set and every role must be pre-determined. The danger is that no matter how comprehensive you try to make it you, by definition, will be leaving out matters of enormous significance and importance in the attempt. Thus, to define who the parties would be and what the items would be by tinkering with this bill would be an invitation to disaster because you could not begin to do that.

The Constitution determines our rights in this case and your constitutional position in that case. My question to you is: Is that not the position on which we must rely if we are to believe in the constitutional structure of our country?

Mr. Fontaine: The responses that I have provided, and I believe this is true for my colleagues, is that we have tried to provide a context to discussions here. At least from my perspective, I was not trying to inflate or overstate the importance of this issue or the other. One thing is clear, though, that our role in matters that determine Canada's future well-being or Canada's future must engage as fully as possible the First Nations people. When we talk about being at the table, we are serious about that. In the past there have been far too many decisions that governments have taken that impact on the rights and interests of the people we represent without due consideration for the value of having us at the table.

When we talk about Canada's values, Canada's traditions, and all of the things that are important to the country, one of the most important is the First Nations peoples. It is important at every opportunity to give due consideration to the fact that we are important in the future well-being of Canada, and that includes the discussion of Bill C-20. I have already made my position clear on that matter.

Mr. Moses: I would like to comment on the question and make some supplementary comments to those of the national chief.

When we speak about full, direct and equal participation in the process, we are not talking about simply being participants in a ceremony after the fact. The Supreme Court of Canada addresses the concept of a secession process. To me, the secession process does not mean that I am left only until the end. I want to be a part of it before, and I would like to be a part of it during, and I would like to be a part of it after the process is completed. For me, that is the secession process that the Supreme Court of Canada referenced in their decision.

With respect, since we are speaking of the Supreme Court of Canada, the clarity bill is a part of the implementation of the decision of the Supreme Court of Canada in the Quebec secession case. I would draw to your attention to the fact that the Supreme Court of Canada did not confer authority to federal or provincial governments or legislatures to exclude any political actors from the negotiation process. I would like someone to tell me where there is explicit exclusion of the aboriginal peoples as political actors in any future negotiation process that is carried out in the context of secession. As a matter of fact, the Supreme Court and other jurisprudence has confirmed that aboriginal peoples possess a special legal and now constitutional status. Our status as constitutional entities is recognized by the Royal Commission on Aboriginal Peoples as well as various legal commentators.

We do not wish to be bystanders in the process. We would like to be full, equal and direct participants in the secession process, which includes negotiations. That goes beyond the concept of consultation. Consultation to me does not give me full, equal or direct participation. Someone can broadcast something over the radio and claim that they have negotiated or consulted with the Crees. That could be the extent of consultation. That would be a denial of the aboriginal peoples entitlement to represent their own special interests in such a basic and fundamental question as the rights of the future and the rights of the status of aboriginal peoples in the secession context.

Senator Murray: I will resist the temptation to debate with Senator Kroft his novel interpretation of this bill and its relationship to the Supreme Court advisory opinion. I will put both of my questions to the witnesses at once.

Am I correct in recalling that the AFN, the Crees and the Innu all appeared before the Supreme Court of Canada and/or filed a brief?

Mr. Moses: We were interveners. The Grand Council was an intervener in the Quebec secession reference.

Senator Murray: In the briefs that you filed in your presentations, you made certain statements as to the rights of your peoples. Why do you suppose the federal government instructed its lawyers to request the court explicitly not to pronounce on those matters? That is my first question.

Second, for the record, I should like to hear you state whether the parties to the amending formula, the federal Parliament and the provinces, can change the constitutional status of the aboriginal peoples of Quebec vis-à-vis the federal Crown and Parliament without their consent.

I would have thought the answer to that question was "no." When he was here, I tried to get Mr. Dion to say so. He came very close, but he would not come right out and say that, effectively, the aboriginal peoples of Quebec have a veto over any change in their constitutional status vis-à-vis the federal Crown and Parliament. Those are my two questions.

Mr. Moses: I will take the first question. As the national chief has said, you cannot pick us off one at a time. We work very cooperatively.

In response to the first question, as a matter of fact, legal counsel on behalf of the Government of Canada pleaded before the judges of the Supreme Court not to pronounce or give clarity on issues related to aboriginal peoples. That was a specific request. For me, this is clearly a demonstration on the part of the Government of Quebec that it just wanted clarity on issues related to the Government of Canada on this question and not on aboriginal issues. Therefore, that gives you the explanation that there must be full, direct and equal participation of the aboriginal peoples. We cannot rely on the Government of Canada, notwithstanding its constitutional and fiduciary responsibility towards aboriginal peoples, to defend and uphold aboriginal rights in this context, and that is why we are saying that we must be a part of the entire process. We must represent our interests. If the Government of Canada cannot represent our interests before the Supreme Court of Canada, we have doubts that it can represent our rights and interests in the secession.

Mr. Fontaine: In response to your second question, Senator Murray, the answer is "no." I believe the Charlottetown process set as a precedent the requirement to have aboriginal people at the table.

Senator Murray: The question was consent, chief.

Mr. Fontaine: Section 35.1 clearly calls for our participation. I also referenced two important considerations, one that speaks to treaties and defining the relationship between Canada and the first peoples. When we talk about our participation, we are very clear about that. We must be at the table, and we must be involved in the negotiations. I made reference in my brief to the international law that very clearly speaks to the rights and interests of the first peoples.

[Translation]

Mr. McKenzie: As a lawyer, I plead before the courts on matters of aboriginal rights. Canada, through its Constitution, has the responsibility to protect our fundamental rights. However, when I have to fight against the Quebec Attorney General to defend hunting rights or fishing rights or other rights, often when you see Canada's Attorney General crawling out of the woodwork it is to support what Quebec's Attorney General is saying.

Canada's Attorney General is supposed to be on my side. He is supposed to support me in my demands because I have fundamental rights and they are written into my constitution.

There is a constitutional responsibility towards this native group under Sections 91(24) and (35) of the British North American Act concerning the relations of the Crown with Canada since 1763. Either the attorney is never there at the right time or he always shows up to contradict us. That is the reason for our presentation.

We have given two examples where Canada failed in its fiduciary duty. It failed in its constitutional responsibilities towards native people concerning the lands that are reserved for them. The relations between the native people and the federal Crown are anchored in this country's history except that during negotiations to settle claims before the courts, the federal government is always absent. Is it a matter of internal policy or are there other reasons for it, not to embarrass Quebec? I do not know.

As Grand Chief Ted Moses used to say, we are often put in the position of defending ourselves because the one who is supposed to protect us is absent. Notwithstanding those facts, our future as a native people remains in our own hands; there has to be consent and you must take that element into account.

As for the discussions on Quebec's secession, Minister Facal was very clear. All his theories concerning Quebec's secession do not rest on law but on one fact. He says that Quebec will separate no matter what the situation, no matter what Canadian law says and no matter what international law says and that international law will acknowledge all this with the wave of a magic wand.

That is not it. We live in a country where the rule of law remains a fundamental value. And the rule of law says that the natives of this country have fundamental rights under the Constitution of Canada.

[English]

Mr. Fontaine: I did not mean to be rude to Senator Murray regarding this question about consent.

Senator Murray: I did not take it that way.

Mr. Fontaine: Anything less, of course, will not work. Thus, that is an important item.

Senator Murray: I thought you were taking the same position that Mr. Dion was taking. You were coming close, but you did not quite say it.

Mr. Moses: This is such an important question that it deserves my attention. I have three points in response to the second part of the question that was directed to us.

With regard to consent, all the parties that signed the James Bay and Northern Quebec Agreement in 1975, which includes the Cree of northern Quebec, the Inuit of northern Quebec, the Government of Canada, the Government of Quebec, Hydro Quebec, the James Bay Energy Corporation, and other Crown corporations, consented to a permanent federal arrangement with the Cree people. A permanent federal arrangement was approved by Parliament and the National Assembly. There are two pieces of legislation which approve the type of arrangement that was negotiated.

Second, the aboriginal peoples are peoples. We have a right of self-determination. With that right, we have a right to choose, just as anyone else has the right to choose.

Third, no authority or law exists that can remove the Crees from our territories against our will. This is why our people have explicitly made the choice that they will not be removed against their will.

Therefore, any amendments to the James Bay and Northern Quebec Agreement require Cree consent, and that includes a change to the permanent federal arrangement that was approved by way of legislation.

Senator Sibbeston: I will begin by stating two realities. The present Constitution is not well equipped to deal with secession. It is a matter that was not thought of in the late 1980s and in more recent years when the Constitution was amended. I consider what we are doing now an attempt to do as best we can as a country to deal with secession, should it occur.

The other reality is the role of aboriginal people. Aboriginal people were certainly not recognized in the Constitution when the country was founded. Until recent years, the French and the English were considered to be the two founding nations. There has been some progress. There are five aboriginal people in the Senate, and since the 1980s there has been recognition of aboriginal rights.

Recognizing the constitutional limits that we have, I wonder whether we have gone as far as possible to involve the aboriginal people in the clarity bill. In the clarity bill, there are three occasions on which the federal government must consult with aboriginal people, which in some respects is better treatment than the Senate gets.

Is it possible that the things for which you are asking are really not possible, but are matters of constitutional change? We have come a long way. We are recognized in the Constitution and, with the growth of the third level of government in our country, aboriginal governance, in time, could be recognized in the Constitution as a third level of government -- as one of the founding nations of our country. At that point we will be involved in the Constitution, recognized in the Constitution and perhaps be involved in the amending formula. At the moment, the Constitution is all about federal and provincial governments.

Can I get the views of the aboriginal leaders as to whether what I say is correct? We give the aboriginal people as much opportunity to be as involved as possible within our Constitution, but what they really want is future constitutional conferences where aboriginal people can be recognized as the third founding nation of our country and as a third level of government, where they can have a say in constitutional amendments and so forth.

Mr. Fontaine: Not that I want to engage in a lengthy debate about this, senator, but I believe that section 35 already accords us the recognition of which you speak. We see ourselves as representing a distinct order of government and we will leave it there.

Mr. Moses: Clearly, there is no question that the Constitution Act, 1982 provides for and enables the aboriginal peoples to enter into treaties and participate in the treaty amendment process which, therefore, as I have said before, requires our consent to any modification of the treaties. That right to participate is there in that respect.

What we are concerned about in the clarity bill is that that right is now being circumvented. It would be circumvented in the clarity bill if aboriginal peoples are not included as political actors in the entire process.

Senator Sibbeston: While I appreciate that Section 35.1 imposes on the federal and provincial governments an obligation to meet with aboriginal peoples, in my view, that is nice and wonderful but it does not mean that, at the end of the conference, the federal and provincial governments must agree with aboriginal peoples. This right is simply a right to meet. I am saying that native people want more rights. You do not want to be simply consulted; you want more rights. It seems to me that you will only have those rights if you are part of the Constitution so that some day only the provincial, federal and aboriginal governments will be able to amend the Constitution.

I am wondering if we can look forward to the day when aboriginal peoples are a definite part of the Constitution, with there being more than an obligation to meet with them, but that they be present at the table as negotiators, and that there can be no amendment to our Constitution unless the aboriginal people agree to it. That is the type of power that I hope and wish for the aboriginal peoples of our country. Do you also think that way, and do you think about whether future constitutional conferences can provide these kinds of changes?

Mr. McKenzie: Strictly in terms of laws, I agree with what Chief Fontaine mentioned as to our role in the Constitution, as to our right to self-government and the fact that we have governments that can decide about the future of our rights and title and natural resources.

I assume that probably the Grand Council of the Crees would have strong legal arguments that are well founded and well argued and well documented that could be used in any court of law of this country to argue what you mentioned.

I invite you to go beyond that, and I challenge you to go beyond that, because you can make laws in this country that can make a difference to the first peoples of this country. I challenge you to go beyond your strict role of interpretation of what Section 35 does or does not comprise.

I remember the line from the movie, Jerry MacGuire, "Help me help you." Abroad, Canada is looked at as to how it treats its indigenous peoples and what the roles and responsibilities are of the aboriginal peoples regarding their future, their territories, their land rights and their governments. You can only help yourself by avoiding strict interpretation on what Section 35 means.

We are dealing with fundamental issues. Let us deal with them in a proper, fair manner with regard to the first peoples of this country.

Mr. Saganash: I would just like to add that I disagree with the interpretation of us having rights in the future. First, we already have rights under the Constitution which were confirmed by the Supreme Court in different cases over the past 20 years. Vanderpeet, for instance, confirmed that we are different constitutional entities in this country. The Supreme Court said in that case that we have special legal and now constitutional status.

Second, it is the established practice in this country to involve indigenous or aboriginal peoples in fundamental matters such as secession. Constitutional experts refer to this as a "constitutional convention." That has been the established practice since the 1983-87 constitutional conferences. As well, since the 1992 negotiations on the Charlottetown Agreement, there has been direct, full and equal participation of aboriginal peoples.

We are also a constituent part of the federal principle. That can no longer be denied. The Supreme Court of Canada confirmed that principle again in the secession reference. As well, the international standards of today confirm our right to participate in these issues.

I disagree that we have to wait and hope for all these things to come one day. These are already confirmed rights. Our right to participate relies on solid legal grounds today, and I do not think we need to wait any longer. That principle must be recognized in the clarity bill. It is the framework that was established by the Supreme Court in the secession reference and this framework, as the Supreme Court said, needs to emphasize not only our constitutional rights that are recognized today, but also the constitutional responsibilities of the Government of Canada and the Parliament of Canada. We need to understand that clearly from our perspective.

Senator Milne: I need some advice on a point about which we have not yet spoken. That is the divisibility of Canada.

Let us move beyond Senator Kroft's opinions on Bill C-20 and move beyond the second stage, which would be that the Supreme Court, as Mr. Moses has pointed out, has stipulated that negotiations must be principled, which means everything you have been saying, that you must be involved at that stage in negotiations.

At the third stage then, if a portion of the country clearly wants to leave, then Canada would not force them to remain, so Canada is divisible.

If a portion of Quebec, if your people in Quebec, clearly wanted to remain within Canada, then Quebec would also be divisible, would it not?

Mr. Moses: Strictly on that basis, I guess if Canada is divisible, then any province is divisible. If Canada cannot invoke international law against divisibility, then how can an administrative unit of Canada, like the Province of Quebec or any other province, have a stronger claim that it is not divisible?

[Translation]

Senator Gauthier: Essentially, Bill C-20 suggests that the Senate will be eliminated in the determination process as to whether the referendum question was approved by a majority and whether it was clear.

It is hard for me to deal with a bill which eliminates the Senate on the pretext that the Senate will have nothing to say in the determination process. It is the majority of the House of Commons that will decide. That could represent a difficult problem in the case of a referendum. Nothing says that the present government would be in power at that time.

I for one tried to convince the Minister of Intergovernmental Affairs to include, in the bill, an important Canadian entity and its language minorities. The native peoples, in their case, obtained an amendment to the bill and I am happy for them.

I hope you have the same sympathy for the Francophone minority which will find itself terribly isolated in this whole referendum decision-making process. Just as the native peoples, the francophone minorities have been the butt of some discrimination. In Ontario, Regulation 17, amongst other things, made the future of the Francophone minorities very difficult within Canada.

In your case, you have managed to convince the government to amend clauses 1(3) and 3(5). The Minister, in this very House, said that the reason he granted that amendment is because the native peoples are part of the Constitution under clause 35.

That is fine and well, but the linguistic minorities are also protected by clauses 16 to 23 of the Constitution. Of course, the Minister did not give me satisfaction. I am part of a linguistic minority, I am from Ontario and I've lived there all my life. The same bill seems to say that the native peoples, and more particularly those living in the province trying to separate from Canada, will have their say.

But what will happen to the other native peoples of Canada? There are some. In your opinion, who will be speaking for the peoples in other provinces that will be abandoned and will be facing the possibility of Quebec's secession?

There are native peoples in Quebec and, under Bill C-20, they're authorized to give their opinion, make their representations and give their advice to the government. Are you the one, Mr. Fontaine, who will be speaking for the Cree of Quebec.

[English]

Mr. Moses: I wish to draw attention to our proposed amendment. You will find that in our brief, in annex one. We do not make any particular reference to one province but to the aboriginal peoples of Canada. We make a Canada-wide reference to representatives, but that would also include those aboriginal peoples who are living in the province in which secession is being proposed by the provincial government.

In this case, it is in the context of Quebec secession. The aboriginal peoples of Quebec would certainly have a role as representatives of those people.

Mr. Fontaine: I spoke about the Assembly of First Nations and its role in this process, among other things. I spoke of our mandate and the representations that we made on behalf of First Nations. We speak for First Nations of Canada. The position that we advance here is as inclusive as we can make it. On this particular matter, we consulted closely with our brothers and sisters in Quebec.

Senator Joyal: I would to refer to Section 35(2) of the Constitution Act. It reminds us of something very important when we debate the issue of aboriginal rights in Canada; that is the definition of who is an aboriginal person in Canada. In this act, aboriginal peoples of Canada include the Indian, Inuit and Métis people of Canada.

Some of my colleagues who are around the table and some of your elders will probably remember that when we first entrenched that definition in the proposed Constitution Act of 1982, the Métis were not included. Because of the representations of many of your elders and, of course, singularly, the representative of the Métis people, the definition established no distinction between any of the aboriginal peoples of Canada. According to the Constitution Act, they are all part of any process dealing with the aboriginal peoples.

That being said, I wish to return to Bill C-20 which is an important bill, and its interpretatation may have an important impace on the way we treat aboriginal peoples especially.

I should like to read to you from the Interpretation Act of Canada which contains the definitions to which we must look when we wish to understand the various terms of this bill. Section 35(1) of the Interpretation Act of Canada states:

35(1) In every enactment,...

"province" means a province of Canada, and includes the Yukon Territory, the Northwest Territories and Nunavut.

In fact, Parliament amended that definition to include Nunavut when Nunavut was recognized as a territory.

Clause 1 of the bill states:

The House of Commons shall, within thirty days after the government of a province tables in its legislative assembly or otherwise officially releases the question that it intends to submit to its voters in a referendum relating to the proposed secession of the province from Canada...

This bill recognizes that a territory could introduce such a resolution.

In other words, it means that what we are doing here is recognizing that the Nunavut legislature could introduce legislation to propose in a referendum, on a clear question, with some kind of a clear majority, that they want to cease to be part of the territory known as Canada and to go on their own internationally. In other words, they could exercise what Chief Fontaine has said in his brief, that is:

In the eyes of International Law, First Nations are Peoples with a right to self-determination.

In other words, this bill recognizes the capacity of the Inuit to have a referendum to seek international recognition in the same way that an independent state could. I have a problem reconciling that with the definitions that we have in Section 35(2).

The Chairman: Do you think you could speed it up a little bit, senator?

Senator Joyal: I will finish. We have the same problem with clause 3(1) of the bill which requires: "...negotiations involving at least the governments of all of the provinces and the Government of Canada." In my reading of this clause it means that Nunavut would be negotiating with the federal government but the other aboriginal people would not be. That is why you have come to us this afternoon to ask to be included in the amendments.

If we adopt Bill C-20 as it stands, we are in fact making a distinction between two groups of aboriginal people of Canada, that is, the Inuit, who are of course recognized with full status according to the Nunavut Act and the Interpretation Act, and, of course, the other aboriginal peoples who would not be negotiating with the federal government and the seceding province but would merely be consulted.

I have problems reconciling that with the equality of treatment of aboriginal people under our constitutional law.

Mr. Fontaine: I do not wish to sound frivolous. However, if I understand your question, our perspective on this issue of secession and, in fact, the entire question of sovereignty and how we have represented ourselves in this regard, is that this is our land. This is the homeland of indigenous peoples. We have always defined ourselves as being part of this land. There has never been any question about secession or independence. To separate from ourselves does not make sense.

Mr. Moses: You make reference to the Inuit of Nunavut. The legislation provides and allows for a civil form of government and the removal of part of Canada from the Canadian Constitution. I must correct you, senator. Nunavut did not come about as a result of a recognition of the aboriginal aspect of it. What Nunavut provides is a government based on non-ethnicity, meaning that it is a non-ethnic government. As long as the Inuit are in the majority and while development that would allow for an influx of non-native people has not taken place, Nunavut is governed by the majority of the people who are the Inuit. Let us suppose that there is a big development, such as a big mineral find, and there is an influx of non-native people, workers. That would create an imbalance. Then, as a matter of fact, it would no longer be an Inuit government, the non-ethnic part would have a right to run the government.

I wanted to clarify that. It was just on that principle that I wanted to express those comments. It is not a recognition of an aboriginal principle.

The Chairman: I am reminded by one of my colleagues that only about one-half of the Inuit live in Nunavut, the other one-half live in Quebec.

[Translation]

Senator Prud'homme: Mr. McKenzie and Mr. Moses, you are, amongst other things, in negotiations with the Government of Quebec right now. There are bargaining tables sitting now. Some are going smoothly and others less so. Am I wrong?

Mr. McKenzie: No, you are right.

Senator Prud'homme: There are ongoing negotiations.

Mr. McKenzie: Yes.

Senator Prud'homme: Are they very advanced?

Mr. McKenzie: Yes. Actually, there are negotiations between the Innu, the Government of Quebec and the Government of Canada. I do not know if the Quebec government representative is here, but I suppose he will be watching CPAC to listen to our evidence. The negotiations are pretty far advanced where the principles are concerned. There are negotiations with the governments of Quebec and Canada. Canada's representative is Mr. André Maltais, he used to be one of your colleague and Mr. Guy Bernard a past executive secretary of the province of Quebec.

Without going into the finer details of the negotiation, the goal of the negotiation is to arrive at extinguishing the rights of the native peoples over the territory, to extinguish the federal rights, on the one hand, over the territory of the province of Quebec and, on the other, to extinguish the native rights over the territory of the province of Quebec. At the present time, the Innu have no treaty. They have entered no agreement to cede or abandon their native rights. So they have full and entire rights that are recognized under the 1982 Constitution, in clause 35, and they have their rights provided for by the common law. We have no treaty, however we do hold the rights that are described at the present time. The vowed and clear intent of the governments of Quebec and Canada is to arrive at a complete exhaustive and final definition of the meaning of aboriginal right for the Innu. So, the goal is to define what it will mean to be a native in 50, 75 or 100 years from now. It is a very difficult exercise.

If the federal government asked the government of Quebec or Guy Bernard: "What are your rights as a Quebecer?", I think it would be difficult to say that these rights are listed in a 300-odd page manual and that that is it, there are no other rights. That is a perilous exercise. For all these reasons, there is no agreement. We cannot manage to find an acceptable formula, be it for the Crown in Right of Quebec or the Canadian Crown or for aboriginals, so that aboriginal titles exist and subsist with Crown rights as provided for in the Supreme Court decisions in Van der Peet and Delgamuukw, which provide for reconciliation of the prior existence of aboriginal rights with sovereignty.

Senator Prud'homme: In the event that there was an agreement between you and the government of Quebec, without the federal government sanctioning it, what would your position be on this issue? I know that there are very close in camera negotiations going on right now.

Mr. McKenzie: These negotiations are public.

Senator Prud'homme: The question is very clear: In the event that there is an agreement between you on the one hand and the government of Quebec on the other, must there be approval by the federal government?

Mr. McKenzie: Definitely. The Royal Proclamation of 1763 is very clear about coming to agreements about aboriginal rights. That is part of your constitution. It is not ours, but it is yours. Those are the Crown's instruments. It states clearly that any granting of aboriginal rights of the new territory must be given to the Crown in Right of Canada -- which was the British Crown in the past but is now the Crown in Right of Canada. All rights have to be given to the Canadian Crown and not the Quebec Crown. So necessarily, it is an absolute condition in the event that we did not want to concede our rights but rather keep them and use them for our benefit in accordance with the Supreme Court decisions and section 35. Why should we give up our rights and abandon them? Canadians and Quebecers are not asked to abandon their rights. Only aboriginals are asked to abandon their identity rights related to territory, self-government, et cetera. Things do not go well when you negotiate on that basis. That is why for the past five years we've not wanted to negotiate under this federal policy that seeks to extinguish the rights of aboriginal peoples. Sparrow and the Royal Commission of Inquiry on Aboriginal Peoples were quite clear. Why should we have fought to get constitutional rights in section 35 in 1982 and then give them up? It makes no sense. We have to find a mechanism for agreement with Quebec and Canada that recognizes the continuity of aboriginal rights as well as the rights of Canadians and Quebecers living on this territory. And you will see, very soon, it will be written in the stars that there will be an agreement.

[English]

Senator Watt: Thank you all for being here. It seems we do not have that much time to discuss the most important part of the bill, the one that deals with our daily lives, and that is the Constitution. The Constitution is supposed to reflect everyone's needs in broad principle terms.

Having been involved in the James Bay and Northern Quebec Agreement negotiations, and also being a signatory to the agreement itself, a number of things bring me back to 1975 and the issue that was raised by the Innu. They felt that they were left out in the process. As well, they felt that their aboriginal rights were extinguished. I think we all have our own sense of interpretation as to what is extinguished and what is not extinguished. I wanted to share my point of view with you that, as an aboriginal people, your rights have not been extinguished.

I did have a chance to have an exchange with the person responsible for drafting this particular bill, Bill C-20, the minister responsible. He indicated to me that there was no need for any specific amendment related to the aboriginal people because it is already in the Constitution. That is exactly what he said. I asked, "If it is already in the Constitution, why not insert it into Bill C-20?" As a matter of fact, I went even farther to say that unless Bill C-20 was amended to include aboriginal concerns, this bill itself would be considered unconstitutional. He went so far as to say that you and Mr. Peter Hogg have the same interpretation as to what might happen if this were taken to the Supreme Court of Canada by the aboriginal leaders. He said to me, "You might be right, and again you might be wrong." Those are his exact words.

At the same time, the minister also illustrated how important this bill is, that it would have to be bullet-proof -- that it would have to survive in court if challenged. Unfortunately, I am sorry to say, as one of the members of the Upper House, that I do not consider this to be a bullet-proof bill. I know it would be very costly to challenge this in court but, ultimately, that might be the only avenue left for the aboriginal people. That is for another day, depending on what happens.

I wondered why the minister responsible for this bill does not want the direct participation of the aboriginal people. At the staging point, he wants to exclude you from Bill C-20. My impression is that he wants to limit the political actors. He believes that the aboriginal people should not be political actors. In other words, he is putting his own interpretation into the ruling that came down from the Supreme Court of Canada, and I do not share that view.

Having said that, I heard the points that the other senators have raised, such as participation related to what you call being "consulted." As aboriginal people in this country, we certainly have enough experience over the last 20 years to know what consultation means. It is not worth the word that they use to express our participation. As Dr. Moses said, consultation means picking up the telephone and saying, "This is what we intend to do; goodbye," or sending you a note. We have experienced that.

Leading up to 1982, I participated directly in the formulation of what should be entrenched into the Constitution. I was assured by the Prime Minister of 1982 that commitments we had negotiated before the repatriation would not be touched by the premiers. I was invited to the first ministers' conference. My invitation was to listen only, not to participate.

Just before the Prime Minister and the premiers went behind closed doors, the Prime Minister told me not to worry, that it would not affect us. When they came out, today's Section 35 was no longer in the resolution. I am worried that that will happen again, even if Minister Dion tells us that there is no need to amend Bill C-20 because it is already in the Constitution. We did not have section 35 at the time. Thank God that we have it today. If we had Section 35 leading up to the James Bay and Northern Quebec Agreement, I do not think that the problems that arose from that would have happened.

I am very sorry that it went that way. As a signatory, I feel that I have some responsibility.

Mr. Fontaine and Dr. Moses, I proposed an amendment for the committee to deal with, but I am not sure whether it will deal with it. However, what recourse will you take if everything else fails?

Mr. Moses: While section 35.1 sets out the constitutional duties and obligations of Canada to the aboriginal peoples, it goes beyond just calling a meeting, which is the term that was being used. It includes a constitutional duty to negotiate. "Negotiate" means that the aboriginal peoples must be at the table. I have been in the business of negotiating for half of my life. "Agreement" means a meeting of the minds of the parties. That is how negotiations are successfully concluded. That obligation is included in section 35.1 of the Canadian Constitution.

While that may give us the opportunity to be part of a process that affects our treaty and aboriginal rights, as currently drafted, we believe that Bill C-20 excludes express aboriginal participation. That can be subject to many interpretations. We are already hearing what Section 35.1 of the Constitution does and does not do. Can you imagine the interpretations of Bill C-20 that we will hear with regard to the participation of aboriginal peoples in the process of secession that is being proposed, in this case by Quebec?

This is why we are calling upon the Senate. The Senate has a constitutional mandate to assess the legislation that comes before it. In doing that, the Senate must be consistent. It must respect certain underlying constitutional principles and values. That is why we are calling on the Senate to respect the principles of democracy, federalism, and the protection of aboriginal and treaty rights. That is the constitutional responsibility of the Senate.

If all else fails and Bill C-20 comes into force, we will certainly consider our recourse. We may even consider constitutional challenges to the law if Bill C-20 is passed without amendment.

I wish to be clear that we support the amendments. We ask honourable members of the Senate to support the amendments which recognize our right to participate equally in a negotiation process that affects the basic and fundamental human rights of our people which are threatened by secession. That is the constitutional responsibility of the Government of Canada, of Parliament, which includes the Senate.

Mr. Fontaine: I, of course, am of a similar view. I would also call on the Senate to support the amendments. I have made our position as clear as I possibly can. I hope that that will be given due consideration.

[Translation]

Mr. McKenzie: To respond to Senator Watt's important comments, and for the record, as an aboriginal, I do not believe that our rights have been extinguished. Canada claims -- and we've expressed this very clearly throughout our presentation -- that it extinguished our rights through Canadian law.

We represent the third generation of people who are faced with this Canadian legislation passed in 1977. People who are now dead came here, they demonstrated in front of Parliament, they made representations in March 1977. Now, other generations of leaders have tried. They are no longer at negotiation or representation tables like this one. This heritage demands reparation from the Canadian government.

I agree with the comments made by the two chiefs of the Grand Council of the Crees. Senators cannot use a double standard. If they can decide on the future of a country why is it that we, as aboriginal people, do not have that right?

[English]

The Chairman: Chief Fontaine, thank you very much. This has been an important session for us.

Senator Grafstein: There is a fundamental difference in the position of this aboriginal group and the minister. That difference is that the minister argues that, at the outset of any constitutional negotiation or process -- let us call it a "process" -- that certain political actors are not necessary to be involved as to the nature of a question or the nature of a majority, even if those, in this instance, are political actors in a province. That is what the minister says.

As I sum up your evidence, there are 10 heads under which you have a constitutional right to participate at the outset.

They are as follows: treaty rights, and also the special responsibility of Parliament, explicitly under Section 35.1 of the Constitution; under Parliament's division of powers; under the Supreme Court advisory; under the principles enunciated in the case law, which includes federalism, the rule of law, and the protection of minorities; under the Senate, which also has the responsibility for regional and minority rights; and under the common-law case law.

The minister does not deny that the Senate is a political actor, but he says it is an unelected actor. He says that, although you represent groups, you are not directly elected in parliamentary terms, so you do not have a right to participate in the nature of the question or the nature of the majority that would make it a clear question or a clear majority.

Do you agree with that or not?

Mr. McKenzie: I have a simple answer to that, senator. It is fortunate for Minister Dion that he is not aboriginal because otherwise he would not speak that way. He would agree with our comments. If he were in our situation he would not come up with those kinds of justifications to exclude us from any participation or direct negotiations regarding the future of our territory or our resources.

Senator Grafstein: At the outset, Mr. McKenzie?

Mr. McKenzie: Yes.

Mr. Saganash: First, it is important to remind the senator that Dr. Ted Moses, the Grand Chief of the Grand Council of the Crees of Quebec, was as democratically elected as any person in the House of Commons. Let me make that clear: We are democratically elected as well.

Second, the minister is absolutely wrong in claiming that he may exclude some political actors in this process and include some. The minister has no discretion in this case. The Supreme Court said so. The Supreme Court that established the framework under which these political actors may act. The Supreme Court did not give any authority to the minister to exclude any political actor from that process.

One comment must be added on this particular point: What the sovereigntists and Minister Dion have in common is the exclusion of the aboriginal peoples. Bill-99, which now before the National Assembly, proposes to exclude aboriginal peoples from that process. The clarity bill also excludes aboriginal peoples. That is one thing that both the sovereigntists and Minister Dion have in common. We do not think that is acceptable under the terms of the secession reference by the Supreme Court.

Mr. Moses: Very briefly, Madam Chair, I just wanted to confirm that so far as the Crees are concerned, it would be totally unacceptable and it would also be most unfair and undemocratic to conclude that aboriginal people should not participate in future secession negotiations or should not be political actors as the Supreme Court in its ruling pointed out. I quote: "The devil would be in the details," and I think we are beginning to hear the devil in the details by those assumptions. With all respect to the senator, that remark is not directed at him.

The Chairman: We thank you. This has been a long hearing, a most interesting hearing, and very important for our study of this bill. We are grateful for your contribution.

[Translation]

Our witness today is Mr. Claude Ryan, who is probably known to all Canadians as the former leader of the Liberal Party of Quebec, but some of us would say that it is primarily as a journalist that he first gained public recognition. Mr. Ryan, I believe that you have a presentation for us and we will then go on to the usual question and answer session. Welcome.

[English]

Mr. Claude Ryan: Madam Chairman, I thank you for your hospitality. I am pleased to be appearing again before a Senate committee. I have always observed that Senate committees work seriously. They want to get to the bottom of matters. If I can make a modest contribution to your efforts on the particular issue raised by Bill C-20, I would be delighted to do so.

I wrote my presentation in French. An English version was worked out over the weekend, but I have not had a chance to check the English version.

[Translation]

The French text should be considered authoritative until further notice. That is why I did not feel the need to check. However, I am cautioning you about this because sometimes we make minor changes, for example, when I was talking about the political society, in a text in English, and I would written that political society exists in order to enable us to be responsive to the mortal existence of humanity, its eternal existence being a function of other forms of association, the translator wrote: political society exists to guide the "moral" existence instead of "mortal."

With your permission, I will read the statement that I have prepared with a few changes to the original French text. Afterwards, I am in your hands for whatever you wish to ask me, except to vote.

I would like to thank you for your kind invitation to testify before your committee. I am grateful for the opportunity you have offered me to once again state my views regarding Bill C-20. Since I stated earlier, in February, before a committee of the House of Commons, that the bill was unacceptable in my eyes, and I have not changed my opinion in that respect, I shall necessarily have to reiterate in my presentation the main criticisms I tried at that time, with no great success, to bring to the attention of your colleagues in the other Chamber.

I shall try, however, as best I can, to lay out more clearly the reservations prompted by the two main clauses of the bill. The role assigned to members of the Senate in the bill has generated key debate in this Chamber, and I shall provide you with my opinion on that subject. As well, I propose, in a final section, to suggest certain amendments that would, in my humble opinion, contribute to making the bill less contentious.

Under clause 1 of the bill, Parliament would, in the days following the release of the referendum question, have to deliver its judgement on the clarity of the question, using two precise reference points defined in the bill: express reference to secession, in the absence of any other proposal.

Moreover, in the event of a negative decision as to the clarity of the question, impose a ban on the federal government undertaking any negotiations with Quebec, following a referendum result that is favourable to sovereignty, that could lead to the secession of Quebec.

These provisions seem to me to be extreme and politically unrealistic. Preserving the unity of the country is of the greatest importance to Parliament and the federal government and must be a source of constant concern for them. However, that concern must not be expressed in any jealous and possessive fashion. In a federal system, it must be expressed in a way that is respectful of the powers assigned to the other political players. When Parliament and the federal government act, they must also assume that every government intends to act in compliance with constitutional principles and the rule of law. When seen from that standpoint, Bill C-20 seems to me to fail in several respects.

First of all, the bill proceeds from a virtually visceral distrust of the good faith of one party and one government, which has always, to my knowledge, acted in a way that is respectful of constitutional rules and the rule of law. The drafters of Bill C-20 are suggesting that the National Assembly, whose job it is to approve the question, might be tempted to circumvent the requirement of clarity laid down by the Supreme Court. If that were to occur, specific and effective remedies would be available to Parliament and the federal government. However, at this point, we must rather assume the good faith of the Quebec government and of the National Assembly.

Second, the bill violates an elementary rule of conduct holding that, in a federal system, each level of government must be able to legislate an act within its field of jurisdiction without being subjected to legislative interference by the other. After recognizing in the "whereases" that the government of a province has the right to consult its population by referendum on any subject whatever, and to decide the text of the referendum question, the drafters of Bill C-20 laid down requirements concerning the clarity of the question which would make it impossible to escape the criticism that they were trying to use a federal statute to dictate not only the substance but also the form of the question. This demonstrates a deplorable lack of respect for the government of Quebec and the National Assembly and, in my view, for the federal spirit itself. Some things are clear now that we have the opinion of the Supreme Court, but it would be wiser for Parliament and the federal government to let Quebec make the next move, given that any future referendum, if a referendum is to be held, will in any event be an essentially Quebec initiative, and to stress at every opportunity their commitment to the rules laid down by the Supreme Court, and to be prepared to act effectively when the situation requires it.

Third, on the question of methods, Bill C-20 goes too far when it contends that an unfavourable judgment by Parliament regarding the referendum question should automatically mean that the federal government would be barred from initiating any negotiations with Quebec that might lead to secession. It would have been wiser to say that in the event of a referendum result favouring sovereignty, but one that was obtained in response to a question devoid of clarity, the federal government would not be bound by any obligation to negotiate. That would have produced the same effect, but without the federal government being deprived of the latitude it might need. Since none of us knows what kind of situation might result from a future referendum, it hardly seems wise to try to tie the federal government's hands as the drafters of Bill C-20 are proposing to do.

Fourth, by the virtually obsessive importance that the federal government places on the clarity of the question, it is once again inviting the rest of the country to circumvent the real problem, which is the source of the present malaise. It is trying to tell us that the close result in 1995 was attributable to the ambiguity and confusion of the question. It is deceiving itself, however, and it is deceiving the people of Canada, when it tries to spread this impression. I myself am also of the view that the 1995 question was not clear, and I have explained my reasons at length in a study recently published by the C.D. Howe Institute. However, I do not believe that the wording of the question was the primary cause of the close result of the vote. To my mind, the cause of the rise of the vote for sovereignty-association was much more connected to the discontent felt by thousands of Quebecers regarding the lack of urgency felt by the rest of Canada for renewing Canadian federalism to reflect the aspirations of Quebec. Certainly, let us not believe that if Bill C-20 is enacted it will help to reverse that opinion, which is still very widespread.

Fifth, with Bill C-20, the federal government undoubtedly wants to give the federalist forces an additional weapon in the battle against Quebec separatism. However, it is risking creating the opposite effect in Quebec. Bill C-20 in fact enjoys broad support in the rest of the country, which is not surprising, in that opposition to separatism is visceral in English Canada, to the point that reactions there on the subject of what is going on in Quebec are most often given without any critical thought. In Quebec itself, Bill C-20 is helping to feed the anti-federalist convictions of Quebec sovereigntists, and is unfortunately a source of pointless tension at this time within the federal forces. This is evidenced by the opposition so often expressed by the leader of the Liberal Party in Quebec, Mr. Jean Charest, as well as many other provincial Liberals. Mr. Charest made the astute observation -- as did Mr. Benoît Pelletier, spokesman for the Liberal parliamentary group on constitutional affairs -- that a joint declaration of the National Assembly would be more appropriate and wiser in the circumstances than the legislative approach advocated by the Bouchard government.

Sixth, if the composition of Parliament were to remain as it is at present, the referendum question approved by the National Assembly would probably be deemed to be acceptable by a majority of the members representing Quebec in the House of Commons, but a majority of members from the other provinces might consider it to be unclear. Quebec, which is already at the mercy of the consent of its other partners if it should wish to achieve independence legally, would then also be subject to the judgement of a majority of members of the House from outside Quebec with respect to the clarity of the referendum question.

I must comment, finally, on an argument that has been made in recent weeks by a number of witnesses, including the Minister for Canadian Intergovernmental Affairs. Some of these witnesses include constitutional experts whose opinion reflects their knowledge of their discipline but is lacking in common sense. According to those witnesses, Bill C-20 is entirely acceptable in that it creates constraints that apply only to the federal government, and does not in any way infringe upon the powers of the National Assembly. This specious argument fails to convince when we look at it outside a narrowly legalistic context. The bill gives the impression that it creates obligations for the federal government, but in reality the obligations that result from the bill target, first and foremost, the entire government of Quebec and the National Assembly. The federal government is trying, by using Parliament for this purpose, to accomplish indirectly what it would never dare to attempt directly. The effect is the same, however. Ultimately, it is Quebec's freedom to manoeuvre that the federal government is trying to circumscribe.

For all these reasons, I find clause 1 of Bill C-20 to be frankly unacceptable. I personally would prefer that the three following rules be observed before any referendum is held on the sovereignty of Quebec:

First, Parliament, the federal government and the federal political parties should assume, until they have evidence to the contrary, that even though the government and the National Assembly of Quebec may support -- at least some of them -- a different constitutional option, they have respect for the Canadian constitutional system and for Canada's laws, and should deal with them in that spirit.

Second, if Parliament or the federal parties or political figures, or even the federal government, consider it appropriate, there is nothing to stop them from working on the federal scene to ensure that their option is known at all times regarding any aspect of the referendum process that they consider to be contentious, having regard to the constitutional rules and general interest of Canada.

Third, unless it has urgent and serious reasons, Parliament should refrain from any legislative action to counteract in advance the National Assembly's exercise of its legislative powers, and/or that might be interpreted as throwing up a major impediment to the free expression of the will of the people.

The second clause of Bill C-20 provides that before any negotiations may follow on a referendum result favourable to sovereignty, Parliament should be asked to declare, by resolution, "whether, in the circumstances, there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada."

One question immediately springs to mind: Unless the drafters of the bill intend to change the traditional rules of decision making in this kind of exercise, is the process defined in the bill really necessary?

If we look at the course that has been followed to date for assessing the results of comparable referendums, the kind of determination provided for in Bill C-20 would not really seem to be necessary. Based on the 50 per cent plus one rule, which has been followed to date, victory goes to the side that obtained a majority of the votes cast in a referendum. In this context, there is no need for Parliament to determine anything in order to be certain of the authenticity of the result. The official report of the Chief Electoral Officer normally fills this need, and any challenge that might follow from the manner in which the vote was held is a matter for the courts, or a commission created especially for the purpose, and not the federal Parliament.

Instead of taking the classical approach, Bill C-20 institutes a new procedure under which it would be up to Parliament to determine whether the people had given a clear expression of a will that the province cease to be part of Canada, and for that purpose to take into account:

a) the size of the majority of valid votes cast in favour of the secessionist option;

b) the percentage of eligible voters voting in the referendum;

c) any other matters or circumstances it considers to be relevant.

If the aim here were merely to verify the figures relating to the first two points, the report of the Chief Electoral Officer would fill this need and, other than a signature, it is hard to see what Parliament could add to it. However, that is not the case for the third point, which opens the door to all sorts of interpretations, the effect of which might be to set aside the basic rule that has been observed to date, and to substitute for it a new rule regarding which Bill C-20 in fact provides no guidance. The drafters of Bill C-20 have the audacity to present it as a Bill on Clarity. Unfortunately, this clarity is a one-way street, and might well end up being the exact opposite of genuine clarity. This is also an approach which would, without prior notice or decision, amount to the federal Parliament unilaterally amending the rule for interpreting a referendum held under the authority of the National Assembly, after a referendum was held. This would be an unprecedented situation, going far beyond any principle of democracy. Consequently, I consider it essential that paragraph 2(c) of clause 2 be deleted, or at least reformulated to rule out any possibility of distortion of democracy in the interpretation of the referendum result.

The reason I was pleased to accept your committee's invitation was because, as I already mentioned, I have had several opportunities to observe the seriousness with which the members of the Senate carry out their duties. Another reason was to tell you that, in my opinion, the federal government is wrong to try to reduce the role of the Senate in examining the two principle subject matters of Bill C-20. The Senate is one of the two bodies that make up Parliament. It holds powers that are crucial in respect of constitutional change, and in that respect, under the Constitution Act, 1982, it has a power of initiative similar to that of the House of Commons and the provincial legislatures. It would seem bizarre, to say the least, for the drafters of Bill C-20 to give the impression that they want to substantially reduce its role in examining the subject matters addressed by Bill C-20.

I presented you with severe criticism of Bill C-20, but I have done so based on the principles that I have constantly argued for many years. Because it does not respect those principles, because it relegates the National Assembly to the rank of a lower parliament, because it exhibits a profound distrust of democracy in Quebec, because it suggests that Quebec sovereignists are seditious citizens who must be kept under surveillance, this bill strikes me as humiliating to the legislators who sit in Quebec City and to the people they represent. It strikes me as unacceptable from the standpoint of a sound vision of federalism and democracy. It is, moreover, a profound source of discomfort and of division among Quebec federalists. For all these reasons, it would, in my view, be very regrettable if Bill C-20 were to become law in its present form.

Leaving aside the lengthy historical and philosophical exposition included in its opinion, the Supreme Court's answers to the three questions referred to it by the federal government were in fact so clear that the federal government has been handed, in legal terms, a huge advantage over any Quebec government that might want to separate Quebec from the rest of Canada through the use of methods that are the least bit contrary to the constitutional rules. The advantage thus given to the federal government should have been sufficient at this point with no need to translate that advantage so precipitously into a legislative instrument that is rife with distrust of Quebec democracy, and whose principle failing is that, while it purports to be about clarity, it introduces more confusion than clarity into the matters it addresses.

In view of the fact that, in a democracy, it is incumbent on us all to try to find common denominators on those questions where no unanimous agreement can be found, and although I am of the view that a bill about clarity is not necessary at this stage, I would like, in my conclusion, to talk about a few approaches that could, in my view, help to make Bill C-20 more acceptable in the eyes of the moderate federalists who cannot accept it in its present form.

In my opinion, only a few changes -- you may find this simplistic since they are important ones -- would be needed in order for Bill C-20 to have greater legitimacy in Quebec. What I would suggest is this -- here there is a change relating to the English version --:

a) that whereas number 7 be deleted. All the others could remain but the seventh whereas should be removed in my opinion.

b) that clause 1 be deleted and that Parliament and the federal government reserve their right to act at any time, where necessary, to express their opinion and/or their intentions regarding any aspect of the referendum process that they consider to be contentious, having regard to Canadian constitutional rules;

c) that clause 2 be retained but amended to read as follows:

Where the government of a province, following a referendum relating to the secession of the province from Canada, seeks to enter into negotiations on the terms under which that province might cease to be part of Canada, Parliament shall consider and, by resolution, set out its determination on whether, in the circumstances, there has been an expression of a will by a clear majority of the population of that province, in response to a clear question, that the province cease to be part of Canada. In considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, Parliament shall take into account:

a) the clarity of the question submitted to the population;

b) the size of the majority of valid votes cast in favour of the secessionist option;

c) the percentage of eligible voters voting in the referendum.

As far as all the other clauses are concerned, clause 2(3) could be retained as is. The same applies to clause 2(4), except that the words "the House of Commons" would be replaced by the word "Parliament." As for clause 3(1), in view of the answers given by the Supreme Court to the three questions referred by the federal government, it strikes me as unnecessary. I would be inclined to suggest its deletion since the matter is already clear. One of the principles of pedagogy used to be that when a punishment has been handed out, it does not need to be repeated.

Clause 3(2) could remain, except that it would be desirable to replace the words "any changes to the borders of the province" with more neutral words, such as "the delimitation of the borders," so as not to give any basis to the impression in Quebec or the rest of the country that a decision had already been made to reduce the borders of Quebec to punish it for a decision it might take. The delimitation of the borders of Quebec strikes me as being quite adequate in the context.

I am now at your disposal for any questions, comments or objections you would like to raise.

Senator Beaudoin: My question relates to clause 2 which, as you already mentioned, provides for a certain type of supervision of one of the two legislative assemblies of a federation. Before, I would like to emphasize that the need for clause 3(1), following the Supreme Court's answers to the three questions submitted by the federal government, strikes me as doubtful. It is the famous constitutional amendment formula after hypothetically successful negotiations have taken place.

There is, of course, considerable debate about this. Some claim that it is the 7-50 formula that applies, others say that it requires unanimity. You are suggesting that we delete it. The reason why the Supreme Court did not express an opinion on the matter is because we did not ask for one. Perhaps the government was not interested in having such a clarification. The Court decided it would not express a view. It could have, but it chose not to.

So you are suggesting that it be put aside? Probably because the mechanism you suggest turns out to be very different from the one contained in the bill. In other words, you wish to set aside this matter of one legislature intervening in the work of another, and that is something I can understand. This matter of "legislative supervision" is something that could conceivably occur. Do you think that it would be pointless to end up adopting a constitutional amendment?

Mr. Ryan: That is going a bit far. This clause is rather exaggerated because the Supreme Court has already stated that it is part of the Constitution, that there is no such right under the Constitution of Canada. If this is in the Constitution, why is it necessary to include it in an Act? That is my objection to the clause. I will not get involved with the details of the amending formula. You know that the Supreme Court did exactly what the federal government requested. It said it did not want an answer on this matter and the Court did not provide one. That was clearly stated in the federal government's presentations to the Supreme Court.

Senator Beaudoin: Good enough. The Constitution can be amended. Let us suppose that negotiations are successful. We already know that the amending formula will apply and if there is ever a disagreement between the political actors, they will return to the Supreme Court if there is a doubt. If that is the way it works, then good enough.

Mr. Ryan: Yes.

Senator Beaudoin: It is quite an acceptable response. Let me return to clause 2. You say that the federal government, Parliament, could intervene at any time. I suppose that you are ruling out "before the 30 day period," but for the purpose of flexibility, Parliament, with its two Houses, could be entitled under this bill to intervene at any time, could it?

Mr. Ryan: Except through legislation, that is the difference, except if the two Parliaments intervene at the same time through legislation on the same matter. This is stated in the three principles that I set out on page five:

...unless it has urgent and serious reasons, Parliament should refrain from any legislative action to counteract in advance the National Assembly's exercise of its legislative powers...

However, I cannot prevent Parliament from saying: "Under no circumstances can we accept such a thing, we will not agree and we wish to make our position clear," that is what democracy is and that is why Parliament exists.

Senator Beaudoin: But not through legislation.

Mr. Ryan: That is my basic objection.

Senator Beaudoin: I have always thought that the best way is not through legislation but through the executive.

Senator Hervieux-Payette: I should perhaps ask you to comment on your remarks on page two of your brief, "at this point, we must rather assume the good faith of the Quebec government and the National Assembly" in view of the fact in the two previous referendums, we were in the same camp. Was it the Liberal party, or the opposition, that went along with the two questions?

Would it not be rather naive to assume good faith in such an important matter that will decide on the future of an entire country as well as our province, when the opposition has no involvement in this matter other than being defeated by 50 plus one on the question and when our fate depends on a question that you considered unacceptable when you were the leader of the opposition? When you talk about making an assumption of good faith, you are talking about the government of Quebec, which will be putting the question, which has a majority in the National Assembly. Where in the past am I to find such concrete support for its good faith?

Mr. Ryan: Regarding the questions put in the previous referendums, I referred you to two analyses published by the C.D. Howe Institute entitled Consequences of the Quebec Secession Reference: The Clarity Bill and Beyond. As for the 1995 question in particular, you will find my answer within those articles. There is no need for me to expand on the subject now.

As for the good faith of those involved, it is an important matter. It is fundamental in a democracy. The Péquiste governments of 1995 and 1980 cannot be reproached for acting shrewdly. They will not be the only governments or parliaments to have done so. Almost all governments, in preparing a bill, have ulterior motives in addition to the noble ones that are publicly stated. I was a legislator myself for 12 years and I cannot claim that I was 100 per cent pure. We do our best, at least that was my habit. When I was in the National Assembly, I always tried to work on the assumption that my adversary might be acting as much in good faith as I, with different convictions and aims.

Without this basic respect for the presumed honesty of others, life as a parliamentarian can become extremely difficult. There is the risk of corrupting the political process. If the adversary fails to observe the rules under the constitutional order, then he must be fought with great vigour. I am fundamentally against legislating on a presumption. That is something I've learned over the years. I am no more separatist today than I was at the time. I have greater respect for those who do not share my views after my 15-year career as a parliamentarian in addition to my 16 years as a journalist, than I did at the beginning of my career. I realize that people's ideas are based on all sorts of experiences. The more you know people, the more you understand their views and the less inclined you are to condemn them or impute base motives. That is my political philosophy and I would be very sorry to see it contradicted by a bill on such an important matter.

Senator Hervieux-Payette: You were with us previously when we heard representatives of the First Nations on the subject of Canada's divisibility. Since the Constitution is silent on this, except perhaps for the accounts of discussions occurring before the drafting of the 1867 British North America Act, it seems to me that in your presentation -- since we are talking about a referendum with 50 per cent plus one -- you come out in favour of divisibility. On the basis of this reading of your presentation, do you think that the territory of Quebec is also divisible, taking into account the testimony we heard this afternoon?

Mr. Ryan: First of all, you know that I said that it would have been preferable if the Supreme Court had not ruled on this matter. Since the political intervenors had not settled the question, I did not think it was up to the Supreme Court to do so. I am still of the same view today even though I respect the opinion given and, as a Canadian citizen, I must live with the consequences of this opinion. As far as Quebec is concerned, I am aware of the comments made by your colleague through what I have read in the press. There is a fundamental difference between Canada and the United States. I am a disciple of President Lincoln whose writings I have read. They are an absolutely unique source of inspiration for any democrat. Mr. Lincoln forcefully stated the principle of the indivisibility of the American federal union and led the war against the secessionists on behalf of this indivisibility. In Canada we have proceeded in a more discreet fashion. It has not been clarified. We have preferred to develop the principle as we have progressed historically. I was very happy to see the Supreme Court also take this approach in its considerations and state that our tradition is not the American one. This, therefore, leads to the possibility set out by the Supreme Court in principle. This is particularly true for Quebec because a province that is not like the others, that constitutes a nation in the cultural and social meaning of the term, and that forms a people will then have a fundamental right to self-determination. Will it exercise this right? That is another matter. It has a fundamental right that the Supreme Court itself must recognize. Here, the bill recognizes Quebec as a province like the others. We all know that this bill is aimed at Quebec. We have to open our eyes and see clearly. Where does the problem occur at the present time? The aboriginal peoples all wish to stay in Canada. They want a greater degree of autonomy. The problem we face occurs in Quebec. That must be the subject of our discussion.

As far as Quebec is concerned, whether it becomes sovereign or decides to do so, it will have to deal with this question. The problem of the aboriginals is a particularly serious problem which will have to be examined. No one has the answer to the question at the present time. That is the most I can say.

Senator Lynch-Staunton: The thing that most concerns me with the bill, and it is something you mentioned in your presentation, is the fact that Bill C-20 directed the federalist forces in Quebec and at the same time gave an impetus to separatist and ultra-nationalist forces. We must question the usefulness of such a bill when it divides those who should support it and reinforces those who accept it for very anti-federalist reasons. Mr. Charest calls Bill C-20 a black hole. He is the one who will be called upon, if still in his position for the next referendum, to head the No forces and he is already asking the Senate to reject this bill.

You were president of the No committee during the first referendum. You have had experience of what it is to hold together the federalist forces. We know what kind of tensions existed at the time but fortunately the result was positive for those who were against the question.

If, at that time, you had to deal with a bill like Bill C-20 or decision of the House of Commons during the referendum campaign declaring that the question was not clear, can you share with us what you think the impact would have been on the rest of the campaign and the vote?

Mr. Ryan: I will attempt to answer but first of all, I will tell you what my reaction would have been. If Mr. Trudeau had tabled a bill like this one in the House of Commons, I would have told him I did not want it. I would have said so publicly. I think that he knew. When Mr. Trudeau gave his opinion on the question or on other matters, I had no objection and it was certainly his right. It was not up to me to tell him what to say. We did discuss things together, amiably, in spite of the legends. More amiably before than afterwards.

So if he had come up with a bill like this one, I as leader of the opposition in Quebec would have told him that I wanted no part of it and that we did not need it.

Senator Lynch-Staunton: What Mr. Charest is saying today is not being listened to.

Mr. Ryan: I was not aware but if Mr. Charest is saying that, then I congratulate him.

Senator Lynch-Staunton: If you had had to submit to Bill C-20 and a decision of the House of Commons on the question, what would the impact have been?

Mr. Ryan: I do not know what the impact would have been. A campaign goes through lots of ups and downs, on both sides. How would it have influenced the results of the vote? I am not in a position to say. I would not like to make idle comments on such a matter. No one, not even opinion polls, could say.

[English]

Senator Lynch-Staunton: From your years of experience as an observer in Quebec, can you tell us how strong the forces that really want Quebec to become an independent country have been in the past and how strong they are today? I am not speaking of those who want a form of sovereignty association, a partnership, or some kind of a federal union, whether based on the European model or another, but of the true, strong separatists who want a complete break from Canada.

Mr. Ryan: I have no expertise in this matter. I must rely on public opinion polls, as do other public figures. Opinion polls suggest that the number who are strongly in favour of separation varies between 20 and 35 per cent, depending upon how the question is phrased and at what time of the year it is put to the people.

More significant, in my opinion, is that the number of those to whom the idea of sovereignty does not appear as radical as it would have 20 years ago is certainly much higher today. That is why the sovereigntist proposition is still a very dangerous one from the standpoint of Canadians. Many people would vote one way or the other today without the difficulties they would have had 20 years ago. They feel that the matter is not that important and that they could do well if they separate. That numbers moves between 25 per cent and 50 per cent.

Senator Lynch-Staunton: What is the difference between separation and sovereignty?

Mr. Ryan: Of course, the notion of sovereignty lends itself to several definitions. The one that involves the notion of separation appears clearer. However, you cannot exercise control over the words people use and political actors use. A Péquiste will talk about sovereignty having in mind political independence. I will talk of sovereignty having in mind the sovereignty of Quebec in its areas of jurisdiction. You cannot have control over that. When a Péquiste talks about sovereignty, we must accept that he means independence.

Senator Lynch-Staunton: Then although article 1 of the separatist Constitution refers to sovereignty-association, it really means separation.

I think the Parti Québécois is now flogging sovereignty-association, having abandoned the word "separation," but to your mind one is just a code word for the other.

Mr. Ryan: That is right. They have succeeded to a large extent in making the association of the two terms less offensive than it would have appeared 25 years ago. Even if people do not believe it could be achieved, they would not react negatively if the question is put in those terms.

Senator Lynch-Staunton: You feel that many people who are voting for sovereignty, depending on the wording of the question, are not aware that at the same time they might be supporting separation.

Mr. Ryan: Yes. According to studies made of opinion polls after the last referendum, that inference can be made. However, one may argue that after five weeks of intensive debate on the two sides of the question, the people are intelligent enough to realize that they are voting either for sovereignty interpreted as separation or for Canada. A democratic result is very seldom crystal clear. There are always a lot of factors that intervene in an election, for example, but also in a referendum. I have been through two referenda, and I do not think the people are that thick. They can discern what is being put to them, and they do not need to have it given to them by a master dictating the details of the questions.

[Translation]

Senator Lynch-Staunton: So whatever the question is, they know what is at stake after the campaign.

Mr. Ryan: Yes.

[English]

Senator Chalifoux: I appreciate your remarks, and your brief was very interesting.

I am from Western Canada. I am a Métis. I would like to clarify a couple of things. Even though this bill seems to be directed at Quebec, it is also a template for other areas of this country. Western Canada has long been known to want separation. British Columbia has talked of separation. When I was in the Yukon this winter, the Yukon and Alaska were talking about separation from both countries to be on their own. It is an ongoing issue for Canada. That is over two thirds of our country.

Also, if it was not for Louis Riel and the provisional government of the day, Western Canada could probably have belonged to the United States now, but Louis Riel was a strong federalist and wanted to be part of Canada. In the meantime, the United States was wooing him to join forces with the United States. The aboriginal people of this country have been here for thousands of years. My homeland is Rupert's Land.

I would like your opinion on what the aboriginal leaders from Quebec were saying today. They would like to be political actors and to be totally involved in any discussions on separation. I would like to hear your comments on that. Do they have the authority under section 35 of the Constitution or do they not?

Mr. Ryan: I would not be in a position to answer your question today. I do not want to plant any confusion here. I will take it under consideration and I will write you about it.

Senator Chalifoux: I would appreciate that very much.

Mr. Ryan: I wish to make one point, if you will allow.

Regardless of what has been heard in the rest of Canada, I think Quebec is perhaps the province that has shown the greatest understanding for the plight of aboriginal nations. The two parties -- the Parti Québécois governments as well as the Liberal governments -- have gone a long way toward trying to understand better and to reach mutually acceptable arrangements within the framework of a political society common to all. Whatever we may learn in addition to what we are trying to do, we will always be very disposed to do it.

It is this spirit that I receive your question, and I would be delighted to write you about it.

Senator Chalifoux: We can get into a good debate on that issue, but this is not the time nor place.

[Translation]

Senator Nolin: My first question relates to your experience with the last two referendums and I would like to tie this up with the question put to you by Senator Lynch-Staunton. Let us assume that in 1980 and 1995 Bill C-20 was in existence. Let us suppose that the House of Commons decided that the question was not clear. You are against such a procedure but it nonetheless takes place. At the time you are the leader of the federalist camp in Quebec. What do we Quebec federalists do once the House of Commons states that the question is not clear? The Minister tells us that we must keep on working. What do you think of this rather far-fetched hypothesis?

Mr. Ryan: The situation is very different, because at the moment, we are talking about this at a time when a future referendum could be held, but circumstances suggest that it will not happen tomorrow. Consequently, the dust can settle. Things could happen that would make the current or a future government believe that this may not be the most judicious approach. A great many things can happen. That is why this is not raising a storm at the moment. Since there is no referendum -- you know what public opinion is like when there is no immediate problem -- public opinion is not different. Those who are counting on that to do anything at all are mistaken.

Senator Nolin: You remember the situation in Quebec with respect to the unilateral repatriation of the Constitution.

Mr. Ryan: It took time and was difficult, and I speak from experience, because I suffered a great deal because of that.

Senator Nolin: You suffered a great deal...

Mr. Ryan: Yes, without acrimony, however.

Senator Nolin: I understand, that was the experience. My second question is about the opinion of the Supreme Court. The Court expounded in great detail about the obligation to negotiate in good faith in the case of clear decision by a province to separate from the rest of Canada. Do you think this obligation to negotiate should apply, must apply or does apply to all other constitutional negotiations? I am thinking, for example, of a constitutional amendment introduced by a province with a view to renewing Canadian federalism in good faith.

Mr. Ryan: To be frank, this part of the Supreme Court opinion has been highlighted as one of the most important parts. I do not completely share that view. Let us take the example of labour relations. I would create an obligation for the employer to negotiate with the employees, who have formed a union. I must attach a sanction to the obligation to negotiate that I have established for the employer and the two parties. I must also establish an obligation for the union to negotiate before going on strike. If the union breaks the law, there is provision for fines, and the union could even lose its accreditation. If the employer breaks the law and refuses to negotiate -- we saw this in the case of Métro grocery stores -- this can cost millions of dollars in penalties, and that is provided for in the law. In this case, there is no provision for anything. It is a fine principle, and people could say that they negotiated in good faith because they met with individuals for five weeks and got nowhere. What are you doing? That is why we should not be too frightened about this thing. It is not a bad principle of civilization, to the extent that people act in good faith, but it is not a key to solving a problem.

The Chair: I listened with interest to your comments on the Senate, and I would like to hear more. In the amendment you proposed, you would give the Senate much the same role as it plays, mutatis mutandis, in any legislation, that is, of veto.

If the people of Quebec vote clearly in response to a clear question, and if all parties in the National Assembly say that this is in fact a Yes to a clear question, and if the parties in the House of Commons say that the government must negotiate, what would happen if the Senate were to exercise its veto? Are you going that far in the powers you would give the Senate?

Mr. Ryan: Frankly, I have not examined all the technical aspects of this matter. If there were a Yes vote for secession in Quebec, the federal government is obliged to meet immediately with the officials from both Chambers to devise a way of working together. They might find an exceptional way of doing so, and, if necessary, amend some rules so that they could reach a consensus, but they will not be able to amend the Constitution. Is the Senate's veto power included in the Constitution?

The Chair: For legislation, yes, but not for resolutions. Normally, the Senate passes a resolution, and the House of Commons passes another one. You say that Parliament must pass a resolution saying that it was a clear answer to a clear question. That means that if the Senate disagrees, it has a veto over Quebec's destiny.

Mr. Ryan: What the Senate can do is delay things six months. That is not the end of the world. At the rate these things develop, nothing will stop operating because of that. A six-month delay would not be a bad thing.

The Chair: That happened at the stage of the constitutional amendment.

Mr. Ryan: There is nothing dramatic about your question.

[English]

Senator Kinsella: Mr. Ryan, earlier this afternoon in his testimony Chief Jacques Gauthier reminded us of what the United Nations Human Rights Committee, which was examining Canada's report submitted pursuant to the International Covenant on Civil and Political Rights, had to say about the right of self-determination as it applies to the aboriginal people. Chief Gauthier told us that the UN said:

[Translation]

The committee noted the concept of self-determination as applied by Canada to Aboriginal peoples, but regrets that the delegations did not give any explanations about the various components of this concept.

[English]

Mr. Ryan, as you know, in its opinion the Supreme Court was responding to a series of questions, one of which spoke directly to the right of self-determination under international human rights law. However, many of the paragraphs in the court's opinion gave some explication to this right of self-determination.

Regardless of whether this process unfolds the way the government wants it to, making legal for the first time in our history the steps to be followed to lead to secession, the people of Quebec will still have the right to self-determination. The court makes the distinction between the internal right to self-determination and the external right to self-determination.

As you have reflected upon these current developments, have you moved toward a conclusion that the government would have spent its time much more profitably by attempting to develop the pith and substance of the self-determination of the peoples of Quebec and all the peoples of Canada rather than going down this path? That was part of the discussion that the court addressed in a limited way, but this right of self-determination of the peoples of Quebec will not go away. Therefore, would you share with the members of this committee some of your reflections on the right of the peoples of Quebec to self-determination?

Mr. Ryan: In my view, enough has been said on that matter for the time being. The court was extremely abundant in its commentary and we have yet to digest the full implications of what it said. I do not think the governments could add much additional light to what we now have at our disposal. If they could make practical improvements for the betterment of relations in all matters that are a source of conflict between the two orders of government, they would do a better job for Canada than by continuing to discuss these matters at an abstract level, which may lead to more confusion.

Senator Kinsella: I agree with you, Mr. Ryan. The right to self-determination is not a self-executory right, but more like the right to education or the right to health. If we do not build a health delivery system or a school system, those rights do not mean much. If we are to have meat and flesh attached to the bone of the right to self-determination, governments must become proactive and creative. Would you not agree that the substantive part of the right to self-determination lies in the area of improvements to the federation and the creative exercise of identifying how the peoples of Quebec can enjoy self-determination to the greatest degree possible? In other words, is that not where the focus of the government's action should be rather than in these constitutionally abstract areas?

Mr. Ryan: Senator Kinsella, the rest of Canada is not disposed to accepting that Quebec, in a certain precise sense, forms a people. That must be recognized and accepted, and it may be conducive to particular arrangements in areas that are under discussion in the press these days.

As long as there is a systematic and profound refusal to accept this reality, the problems with which we have been groping for the past 25 years will remain and may become more acute. I do not want to be a prophet of gloom, but it is certain that we are not more advanced on this issue today than we were when we won the first referendum 20 years ago. There must be a reason for that and, for one who studies history, the reason is not too hard to find.

[Translation]

Senator Gauthier: In your comments, you said on page 3:

Bill C-20 in fact enjoys broad support in the rest of the country, which is not surprising, in that opposition to separation is visceral in English Canada, to the point that reactions there on the subject of what is going on in Quebec are most often given without any critical thought.

My question is about official language minorities. If there were a referendum on secession in Quebec, there is no doubt that Canada's francophone minorities will probably feel a backlash from the anglophone majority. We should not forget that a few years ago, over 70 Ontario municipalities declared themselves unilingual English in reaction to Quebec passing a law restricting English signs in the province. We must assume that if Quebec were to decide to leave Canada, there would be a similar reaction in the rest of the country.

Could we include in Bill C-20 -- and I am not optimistic about whether I can do this but I am always looking for possible solutions -- an amendment to clause 2(5) that would allow official language minorities -- French outside Quebec and English within Quebec -- to express their views, resolutions and comments -- as is done in other clauses -- so that they can participate constructively in this process, which will be devastating for us. If the bill is passed in its present form, and if there is no mention of minorities, I think this will be disastrous if Quebec should decide to hold a referendum.

The Supreme Court was very clear about the protection of minority rights, Mr. Ryan. Bill C-20 says absolutely nothing about consultations or the right of minorities to be heard.

Would you accept an amendment from your humble servant to amend clause 2(5) by adding: "official statements of representatives, of official language minority peoples or groups before making a decision"? In political terms, I am disturbed, because the decision will be made by the majority in the House of Commons. There is nothing to say that the majority will agree, or that it will understand the Canadian problem. Minorities are virtually essential in our country; we hold the country together, because we are scattered around throughout the country. There is a francophone minority in Eastern Canada and in Western Canada. If Quebec were to separate, the Canadian umbilical cord would be cut. Would you support this situation? Nobody is talking about it, except me.

Mr. Ryan: Senator Gauthier has known me for a long time, and I think he knows that I have always been very much in favour of minority language rights, in particular, and especially, of course, of francophone minority language rights in the other provinces of Canada. I think I have also shown respect for the rights of the English-speaking minority in Quebec.

You have raised a sensitive issue. To date, people have been saying that the issue must be decided by governments and legislatures. That amounts to quite a few people. If we start introducing special interests as well and what I call "Charter interests," other sectors of society are also going to demand that they be represented. The question is whether you give them just the right to be consulted, to express their views, which entails a right to take part in the decision. We need to look at this carefully. If we were talking about a right to make representations, I think the issue you raise deserves careful and sympathetic study. If it were to involve the right to participate in the decision, it would be rather limited, because the responsibility for making decisions, particularly in a case such as this, must lie with the people's elected representatives, which include representatives of the two language groups and other groups as well.

Senator Gauthier: I agree with you. We are including the Aboriginal people in Bill C-20. However, we have not included the official language minorities.

Mr. Ryan: Senator Gauthier has made his question more specific, and here again, since I am not familiar with the amendment on Native peoples, I must reserve my answer. The Aboriginal peoples are mentioned in clause 35 of the Constitution. The official minorities are also mentioned in clause 16. You raised an interesting argument, and I think it should be given respectful consideration.

[English]

Senator Grafstein: Mr. Ryan, welcome. It is good to renew your acquaintance.

Your evidence dealing with the question that goes to the heart of one of the pillars of this legislation is most interesting. You say that the question might not be clear but that, in effect, people would understand the question. That was supported by at least one other witness.

However, Mr. Pinard gave evidence to the effect that in the interests of the separatist forces, the softer the question, the more confusing the consequences, the higher the vote. He said that you might be able to obtain a majority vote, 50 plus one, on a question that would be clear to the separatists but would have more ambiguity to the people who are not hard core separatists. Therefore, the greater ability there would be to achieve a greater positive vote.

That is not my question. My question is this: Under the principles of constitutionalism, federalism, the rule of law and the protection of minorities, can the federal cabinet give itself the mandate to negotiate on such questions on the resolution of one house that it may control? Under democratic principles, should one house and one cabinet have the power to make the determination to sit down and negotiate without -- and this is the big question -- a clear mandate under a democratic theory for the votes of all the people of Canada that Parliament represents?

Mr. Ryan: Based on my experience with government, a government can enter into conversation with another government at any time, without having need of a mandate from elected members of Parliament or the Senate. They can enter into negotiations at any time.

That is why this bill is very presumptuous and very ignorant of reality, in my opinion. Once you enter into conversation, you go into a second conversation and a third conversation. You end up with something that looks sensible, and you ask yourself how this could be put into law. Then all the questions must be answered. What is the role of Parliament? What is the role of the House of Commons? What is the role of the Senate? What is the role of the Department of Justice, et cetera? First, the men and women of government must come together to explore the reality that has developed and to seek ways out of a difficult situation. Then it goes into the legal processes, which are very important factors in the functioning of our society. If you reverse the process, you create all kinds of unpredictable obstacles.

I was involved in the discussions regarding the Meech Lake Accord, in cabinet regarding the Charlottetown Agreement, regarding agreements with aboriginal nations in Quebec, and when the matter came to cabinet, nine-tenths of the problem had found a solution. If the Prime Minister comes before government and says, "I want to have opinions because I am not too sure," you will have a discussion that leads nowhere. He will say to himself, upon adjourning the meeting, "I will come back next time with something precise." This precise thing he must develop through discussion, conversation, and perhaps even negotiation. That is how the political process works. It is an admirable process for that reason. The minister is sometimes frustrated and so are elected members.

[Translation]

Senator Prud'homme: I am just going to ask you to clarify what you said. In 1980, you will recall that three federal Liberals were involved under your leadership: the late Jean Marchand, Jean Chrétien and myself, representing the caucus.

Only one other person can talk about his experience, and that is Senator Nolin. They are the only ones, and I say that for my English-speaking friends, so that they appreciate that this is a process and so that they will think about the consequences faced by those who have to fight these battles. We are the only people in the Senate who could tell some stories, along with you and some others, and some day we will do that.

I am just back from Quebec City and I can tell you that it did me good to see this French, historic city, and to witness the unveiling of a monument of Jean Lesage. Senator Bolduc was there, and most of the French Canadians at this event were federalists.

You said earlier that nothing is going on at the moment, and that people therefore do not have much to say. That is in fact why it is thought that this is the time to pass Bill C-20, because people are not demonstrating in the streets -- nothing is happening.

I call this a time bomb that could blow up in our faces as French-Canadian nationalists, and others that describe themselves differently, in the middle of a referendum when we would have to explain to our fellow citizens that we should be staying in Canada, in addition to explaining Bill C-20, that could be passed. Could you comment on this?

Mr. Ryan: If Quebec federalists suddenly, and unexpectedly, had to defend Bill C-20 during a campaign, it could very well be that Mr. Bouchard would delay the whole debate on Bill C-20 until that time. He would say that if people vote Yes, they would be saying no to Bill C-20, and that if they vote No, they would be saying yes to Bill C-20. That could cause people to lose sight of the main objective of the referendum. I and many other Quebec federalists would be in a very awkward position if they had to defend Bill C-20. That is the situation.

Senator Joyal: Mr. Ryan, you referred to President Lincoln's political philosophy, and I would like to quote from his "First inaugural address" of March 4, 1861. You know it by heart, but I would like to share it with my colleagues, and I quote:

[English]

Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination...

...the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the states. Doing this I deem to be only a simple duty on my part; and I shall perform it so far as practicable, unless my rightful masters, the American people, shall withhold the requisite means, and in some authoritative manner, direct the contrary... the declared purpose of the Union [is] that it will Constitutionally defend and maintain itself.

[Translation]

What I understand President Lincoln to say is that the perpetuity or continuity of the State underlies its existence, is inherent in its existence. And that unless we refuse the individual responsible for running the State the financial resources to maintain this responsibility, or if we tell him very clearly, in an "authoritative manner" that the citizens no longer want to remain together, the individual in charge has no choice but to maintain constitutional order.

Having said that, I think that what the Supreme Court said in its response to three clear legal questions -- and in my view the debate is a legal one at this stage -- is that Quebec should not have the right to self-determination, in either domestic or international law. We may not like that, but that is basically what the Court said, in quite a clear way. Canadian law does not allow Quebec to secede unilaterally.

So when you tell us that Quebec has a fundamental right to self-determination because it constitutes a nation, we may, in terms of politics, support this view, but in terms of legal principle, that is not what is contained in Canada's constitutional order according to the answers provided by the Supreme Court to these questions.

Mr. Ryan: That is the question. Everyone will acknowledge while affirming the Quebec people's right to self-determination, that there may be some differences of opinion about ways in which this right should be exercised, even according to the same legal rules. It is clear that once the Supreme Court gave its opinion -- and I must say that I am not one of those who think that this is merely an advisory opinion -- I do not agree, but I accept it out of a sense of civic discipline.

As a result, I do not think we disagree. The passage you quoted from President Lincoln's address is one I may have used 10 or 15 times in my life. It is one of his most high-minded and most noble speeches. And unfortunately, the context in which President Lincoln made his comments is very different from the Canadian historical context. We should remember that in the United States they initially had a Confederation in 1776, which did not work very well. They decided to meet again and establish a federation, to which everyone freely adhered. The States, one after the other, held votes and debates in each of their legislatures. From all that, the President could infer that there was an "indissoluble" union within his country. In Canada, however, that is not how things worked, because two peoples were present, in addition to the Aboriginal peoples. In the United States, the Aboriginals were crushed much more than in Canada. The context is acknowledged to be different, particularly as regards Quebec after the 1774 Act. That is the context that prevailed at the time Canada was established.

I think our Fathers of Confederation, even Mr. Trudeau in 1980-81, acted prudently by not including a definition in the Constitution, because they felt the time was not right for dealing with that. Mr. Trudeau was intelligent enough to know that there was a problem there.

Generally speaking, in my view, nine tenths of the 1982 Act do not create any major problems. The fact that it was passed against Quebec, and that an amended formula was added without Quebec's consent, are fundamental issues. This is what distinguishes Canada from the United States. While I have the deepest respect for President Lincoln's thinking, once again, on this point, I think he was speaking in terms of the American tradition, not the Canadian tradition. If we were to reach an agreement in Canada in which Quebec were a full partner, then we could ask: "How long will this endure?" The political actors must make long-term commitments. Obviously, we do not pass a constitution one day, just to change our mind about it the next day. We also do not want the population to reverse its opinion at some time or another. This is something over which no one has any control in a democracy. However, all things being equal, the political actors could make commitments for a much more longer time, provided the rules are clear. When the rules are not clear, I do not want the Supreme Court sending me a notice. I find this unacceptable.

Senator Joyal: However, Quebec's representatives in 1867 nevertheless voted in favour of the confederate union, as it was called. In so doing, they gave proof of their sovereignty and of the fact that they had been clearly mandated by the citizens to sign the agreement reached at that time by the various governments.

Mr. Ryan: What were the results in Lower Canada?

Senator Joyal: In Lower Canada, I believe 28 representatives voted for and 21 against.

Mr. Ryan: Twenty-eight/twenty-four.

Senator Joyal: Twenty-eight/twenty-four, that is fairly close, but it nevertheless passed. It was 50 per cent plus one.

Mr. Ryan: However, if you count the francophone votes, you will realize that the problem was not settled in that regard. Afterwards, there was an election, and the party which had led the negotiations was re-elected. That was a vindication for a long time to come. There was a consensus. Do not forget that the Liberals were mostly in favour of the idea, they were involved at that point.

Senator Joyal: They were against it. In fact, they were leading a group of members opposed to Confederation. Antoine-Aimé Dorion was their leader.

Mr. Ryan: However, he remained with the Liberal Party. That was also normal. It is good that he stayed. It validated Quebec. I do not think there is any Liberal worth his salt who would be embarrassed by that fact! Not at all.

[English]

Senator Cools: Mr. Ryan, I would just like to say that I belong to that group of people who would have wished that this committee travel to Quebec and across Canada to hear Canadians' and Quebecers' points of view on this bill. It is regrettable that this has not happened.

You have condemned Bill C-20 with quite some vigour, and you have asked the Senate to exercise its powers to amend the bill in a vigorous way. You have also said that Bill C-20 is helping to feed the anti-federalist convictions of Quebec sovereignists. In other words, you have said that Bill C-20's net political effect is negative for federalism in Quebec and beneficial for separation in Quebec.

My first question is: In your political opinion, which is served by having been a leader in Quebec and also having been the editor of a substantial newspaper, why have the Government of Canada and the minister proposed this bill, whose net effect is negative on federalism in Quebec?

This brings me to my second question. You have said that Bill C-20 is suspicious of the government of Quebec and very suspicious of the National Assembly in particular. The words you used were that there was a "visceral distrust." The first part of Bill C-20 lays out a suspicion on the question of clarity and on the motivation almost of the National Assembly and the government of Quebec, in particular the premier, but then, a few paragraphs later, Bill C-20 proposes cooperation with the very persons that it purports suspicion in the first part of the bill. I should like your opinion on this.

Mr. Ryan: You had an answer to the first question from Mr. Dion when he appeared before your committee. I am not a safe interpreter of the intentions of the federal government, and I will not venture upon those very risky grounds. I do not want to go into interpreting their motives.

As to the second part of your question, yes, there is distrust, not only of the National Assembly and the government of Quebec but also of Quebec democracy. We have a democracy that functions rather well in Quebec. I wish I had won all my elections, but I lost some, and that is very healthy for democracy. There have been defeats and victories on both sides, as we have been fortunate to see in Quebec in the last 25 years. I do not see it as a tragedy that we should have the Parti Québécois in power for a certain time, provided it is not eternity. We must deserve a change if we want to have one. I will not go beyond that.

I am speaking sincerely but perhaps naively when I say that if the committee were to accept to amend the bill the way I suggested, it would stand as a clear reminder that the Supreme Court provided indications as to how these things must be managed. It would avoid any kind of accusation of interference in the exercise of its legitimate attributions by the National Assembly or the Government of Quebec, and the people of Canada would be just as effectively protected against any abuse of power on the part of the Government of Quebec. All the recourses would be very well safeguarded. As Senator Joyal said clearly -- and I fully agree -- the answers to the three questions put to the court by the federal government were extremely clear. From a legal point of view, all that remains is speculation.

[Translation]

The Chair: Mr. Ryan, on behalf of every senator, I would like to thank you for coming. Our discussion has been extremely interesting and very stimulating.

The meeting is adjourned.