Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 16 - Evidence, June 7, 2000

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-23, to modernize the Statutes of Canada in relation to benefits and obligations, met this day at 3:37 p.m. to give clause-by-clause consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, this meeting of the Standing Senate Committee on Legal and Constitutional Affairs is now in session.

Before proceeding with clause-by-clause consideration of Bill C-23, at our request the minister sent us a letter in reply to some of the concerns that were raised during the committee meetings. I will read that letter into the record.

Dear Senator Milne:

Thank you for your letter of May 18, 2000, asking for clarification of government's undertakings on Bill C-23, An Act to modernize the Statutes of Canada in relation benefits and obligations, as they relate to the Cree-Naskapi (of Quebec) Act. You kindly enclosed a copy of the preliminary draft transcripts of the relevant portion of the Committee's meeting for my reference.

From an examination of the transcripts, it appears that the main issue raised by counsel for the Naskapi Nation of Kawawachikamach, Mr. Robert Pratt, is a question concerning the commitment of my colleague, the Honourable Robert Nault, Minister of Indian Affairs and Northern Development. As I understand it, Mr. Pratt has stated that it is the position of his client that no amendments to the Act should have been proposed without prior consultations, and that either the amendments should now be withdrawn, or his client should be assured that the amendments will not be brought into force without the consent of the Naskapi Nation, and the other Nations affected by the Act.

I attach a copy of a letter from Minister Nault to Chief Philip Einish, clarifying that the specific manner in which the amendments to the Cree-Naskapi (of Quebec) Act are drafted is to provide considerable flexibility for the Naskapi Nation to make choices in the regulations about what rights they wish to grant within the community to the spouses and common-law partners of members of the Naskapi Nation. In order to provide greater clarity as to the intention of the Government with regard to the proclamation of these amendments, Minister Nault reiterates his intention not to recommend proceeding with bringing these amendments into force until agreement is reached on the regulations dealing with the definition of "consorts" with the Naskapi Nation, and the other Nations affected by the Act.

As to the drafting of the regulations, I disagree with the position of counsel for the Naskapi Nation, who suggests that discussions between officials and his client are a "ruse," as no changes can be made to the text of Bill C-23 to accommodate the concerns of the Naskapi Nation. While it is true that the Supreme Court of Canada has now clearly indicated that governments can no longer make distinctions for most benefits and obligations on the basis of marital status (for example, treating spouses and common-law partners differently with regard to access to land), it is also clear that some other kinds of distinctions, for example, those made on the basis of whether the spouses or common-law partners of the Naskapi are Aboriginal or non-Aboriginal, could well be justifiable. The drafting of the amendments to the Cree-Naskapi (of Quebec) Act opens this opportunity for the Naskapi Nation to discuss in greater depth the approach they wish to take in the regulations for spouses and common-law partners of their members.

As the Cree-Naskapi (of Quebec) Act is a federal statute based on negotiated Agreements -- the James Bay Agreement and the Northeastern Quebec Agreement -- it is a qualitatively different situation from other federal legislation, including the Indian Act. In the case of an inconsistency between the Agreements and a federal statute, it appears that the relevant provisions of the Agreements would prevail. Thus, if after the regulations are discussed fully with the Naskapi Nation and other affected Nations, no possible way can be found to draft those regulations in a manner which will satisfy the concerns of the communities and the Charter protections, without being inconsistent with the Agreements, then the Agreements would have to be amended, which of course would require the agreement of the parties. However, I continue to believe that there are ways of drafting regulations in connection with these amendments which can satisfy the concerns of the community in a manner that is consistent with the Agreements.

I would also like to clarify one other aspect raised during the appearance of the Naskapi Nation representatives. In my presentation to the Committee, I indicated, in response to a question, that the Naskapi Nation has no problem with the substance of Bill C-23. Counsel for the Naskapi Nation stated at the Senate Committee hearing that this was a "complete mischaracterization" of the position of his client. I should like to clarify that my statement was premised on the statement of Mr. John Marneamskum, representative of the Naskapi Nation of Kawawachikamach, before the House Committee (March 16, 2000).

I understood the Naskapi Nation position to be that, although there was no objection to the extension of equal treatment to same-sex partners in the Bill, they do object to the inclusion of any amendments to the Cree-Naskapi (of Quebec) Act, without prior consultation. As I mentioned above, as full prior discussion did not take place, it is the stated intention of the Government to have these discussions on the text of the regulations prior to bringing any amendments to the Cree-Naskapi (of Quebec) Act into force. Those discussions are necessary in order for officials to determine the approach that the community wishes to use in drafting the regulations.

As Minister Nault says in the attached letter, we will work with the Naskapi Nation and the other Nations affected by the Cree-Naskapi (of Quebec) Act to achieve a result which respects both the need for the Government to comply with section 15 of the Charter, and the rights contained in agreements with Aboriginal communities to make decisions about their communities. We are confident that this can be achieved through meaningful discussions about the approach the community wishes to adopt in the regulations. As I mentioned above, if this is not possible, then at some point in the future alternatives may have to be explored with the parties to the James Bay Agreement and the Northeastern Quebec Agreement.

Thank you for providing this opportunity for clarification, and for your careful consideration of the Bill. Please do not hesitate to let me know if either I or my officials can further assist the Committee during its important review of the Bill. I look forward to your report.

Yours sincerely,

The letter is signed by Minister McLellan. She attached to it a letter sent by Minister Nault to the Cree-Naskapi. However, since it is not addressed to me, I do not believe I could properly read it into the record. The letter I have read was addressed to me as chair of this committee. It basically covers what is in the other letter as well.

Senator Beaudoin: Since the letter of the minister refers to the other letter, even if it is not addressed to you personally, perhaps for the sake of completeness of the record it should be read as well.

The Chairman: Very well. Without permission, I shall read this letter.

Dear Chief Einish:

Further to my letters to you dated February 10, 2000 and March 31, 2000, I am writing to you to clarify my intention and that of the Government concerning Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations.

I understand that when your representatives appeared before the Senate Committee on Legal and Constitutional Affairs on May 17, 2000, they expressed concern about my earlier commitment to you and to the other Chiefs regarding the amendments to the Cree-Naskapi (of Quebec) Act, and about the fact that there had not been consultations prior to the introduction of the Bill. Let me assure you that it is my intention not to recommend bringing these amendments into force until there has been full discussion with the Naskapi Nation, the Cree and the Inuit. We will be looking to you during these discussions to let us know what approach your community would like to see reflected in the regulations.

Until we have that discussion, it is not my intention to proceed with the regulations, which are in turn needed before the amendments can be brought into force. If the regulations cannot be drafted in a way that is consistent with the existing terms of the Northeastern Quebec Agreement, then we will have to discuss how to proceed at that point. However, I remain positive that together we will be able to find some means of balancing the Charter obligations on Government with your concerns about the impact on the community of recognition of the common-law partners of members of the Naskapi Nation of Kawawachikamach.

As I indicated to you in my earlier letter, my officials would like to meet with your representatives regarding the amendments to the Cree-Naskapi (of Quebec) Act and, in particular, what approach you and your community wish to see reflected in the regulations which will be drafted to implement this change. As you will have seen, the amendments to the Act are drafted to provide considerable flexibility. The reason for this is to balance the need for the Government to comply with section 15 of the Charter, and our desire to respect your right to effect decisions concerning how the community wishes to treat Aboriginal and non-Aboriginals spouses and common-law partners of the Naskapi people within the community.

My officials have already contacted you to set up further discussions on this issue, as soon as possible. I look forward to the outcome of those discussions.

Thank you for your continued co-operation in managing this important issue. I reiterate I would also be pleased to meet with you on this matter.

Yours sincerely,

The letter is signed by Minister Nault.

Given that we did receive a response, and in time, is there a motion that the committee proceed to clause-by-clause consideration of Bill C-23?

Senator Moore: I move that the committee do now proceed to clause-by-clause consideration of Bill C-23, to modernize the Statutes of Canada in relation to benefits and obligations.

The Chairman: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

The Chairman: Is anyone opposed? Are there any abstentions?

There being none, I declare the motion carried.

Senator Moore: Madam Chair, I move that the committee adopt all clauses, schedules, and the title of Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations.

The Chairman: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

The Chairman: Is anyone opposed? Are there any abstentions?

There being none, I declare the motion carried.

Shall the bill carry?

Hon. Senators: Agreed.

The Chairman: Is anyone opposed? Are there any abstentions?

Carried.

Shall I report the bill to the Senate without amendment?

Hon. Senators: Agreed.

The Chairman: Is anyone opposed? Are there any abstentions?

Carried.

The committee adjourned.