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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 17 - Evidence

OTTAWA, Wednesday, November 5, 2003

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:20 p.m. to examine and report on the implications of including, in legislation, non-derogation clauses relating to existing Aboriginal and treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.

Senator George J. Furey (Chairman) in the Chair.


The Chairman: My apologies to the witnesses for keeping you waiting beyond the time for which we had called you. Sometimes scheduling here gets to be a little difficult and out of our hands. Thank you for your patience.

Today, we begin our study of the implications of including, in legislation, non-derogation clauses relating to existing Aboriginal and treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982, pursuant to the order of reference granted to this committee on October 7.

To assists us in our hearings today, we have officials from two departments. From the Department of Justice, we welcome Claire Beckton and Charles Pryce. From the Department of Indian Affairs and Northern Development, we have Christine Cram.

I understand you have been told that you have five minutes to make a presentation and then we will proceed to questions.

Ms. Clare Beckton, Assistant Deputy Attorney General, Department of Justice Canada: We were not told we had five minutes. However, we have some speaking points that we have handed out to the committee. We think it is important to take the committee through this so that we can set the stage.

The Chairman: Please do.

Ms. Beckton: We are pleased to have been invited here today to talk about non-derogation clauses. As you know, the Department of Justice has taken an active interest in this issue. Officials from the department appeared before the Standing Senate Committee on Energy, Environment and Natural Resources to discuss this issue over a year ago. More recently, we had the opportunity to discuss non-derogation clauses in greater detail with a number of senators. We understand that this is an issue of real concern to senators and others. We welcome the opportunity to contribute to the discussion and to listen to and learn from the views of others.

Like senators, the government has an interest in seeking a resolution of this issue. We agree that the current approach, of dealing with non-derogation clauses on an ad hoc basis every time legislation is considered by Parliament, is not sustainable. We look forward to making a contribution to the work of this committee. Your report will contribute to the development of a consistent approach, so that legislation balances respect for Aboriginal and treaty rights with constitutional and other democratic principles.

The issue has been cast in terms of whether or not to include non-derogation clauses in legislation. We would suggest that this issue is less about the wording of particular clauses and more about policy choices. Once those choices have been made, it becomes possible to develop the most appropriate legal mechanisms to give effect to them.

The fundamental issue is determining the appropriate relationship between federal legislation and Aboriginal and treaty rights. The federal government takes these rights seriously and seeks to respect both Aboriginal and treaty rights. These rights receive a high degree of constitutional protection from section 35 of the Constitution Act, 1982. Governments must justify any infringement of Aboriginal and treaty rights. However, questions have been raised as to whether section 35 by itself provides adequate protection for these rights. Of particular concern is the potential for legislation to have unanticipated impacts on Aboriginal and treaty rights because there is no process for parliamentarians to assess specifically how legislation may affect these rights. If that is the real concern, the policy choices may be to ensure that there are adequate processes to assess the potential impact of legislation on Aboriginal and treaty rights.

It has been suggested that Aboriginal and treaty rights should receive greater protection from the effects of legislation than is provided by section 35. It is principally in this context that the need for non-derogation clauses in legislation must be considered.

We would like to focus on two main areas in order to assist the committee. The first is the key considerations that arise in making the policy choices. The second is to offer some possible approaches or mechanisms that could be considered in light of the policy choices that have been made.

There are three considerations that are of particular importance, in my view. They are: the similarities and differences between Charter rights and Aboriginal and treaty rights; the need for legislative regimes to be flexible and to balance a wide range of rights and interests; and principles of statutory interpretation.

I will start with the Charter rights and section 35 rights.

We know that the Supreme Court in Sparrow effectively gave Aboriginal and treaty rights the same constitutional protection as Charter rights, in that they are not absolute. The rights are balanced with other rights and interests. Despite this similar treatment, there are a number of factors that need to be taken into consideration in determining whether section 35 by itself provides for adequate protection of these rights. For example, it is clear that Aboriginal and treaty rights are distinct from Charter rights in a number of important ways. We need to ask ourselves whether these differences, by themselves, warrant treating Aboriginal and treaty rights differently in legislation.

One important way in which Aboriginal and Charter rights differ is that, in the case of Charter rights, there exists a formal process of review under the Department of Justice Act related to the constitutionality of proposed federal legislation. There is no similar review process for Aboriginal and treaty rights.

A further difference is that the Charter sets out certain rights that are protected, whereas section 35 refers broadly to Aboriginal and treaty rights and does not specify them. In this way, Charter rights are potentially more easily definable than Aboriginal and treaty rights. The court has provided some direction over the last 20 years as to the type of Aboriginal and treaty rights that exist, but there is much that is unknown about the nature and scope of such rights. For example, while Aboriginal people claim an Aboriginal right to self-government, with some claiming to be sovereign nations, the courts have yet to confirm that a right to self-government exists and what form it might take.

Yet another difference between the two types of rights is that the majority of Charter rights are of a social or political nature and pertain to individuals, regardless of their background. In contrast, Aboriginal rights are collective in nature and belong to particular groups based on their prior occupation of what is now Canada. As well, Aboriginal rights are not universal, but rather, are site and fact specific. This means that an Aboriginal group on the West Coast will not necessarily have the same rights to hunt as an Aboriginal group on the East Coast. This characteristic of Aboriginal rights means that they are difficult to assess on a global basis and need to be considered on a case-by-case basis.

Finally, Aboriginal rights are often linked to use of land and resources, providing an economic element that makes them quite different from Charter rights.

The second consideration is adaptable legislative regimes.

Legislation needs, as we know, to reconcile or balance competing interests and be sufficiently flexible to adapt to changing circumstances. The federal government exercises its authority to achieve a variety of objectives, including public policy goals. Canadian society is not static; Canadians, both Aboriginal and non-Aboriginal, would not be well served by legislation that was fixed in time.

Accordingly, an important consideration is to have legislative schemes in place that can adapt to changing circumstances and values. In part, the need for flexibility is reflected in the fact that many statutes are implemented as framework legislation that guides the overall operation of the statute.

Detailed administration of the statute is done through regulations. For example, the Fisheries Act sets out broad responsibilities in relation to the fishery; however, details regarding catch allotments, size restrictions, et cetera, are set out in specific regulations and licences. Regulating a right to fish a certain species may not be needed when there are lots of fish, but may become necessary as the stock begins to diminish.

The Fisheries Act is also a good example of the major implications that could arise if a non-derogation clause is added to legislation in order to ensure that it has no adverse impact on Aboriginal or treaty rights. The Department of Fisheries and Oceans administers the act and makes decisions that affect the fishery on a day-to-day basis. Many different users, including many Aboriginal groups, access the fishery. Some of the users, both Aboriginal and non- Aboriginal, have a historic dependence on the resource and some have Aboriginal or treaty rights. Access to the fisheries may be for food, commercial or recreational purposes. DFO seeks to manage the fishery in a manner consistent with the constitutional protection provided to Aboriginal and treaty rights. However, it would be much more difficult to balance the competing public policy goals of conservation and continued use of the resource by all users if no infringement of Aboriginal and treaty rights is possible, even if justified. This is a particularly important consideration, as the courts may recognize additional Aboriginal or treaty rights to fish that are currently unknown.

We saw this in the recent decisions from the Supreme Court of Canada on Powley.

The third element is principles of statutory interpretation. There are differences of opinion on the purpose of some of the existing non-derogation clauses in legislation. In one view, these clauses are principally declaratory, serving as a flag to remind those administering the legislation that it is subject to the application of section 35. This view may not be accepted, as there is a basic principle of statutory interpretation that all provisions in a statute are intended to mean something. Before assuming a non-derogation clause should be added to a particular piece of legislation, it is important to clarify the overall policy objectives. This will determine whether a non-derogation clause is needed. The wording of any clause should be consistent with these policy objectives. This will help to avoid the differences of opinion that have arisen to date.

I would add here that there is a broad range of approaches that could be considered, depending on the policy choice that is made. At one end of the spectrum, it has been suggested that because of all the uncertainty surrounding non- derogation clauses, they should simply be repealed from existing legislation. At the other end of the spectrum, if it is determined that Aboriginal and treaty rights require more protection than is provided by section 35, a broadly worded non-derogation clause applying to all federal legislation, ensuring complete protection for Aboriginal and treaty rights, might be contemplated.

As indicated previously, there is a policy choice to be made regarding the extent to which federal laws should apply to and be able to limit Aboriginal and treaty rights and there are many questions that arise in making that choice. We need to ask ourselves why non-derogation clauses are an issue at the present time. Why do people believe they are necessary? Some argue that the government is not doing enough to make sure that Aboriginal and treaty rights are protected in federal legislation. However, waiting to address the concerns of Aboriginal peoples until the statute is tabled in Parliament is a piecemeal approach and does not always allow for consideration of the underlying issues. Could something else be done to address the concerns that are prompting parliamentarians and others to push for the inclusion of non-derogation clauses in federal statutes? If the real concern is that not enough is being done to take account of Aboriginal and treaty rights as legislation is drafted and considered in Parliament, one possibility could be to find better ways of ensuring that the views and interests of Aboriginal peoples are taken into account in the legislative process. The federal government routinely engages Canadians in the process of developing or amending legislation. However, it is important to consider whether more could be done to ensure that the views and interests of Aboriginal peoples are reflected in the legislative process. A more systematic approach to consultation with Aboriginal peoples could be to explore ways to incorporate and accommodate Aboriginal interests. This could lead to a more effective treatment of Aboriginal concerns.

If it were decided that added protection for Aboriginal and treaty rights might be appropriate in some circumstances but not others, it could then be possible to develop a framework that would set out when a non-derogation clause might be considered and when it would not. Such a framework would allow federal statutes to be classified based on a set of criteria. For example, it may be appropriate to insert non-derogation clauses into legislation that has a direct impact on Aboriginal peoples and it is not intended that it affect Aboriginal or treaty rights. Conversely, it may not be appropriate to consider using a non-derogation clause in legislation that applies to all Canadians and deals with matters of national interest.

In conclusion, it should be reiterated that there are important policy choices to be made regarding the appropriate relationship between federal laws and Aboriginal and treaty rights. The legal mechanisms follow from the outcome of that policy discussion.

The report of this committee will be very important in helping make the best policy choices for all Canadians. Officials within the Department of Justice are prepared to offer any assistance we can with respect to the work of the committee.

The Chairman: Thank you very much. I wanted to clarify something with regard to your possible approaches for consideration. At one end of the spectrum, you talked about just repealing it from existing legislation, and on the other, a broadly worded non-derogation clause applying to all federal legislation. Would that be stand-alone legislation, or would it just be a clause tacked on to all legislation where that would be appropriate?

Ms. Beckton: It is more likely that it would be a clause in the Interpretation Act.

The Chairman: Okay. Thank you.

Senator Beaudoin: Of course, we all know that the Sparrow case is the equivalent for section 35 of Oakes for the Charter of Rights. The Department of Justice conducts a review for Charter implications for every statute adopted. We do not do the same thing for Aboriginal rights because they are established in a different manner.

The big difference has always been that under the Charter of Rights, we are talking about individual rights. With section 35, we are dealing with collective rights. It is a big difference, in my opinion. There is also the fact that there is no such thing as economic rights in the Charter. However, we may have that under section 35. In that sense, it is very different. My question is about your statement that perhaps we have to consider something broader than section 35 of the Constitution Act. Is that because of the fiduciary duty? You did not talk about it. However, the fiduciary duty has been clearly established by jurisprudence. We are here to protect the Aboriginal peoples and their rights. That is my first question.

You also express some doubts about the non-derogation clause — perhaps we do not need that clause. I may disagree on this. I think we need a non-derogation clause.

The fiduciary duty exists and the jurisprudence has been rather clear-cut on this, and a little stern as well. What is your reaction to that?

Ms. Beckton: Senator, we were saying that some people have argued that section 35 is not adequate protection, because the Sparrow case said you could justify infringements or limits placed on those rights. We were saying that some have argued we need non-derogation clauses that are substantive in nature in legislation in order to ensure that those treaty and Aboriginal rights are protected and the government would not be able to limit or infringe them, even with justification.

Senator Beaudoin: On what basis is that decision made?

Ms. Beckton: Aboriginal Canadians and others are putting these positions forward. I am not the best person to say what underlies that.

Senator Beaudoin: I remember many discussions we have had here, and the Aboriginals are always saying that they are in a different situation, that they have a different deal under section 35, and they are right. Section 35 applies only to the Aboriginal peoples, and they do not want to be in court all the time so they need a non-derogation clause. What is your reaction to that?

Ms. Beckton: I am not sure that non-derogation clauses would answer the questions with respect to litigation because it is possible that the litigation may then simply shift to defining the rights. The courts would be looking at the ambit of the right and whether it encompasses what the Aboriginals are claiming in that particular instance. Whereas now there is the definition and there are questions as to whether there has been an infringement and whether it is justifiable.

Senator Beaudoin: This is exactly where the difficulty lies. Aboriginals always say that they have to establish that there is a treaty, that they have special collective rights, and that it costs a great deal of money. This is what they say around this table frequently. Would you agree that a well-drafted non-derogation clause might solve part of that problem?

Ms. Beckton: I do not think that the non-derogation clause would actually solve the problem of what rights exist. The non-derogation clause is applicable when rights have already been determined and is saying that we are either adding to or affirming section 35, or, if it is a substantive clause, it is saying that those rights cannot be infringed upon or limited, even with justification. In order to determine, you have to know what rights you are talking about.

Senator Beaudoin: We cannot escape the establishment of the evidence. It is up to the Aboriginals to prove that they have a treaty. There is one case in which verbal evidence may be good enough, because it is not always in writing. I think the case was Delgamuukw or Vanderpeet. That must first be established. They are under an obligation and we cannot do anything about that.

You said at the beginning of your remarks that we should consider more than what is stated in section 35. What do you mean by that?

Ms. Beckton: Again, we were saying that when you read the policy choices that are before the committee in making its recommendations, currently, the jurisprudence is that section 35 has limits. The Sparrow case sets out the justificatory test for determining whether you can impose that limitation. There are arguments —

Senator Beaudoin: They are not absolute.

Ms. Beckton: However, it is possible that if you include a non-derogation clause that is substantive in nature, you would make that right absolute, because you would be saying that the government may not infringe or limit the rights in question, even with justification. Therefore, that would be enhancing the section 35 rights.

Senator Joyal: I followed your presentation carefully, and to tell you the truth, I am puzzled. You stated that section 11 of the Justice Department Act asks the Minister of Justice to certify that a bill complies with the Charter of Rights and Freedoms. If I understand correctly, you referred to that section, although it is not mentioned in your brief. You seem to argue that in respect of the Charter, the department has a responsibility because a statute charges the Minister of Justice with that responsibility. However, in respect of section 35, you do not have a responsibility, either by statute or as your general responsibility, to advise the federal government. The Minister of Justice not only has the specific responsibility to advise the federal government on the Charter issue, but also on the legality of all general policy of the federal government. I think we agree on that.

I am puzzled because — and I may be wrong, and if so, you will correct me — there has been a series of cases in the last 15 years that have clearly established the fiduciary responsibility of the Crown and the fiduciary obligations of the Crown, which are two different concepts. It seems to me to be a little inadequate to say, ``We do not have a specific responsibility.'' In fact, I am appalled that you did not even mention in your paper that there is a document entitled, ``Fiduciary Relationship of the Crown with Aboriginal People: Implementation and Management Issues; A Guide for Managers.'' That federal government document was the result of an interdepartmental working group report dated October 1995. It is not an old document. When we read those decisions that you have referred to, such as Guerin and Sparrow, we see that they have set a course for the government. In fact, perhaps someone could testify before the committee to explain what each of those decisions has added to the framework of the responsibility of the federal government in respect of Aboriginal people.

I will quote from Delgamuukw, 1997, which stated at paragraph 168:

Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.

They may need consent. I do not want to review all the cases that I have scattered before me, but it seems to me that the starting point is the fiduciary responsibility of the Crown, what that means according to the Supreme Court, and then the fiduciary obligations, which are qualified. The Weiwaikum decision of last December has been helpful in defining ``fiduciary obligations.''

When I listen to you carefully, I ask myself, are these the responsible persons to advise the federal government on what to do when a statute has an impact on the Aboriginal peoples' fishing and hunting rights.

We had before this committee Bill C-10B, the animal cruelty bill. It does not need a lengthy explanation to understand that if you legislate on that, it might have an impact on traditional hunting and fishing rights. We have here a decision, which I quoted, that says you have to get their consent — that this statute has an impact. What more policy do you need, unless we adopt a statute quite clearly framing that responsibility of the Crown?

The problem stems from the fact that you are in an untenable, contradictory situation. On the one hand, you advise the Crown, the honour of the Crown, to protect the Aboriginal titles that stem from 1763. On the other hand, you have to advise the same Crown, when you legislate for the good of all Canadians, that it is for the good of all Canadians and within the statutory responsibility of the federal government. It is this untenable position that the federal government finds itself in, and that section 35 accentuates, in my opinion, for the first time.

When you say that you do not have a policy, I think you do — there are guidelines. We can use the guidelines, insofar as the Supreme Court has made them precise, to define the use of the non-derogation clause, and when a non- derogation clause is useful. You did not mention that the problem we have stems to a degree from the Department of Justice. Another department did not invent the different texts of the Aboriginal people. The bills are reviewed by the Department of Justice, and when they go to the cabinet committee on legislation, the Department of Justice is there, advising the ministers on the wording of the various clauses that might be a problem for various groups concerned with the bill.

It seems to me that — and I am happy that you are here and that we are listening to this — we have a real problem. As you said quite candidly, you have no policy at this time on the obligation of the Crown in relation to the respect for and enhancement of the Aboriginal peoples' rights.

Do not forget that the Supreme Court of Canada has given two interpretations to section 35. It has recognized that they have rights to title that predate European settlement; that is the first meaning of section 35. The second meaning is that they have a type of society, organization and culture that needs to be protected, and the section has a remedial effect. The court has recognized that we have not done that in the past; and the Crown has an obligation — the Canadian Crown, the Crown that is responsible for all of Canada, the non-Aboriginal people — to remedy what has been done to the Aboriginal people.

I am really puzzled that your presentation does not seem to recognize that at all. I am sorry to have taken so long, but this is why we have this problem. This is essentially why, in each of the bills over which this committee laboured, we asked ourselves, what is the impact on the Aboriginal people? The firearms legislation, the animal cruelty bill, the protection of endangered species bill that Senator Sibbeston was concerned about — all those bills have an impact on the occupation of specific land by Aboriginal people who have a specific culture and societal organization. We have a remedial responsibility for the fact that for 400 years, we have not recognized that, and have caused them harm. That is where we are at; that is our fundamental problem. That is what we expect.

The Chairman: Maybe we could give the witness a minute to think about some of your comments. Would you care to react to them, Ms. Beckton?

Ms. Beckton: I would start by saying it was certainly not the intention of the document to suggest that there are no obligations or responsibilities on the part of the federal government, and in particular the Department of Justice in giving advice to respect the Aboriginal rights that have been articulated both by the courts and through section 35. The reference to the Charter process was merely to signal that there is a specific statutory requirement that has been referred to by some Aboriginal groups, and they have suggested that they would like to have a similar provision for Aboriginal rights. I think the document that you referred to, the consultation guidelines, for example, that have been produced by the federal government, is another example — an indication — of the seriousness with which the federal government looks to its responsibilities and obligations under section 35 with respect to Aboriginal people.

As the Department of Justice, we seek to give the best advice possible with respect to — whether they are Aboriginal rights or treaty rights — what is required of the government to honour and respect those rights, what consultation is required if any initiative is going to take place; and, with respect to any legislation, whether that legislation may in fact infringe Aboriginal or treaty rights and whether that can be justified in that particular set of circumstances.

The references that you are talking about were merely meant to point out that there was a specific provision in an act with respect to the Charter, which does not exist for Aboriginal rights. That does not mean the government is lacking in obligations; and that was never intended to be the point in this particular address to you.

Senator Joyal: You referred to Powley, a two-months-old decision. The Metis were fighting eight provincial governments, plus the federal government, for denying them their hunting rights 22 years after the patriation of the Constitution and for their recognition as a full Aboriginal nation. When we recognized the Metis as a full Aboriginal nation — equal to the Inuit and the status Indians — your representatives, of course, perhaps did not realize all the implications. However, the problem we have is that as much as we move forward in the legislative process, the decisions are piling up that show that the federal government does not well understand. I am not talking to you personally; I do not want to make it an issue between the two of us. Many governments have had the responsibility in the last 20 years. However, in the case I have just quoted to you, it seems to be quite clear that there are obligations that stem from the fiduciary responsibility of the federal government.

I sincerely think that one way to solve our problem could be to have the Department of Justice come forward with a proposal for recognizing the fiduciary responsibility of the Crown. At least there will be a body somewhere that gives an opinion, or advice, to the government on its responsibility that might conflict with section 91(24), which is another responsibility whereby the government can legislate. I think that there is a gap in the definition of the responsibility that makes sure that the federal government, when it legislates on the one hand, satisfies its other responsibility on the other hand — or has made a reasonable effort to understand the nature and scope of that fiduciary responsibility in relation to the legislation it is introducing for the good of Canada.

As I said, the two bills I have mentioned to you come from your department. We have had problems with those two bills and we are still having problems. One of them is in the courts — the firearms legislation; there has been an interim injunction granting the request of the Tunngavik Corporation. You understand the situation in which the Parliament of Canada finds itself with the animal cruelty bill.

There is a real problem that will continue if we do not find a solution that is enshrined in a policy framework and in recognition of the responsibility. As long as we do not recognize that formally, that the federal government has a fiduciary responsibility to the Aboriginal people that stems from 1763, we will have the problem of trying to save both ways at the same time.

Ms. Beckton: Senator Joyal, I would be the first to hope to be able to write such an opinion. Unfortunately, given the state of the jurisprudence and the questions that remain, I would not be in a very good position to write a definitive opinion on the federal government's fiduciary obligations.

As has been so aptly pointed out, there is jurisprudence over the last 20 years, since 1982, that has begun to flesh out the existing Aboriginal and treaty rights. As those are fleshed out, the government attempts to ensure that its legislation is in compliance with those rights and, obviously, the work of the Department of Indian and Northern Affairs is in compliance with whatever fiduciary obligations exist.

There will be times, when looking at various pieces of legislation, that decisions may be taken for broad public policy purposes that may infringe on existing Aboriginal or treaty rights in some way. When these questions go to court, it is often a question of whether the government can justify the limitations that have been imposed by legislation that has been enacted for some broad policy objective. That will continue. I am not at all convinced that a non- derogation clause of one kind or another will necessarily prevent further litigation around the issues of whether there are existing Aboriginal or treaty rights, what is the content of those rights or how broad they are. These rights are all fact and site specific. There is no right that you can point to and say that it applies uniformly across the country to all Aboriginal people. That makes it particularly challenging for all of us, and for Aboriginal people as well.

Senator Andreychuk: I wish to return to your presentation.

If I understand correctly, the Government of Canada has accepted that Aboriginals have rights, to be determined, in some cases; some have been acknowledged. We have those two categories.

We know that Parliament has an obligation to ensure those rights are respected, as does the executive arm. We did not start using non-derogation clauses in the cases where the government was putting a limitation on the rights. I would have to go back and see what pieces of legislation were affected. There was this acceptance of the Aboriginal rights, and then there were attempts to put a limitation on them.

When we have raised these issues here or elsewhere, the government has said, ``Well, we took them into account,'' but as we scratch a little further, we get the idea that the government really did not believe it infringed on rights in any way, or that there was an Aboriginal right. In other words, it is not a question of negligence, but a kind of benign dealing with Aboriginal rights.

Let us take the subject of the gun registry. I recall raising Aboriginal rights, fiduciary responsibilities and other issues. There was no instant response from the government. There was only a secondary response, when the government realized that we would not drop that issue. They said, ``We have taken it into account and consulted with the Aboriginal community.'' When they had to produce information on how they consulted, they came up with a paper stating that they had approached all Aboriginals to say that the government would be consulting them in the future about future gun control legislation and asking them to provide their opinions on the matter.

The Aboriginal community then said that it was such a broad-brush letter, with no time limits, and not directed to a specific piece of legislation. They were not about to put their opinions on the record because they did not know what would happen to those opinions and it was not an honest consultation.

The government was so focused on dealing with gun control it never factored in the Aboriginals in any meaningful way, and then they were scrambling to justify their position. That is my take on the matter; that may be fair or unfair.

We receive proposed legislation and we must ask about Aboriginal rights. The thought, planning and weighing of the limitations is not considered. Aboriginals are rarely factored into proposed pieces of legislation. Aboriginals are missing in the process.

A second concern of mine is that it seems that when the government sits down to determine what they believe the implications are for Aboriginals, they are saying, ``We have done our duty towards them, and if they do not like it, they can take us to court.''

I have not run into this limitation, which is intriguing. I think we will have to go through that because the non- derogation clauses we have been dealing with have been added when there has been a feeling that no attention has been paid to the Aboriginals, or the government has not taken into account other perspectives, particularly the Aboriginal perspective.

The bottom line is that we can add all the non-derogation clauses we like, but given that we are still at the point where, throughout the bureaucracy and government, there is not a full understanding and acceptance of Aboriginal rights, is it not a question of policy rather than of law?

Minister Stewart's partnership document of 1998 outlined a new era. If you followed that document, you would have honest disagreements about limitations, et cetera, but there would have been dialogue and debate with the Aboriginal community and the government would have reserved the right to make the final decision. Are we really talking about law, or are we talking about policy?

Ms. Beckton: We may be talking about both. It is true that there are times when the consultation may not have been as thorough as one would like. As a government, we need to ensure that there is that good consultation.

Another problem that arises is that in many cases, as legislation is going through the process, the originators of it are not fully aware of the potential impacts. Sometimes the impacts only become apparent after more discussion or something comes to the attention of the government of which they may not have been aware. These things are often not done with malice, but rather because it is not immediately apparent what all of the impacts of legislation may be. We know that when we look at legislation in general, there are often unintended consequences that legislators at the time could not have foreseen or did not foresee.

In the Department of Justice, we are always alert in terms of policy development to advising other departments about their obligations and responsibilities when we know of existing Aboriginal or treaty rights, or when the government believes that Aboriginal or treaty rights are likely to be found.

Senator Andreychuk: When the Charter was made part of the Constitution, a process was set up whereby a minister had to attest that proposed legislation complied with the Charter. One way to alert everyone to these concerns would be some sort of process by which before proposed legislation hits the cabinet table — and hopefully long before that — everyone would have to factor in the Aboriginal dimension.

As you say, the rights are not just in section 35. They are all over the place and everyone would have to go through it. It is almost like setting up a specialized mechanism or process to vet draft legislation.

Non-derogation clauses are put in once the legislation arrives — often here, sometimes in the other place. Perhaps it is time for Parliament to establish some process on Aboriginal rights before they deal with legislation. Senator Joyal's point was about fiduciary responsibility. It is very difficult to talk about Aboriginal rights when a bill has already been through first, second and third reading. It would be particularly difficult this week, when we are getting pieces of proposed legislation thrown at us. That is at the end of the process. Perhaps we need a check in the bureaucracy and then a double-check in Parliament. Would that help?

It does not seem to be anything other than that we have not factored in our obligations. We seem to be then unravelling it in another way, which is costly. It pits Aboriginal people against the system, and I do not think that is the way to do it. How do we include them earlier, express our differences of opinion honestly, come to some resolution and then pick up these points?

Ms. Beckton: That would be very well worth considering because it could facilitate that understanding much earlier in the process and ensure that Aboriginal views and concerns are adequately reflected in the parliamentary process.

Senator Andreychuk: You said that non-derogation clauses are added for various reasons. Therefore, they have contained various draft wording. Again, even in the Aboriginal community, it is viewed as an inconsistency rather than a specialization.

Ms. Beckton: Until now, the federal government's understanding has been that the clauses were put in for the purpose of flagging the responsibilities under section 35. They were not intended to be substantive in the sense that they would take away from the Sparrow justification possibilities. Obviously, there was a change in wording to reflect what was happening in the courts as well.

Senator Sibbeston: I am very glad that the issue of non-derogation clauses is before this committee. My colleagues, Aboriginal senators, have been dealing with this for the last two years.

I was looking in my file. The first letter on the subject was dated December 13, 2001, in which we expressed some concerns about the Nunavut water bill. That bill had a non-derogation clause. We began writing to the chairman and consequently to the Ministers of Justice and Indian Affairs and Northern Development. My file is getting thick.

In the process of dealing with it, we managed to convince the Minister of Justice that the different wording that has been used for non-derogation clauses since 1998 could become a serious problem.

We have been trying to deal with it. We have had a number of meetings with the Minister of Justice. At one point, he arranged for Aboriginal senators to meet with staff from both departments. However, that did not result in any solution. It was brought before this committee in the hope that it can finally be resolved.

When I began looking at the problem, it seemed difficult. After Aboriginal rights were included in the Constitution in 1982, the non-derogation clause began appearing in federal legislation. There is a series of pieces of federal legislation that had the non-derogation clause with the standard wording taken from section 35 of the Charter. It is good, basic, straightforward wording.

This standard clause was contained in the Firearms Act, Sechelt Indian Band Self-Government Act, Canada Petroleum Resources Act and Canada Wildlife Act. There are others.

We noticed a subtle change in the wording since 1998. It is wording such as ``derogate from a protection provided for'' or ``from the application of.'' It is initially difficult to see the meaning of this wording.

Instead of the non-derogation clause asking the courts to look at section 35 only, it is necessary to look at the application and protection of it. Perhaps the Department of Justice or the government was attempting to somehow water down the full force and effect of the non-derogation clause. We became very concerned as Aboriginal people for the rights that we fought for and won so dearly. The Constitution benefits the entire country.

There has been tremendous progress for Aboriginal people across the country. The courts have been interpreting Aboriginal rights in a very suitable, good fashion. Aboriginal people are making progress as these rights are being defined.

Suddenly, the Department of Justice is now concerned. Aboriginal people are winning too many rights. The Department of Justice is now crafting words to help themselves in litigation. Whenever they go to court, there is a lessening of the rights of Aboriginal peoples through small wording changes in non-derogation clauses. We were suspicious that the Department of Justice was intentionally putting in these variations on clauses to somehow weaken or water down Aboriginal rights.

We became concerned and decided to try to deal with it. As you can appreciate, these are very important words in any legislation. The courts considering the act must be conscious of them, to not take away from Aboriginal rights. These words, in our view, are very important.

The courts will try to understand why the government suddenly changed the words and why there are now various forms of what had been a good standard clause in all federal legislation until 1998. We were concerned that it would create confusion and uncertainty. We were concerned that the effect of these words on courts and government would be for them to help themselves to our rights.

We thought that these small variations in wording were like an opening, a signal to the courts to help themselves to Aboriginal rights. They are not really absolute. They can be whatever you deem them to be. Help yourselves, folks.

The non-derogation clause that served our government and society for so many years is now being changed. The effect of these changes is that the courts will possibly interpret the constitutional rights differently and somehow weaken the rights of Aboriginal peoples.

The changes are very subtle. However, a word here or clause there is the opening. As Aboriginal rights have increased in terms of the courts defining them, we see the Department of Justice is worried that these rights are becoming substantive. They feel that as a government, they should be concerned and try to lesson those rights. We are suspicious that the Department of Justice has inserted these words to help themselves in litigation and that the effect will be to take rights away.

This is why we have raised the alarm. The concerns have brought the matter to this point, where a body or group such as this will deal with it in a rational and conscientious way.

Ms. Beckton: I would like to assure Senator Sibbeston that the Department of Justice has never made changes to wording of non-derogation clauses for the purpose of removing or trying to take away from Aboriginal rights. I think that we would share the same concern, Senator Sibbeston, that there is confusion over the wording of the non- derogation clauses, and whatever choices are made by this committee, at the end of the day, it is preferable to have clear wording on the intention of these clauses.

I think there has been confusion as to the intention. It has been the government's intention that the clauses merely signal a reminder of section 35 rights and are reflective of the decisions of the courts in the Sparrow case and in other decisions from the Supreme Court of Canada.

Some of the wording changes have occurred through the parliamentary process. Some have occurred after discussions with others. We share this concern. There is confusion now over the purpose of the non-derogation clause. That is why we have said in our presentation today that this is really about a policy choice. Do you want the non- derogation clause to be a reminder of section 35 and what the rights are? Or do you want it to be substantive in nature, and say that in that particular piece of legislation, the rights are absolute and Parliament cannot infringe on them, even if it is justifiable? I think that degree of clarity is lacking and that is what this committee is looking at, namely, how do you create clarity around the policy choice being made? We can then all agree on the wording that would best reflect that policy choice.

Senator Sibbeston: I must be truthful in this regard. The Minister of Justice had arranged for Aboriginal senators to meet with department officials. One meeting was set up. A number of weeks later — at our prompting — we had another meeting. We had an almost totally new slate of officials at that meeting. It occurred to me, ``Is this the federal government's way of dealing with us on this serious matter?'' I know that I was frustrated by that situation. I believe that the federal government, certainly the Minister of Justice, was probably quite sincere in wanting to see us come to a resolution. We are smart, in the sense that we have access to legal advisers to assist us in our attempt to find a solution. When I saw the process that we had undertaken, where at our second meeting it was an almost totally different group, I thought, ``At this rate, it will take 20 years to resolve it. It will take many years for us to resolve it.'' That is one way of frustrating the other party — send a new group to every meeting. That was the process that we were involved in. Obviously, it did not lead anywhere. Eventually, it was decided to refer the matter to the Standing Senate Committee on Legal and Constitutional Affairs. It is here before you because of that. It was not for lack of trying to find a sensible, reasonable, person-to-person, face-to-face solution. I felt that the Department of Justice did not want a solution, so the issue ended up here, in a sense. We tried. It is in your hands now rather than ours.

Senator Joyal: I would like to submit to you one of the conclusions of the Royal Commission on Aboriginal Peoples. It is found at note 12, volume 2, about restructuring the relationship. This is an important point. What should be done to improve the relationship and what is the mechanism by which that improvement could be entrenched in the system? I am quoting from that recommendation, which says the following:

The federal government cannot, consistent with its fiduciary obligation, sit on its hands in its own jurisdiction while treaties are broken, Aboriginal autonomy is undermined, and Aboriginal lands are destroyed.

If I read the philosophy of that recommendation correctly, it was a suggestion that something had to change in the way things were done. That is putting it in the simplest terms. It means that the government has an obligation beyond its own jurisdiction, which is the fiduciary obligation. Again, I return to my first point. Does the confusion stem from the fact that there is no clear definition of the various roles of the federal government and the Crown in relation to Aboriginal people? From the bills that I have had the opportunity to study and debate with my colleagues around this table in the last five years, it seems that each time, as Senator Sibbeston has mentioned, the need for a non-derogation clause was expressed, it was because we found ex post facto that the rights of the Aboriginal people were, in the plainest of terms, involved in the proposed legislation. Furthermore, the witnesses around this table — whether from the Department of Indian Affairs and Northern Development, the Department of the Environment or the Department of Justice — had not paid due care and attention to the fact that the Aboriginal people had a specific interest in one aspect of the proposed legislation. The government had to come forward and say, in relation, for instance, to endangered species legislation — and protecting those species is a very good policy objective, but it affects the living conditions of the Aboriginal people — here is what we have been doing to accommodate them. It is the same, as Senator Andreychuk has said, with the firearms legislation. It is the same with the cruelty to animals bill. We find ex post facto that there is an impact of that proposed legislation on an aspect of the life of Aboriginal people. We then say, ``We cannot do that without doing the thing right.'' That is to say, let us recognize that that does not touch on their rights in any way. If they feel that it does touch on their rights, they can, as you say, go to court. We then start a litigation process that takes years. Finally, we arrive at the Supreme Court and we get those decisions.

If, as the royal commission has said, we are to do things differently, we must review the process of coming forward with legislation. We must have a mechanism, and it must be clear to everyone in the federal structure. That is to say, it must be clear to all the departments, not only the Department of Justice and the Department of Indian Affairs and Northern Development.

That is why we are concerned with the issues raised by Senator Sibbeston. We have come to the point where we feel that this is an unsatisfactory approach. If we abandon the non-derogation clause approach, then we would like to have a satisfactory way of producing and enacting legislation that deals with the fair and legitimate preoccupations of Aboriginal people. I think that is essentially where we are, generally, around this table.

How can you help us in that regard? Our recommendations have to be workable. You will be the ones to carry them out, so they will have to be practical. You might not have all the answers today, and we are just embarking on that, but I think it is essential that where we are heading with this is well understood.

Ms. Beckton: We would certainly welcome that examination and, as officials, be prepared to assist in any way that we can.

Ms. Christine Cram, Director General, Strategic Policy, Planning and Intergovernmental Relations Branch, Policy and Strategic Direction Sector, Department of Indian Affairs and Northern Development: Senator Joyal, you have hit the nail on the head. None of us is happy with putting in non-derogation clauses at the end of the process to fix a problem that should have been identified much earlier. The question then is: What can one do to identify those issues and what process can be put in place to achieve an accommodation among the various interests at play?

Ms. Beckton spoke about having more rigorous consultation processes prior to draft bills coming forward. A second suggestion, which has been tried before, is to introduce bills earlier or have bills go to committee earlier, for example, prior to second reading. There are a number of different ways of doing it. The government would very much welcome the advice of this committee on how that might be done.

Senator Bryden: In answer to Senator Joyal's line of questioning, I think you indicated that one problem you face in developing a standard is that the law is still evolving. When the law gets to a certain point, consistent themes and standards might be identifiable. Those themes and standards could then be taken into account whenever the government is drafting legislation relating to Aboriginal peoples. Would it be possible to develop some standard without waiting for the whole body of law to evolve? We could wait for a very long time.

Senator Joyal referred to several cases, and I spoke to the cruelty-to-animals bill just last night. It was clear in our discussions with the people who were here before — and Mr. Mosley has now been promoted, so if you see him, congratulate him — that the Crown has a fiduciary obligation, based on a number of cases, to take a proactive position in relation to effects on Aboriginal people. There are many things to be said about the cruelty-to-animals bill. It was put together with the Firearms Act; when it started with Bill C-10, it involved firearms and cruelty to animals. A new offence was created, that of killing an animal without lawful excuse. One would have to be living in a legal bubble to believe that would not impact on Aboriginal peoples and their use of their lands. Yet there was no criterion for automatically flagging that issue for the drafters of that bill. It was clear there was no consultation of any depth.

In a situation like this, judges will rule that you need not just consultation, but the consent of the Aboriginal peoples who are affected.

My point is this: Is it not possible to develop criteria that must be checked off by a draftsperson that says, ``We have clearly canvassed this piece of legislation and,'' words to this effect, ``it has no impact on Aboriginal peoples,'' or, if it does have impact, ``We have taken the following actions''?

That is no different from other things that have to be checked off. I do not think we can wait, nor are the Aboriginal peoples prepared to wait, until somehow we have a complete code. Let us do what we can. We have an old saying in the country: When you cannot see where you are going, go as far as you can see and maybe you can see a little farther. If we had some basic criteria in development, that would help.

Senator Pearson: That leads into my comments. Most of the people on this committee, as you can see, are lawyers. Some are Aboriginals and some are both. I am neither.

Senator Bryden: She always brags about that.

Senator Pearson: It means that I tend to come at some of these questions differently. I am as concerned as everyone else around this table to get some greater clarity. You are concerned, too. It is not that we do not share this concern. I like the ideas of my colleague on moving ahead and developing certain types of criteria. My perspective is very much the human rights one. It comes from my work on the Convention on the Rights of the Child and those kinds of conventions, which do indeed balance rights against each another. They do not give absolutes.

Human rights treaties are, in a sense, about norms of how we interact with one another. I heard your comment that the Supreme Court in Sparrow gave Aboriginal and treaty rights the same constitutional protection as Charter rights, in that they are not absolute. The rights have to be balanced with other rights and interests. There is something else we need to explore further, or I would need to explore it further as we work toward finding some kind of solution. Again, if you can develop a criterion about consultation, then we have to develop a criterion about consulting with women. With which women do you consult? Who represents all women? That does not mean that you do not consult. It means you must develop a process by which you get the full spectrum of opinion, not just certain opinions.

I see that as a very challenging task, but I think we should be working in that direction.

You were saying that the Sparrow case indicates that they are not absolute rights. Can you speak about that a little more, please?

Ms. Beckton: If the federal government is planning to infringe on or abrogate Aboriginal or treaty rights, the Sparrow case sets out a test for justifying such a limitation. That indicates that the rights are not absolute. By the same token, the test to justify an infringement is fairly significant.

For example, if the government wanted to limit the amount of fish that could be taken, one of the justifiable reasons for limiting an Aboriginal or treaty right might be conservation. If full effect were given to the treaty right, then the fish would be depleted. That would be an appropriate and justifiable reason for imposing a limitation.

What section 1 of the Charter does for Charter rights, the Sparrow test does for section 35 of the Constitution.

The Chairman: May I clarify something, Ms. Beckton? The two tests are different. Is that correct?

Ms. Beckton: They are different tests, indeed. It is a different balancing test in Sparrow from that in section 1 of the Charter.

Senator Joyal: You have to compensate in the Sparrow test. I am sorry to intervene, senator.

In the Sparrow test, if the government says, ``The salmon stock is being depleted and we have to establish quotas and limits on the catch,'' that directly affects the treaty rights of an Aboriginal group. They cannot just say to them, ``We are sorry, you will catch less fish.'' They eat the fish. Thus, they have to be compensated. The Sparrow test said quite clearly that there are three elements. They have to be compensated.

In that case, as Senator Pearson has mentioned, there are limits. When the federal government imposes limits, it has to establish equilibrium in the situation, which I think is the most important point. Most of the time, it is not taken seriously. The Aboriginal people then have to go to court because the third element of the test was not implemented.

Ms. Beckton: The Sparrow test does talk about compensation. However, you have to look at the particular situation to see whether compensation is required or not.

Senator Joyal: Absolutely. However, the principle is there. It is part of what we call — to make a parallel with section 1 — ``the reasonable limit.'' What is reasonable in how you deal with what has been taken away from the Aboriginal people? That is the reasonableness test.

Senator Nolin: The more we reflect on what we can do and what we can achieve in making good laws, the greater the chance we will reach a solution one day. We are all behaving in good faith, and I think we will achieve that. I take your word that there is no plot to diminish those rights. I will be honest with you; I think we will, as we say in French, rester sur notre faim, unfortunately. I think we will reach the limit of what a statute can do. We will not be able to solve the problem that we have heard discussed with regard to Bill C-10B and cruelty to animals. What is missing is the culture of respecting rights. That is where I want you to comment.

We are trying to prevent infringement of those recognized and affirmed rights.

As I said, we will probably conclude that because of the Sparrow case, we will have to draft a specific non- derogation clause for every statute to fit the purpose of specific legislation.

We have come to understand, as a result of considering the cruelty to animals bill, the attitude of those peace officers who know nothing about Aboriginal culture. They are there to say, ``There is a law. I will apply it, no matter what rights you have. I do not care. Go to court.'' That is the kind of attitude we want to kill.

We do not want that to happen, which is why, in the cruelty to animals bill, we drafted an imperfect clause. That is what we were trying to achieve.

I am probably looking for administrative prevention from you. What kind of process, code, meetings of provincial, federal and territorial justice ministers, are you considering for that? Many laws that we adopt here are to be applied by provincial authorities. What kind of discussion could there be to prevent any infringement? I am sure you can understand our concern. That is why we are together here. At the end of the day, I think we will be able to write good amendments, but that will not be enough. We will still be faced with situations in which an idiot will use his badge and say, ``You do not have that right. Go to court.'' We do not want that to happen.

Ms. Cram: You are absolutely right that there needs to be a cultural shift. In some cases we have been successful in that regard. I will use the example of border crossings. A big effort was made a number of years ago to ensure that customs officials working at border crossings — particularly where there were large numbers of Aboriginal people crossing — understood what certain sacred items were and would treat them appropriately. The Canada Customs and Revenue Agency put out a booklet. As I understand it, they were successful in conveying what you could not convey in a law necessarily, or even in a regulation.

Most departments make a considerable effort to ensure that all of their employees are aware of Aboriginal issues. Obviously, we have to do more in that regard. However, we have to work toward it.

The other area that needs work is avoiding the use of the courts. Look at policy. How can we find policy solutions? I would use as an example the inherent right of self-government, which tried to say, ``We will not insist that people prove what rights they have to self-government. Rather, we will take a policy approach in which we are prepared to negotiate.'' Granted, the federal government set out the basis on which it would negotiate. At least they are not saying, ``You must prove what rights you have before we are prepared to negotiate with you.'' I think we have to use multiple tools.

Senator Nolin: We are the federal government. In light of our responsibility, what kind of inter-jurisdictional discussions can we have with other jurisdictions?

Ms. Cram: I would say that there is a national forum of which you may not be aware. It is the federal-provincial- territorial-Aboriginal process, which includes all the ministers for Aboriginal affairs from the provinces, as well as the federal Minister of Indian Affairs and Northern Development, plus six national Aboriginal organizations. They meet once a year to discuss common issues.

Each department works bilaterally with their provincial and territorial counterparts. Ms. Bickerton might want to speak about the provincial attorneys general.

Ms. Beckton: We have regular federal-provincial-territorial meetings with our counterparts to talk about various issues that are raised and what the provinces are planning to do. We share information and ideas and certainly try to get a deeper understanding of the responsibilities of the various governments. I also agree that cultural awareness training throughout the different levels of government, both federal and provincial, is very important, so that the fishery officer or the person dealing with firearms has a better understanding of the different cultures. I am not sure we will ever eliminate completely the attitude you described. However, at least we have a system of checks and balances to try to catch that incident before it goes to court. We are not always successful, but in many cases, there are examinations by provincial or federal justice ministries before these things go to court.

Senator Nolin: There is a need for a good code while you are preparing legislation; the right checks at the right moment; and good consultation. Of course, you will try to achieve that and you will have to correct the process. That would definitely help. There will be no surprises.

Senator Watt: Thank you for appearing before us on this question of non-derogation clauses. It is a little overdue in terms of trying to get to the bottom of it.

This committee heard from some witnesses from the Department of Justice. The Parliamentary Secretary to the Minister of Justice appeared before us. I will quote him and ask whether you share the same view and have the same understanding, or something slipped out that he did not really mean to say. He said that it was the view of the government that a different standard should not be applied to the Aboriginal person in cases of traditional harvesting practices; it was also the view of the government that evolving social standards take precedence over the constitutional provision.

Does he understand it or does he not get it at all? This is partly in connection with the issue Senator Nolin raised. Maybe it is not so much social standards, but cultural differences that may not be well understood by the people who are running the system. Do not forget that we are still today living with a colonial system, which is outdated as far as I am concerned. We need to improve that and modernize it. Unless there is willingness on the part of the government in power to implement section 35, I think we will continue to have misunderstandings and misrepresentations, and what we as Aboriginals, and as parliamentarians, are trying to say in representing our people will not be heard.

It is very difficult, when the issues are important to the livelihood of the people and their economic base, to say, ``That is not the issue we are dealing with. Let us put it aside.'' When will we deal with that in the future?

I will get back to my point. Evolving social standards take precedence over the constitutional provision. How do you read that? It was the Parliamentary Secretary to the Minister of Justice who said that here before this committee.

Senator Nolin: Maybe you should give them the exact quote.

Senator Watt: This was June 12, 2003, in the early summer of last year.

Ms. Beckton: I am not in a position to speak to his understanding, not having been there. However, I would say that section 35 is a constitutional guarantee. The Government of Canada is bound by the guarantees in section 35. Of course, we understand more and more, both through the courts and through working with Aboriginal people, about what those rights and obligations that are protected by section 35 are. I cannot speak to what he was saying about social issues. I would be remiss in doing so without a full understanding of where he was coming from.

Senator Watt: To take it a little further, how will the non-derogation clause be utilized, for example? What will it protect? Of what will it be the seal?

Let me use an example. You mentioned, in answering Senator Nolin, the inherent right to self-government. The inherent right to self-government is not a policy; it is not in the form of legislation; it is not under the Constitution. It was an attempt in the early years, shortly after the entrenchment of section 35, to redirect Aboriginal minds and think about another way to deal with that. Let us say, for example, that the inherent right to self-government concept does not have an ethnic component built into it. Do you follow me? By that I mean that it would become like a municipal form of government. According to the law today, that is what the federal government can do, what the provincial government can do. Unless they are willing to implement section 35, their only avenue is to give the Aboriginal people a municipal type of government. That is not what the Aboriginal people are looking for, and for that reason, we need to protect ourselves. Within our real inherent rights, not in your policy, but in what we are and who we are, ethnic components need to be protected, and therefore we need to include that non-derogation clause even in the bill we just pass recently, Bill C-6, for example. It is all related to whether what we have been doing as a government will be bulletproof if challenged in court. Even Bill C-6, for example? I do not think it is bulletproof. I do not know whether that makes where we are coming from a little clearer.

Ms. Cram: You were talking about the inherent rights policy as municipal. In fact, there are many different models of government that could be negotiated under that policy.

Senator Watt: It is silent.

Ms. Cram: We would not say it is municipal. In fact, if you take the Nisga'a treaty as an example, the Nisga'a have some powers that are federal, some provincial and some that you would find formally exercised at the municipal level. They have a range of jurisdictions that is broader than you would find in most municipalities in this country. It is possible to negotiate many different models of self-government under the inherent right policy. I would argue that if you want to protect Aboriginal rights, and particularly self-government rights, a more effective way would be through negotiation of a self-government agreement and legislation to implement it. I understand the Westbank legislation was tabled in the House; that is self-government legislation. To my mind, that would be a much more effective way of protecting Aboriginal rights than a non-derogation clause.

Senator Watt: That will only work if the political will is there. At times, in the absence of political will, it does not move ahead. I agree with you, in the sense that you may be better off dealing with it through political negotiations rather than leaving everything up to the courts. I suppose as parliamentarians we will have to decide one day whether to leave it up to the courts to rule on whatever rights they consider to exist. Or will we make an attempt to negotiate it and establish the process? I think this is what we are dealing with here.

The Chairman: Thank you very much Mr. Pryce, Ms. Beckton and Ms. Cram for sharing your thoughts and ideas with us. You have been very helpful. I have no doubt we will be hearing from you again before this process is over.

The committee adjourned.

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