Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 22 - Evidence, February 22, 2007
OTTAWA, Thursday, February 22, 2007
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:50 a.m. to elect the Chair; and 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 section35 of the Constitution Act, 1982.
[English]
Shaila Anwar, Clerk of the Committee: Honourable senators, as you have a quorum, I should like to inform you of a letter received from Senator Oliver, stating his decision to resign as chair of this committee. Therefore, as clerk of the committee, it is my duty to preside over the election of the Chair, and I am ready to receive motions to that effect.
Senator Fraser: I move that Senator Milne be acting chair of the committee for today's meeting.
Ms. Anwar: Are there any other nominations?
Senator Joyal: I move that the nominations be closed.
Ms. Anwar: It is moved by Senator Fraser that Senator Milne do take the chair of this committee meeting. Is it your pleasure, honourable senators, to adopt this motion?
Hon. Senators: Agreed.
Senator Lorna Milne (Acting Chairman) in the chair.
The Acting Chairman: Honourable senators, before we begin, I should like to have a motion to the effect that the next meeting of the Standing Senate Committee on Legal and Constitutional Affairs will be on Wednesday, February 28, 2007, when the Senate rises but not before 4 p.m., with the first order of business for that committee to elect a new chair.
Senator Di Nino: I so move.
The Acting Chairman: All in favour?
Hon. Senators: Agreed.
The Acting Chairman: We are agreed, so that is passed.
While our witnesses are coming to the table, I will just tell you that today we are beginning our study once again of the implications of including in federal legislation non-derogation clauses relating to Aboriginal and treaty rights of the Aboriginal peoples of the Canada. This is the third time we have had this order of reference from the Senate on this matter, but each time other business has meant that progress has not been made. Let us hope this time will be different.
As you know, section 35(1) of the Constitution Act, 1982, states:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
In addition, section 25 of the Charter states that its guarantees of certain rights and freedoms are not to be interpreted so as to abrogate or derogate from Aboriginal rights and freedoms that may exist or may be acquired.
Even before 1982, provisions were being inserted in some federal statutes, stating, in effect, that nothing in the act abrogated or derogated from Aboriginal title, rights or claims.
We have before us Andrew Saranchuk, who is Acting Director and Senior General Counsel of Aboriginal Law and Strategic Policy for Justice Canada; and Charles Pryce, Senior Counsel, Aboriginal Law & Strategic Policy.
Andrew Saranchuk, Acting Director and Senior General Counsel, Aboriginal Law and Strategic Policy, Department of Justice Canada: We appreciate being given the opportunity to appear before this committee to begin the latest discussion on this important issue of the inclusion of non-derogation clauses in statutes. The Department of Justice has taken, and continues to take, an active interest in the matter. We hope to contribute to the discussion and learn from the views of others.
Previously, Clare Beckton, then Assistant Deputy Attorney General, Aboriginal Affairs Portfolio, gave evidence to this committee in November 2003 on this issue at a general level. Before that, Department of Justice officials appeared before other Senate committees on specific legislation regarding the inclusion of non-derogation clauses.
[Translation]
I do not intend to repeat all of what Ms. Beckton has said previously. However, given the time that has elapsed, I think it important to go back to some of the fundamental legal and constitutional principles, including how the use of non-derogation clauses has come to be an issue, as well as providing an update on developments since 2003.
[English]
The constitutional principles are well known. Section 35 of the Constitution Act recognizes and affirms the existing rights of the Aboriginal peoples of Canada. In the Sparrow decision, dating from 1990, the Supreme Court found that section 35 provides very strong but not absolute protection for Aboriginal and treaty rights. This means that laws and other government actions limiting those rights will only apply if the limitation can be justified pursuant to a very strict test.
This test has two elements. First it requires an important legislative objective, such as conservation on the part of government. Second, the limitation must be in keeping with the Crown's fiduciary relationship with the Aboriginal people and requires minimal impairment of the right. This justification test is analogous to section 1 of the Charter. As a result, the protection afforded Aboriginal and treaty rights is similar to the protection afforded Charter rights.
It is important to emphasize the strength of this protection for Aboriginal and treaty rights. Laws and other government actions that are inconsistent with the protection given Aboriginal and treaty rights will be inapplicable. For example, Aboriginal rights to fish for food have top priority after conservation. If limits have to be placed on access to a particular fishery, this could prevent the exercise of an Aboriginal right to fish for food. Then, as the Supreme Court said in Sparrow, the brunt of conservation measures would be borne by the practices of sport and commercial fishing. In addition, the protection of these important rights is based on the Constitution and cannot be diminished without a Constitutional amendment.
This justification test is consistent with the concept of reconciliation that the Supreme Court of Canada has in recent years stated to be the underlying purpose of section 35. Reconciliation requires the balancing of pre-existing rights of Aboriginal peoples with the rights and interests of other Canadians, and is an important part of our constitutional framework. To the extent that non-derogation clauses have the effect of limiting the ability to balance competing rights and interests, careful consideration of the implications of including such clauses in legislation is needed.
[Translation]
Against this constitutional backdrop, there have been a number of calls for non-derogation clauses referring to Aboriginal and treaty rights to be included in federal statutes, beginning soon after the adoption of the Constitution Act in 1982.
[English]
It is interesting to note that there have been no similar demands with respect to non-derogation clauses respecting Charter rights. From the outset, the federal government found non-derogation clauses relating to Aboriginal and treaty rights as unnecessary, and was therefore somewhat reluctant to include them in legislation. In its view, there was no need to repeat in a statutory provision what was clear from section 35, that Aboriginal and treaty rights were now protected under the Constitution, which is the supreme law of the land.
There were also concerns from a legal perspective. There is a legal presumption that you will be familiar with, that every provision in the statute is intended to mean something. Based on this presumption, it was thought there could be a risk the courts could give unintended substantive effect to a non-derogation clause. Despite these concerns, when dealing with specific requests for inclusion of a non-derogation clause, there was sometimes or perhaps generally little in-depth analysis or discussion concerning the intended purpose or effect of such a clause, particularly within the broader context of the body of statutes as a whole. Instead, the issue tended to be dealt with on an ad hoc basis. Calls for an inclusion of a clause or debates over wording were often made late in the legislative process. In the result, the focus was often on avoiding delays to the passage of the bill, rather than on the impact the provision might have on the operation of the legislation. As a result, non-derogation clauses were added to statutes often as a matter of compromise or expediency.
Over the years, 18 federal statutes have been enacted that have included a non-derogation clause. Wording of the clauses has varied over time. It is important to point out that the government's intention, when including these provisions in statutes, has been consistent. These clauses are intended to act as nothing more than a reminder or a flag for those administering the legislation that they must be aware of Aboriginal and treaty rights and act in a way consistent with the Constitutional protection afforded those rights by section 35 of the Constitution Act, 1982.
[Translation]
I have a table of clauses and the statutes in which they appear that I can leave with the committee at the end of this hearing.
[English]
The inclusion of non-derogation clauses in federal legislation came under renewed scrutiny as a result of the 1990 Sparrow decision. As indicated previously, in Sparrow it was found that Aboriginal and treaty rights could be limited by the government in particular circumstances. The concern was still the same, that from the government's perspective a non-derogation clause could have an unintended substantive effect. In light of Sparrow, it became specific. It was considered possible that a non-derogation clause inserted in the statute after the Sparrow decision could be interpreted as eliminating the government's ability to argue that a particular infringement is justified under the Sparrow test. This would result in more protection for Aboriginal and treaty rights than is provided in section 35.
In response to this concern, over time, the wording of non-derogation clauses was altered to more clearly express the intention of government, that these clauses simply confirm that the legislation is subject to the normal application or operation of section 35. In other words, they are not intended to protect Aboriginal and treaty rights from being adversely affected by the legislation, if that adverse effect can be justified in accordance with the strict test I outlined earlier.
This small change, or apparent small change in wording, has generated some if not much of the present debate around the purpose and effect of non-derogation clauses. It has brought into sharp focus the widely differing views as to the purpose of these clauses. As previously indicated, the government has considered that all of these clauses are intended to confirm that the particular statute is subject to the operation of section 35. The purpose is to act as a reminder to those administering the legislation and be aware to comply with section 35.
In contrast, some Aboriginal groups consider these clauses are intended to have a substantive impact on the way a statute applies to Aboriginal and treaty rights, and have criticized changes in the wording. It has also regrettably sometimes led to misunderstandings and mistrust between government and some Aboriginal groups with respect to the application of federal laws to Aboriginal and treaty rights. It has also resulted in delays to a passage of a number of bills before Parliament. In the result, however, decisions on the inclusion and wording of non-derogation clauses have continued to be made on an ad hoc basis.
On a more positive note, discussions with interested senators over the years have made clearer what may be behind the calls for non-derogation clauses. In their view, Aboriginal people need to be more involved, through effective consultation, in the development of legislation that may affect their Aboriginal or treaty rights, in order that their concerns can be considered in the drafting of the substantive provisions of a proposed bill. From their prospective, failure to do so means that the only way to adequately protect Aboriginal and treaty rights is to include a non- derogation clause that prevents the legislation from adversely affecting those rights.
[Translation]
The study now being undertaken by this committee is timely. It provides an opportunity to ensure there is a clear understanding of the constitutional framework. It also provides an opportunity to begin informed discussions regarding the policy choice that is key to dealing with this issue.
[English]
The fundamental policy question concerns the relationship between federal legislation and Aboriginal and treaty rights. Our federal laws intended to generally apply and possibly limit those rights provided any limitation can meet the strict justification test first set out in Sparrow. Or, should Aboriginal and treaty rights effectively be exempt from the application of federal laws?
Put another way, does section 35, which allows limitations on rights if they can be justified, provide adequate protection for Aboriginal and treaty rights, or are there certain circumstances where Aboriginal and treaty rights require additional protection in order to further shield those rights from being affected by federal laws?
If section 35 is considered sufficient protection, a non-derogation clause is unnecessary and should be avoided. If additional protection of rights is thought to be necessary in particular circumstances, however, then a clause that clearly achieves that purpose may be appropriate in those situations.
[Translation]
In considering these questions, it will be necessary to analyze and consider the implications of providing additional protection for Aboriginal and treaty rights. For example, it may have an impact on achieving the reconciliation between Aboriginal and non-Aboriginal Canadians which is the underlying purpose of section 35.
[English]
The Fisheries Act remains the clearest example of where inclusion of a non-derogation clause could have a serious impact on the effectiveness of the legislation and make reconciliation difficult. As you know, the act is a comprehensive regime to manage and preserve the fisheries. Both Aboriginal people and non-Aboriginal people access the fishery. Many Aboriginal groups either have or claim to have Aboriginal and treaty rights to fish that are protected by section 35 of the Constitution Act. The Department of Fisheries seeks to manage the fisheries in ways consistent with the constitutional protection given Aboriginal and treaty rights by balancing the rights, claims and interests of all user groups.
For example, if there are infringements of Aboriginal or treaty rights for conservation purposes, DFO can argue that the infringement is justified. However, it will be more difficult to ensure conservation and continued use of the fishery by all users if no infringement of Aboriginal or treaty rights were ever possible because of the addition of a non- derogation clause to that act.
The implications of including a non-derogation clause are not confined to legislation of general application dealing with natural resources. Legislation relating specifically to Aboriginal people, such as statutes dealing with the management of reserve lands or other assets, or self-government, can raise important issues. This type of legislation may have an impact on Aboriginal or treaty rights, but the interrelationship between the legislation and rights can be complex. Arguably, these complexities are best worked out in the substantive provisions of the legislation itself through engagement with affected Aboriginal groups, rather than by adding a non-derogation clause at the end of the process.
One legal development since the last presentation to this committee in 2003 that is worth noting is the Supreme Court of Canada's decisions on the duty to consult. To the extent that the major concern is to ensure that the Aboriginal and treaty rights are considered before government decisions are taken that could affect these rights, the decisions in Taku, Haida and Mikisew Cree First Nation are potentially relevant, at least indirectly to the issue of non- derogation clauses. As the court noted in Haida, the Crown cannot cavalierly run roughshod over Aboriginal interests when making decisions on the development of natural resources that could aversely affect those interests.
While these cases only provide general guidance on the duty to consult, it means that the protection of Aboriginal and treaty rights is not limited to situations involving established rights or where decisions have already been taken and the adverse impact on rights has already been felt.
Let me address possible approaches.
[Translation]
Depending on the outcome of the deliberations regarding the policy choice I have outlined above, there are a number of approaches that could eventually be considered to avoid the current ad hoc approach of inserting non- derogation clauses in some pieces of legislation, but not others.
[English]
If it is ultimately determined that section 35 provides adequate protection for Aboriginal and treaty rights, inclusion of non-derogation clauses should generally be avoided. It has also been suggested previously and considered by senators that, consistent with such an approach, existing non-derogation clauses be repealed. If this was were considered to still be a possibility, thought might be given to replacing these clauses with a clear declaratory provision in the Interpretation Act.
Even if non-derogation clauses are not to be included in future legislation, there is still room for Aboriginal peoples to be more involved in the development of those legislative initiatives that might affect their rights. In that way, it might be possible for Aboriginal concerns to be considered before legislation is enacted. This could be more effective in dealing with the concerns of Aboriginal people than the inclusion of a non-derogation clause. This would mean that Aboriginal people would not always have to rely on court challenges after a law is passed in order to protect their rights. Such an approach may address the view of some Aboriginal groups that it is the lack of consultation that has led to the demand for non-derogation clauses.
A further possibility is to continue to include a non-derogation clause in certain pieces of legislation with wording that is consistent with the government's intention that these clauses only confirm that the statute is subject to the operation of section 35. However, to the extent that such an approach may result in the continuation of the current ad hoc approach and leave open the possibility of the courts ultimately giving a different meaning to the provision, it would not result in a consistent approach or bring clarity to the interpretation of non-derogation clauses, and realistically this is an approach that might not enjoy support.
Alternatively, if it is considered that Aboriginal and treaty rights need additional protection from the effects of federal legislation in certain circumstances, a number of issues would arise for further consideration by this committee and others.
For example, would this additional protection be needed for all legislation that could affect Aboriginal and treaty rights, or only certain types of legislation? If additional protection is only to apply to certain types of legislation, it would be necessary to develop some criteria or framework to identify the kinds of statutes that would attract this added protection.
What appears to be a relatively straightforward matter is in reality quite complex. What appears to be a legal issue concerning the wording of a specific clause in a specific statute raises fundamental questions of policy. The current ad hoc approach, with the potential of delaying passage of legislation and the real possibility of including clauses without proper consideration of their effect, is difficult to sustain. The study being undertaken by this committee will be an important step, not only in helping to resolve this specific issue but also in promoting the overall objective of section 35, which is reconciliation. For these reasons, we welcome this study and your interest in this issue.
[Translation]
I and my colleagues in Justice would be pleased to offer whatever assistance we can in the work of this committee on this important issue.
[English]
Thank you. We will do our best to answer the questions the committee members may have.
The Acting Chairman: Thank you. That was a comprehensive presentation, and I can see interest sparked around the table.
Senator Andreychuk: Thank you for the presentation. Having had the benefit of the previous presentation some years ago, I must say that the approach today was reassuring. It put up both sides — the dilemmas and a framework for the issues.
Having been at this table along with many of the rest of you for quite some time, I underscore the fact that I think the non-derogation clauses have had an ad hoc-type attitude to them. I am pleased to see that you highlighted the duty to consult because that is the ultimate problem. Had certain acts taken the Aboriginal issues into account at the start with the consultation, although we would have seen a different piece of legislation, perhaps no piece of legislation, we would have had less discussion at the back of being left out, being worried about what effect it has on us, et cetera. I think it needlessly has done the other — that is, it started to worry others, particularly in fisheries. What does the clause mean, now that you put it in at the end? Does it change what we negotiated with you as stakeholders?
My question is this: Am I understanding your brief that it has been the intent voiced by the Aboriginal community and by respective governments — and there have been a number that I have sat through here — that it was not the intention to extend section 35, that non-derogation clauses were intended to give full force and effect to section 35? That is how I have understood it.
I have not heard Aboriginal groups come forward to say that they see an opportunity by the use of non-derogation clauses to gain further rights. Their position is: We have our rights in section 35 and we want them exercised appropriately.
Am I correct in that summation?
Mr. Saranchuk: I am not an Aboriginal person and cannot attempt to speak for them. I would suggest that the starting point always has to be section 35 of the Constitution Act, 1982, which contains the ultimate bedrock guarantee of Aboriginal and treaty rights. It is a constitutional guarantee that cannot be taken away by legislation. It is viewed from this perspective that non-derogation clauses are unnecessary from a legal perspective. There is no need to add them to legislation because the treaty rights of the Aboriginal peoples are already guaranteed by the Constitution, and the courts, governments and others need to respect and take into account those constitutionally protected rights when acting pursuant to the legislation in question.
The government's intention, as I understand it, in allowing these clauses to be inserted — because it is not always the government that inserts them, of course; it is parliamentarians in certain circumstances — is that they are there to remind people that these constitutional rights exist in pieces of legislation where Parliament or the government have felt it necessary to have those reminders, and these are important constitutional rights that need to be respected. In other words, they serve as flags.
It is my understanding that Aboriginal people have sometimes asked for these clauses in situations where they exist because they wish strongly to ensure that their rights are not overlooked in these types of laws and that their place in the constitutional order is not forgotten. When I say that, I am paraphrasing Mr. William Pentney from his appearance before this committee in 2002.
It is quite understandable that Aboriginal peoples might want to have a reminder in legislation of the importance of their Aboriginal and treaty rights as guaranteed by section 35 of the Constitution Act, 1982. It makes sense to be concerned that those rights are respected and protected. Of course, the danger is that, from a strictly legal perspective, there is a strong argument that it is unnecessary to remind anyone that those rights are in place. Section 35 is in the Constitution and it does not get any better or stronger than that.
Senator Andreychuk: That has been one of our difficulties. By putting it in, it is an admission that we have not given full rights to section 35. You are saying that no cases have moved off that position. Rather, they have said that the duty to consult is one of those section 35 rights, if I may put it in a non-legal way.
Mr. Saranchuk: I will answer the first part and turn the second part over to Mr. Pryce.
Perhaps the presentation did not make it clear that, to date, there have been no judicial decisions that consider the impact of a non-derogation clause. We have 18 such clauses in federal statutes, but the courts have not told us what they mean, and that is part of the concern and part of the reason the committee and the honourable senators are considering this question.
Senator Andreychuk: I reinforce that in your brief, inferentially or otherwise, the courts have not gone to non- derogations. Their preoccupation has been with section 35, because it was raised by the applicant or otherwise.
Mr. Saranchuk: That is a good point. Generally, an Aboriginal person or group relying upon rights will not go to a non-derogation clause in any event. Rather, they will go to section 35, which is the constitutional provision that protects their rights. Perhaps Mr. Pryce has a comment on the duty-to-consult point that you made, senator, but it is an important duty that the government takes seriously.
Charles Pryce, Senior Counsel, Aboriginal Law and Strategic Policy, Department of Justice Canada: I will add to Mr. Saranchuk's comments.
The duty to consult is extremely important and is an aspect of honour of the Crown. Relatively speaking, it is quite a new development in the law. Precisely how it fits within the constitutional framework — it is not set out in section 35 but it is a way in which the courts are interpreting what that protection means. Certainly, it is linked to the operation of section 35. Whether it is a constitutional duty or whether it goes beyond consultation around section 35 rights, those issues have not yet been dealt with by the courts. I suspect there might be some differences of view as to the full scope of this duty to consult. It is one of those issues or concepts in the early days of development.
Senator Andreychuk: I understand that in their respective interpretation acts, Saskatchewan has a non-derogation clause and Manitoba has a slightly different one, but they have not been tested, per se.
Mr. Saranchuk: It is my understanding as well that those clauses have not been tested in the courts.
Senator Andreychuk: What would your view be of such a clause in the Canada Evidence Act or in the Interpretation Act?
Mr. Saranchuk: I would begin by saying that I do not claim to be an expert on statutory interpretation; it might be that others are better brought before you from the Department of Justice to answer that question. Having said that, if it were clear that the clause were in place as a declaratory provision and not to top up the protection for those rights, then there might be a strong argument that at the very least it would prohibit the time and effort that goes into considering whether to include non-derogation clauses in the ad hoc approach that currently exists.
As you have pointed out, senator, and as we have tried to make clear as well that perhaps the better way to go about this is through the consultation process, whereby concerns are reflected and dealt with in the legislative process at the front end as opposed to the back end of the process.
I am not sure if that answers your question, but one of the concerns about any non-derogation clause, whether it be in the Interpretation Act or elsewhere, is that we do not place too much faith in such a clause to solve all the potential difficulties and concerns that Aboriginal peoples might bring forward.
Senator Adams: I heard you speak to treaty rights and the non-derogation clause. When Nunavut settled its land claim, we lost our treaty rights. We have no more treaties so we are just like the rest of Canadians. We are concerned about non-derogation clauses given the great amount of exploration in mining, oil and gas in the North. Since we settled our land claims, we have had only two bills passed by Parliament. One was on the water board surface rights and the other was with the Department of Justice.
Does this non-derogation clause apply only to people living on reserves or in areas where land claims have not been settled? Some settlements are still in the process with First Nations still fighting for their land claim agreements.
You mentioned fishing rights. Nunavut has commercial fishing rights but we recognize that we have no power with those rights because even if we settle a land claim, we do not have a treaty. I am concerned with the non-derogation clause because the Minister of Fisheries and Oceans retains the power. Even when bills have been passed, if there is such a clause, the commercial fisheries could come back and say they do not like the bill. You can change it. I want to ensure that the non-derogation clause does not badly affect Aboriginal rights and that ministers and commercial operations cannot change the clauses in bills that have been passed by Parliament.
Can you explain how that works between the Inuit, land claims, Nunavut and the rest of Canada?
Mr. Saranchuk: You are raising questions around Nunavut. It is true that the Nunavut comprehensive claim is unlike the other comprehensive claims. I understand that it created a public order of government that is unlike the Nisga'a agreement or other self-government agreements. Senator, you are asking questions about the minister's ability to do certain things but I am not in a position to answer those questions. I am not an expert on that.
However, Mr. Pryce might have some views on that.
Mr. Pryce: I have some general comments. Of course, as you say, there is the Nunavut land claim which is a treaty and the rights contained in that treaty are protected under section 35 of the Constitution, so they engage all the constitutional protections. It is my understanding that in developing legislation to implement that land claim, much consultation occurred with representatives from Nunavut and from the treaty beneficiaries. Such consultation might not always result in an agreed piece of legislation, but I understand there is close consultation.
I recall that, similar to other land claims agreements and legislation, there is a kind of primacy that the land claims agreement prevails over inconsistent legislation. The implementation legislation and the agreement prevail in the event of inconsistencies with other federal legislation, so there is a hierarchy of the agreement and the implementation act and other laws, which is not easily upset from the point of view of other laws coming in that could adversely affect the rights protected in the Nunavut land claims agreement.
I do recall around the surface rights legislation a concern about a non-derogation clause that was put in, a very technical clause There was some concern that it might be unhelpful from the Inuit's perspective. In the end, that clause was dropped from the legislation.
Senator Adams: In our agreement with Canada, we have two titles. You have one for the people living off the land in Nunavut. Outside of that, there is one with the Minister of Indian Affairs and Northern Development for the federal government. That is why I have a little difficulty sometimes. If the issue is one of mining or oil and gas, you have to negotiate 100 per cent with the local people, as long as the area is within Nunavut, because the land claim agreement covers that surface area. Nunavut is made up of 1,900,000 square kilometres. Currently, a number of companies are leasing almost the whole land up there.
In the area around Cambridge Bay, mining companies are operating on Nunavut land. We now have a partnership with those guys who own 100 per cent of that area for mining — there is a partnership between the people and the companies. As part of the agreement, the companies have to say how they will operate any mine they build; and if there is any environmental damage in the future, they need to have insurance to cover that. I want to ensure that we can do that in Nunavut.
Mr. Pryce: To the extent that development might take place within the land claims area, I am not an expert on the Nunavut land claims agreement, but I am assuming there are fairly comprehensive terms that would be brought into play in order to determine how that development would take place. It would take place principally in accordance with the terms of the agreement, which, as I say, contains treaty rights, which the courts have said are solemn agreements that the government is required to implement.
Senator Adams: We want to be included. The only thing I was worried about is that we might not have a say.
The Acting Chairman: Mr. Saranchuk was making the point that the Nunavut agreement itself is a treaty, so you are protected under section 35 that way.
Senator Joyal: This will remind of us of how many times we labour on the issue of impact of legislation over Aboriginal rights, be they from treaties or from ancestral rights.
We are restarting the process, and I would like to come back to Sparrow, to try to understand its scope. The evolution of this issue, to me, is such that it really is Sparrow that gave the government the opportunity to review the "scope'' of section 35.
I wish to read some quotes from Sparrow. I do not know if you have the decision with you.
Mr. Saranchuk: I do not have it before me, but I have a summary.
Senator Joyal: I do not want to push you to answer; if you are not ready, I can understand that. I should like to put this on the record because I think it is important. It is page 1077 of the decision of 1990. Of course, Sparrow was concerned with the issue of fishing permits, as senators will remember. The court says the following:
These fishing permits were simply a manner of controlling the fisheries, not of defining underlying rights. Historical policy on the part of the Crown can neither extinguish the existing aboriginal right without clear intention, nor, in itself, delineate that right. The nature of government regulations cannot be determinative of the content and scope of an existing aboriginal right. Government policy can, however, regulate the exercise of that right but such regulation must be in keeping with s. 35(1).
Then the court continues, at page 1078:
The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right.
Then at page 1079:
If a valid legislative objective is found, the analysis proceeds to the second part of the justification issue: the honour of the Crown in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginal people must be the first consideration in determining whether the legislation or action in question can be justified. There must be a link between the question of justification and the allocation of priorities in the fishery
In your presentation, you said that the limitation can be justified and that is how you concluded that there might be limits to section 35 in certain circumstances. It has to meet those two tests, the way I read Sparrow, unless I am mistaken in my reading of it.
The second question is as important as the first. In other words, you cannot be justified in trying to regulate the exercise of a right unless you have met the test of the honour of the Crown. The test of the honour of the Crown is as important as the first question. The court says there must be a link between the question of justification, which is the objective of the legislation, and the allocation of priorities in the fishery. In other words, the government has an obligation to negotiate in good faith.
That is the way I read the Haida case of 2003, which you refer to in your presentation. To me, it confirms the second question of Sparrow. It came 13 years later — the Haida case is from 2003 — but in Haida the court was adamant in establishing the obligation to prior consultation and negotiation to resolve issues that Aboriginal people might have with the legislation. The court did not say they have to agree, but the court says the honour of the Crown commends that you establish, first, consultation and you negotiate an agreement, as much as possible. The court will look into the way the consultation and the negotiation have taken place to conclude if they would accept the limitation or not.
I am looking at my colleague, Senator Nolin. He will remember that, recently, the Court of Appeal of Quebec, on the issue of the North Shore forest that a private company wanted to exploit, granted the injunction to the Aboriginal people on the basis that there has not been prior consultation or negotiation in good faith.
As you will know, negotiation involves more than just sending a notice to inform a party that you will introduce legislation two months later. Negotiation is much more than that. To me, if we are to proceed on the basis that, since we have met the last time, there has been progress in the court on interpreting the scope of section 35, we would have to obtain a protocol of consultation from the justice department. What is the approach? In other words, what are the guidelines the justice department would have developed in the legislative process that must be followed before the legislation is introduced in Parliament?
That is a question that we might ask the department, much as we ask the department whether the bill is Charter- proof according to section 11 — in other words, does the bill satisfy the specific obligation and duty that the honour of the Crown insists takes place as a process before moving on with the legislation?
I look to my colleagues across the table. Senators Bryden, Andreychuk, Nolin and Fraser and I were discussing the amendments to the Criminal Code in reference to animal cruelty. I think you will remember how much we laboured with that issue. Essentially, one of our major "quarrels'' with the bill as it was introduced at that time was that there was no evidence that the Justice Department has really consulted and tried as much as possible to come to terms with it.
As a result of the Senate's refusal of the bill many times, finally the justice department came up with a proposal. You were part of that negotiation, but you will understand that we were trying to push the department to do it, which I think is not the right approach if we are to solve this problem of the guidelines. The protocol and consultation has been well established in the development of policy, or legislation. Sooner or later, the matter will come to court if we cannot agree on this.
It seems to me that there is a need to clearly establish the scope of Sparrow and then the framework if we are to come to terms with this issue on the basis of the decisions of the court. The way I read it, it is an obligation; it is not just a wish. It has to be met. We should look into the cases. The case I am thinking of is from the Quebec Court of Appeal, which granted the injunction. I do not know if you remember the names of the parties. I do not remember. I do not have the case before me. The court in Quebec applied the decision of Haida.
We need to better define this obligation if we are to share an approach on section 35, which assures the Aboriginal people that they will need to protect themselves ex post facto, that we try to correct the perception, the fear, or the questions that have not been answered by the Aboriginal people.
What can you do to help us move forward in the preparation of our own report? I am thinking of the report we should be putting forward to Parliament, or to the Senate, at least, because we are commissioned by the Senate to do this.
The Acting Chairman: I want to point out that the Supreme Court of Canada has now mandated that there is a duty to consult.
Senator Nolin: We are asking you as the justice department, but you are also legal advisers to the government, so that includes the other departments. Let us put the question from a different angle.
What are departments asking you in that regard? Are they asking you questions? Are they consulting you on what they should do? What kinds of answers are you giving those departments? We can talk about fisheries, energy, natural resources and other departments' responsibilities.
As legal advisers of the government, what questions are being asked of you and what answers are you providing to those public officers who want to do a good job? I presume they are acting in good faith and that they want do their job properly. No one wants to have their new law end up in court and be squashed by the Supreme Court of Canada and have to go back to the drawing board.
This is just to frame the question that Senator Joyal is putting to you.
Mr. Saranchuk: There is a lot of material here, and we will do our best to answer your questions. I also want to state, before I answer Senator Nolin's questions, that Senator Joyal is right that the starting point is the Sparrow test and that the government must meet the test that is there as set out. I would hasten to add that the Sparrow test has evolved somewhat. There are certain other cases that have come along behind it.
Senator Joyal: Could you tell the committee, for its future consideration, how you interpret the Sparrow case and the other cases? What is the understanding that the justice department has from the Sparrow case on the question and the test to be met in order to respect section 35?
Mr. Saranchuk: I will turn that over to Mr. Pryce, who is more of an expert on the Sparrow test than I.
In reference to Senator Nolin's question, I would add that we do give daily advice, as the Department of Justice, on an ongoing basis to other government departments, in terms of how to meet their rights and responsibilities vis-à-vis the Aboriginal peoples. The government takes those rights and responsibilities seriously, including this new, if you will, duty to consult, which has recently been set out in full by the Supreme Court in those cases I mentioned.
Senator Nolin: From your answer, I take it that you have developed some kind of a formula, a framework, a process that you are advising those departments to follow.
Mr. Saranchuk: We interpret those cases for the other government departments and we provide them ongoing legal advice based on the fact situation they bring to us. That is our job. Each fact situation is different, as you well know. I will, with that, turn it over to Mr. Pryce.
Senator Andreychuk: It is a judgment call that could be questioned later. If you say "timely'' means I will give them six months, and we will sit down and consult, there is still the meaningful way it should be consulted, et cetera. Prior to the Sparrow test, there was really no test on what is fair and what is not. They put out some general parameters.
Mr. Saranchuk: That is correct.
Senator Andreychuk: However, it is still not judgment-proof, as we say.
Mr. Saranchuk: I would add, as an overarching thought, with which you are all familiar, that Aboriginal law is really a new area of the law, notwithstanding the fact that the Aboriginal peoples have been here since time immemorial. This area of the law is relatively new in comparison to constitutional law, administrative law or criminal law, and there are still vast areas that remain to be filled in. It is fluid and complex, as you know, so we will undoubtedly receive further clarification with respect to what is the duty to consult. That question will continue to come up in different fact situations where, as Senator Andreychuk said, "meaningful'' will be litigated.
I shall turn this over to Mr. Pryce so that he can further enlighten us.
Mr. Pryce: It seems to me we are on two tracks here. There is the meaning of the Sparrow test — after an established right has been proven, and after the Aboriginal accused or the Aboriginal group has shown that there is an infringement, the burden switches to the Crown to justify that infringement. That is very much the back end, if you like. It is that kind of protection that section 35 was designed to provide, but it is very much at the end, after decisions have been taken that do, in fact, infringe on rights.
The other track is the duty to consult, which really provides what we call the front-end protection. It avoids the potential possibility of infringement, by adequate engagement with Aboriginal groups, so that the decisions taken are designed in ways that avoid the infringement. The whole dilemma, in a sense, has been around for years — as Mr. Saranchuk's presentation referred to, because of a lack of consultation, there has been a call for non-derogation clauses as the only way to protect the rights. Perhaps a better way would be to improve consultation. I have to try and deal with it because they are linked but still separate.
I want to comment on where we might be in general terms around duty to consult. First, the Sparrow decision set the framework for the test for justified infringement, and clearly the government must meet that test. At the same time, it allows a balancing of interests in the reconciliation process, in that there is a need to balance both the Aboriginal and treaty rights on the one hand and the rights and interests of other Canadians on the other hand.
Under the Constitution, it is not an absolute protection. As you say, there is the two-pronged aspect to the tests: First, for valid legislative rejection, there has to be good reason for government to limit the exercise of rights. Even if there is a good reason, and in Sparrow the reason was conservation, the way in which that good reason is taken and the impact it has on Aboriginal rights must be carried out in a way that complies with the honour of the Crown's fiduciary relationship. In short, it is the idea of minimal impairment, which will vary with the circumstances.
Senator Joyal: It will not vary on the basis of the right.
Mr. Pryce: Whatever the scope of the right, it is the minimal impairment of the right as exercised with respect to the government regulation that is seeking to limit the right. That will vary in the circumstances. Different balancing exercises occur, depending on the issue. For example, it was a food fishing right in Sparrow, and in Gladstone, it was the commercial right to fish. The court said that they could not give top priority to the commercial right because, if they did so, it would be a right without internal limits. The right had to be balanced against the ability of other user groups, including Aboriginal groups, to be able to use the resource.
Another kind of right is Aboriginal title. Again, the court has developed that justification test and adapted it to the particular right, such as in the case of Delgamuukw.
Each kind of right and each kind of government regulation will entail some peculiarities, such that the justification test will be imposed or implied depending on the circumstances.
Those comments are very general, but that is how the justification test works and has been developed over the years in cases subsequent to Sparrow.
With regard to consultation, I have a couple of thoughts. The question has been asked about what Justice Canada is doing and what kind of framework we have. There is work within the government, beyond the Department of Justice, to try to develop frameworks and policies that both reflect the developments in the law and perhaps go further, policies dealing with consultation. It is important to emphasize that the duty to consult is in the early stages of development. Precisely what the scope of that duty is and whether as a legal duty it applies to the drafting and consideration of statutes as they go through Parliament is a question that has not been answered.
The cases that have gone to the Supreme Court to date were about administrative decisions taken under statutes and were not about the legislation. There are many unanswered questions, and the work to be done is throughout government, not only within the Department of Justice, to develop frameworks around consultation. Whether it is about the legislation, which may be more as a matter of policy than of law, or whether it is with respect to decisions taken pursuant to legislation, such as the kind of situation that arose in three cases — Haida Nation, Taku River Tlingit First Nation and Mikisew Cree — all points to protection up front before the damage is done to either rights or claimed rights. The cases of Taku and Haida were about just that — preventing the government from riding roughshod over rights, although at the back end, there might be a claim for damages, but that was not adequate.
Senator Joyal: Can you come back to us with the guidelines that you have developed on the basis of previous court decisions in respect of the duty and obligation to consult? Could you provide us with the guidelines the Department of Justice follows or transfers to other departments concerned with such issues — for instance, Natural Resources, Parks Canada and so on — whereby the department advised the other department on the course to follow? I take it that is not done over the phone. There should be frameworks, guidelines, instructions and interpretation that the Department of Justice provides to other departments on how to satisfy that obligation to consult. Could you give us those documents so that we can look into that?
The Acting Chairman: There must be a kind of basic framework that you work through and then adjust to meet the requirements of the various departments.
Mr. Saranchuk: We have a basic document, although it is still under construction, if you will, in the sense that we are still adding to it. My initial impression is that we will have to seek instructions from the Deputy Minister of Justice and others as to whether this can and should be shared at this time. I do not mean that we are reticent to help the committee, because we would like to help, but the privilege in that document lies elsewhere and it is not for us to give you that commitment today.
The Acting Chairman: Will you attempt to follow that up?
Mr. Saranchuk: We will ask up the line, as we say, and get back to you as to whether we can share that with you or whether there is another document to share with you. Generally, the framework document to which you refer is based very much and, in a practical way, speaks to the cases noted earlier. I would hope that there are no secrets, but it is nothing special over and above what departments would have to do to meet these cases. It might be a bit technical, but I will provide something for the committee.
[Translation]
Senator Gill: I am reassured because we seem to be on the right track. If we're looking to provide some additional protection, it must be because there is a real need for it. I have often discussed additional protection for our rights with Senator Watt and others. Obviously, the non-derogation clause has been the focus of much debate and we have wondered how not to oppose a bill which generally speaking, is designed to protect the overall rights of Canadian citizens.
We supported the proposed legislation to prevent cruelty toward animals, even though it compromised traditional hunting, trapping and fishing rights. How do we live together and be on good terms? How do we protect Canadians with sound laws, and all the while ensure that our rights are not compromised? We want to act for the good of all Canadians. We have long been grappling with this dilemma.
For example, on the subject of consultations, what exactly does the reference to consultations mean in proposed legislation? How far does this go? In 1969 and more recently, Aboriginal peoples were consulted, among other things, on Bill C-6 — and it makes no difference whether a Conservative or a Liberal government was in office — and I recall that all of the witnesses — and I believe Senator Andreychuk was also on hand — who testified before the committee were opposed to the bill. Yet, Bill C-6 still came before the Senate. So then, what weight do these consultations carry?
If section 35 of the Constitution provided an absolute protection for rights, there would be no need to resort to the use of non-derogation clauses. A suitable level of protection would enable us to work together, rather than at cross- purposes, to ensure the rights of each and everyone. I believe we can find a solution and I think we are on the right track. We have not found it yet, but I remain hopeful.
I was also pleased to note that contrary to what has happened in the past, there has been some dialogue between the Department of Justice and other departments. I believe we can now work together to find some good solutions. If the non-derogation clause is not the right solution, what would you suggest in its place?
[English]
Mr. Saranchuk: There have been some very good questions and I will do my best to respond. In terms of what we can have, I will go back to some of the possible approaches to consider here. I would start by saying that consultation is a possible approach, from our perspective key, no matter what the other approaches are. Consultation with Aboriginal peoples at the front end of legislation is something we encourage. We remind other departments that that will be important to any process. Other departments are still adjusting to meet this need for consultation, but we continue to remind them about the importance of consultation and the fact that consultation is a legal duty that they have.
In terms of other approaches, when looking at the non-derogation clause question at the far end of the spectrum, these clauses can be repealed and thereafter avoided. At the same time, if people feel it is absolutely necessary to have a reminder — that is to say, that section 35 is not enough of a reminder, notwithstanding the fact that it is in the Constitution, that it is absolutely necessary to have reminder — there could be a provision put into the Interpretation Act saying that it is a declaratory provision.
I will just stop for a moment and say that I am not aware of any instances where the government or parliamentarians feel it is necessary to put in legislation a clause that reminds people that Charter rights exist. I suppose there are different views as to why that is and what it is that is different about Aboriginal and treaty rights. If we think about such a clause in relation to a security or anti-terrorism bill, I do not understand there to be clauses suggested there that would state that nothing in that bill is to abrogate or derogate from section 7 of the Charter. I think you are quite right, that we must ask ourselves why it is felt there should be a need for these clauses in relation to Aboriginal peoples and their rights but not others.
I am attempting to show that legally these clauses are unnecessary, because, in an antiterrorism bill, for example, I do not think anyone is suggesting that section 7 of the Charter or other sections of the Charter do not necessarily apply no matter what the provisions of that bill. People are content with the fact that Charter rights exist; they know they exist and they know if they need recourse to them they go to the Charter.
[Translation]
Senator Nolin: Your last comment sums up very well the dilemma faced by our committee. In as much as this committee enjoys reading Supreme Court decisions and seeing how the courts analyze and interpret the legislation that we pass, it is equally mindful of the obligation — and unfortunately, it is almost an obligation — that Canada's aboriginal communities have to look to the courts to ensure their rights are respected. That is the dilemma they face.
What I find intriguing about this debate — and perhaps I am deluding myself — is the prospect of putting in place a mechanism that would ensure the rights of Canada's Aboriginal communities are recognized a priori, over and above section 35 of the Charter. As you yourself said, no one is challenging section 35. However, we do not want people to come back with an easy answer along the lines of: you have the clause, you have the Charter, so claim your Charter rights and the courts will decide. We want to see an end to this process. As much as we like Supreme Court rulings, we do not want the Supreme Court to be the applicable remedy. That explained some of the problems we encountered when studying the various bills to prevent cruelty towards animals. The maddening response we got was that if a problem arose, the court was there to protect people. In my personal opinion, the solution lies in a statutory provision with some regulatory authority. In other words, a department responsible for applying the act would have the power to make regulations to oversee the training of officials in charge of applying the act and to inform them of the hunting, fishing and trapping practices of Canada's Aboriginal communities.
Are we right to be concerned that Aboriginal communities will forever have to look to the courts for validation of their rights? Should we try to come up with a statutory mechanism whereby their rights are recognized a priori, where the government would ensure that the rights of Canada's Aboriginal communities are respected a priori. Therein lies our dilemma. Are we deluding ourselves, or are we really on the right track?
[English]
Mr. Saranchuk: I would add to my earlier comments that I am not sure that one clause will necessarily do that. If it could, then I suppose a non-derogation clause could do it — or, for that matter, section 35 of the Constitution Act could do it.
If we want to ensure that Aboriginal interests are taken into account in any particular piece of legislation — because we are talking generally about one piece of legislation that comes before you or the other place — then it is important that the Aboriginal peoples be involved in, and thought of through, the component parts of that legislation and the process that goes into that, as opposed to just thinking that one clause will be a panacea to the issue.
Senator Joyal: I do not think that answers Senator Nolin's question, with all respect.
Senator Nolin: I am not suggesting that "one size fits all'' will do the thing.
Is there a statutory tool that would satisfy the Aboriginal communities in Canada that their way of life is understood by those who will be empowered to apply a general rule? That is my concern. Am I under an illusion, or can we use that tool?
Are we talking about one tool? Probably not. We will have to frame it, but I think it is more than a clause. I believe regulation should be also contemplated. We should instruct departments, when they are applying a law, to alert those who will apply the law that there is a component of our society that does not live in the same way other Canadians live, and they have rights to do so.
Senator Andreychuk: If I understood Sparrow and the other decisions — and in dealing with Aboriginal people — the Aboriginal people want to be consulted, so that they can explain their way of life, what those rights meant, et cetera, rather than having a body of people within government interpreting their rights, which is where we started out. We are telling them what their rights are and how those rights will affect them.
I think the Sparrow decision rightly put the emphasis on the right to consult early enough so that the Aboriginal people can explain how they will be affected by proposed legislation, why it is important and how the proposed legislation could be structured to be the least intrusive — or supportive for that matter, I suppose. Therefore, I believe the court put the right emphasis on the duty to consult in a meaningful way, so that we are not speaking about the Aboriginal people but rather listening to them and incorporating it in.
That is the way to preclude the courts from being the first resort; the courts should be the last resort. We should pre- empt that. It seemed to me that that is what Sparrow has been saying.
Senator Bryden: I think there is a difference regarding the Charter rights that apply to other Canadians; we do not list those rights in each in the legislation. I think the fiduciary duty of the Crown to Aboriginal peoples is, or should be, anticipatory and proactive. The Crown has a fiduciary duty that has been written up everywhere toward Aboriginal peoples; that is there, no matter what. What that would help to do is exactly the things that have been discussed here.
One of the biggest problems Aboriginal people face, if they are relying on the Charter for their rights, is that it is a long trip to the Supreme Court of Canada, and an expensive one. Many people would rather pay the fine and take the hit than go through the aggravation.
We may be almost back to the future here, but that is what we have constantly run up against. Senator Watt, Senator Adams and Senator Gill know what I am speaking about. The Crown has a fiduciary duty. If we are going to change the rules of the game for those people, we need to anticipate what the issues are — not say, "We will do it; if you have a problem, get your lawyer and go to court and plead section 35.'' I really believe there is a different duty that is expected of the Crown in that situation.
Mr. Saranchuk: Perhaps I can go back to my earlier remarks and clarify something that I should have added at the time with respect to this analogy between Charter rights and Aboriginal and treaty rights. It was meant to analogize the concept of what mechanism is potentially available and why, to get us thinking about it.
I want to be clear that Charter rights are not like Aboriginal and treaty rights, for various reasons. I will enumerate some of them, as Ms. Beckton did before. To begin with, the Aboriginal peoples were the first inhabitants of this country and they have special rights by virtue of that. We should all be mindful of that, and I can assure you that I am, as is the Department of Justice.
Beyond that, it is important to note that these rights are not universal. Charter rights are more universal than are Aboriginal and treaty rights. For better or worse, Aboriginal and treaty rights are site- and fact-specific rights that require some historical proof. They are different again in that.
I want to add to my remarks, although I was speaking on a legal level in terms of looking at the mechanism of the clauses and the reasons, I do want to acknowledge there are certain key and fundamental differences between those sets of rights that might well merit them receiving special attention one way or the other. That is, of course, what this committee and the honourable senators are looking at.
I think Mr. Pryce has some comments with respect to some of the duty-to-consult issues that were raised in this. I will let him speak on that.
Mr. Pryce: Yes. These comments might be a bit disjointed, but I am trying to respond to some of the questions and comments that various honourable senators have made.
Regarding one comment about how so much reliance has to be placed on the courts, the courts have clearly stated that negotiation is the preferable way to deal with Aboriginal claims. That is a very important process. In a sense, things like the duty to consult that the courts developed is kind of like a steppingstone as part of negotiation; pending negotiation or before negotiations are finalized, there may be duties to consult. It is part of an ongoing process, part of negotiation and part of the overall goal of reconciliation.
The second comment I would make is that I hear the comment about the duty to be anticipatory, that we should be able to be proactive.
One difficulty, at least at this stage in the development of law, is that the scope of Aboriginal rights, and even treaty rights, particularly historical treaty rights, are unclear. It is one thing to say that we should recognize and fully implement Aboriginal treaty rights, but there is not always a clear picture as to the scope of those rights.
In a sense, linked to that, the question has arisen as to whether a non-derogation clause would be helpful, assuming it would have the effect of limiting or excluding, preventing legislation from adversely affecting Aboriginal or treaty rights. I am not sure you would necessarily get rid of, deal with or avoid litigation, because there may still be cases and problems arising, because it would all turn on the scope of the rights. You would avoid the issue, perhaps, of whether there has been infringement or whether there is justification for it, but you are still left with determining the scope of rights.
Finally, around consultation, I think Senator Nolin raised the question of a statutory mechanism. Consultation is not really a statutory mechanism. It is something that the courts have directed us towards as a way of anticipating, of getting ahead of the game as far as protection of rights and claimed rights is concerned. Consultation is obviously a valuable tool. I am not sure how you would try to capture that in legislation. I think you have really hit on some of the big timers there.
Senator Nolin: I will give an example of what I have in mind. Let us go back to the issue of cruelty to animals. Police officers are empowered to apply those new infractions under the Criminal Code all across the land. The area of Canada where the Aboriginal communities are is part of that land. I would like to see in the regulation the power to organize, to structure, to put in place mechanisms within the administration of the Government of Canada — tools. So the authority to prepare those tools, the authority to inform police officers, who will be asked to apply that law in those areas of Canada, to alert them that they are not on the corner of Peel and St. Catherine, say, that they are in Iqaluit, in the North of Canada, where the law needs to be understood differently — that is what I have in mind.
I am using an example that I think to be proactive, to go a priori — which means taking steps to prevent what we do not want to happen, which is the totally blinded application of the law: "No, you are against the law; you do not have to kill that animal the way you are doing it.''
That is what I have in mind as an example — to develop an attitude, an approach; it is more than consultation. Consultation, for me, is the beginning of an awareness that there could be a problem. The result of that consultation is not a veto; it does not mean that negotiation must come to an agreement. However, at least the administration — so those who are the executives of Canada — know that there may be a problem applying a specific law in some areas of the country. They should be empowered by law to organize the implementation of the law to prevent those clashes. That is what I have in mind.
Mr. Pryce: It is certainly a very interesting and potentially valuable idea. What it conjures up in my mind is that it is way beyond a non-derogation clause, whether it appears in legislation or not, directions as to how a law is implemented. The thought that comes to mind where this has been done is very different. I cannot remember the provisions in the Criminal Code, but there are provisions. It is an example not about section 35 rights, but an acknowledgement of cultural differences or social differences that need attention. It has had some, and it is statute.
Mr. Saranchuk: To add to that, when I look at Ms. Beckton's presentation, I think you are absolutely right that there needs to be a cultural shift in certain circumstances, and that is what you are getting at, I think, and trying to find ways to remind the people who are actually applying the law on the ground how it is that they can best apply it. From my perspective, I think you are on to something in terms of — how it would apply out there is a different question. However, I think that it is very much a valid approach and it is outside the box of non-derogation, which I think is great.
The Acting Chairman: It applies to non-derogation.
Senator Joyal: I do not think it is outside the box.
I follow very strictly on Senator Nolin's line: A duty to consult, the way I read the Supreme Court of Canada, is not only to tell someone we are going to legislate on such an object of public policy but also that we intend to legislate and here are the implications. They have an obligation to negotiate the least impairment possible, as Senator Andreychuk has mentioned. In the negotiation of the least impairment — here comes the suggestion of Senator Nolin — how will we implement the legislation is part of the defining of the scope of the legislation. So it is not outside the box; to me, it is within the box, if we want to agree on the results of the legislation. You do not have just to agree on the drafting of the legislation; you have to negotiate the way the legislation will be implemented to meet the objective of the legislation, and to give way to the conditions in which the Aboriginal people live and prosper in this country.
It is part and parcel of the same context in which those guidelines have to be developed.
The Acting Chairman: Frankly, senators, we will have to have these gentlemen back because these are very profound questions that we are raising. We will need more information; we will need to share further.
Senator Watt: I would like to thank you for being explicitly clear as to where you are coming from. This is helpful, because ever since I started to deal with this non-derogation clause, I see more openness to trying to find a solution to this particular problem. I really do appreciate that and I want you to know that. It is not easy to try to blend ethnic components into legislation.
We have a great deal of challenge ahead of us, if we are going to start making commitments to the specific legislation without non-derogation clauses. That means you have to be very open to the idea of exploring many different aspects. Not only that, you have to have knowledge of what you are dealing with. I do not have to tell you that you are fully knowledgeable in the field of law. You might not necessarily be knowledgeable in the field of how we live and conduct ourselves daily and how we strive to survive over the years.
I wish to point out one area in which I have had experience over the last 23 years. It has not been easy, first of all, to try to throw a non-derogation clause every time there is a piece of legislation coming from the other side. When you begin deal with that, there is never enough time. The politics always attempts to take over. Partisanship takes over and you lose sight of the issue, and for that reason, the framework is very important to nail down. At least we would know the name of the game.
In the field of consultation, at times, as a parliamentarian, knowing the issue very well, knowing what the problem is, knowing what the answer should be, being told by another parliamentarian — from the House of Commons or the Senate — we have already consulted with your leaders, your national organization, Phil Fontaine. How many times has that being used to put me down over the years? Many times. What is the role of a parliamentarian? It is to scrutinize legislation. That is our specialty, our expertise.
Do you mean to tell me, if you consult with the leader, a national leader of an organization like AFN, say, that that is good enough, even though I have identified that there is a problem here in the legislation. It should not be. You have to take that into consideration.
Another thing we should take into consideration is what you do with legislation that has been enacted, that is law. I will use as an example Bill C-5 — which is now legislation. There was pressure by the animal rights groups to get this legislation done immediately, and get it done regardless of anything. I am personally, including my people, living through this on a daily basis in regards to the beluga. We have a big problem. In a sense, when the law enforcement officer comes in, usually by helicopter, and manages to find the person who has harvested a particular beluga — one community might not know whether the overall quota has been exhausted. The individual is fined. We have nine people who have already been charged. They are facing a court challenge in June, 2007.
That is a wonderful example. What do you do with a law that is already a law? How do you deal with that? Even though there are consultations, the mechanisms built in through the regulatory aspects of what you are asking for, it is not working. I regret to say that it is not working mainly because the political people, the ones who make the decisions, are not sitting with the leader of the communities, the people who know what they are talking about. The people who are sitting around with those people are being consulted with by the scientific community. They have no authority to change the law or to make a report to their superiors to say that this law is not working. It is not their responsibility or not their interest to say that the law is not working. We have a problem in that area, too.
Coming back to the issue of the need to establish a framework, that is a good beginning. I would not say it is the end all, but if we start moving in that direction, go through that path, we will have a clear idea that we need to have some kind of framework in place for the Department of Justice. I personally, as a parliamentarian, would feel much more ease. Over the number of years, I have felt pressure from the Department of Justice not interpreting the same way I interpret section 35 and section 25.
I realize that trying to bring the ethnic component into legislation is not an easy thing. If we put that in the framework, I cannot begin to start thinking and realizing what that would be. That is a very complicated area, and we should understand that, but that does not mean we should not visit that and try to develop something that is meaningful. I was even wondering whether you would be saying the same thing. I have been hearing that over 23 years.
In regards to whether the rights are rights, or absolute rights, or not, or something in between, that worries me. As far as I am concerned, the rights that have been negotiated, the rights that are entrenched in the Constitution, whatever or how broad that might be, remain intact until those issues are reconciled. We should not try to give an interpretation to the act, like non-derogation clause. This is what has been concerning me, ensuring that protection is provided. Those words were added in to the non-derogation clause. That never existed in section 25. When you read that, my legal interpretation, and the fact that I have been assisted by the legal people from outside, and also from the inside, gives a double-edged sword. That means it will go back to the ruling in the Supreme Court, that the right exists, but it is not absolute rights. That might be the case, a process, but unless they are dealt with through negotiations, they remain the rights, not dealt with rights.
The Acting Chairman: Any response to the need for communication that Senator Watt was speaking of?
Mr. Saranchuk: I think Senator Watt has raised a number of very important points. I would add a couple of things. First, and this is in no way meant to pass the buck, but it is not always the Department of Justice that decides about these clauses. It is up to other departments to decide what level of protection they want to accord these rights, or what the interaction is between these rights in their specific piece of legislation. They must ask whether section 35 provides adequate protection for those rights or whether in the circumstances of that legislation additional protection is needed for those rights. Those are questions for the honourable senators and for people in the other place as well, in terms of any specific circumstance. I think that is a good point.
With respect to the point about rights and their absolute nature, I would simply add that these are constitutional rights. They are protected in section 35. That is a very strong protection. It is only in limited circumstances where they can and should be interfered with, and we have talked about that in terms of Sparrow. For better or worse, all rights in Canada, all constitutional rights, are not absolute, and there are they balanced with other rights and competing interests, and that is a fundamental aspect of our Canadian constitutional system. That is in no way meant to diminish the importance of those rights, which are important for the reasons I have outlined previously, that the Aboriginal peoples are the first inhabitants of this country. There are no two ways about it; the Aboriginal people have special constitutional rights that the other Canadians do not have. That is what section 35 was meant to do and that is what it does do.
Senator Watt: At this junction today, in terms of whether these are absolute rights, would you say that it is important, as a parliamentarian, not to send the wrong message to the Supreme Court of Canada on this issue? We do not want to label it in such a way that the rights are questioned before this is dealt with. I am not sure whether I am making myself clear. As a legal person, would you agree with me that, depending on how we deal with it, we could easily turn around and give the wrong message to the Supreme Court of Canada? Why negotiate something if it will only be left to hang in the air? Why should the rights exist if this will be left hanging in the air? To me, it is an absolute right until the matter is dealt with either through negotiations or reconciliation.
Am I making myself clear? I am saying that we should not give an interpretation prior to dealing with the issue.
Mr. Saranchuk: I understand what you are saying. With respect to your point about the Supreme Court of Canada, if we apply that to non-derogation clauses, the people on the Supreme Court are very sophisticated. They have much better legal minds than I bring to this issue. However, I am not sure they need to see a non-derogation clause in order to know that Aboriginal and treaty rights are protected by section 35. That section is an important constitutional protection.
Senator Watt: There may be other people with more legal expertise than you, but you are a young man. You and others like you will be the leaders of tomorrow. Will I be able to start realizing the fact that my kids will probably begin to move in the right direction given your ideas and understanding of the law in modern day society, never mind the colonial system? You do not have to respond.
The Acting Chairman: These gentlemen have provided us with a list of four non-derogation clauses that are now used in federal legislation, as well as the specific bills in which they appear. It is in both official languages. We will all have a copy.
Senator Joyal: I have a follow-up question to Senator Bryden's fundamental point regarding the fiduciary duty of the Crown. For the purpose of moving our study forward, could you come back to us with the interpretation the Department of Justice gives to court decisions that have dealt with the definition and scope of the fiduciary duty of the Crown? I am thinking of the Delgamuukw case, where the court came forward with what it put on the shoulders of the Crown to do in dealing with Aboriginal issues.
Mr. Saranchuk: We are probably in a position to give you some of that information today. Mr. Pryce is familiar with fiduciary duty, and he might want to enumerate the situations where it exists. Guerin and Sparrow were the two main sources.
Senator Joyal: Unless you want to prepare something. That may be better for us.
The Acting Chairman: The Senate does sit in less than an hour, so I would prefer if you could prepare a paper on that subject and get it to us.
Mr. Saranchuk: Yes.
Mr. Pryce: Clearly, we are prepared to help this committee as much as possible. Exactly what we can prepare, we will have to see in the fullness of time, but we will endeavour to be as much assistance as possible.
Mr. Saranchuk: We can certainly come back and have a longer discussion about fiduciary duty, if that is what honourable senators would like.
Senator Joyal: That would be helpful.
Senator Gill: I have a question for the chairman. Some months ago, you started to study the harmonization between the Civil Code and common law and Aboriginal rights. Is that study ongoing? It is a big challenge.
The Acting Chairman: That is an ongoing project of the Department of Justice, and I would assume they are coming before this committee again sometime in the future with a further bill along those lines.
Mr. Pryce: I am honestly not familiar with that project.
Senator Joyal: I think we have to go back to look to the department on this one.
[Translation]
Senator Nolin: With respect to Senator Watt's concern, we should look at existing legislation. Is there a list of federal laws that should be reviewed with a view to addressing this particular problem?
If there is such a list, I would like to see it. We could recommend this approach stemming from a political decision made several years ago to instruct the Justice Department to begin compiling a lexicon with a view to harmonizing civil law and common law in federal legislation. This arduous job, which called for a political decision at some point in time, is an approach that we would recommend to keep an eye to the future and to harmonization, without losing sight of the past.
Senator Gill: And all the while bearing in mind Aboriginal rights.
Senator Nolin: First and foremost!
[English]
Is there a list of the laws of Canada that would need to be vetted by those with the experience, those who have been questioned in court? Is the department using its expertise to look into the future as to where we should try to harmonize the actual law with a new framework to respect the rights of our Aboriginal colleagues and citizens?
Mr. Saranchuk: That is a very good question. I can also advise that no such list or glossary currently exists to our knowledge. The only list we have, which we brought today, as the chair said, is a list of the non-derogation clauses in existing legislation.
Senator Nolin: We will go the other way.
Senator Joyal: In all fairness, we will have to retackle the issue in the context of the framework of the harmonization of the common law and the Civil Code and define the parameters in relation to the customary law of Aboriginal people. That is what we would have to do first and foremost, before we could make a recommendation to further the promotion of Aboriginal law.
The Acting Chairman: I thank you very much for your testimony, gentlemen. You have helped us very much as we restart this ongoing study.
I should also like to welcome our new clerk to the committee. Shaila Anwar will be with us for the foreseeable future.
The committee adjourned.