Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 32 - Evidence - June 20, 2007
OTTAWA, Wednesday, June 20, 2007
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:15 p.m. to examine and report upon 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 Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, this is the third order of reference from the Senate on this matter, but each time, the press of other business has meant that progress has not been made. Let us hope that this time it will be different.
As you know, section 35 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 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.
Since 1982, non-derogation clauses have been inserted in various federal statutes that could affect Aboriginal peoples. Two distinct formulations have predominated.
What is the purpose and effect of such clauses? Are they necessary in view of the constitutional protections? Might the Interpretation Act be used instead? If such clauses are to be used, how should they best be framed in light of the section 35 guarantee? In what statutes should they be inserted?
These are just some of the questions that honourable senators may want to consider after we hear further evidence from witnesses who we have called to appear before us to help us analyze these questions.
Honourable senators, to help us today, we have before us Mr. Jim Aldridge, General Counsel for the Nisga'a Lisims Government. Accompanying Mr. Aldridge is Mr. John Merritt, Advisor to the Inuit Tapirisat of Canada. We are also joined by Mr. Roger Jones, Policy Advisor to the Assembly of First Nations.
Jim Aldridge, General Counsel, Nisga'a Lisims Government: Honourable senators, thank you for the invitation to come and speak to you today on a topic that is important but which is generally ignored or misunderstood.
I am indeed General Counsel for the Nisga'a Lisims Government. The leaders of that government, the Nisga'a Nation, asked me to pass on their greetings to you today. While it is true that I am general counsel, I actually developed my interest and awareness on the subject of the non-derogation clause, or more precisely about the Department of Justice Canada's position on changing the wording of the long-standing non-derogation clause, in 2001 and 2002. At that time, I had the privilege of co-chairing the Joint Ministerial Advisory Committee of lawyers with officials from Indian and Northern Affairs and others. The then Minister of Indian Affairs and Northern Development the Honourable Robert Nault formed the committee to provide him with advice in respect of what was to become the ill-fated First Nations self-government act. I had the pleasure of being accompanied on that committee by my friend Roger Jones, who sits on my left here today. Mr. Jones can bear the responsibility and the blame for anything in the committee's report.
The issue arose because the minister had specifically instructed the committee to advise him on, among other things, how to ensure that the proposed legislation would not infringe upon Aboriginal or treaty rights. We thought that would be very easy to accomplish. However, more than 20 years of precedents of non-derogation provisions had been included in a variety of federal statutes, when Parliament determined that a particular enactment was not to infringe upon those rights.
I stress again, and will continue to do so, that this truly is a simple matter of legislative drafting. To our surprise, honourable senators, we found ourselves involved in a difficult controversy, one that seemed with respect to others, to obfuscate and confuse the issue. The controversy was not resolved then and has not been resolved to this day. In that light, I would like to commend the Senate and this committee in particular for tackling this issue.
The committee, JMAC, as it was called, did its best to demystify the issue by approaching it analytically and rigorously and to provide our best advice to the minister on the topic. The results of our work on this topic were set out in Appendix 2 to Chapter 1, and I have brought excerpts for senators in the hope that they will be of assistance to these deliberations. I cut-and-paste the appendix from the website of the Department of Indian Affairs and Northern Development and, I apologize, some footnotes dropped out. I used the original English version to try to capture the footnotes because the website does not contain any of the footnotes. The French version begins at page 10 and does not have footnotes. I can say only that it is because the website does not have them. The footnotes appear for the most part in the English version only. I have no explanation for that.
Before summarizing the paper, I would like to make a few prefatory comments in response to other testimony this committee has heard, specifically from the Department of Justice Canada on February 22. With the greatest of respect to those witnesses, I would like to present our view in three points. First, a non-derogation clause is not and could not be merely a "flag,'' as said in testimony, or a reminder of a provision of the Constitution. We all know that every provision of an enactment must be given separate meaning, and merely being a flag or some sort of marker that says, by the way, there are constitutional rights the Constitution, with respect, obviously has no legislative effect. We do not enact things as markers.
Second, non-derogation clauses do not and could not improve upon or, in the vernacular that has been used, "top up'' constitutional protection — a constitutional provision. Non-derogation clauses speak only to the interpretation of a statute, not to the content of Aboriginal or treaty rights or to the constitutional protection afforded to those rights.
Third, by way of preface, in analyzing the existing non-derogation clauses, the question surely is not what the government's intent might have been but rather what Parliament's intention was, as expressed through the words that it enacted. The JMAC approaches it from that point of view.
With that as a preface, honourable senators, I will briefly summarize Appendix 2. The JMAC tried to approach it analytically and rigorously. We started by asking what it is about and said that the point of any non-derogation clause is to ensure that the act in which it appears does not infringe upon any Aboriginal or treaty rights.
That being the case, one would think it would be very easy. One could simply say nothing in this act infringes upon any Aboriginal or treaty rights of the Aboriginal peoples of Canada. However, that might be too simple. Instead of using the word "infringes,'' the habit has been, as we see in section 25, to use the words "abrogate'' or "derogate.'' We set out the dictionary definitions of those words in Option 2 and concluded that they simply mean, "infringe.'' The next version is to substitute the simple word "infringe'' with the complicated words, "abrogate'' and "derogate,'' as in Option 2.
However, placed in that way, the concern is that it might lead to a conflicting provision in that some other provision seems to infringe, so there would be a clash. To avoid that, the clause was changed as we show under Option 3 by expressly making it into a rule of construction: "Nothing in this act shall be construed so as to abrogate or derogate . . . .'' With that, there is no question, the clause has no substantive effect as to the content of the rights but is rather an instruction to the courts that interpret the provisions to read it in a way so as not to abrogate.
Perhaps that is too simple and so the next version, Option 4, simply adds the tag at the end, ". . . under section 35 of the Constitution Act, 1982.'' The fifth version, Option 5, adds the word "existing'' as in section 35. You can see that the new words in each option are bolded so as to be obvious. Landing somewhere in the mid-1980s, Option 6 opens with, "For greater certainty. . . .'' A friend of mine says that when a statute says "for greater certainty'' it tends to lead to less certainty.
I can move quickly to distinguish between that version —
The Chairman: I want to advise that there will be three presentations and the bells will ring in 45 minutes, when we will have to suspend to go to the chamber for a vote. I was hoping that the other two witnesses would be able to make their presentations before that happens.
Mr. Aldridge: Thank you, Mr. Chairman. I will move quickly to conclude and give my friends a chance to speak. Option 7 is the clause favoured by the Department of Justice Canada. It speaks not to a rule of construction concerning the rights but rather to a rule of construction that says nothing abrogates from the protection provided for those rights. Time being what it is perhaps I can return to this in questions. On the balance of page 5 of the English version, I explain why that clause means nothing. In our view, it is gibberish.
I hope that someone asks me to speak to Option 8.
The Chairman: Tell us what you recommend. Have you gone through all these options?
Mr. Aldridge: The recommendation made to the minister was that Option 6 would achieve his objective, provided the objective is to ensure that an act does not infringe. It is the one that has been used by Parliament many times.
The Chairman: Option 6 reads, "For greater certainty, nothing in this Act shall be construed so as . . . .''
Mr. Aldridge: Yes and we also recommend that the matter could be addressed through Interpretation Act provisions, and Mr. Merritt will speak to that, a version that I would endorse as well.
John Merritt, Legal Counsel/Advisor Nunavut Tunngavik Incorporated/Inuit Tapiriit Kanatami: Thank you for the invitation to appear today. I should clarify that I have two hats. I am a lawyer working at Nunavut Tunngavik, a regional Inuit organization, and I also do some work for Inuit Tapiriit Kanatami, which is a national organization. Both organizations asked me to meet with you today.
Given the shortage of time, I will skip past some preliminary remarks in terms of where Inuit organizations have bumped into this problem in the past. There is quite a history here, and my friend Mr. Aldridge mentioned a few of the problems a moment ago. I would like to jump to what I believe to be the unconvincing arguments that were brought to the table by the Department of Justice when offering evidence to the committee back in February. I also looked at the earlier evidence brought by the Department of Justice back in 2003. I will summarize what I believe to be the reasons for their position being unconvincing as to trying to scale down or to remove the legal impact of the clause as it existed between 1982 and 1996.
First, I do not think the Department of Justice has given you any evidence that there were any practical problems flowing from the use of a standard non-derogation clause between 1982 and 1996. There has not been any litigation on point and I am not aware of any other practical problems. There is reason to be skeptical as to why this non-derogation clause should be changed from what was standard wording before 1996.
Second, the mere fact that the Department of Justice has changed the wording has itself created problems. It has created the possibilities of courts reading things into these various versions. What was intended to be something to clarify rights has, ironically enough, become a topic of confusion.
Third, the Department of Justice continually seems to confuse its intentions and preferences with Parliament's. Mr. Aldridge just made that point. It is Parliament's intentions that count and the fact that the executive branch would like to achieve certain things is secondary to the discussion that the Department of Justice should have with you.
Fourth, there appears to be an assumption that seems to be regarded as self-evident by the Department of Justice that since 1982 Parliament is only interested in containing Aboriginal rights, that it is not interested in implementing them or advancing them in any respect. That is a doubtful proposition and one that should be examined closely.
Fifth, I have not seen any evidence brought forward by the Department of Justice that the use of non-derogation clauses in provincial interpretation legislation in Manitoba and Saskatchewan has created any problem. That is an efficient way to deal with this issue. It is being done at the provincial level and, as far as I know, it works.
Sixth, the department does not seem to want to acknowledge that in all liberal democracies, all collective and individual rights are, by definition, limited by the existence of the rights of others. Some of the anxiety that has been brought forward as to potential downstream implications is exaggerated. The courts will always interpret guarantees of rights for one particular set of people in the context of rights also available to other Canadians. I do not think that is a huge fear.
Finally, in the evidence brought forward in February there was a great deal of emphasis on the courts requiring consultation with Aboriginal peoples in relation to various things that may affect their rights. Consultation is a very good thing. It is a very useful development in the case law, but I do not think it is a substitute for clarity with respect to interpretation provisions that appear in legislation.
In fact, clarity on this point would assist in consultation, because it would add focus and clarity; it would not be a substitute.
In the 2003 presentation to this committee, Department of Justice officials said that there is a potential for legislation to have unforeseen consequences on section 35 rights, as there is no process for Parliament to assess the effect of legislation in this respect.
That is the nub of the problem. The Department of Justice does not like non-derogation clauses because it wants a free hand to interpret new laws as having modified Aboriginal treaty rights, even if it has not given Parliament the opportunity to consider whether it really wants to do that.
I would say three things in relation to that. First, when developing new laws, the Department of Justice should actively turn its mind to the potential for there to be abrogation, derogation or infringement of any kind. That is the Department of Justice's responsibility. It should be doing that and notifying parliamentarians when they are considering new laws. After all, the Department of Justice certainly has greater resources than Aboriginal peoples, who are then forced to come to speak to new laws that might create conflict with their rights.
Second, if there is a diminution of Aboriginal or treaty rights necessary to accommodate a new legislative proposal, from our position that should be Parliament's call. The executive branch should not pre-decide on that matter. If someone makes the argument that Aboriginal or treaty rights have to somehow give way, that matter should be clearly flagged and brought home to parliamentarians to make a choice.
Finally, if, despite all probabilities, there is some completely unforeseeable problem involving infringement between a new law and Aboriginal treaty rights, Parliament always has the prerogative to amend laws to deal with that problem squarely. If there is a conflict, that conflict should be brought back to Parliament. The Department of Justice should not predetermine the resolution.
I would like to conclude with a recommendation as to what should be done next. In June 2003, Senator Sibbeston proposed a two-provision amendment to the Interpretation Act. From our point of view, that is a perfectly serviceable suggestion. The first of two amendments is as follows:
Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.
From our point of view, that is an attractive formulation because it is not just about protecting Aboriginal or treaty rights, it is essentially relaying an intention from Parliament that public officials should actively try to uphold and implement them. It is a positive statement, not just a negative one.
The second part of Senator Sibbeston's proposal is:
For greater certainty, nothing in the subsection (1) enhances or diminishes the capacity of Parliament to make laws consistent with section 35 of the Constitution Act, 1982.
Insofar as Parliament in the future feels obliged to make a specific exception to what otherwise is its general determination to protect Aboriginal treaty rights, Parliament of course retains that capacity. You could say, that is the Constitution anyway, and it is perfectly true, but insofar as one wants to give an indication that Parliament distinguishes between capacity and intent, then that second subsection makes sense.
From our perspective, that is a complete and elegant solution. Putting the solution in the Interpretation Act would completely remove the need to discuss this issue each and every time a new legislative proposal is brought forward.
The Chairman: Do you know if there have been problems in Saskatchewan? Have there been problems as a result of placing it in the Interpretation Act?
Mr. Merritt: I am not aware of any problems there, or in Manitoba, where there is a similar provision.
Senator Bryden: Would you read the second paragraph again?
Mr. Merritt: Yes. I should apologize, senator. I pulled these notes together quickly and I did not have the chance to translate them, although I made them available to the staff.
The second paragraph reads:
For greater certainty, nothing in subsection (1) enhances or diminishes the capacity of Parliament to make laws consistent with section 35 of the Constitution Act, 1982.
Senator Bryden: I did not hear the word "consistent.'' I thought you said "inconsistent,'' so I thought you were defeating your purpose. Thank you very much.
The Chairman: Thank you, Mr. Merritt. There will be a number of questions when we get back to that.
Honourable senators, I want to remind you that Mr. Jones has prepared an AFN brief, but it is in English only. It has now been sent to translation, and as soon as it is translated we will circulate it to all honourable senators; but Mr. Jones just agreed yesterday that he would appear.
Roger Jones, Policy Advisor, Assembly of First Nations: Thank you, Mr. Chairman, and good afternoon, honourable senators. My intention is not to read the 13-page document, but I will highlight parts that I think are particularly relevant in communicating our message about this issue.
My friend Mr. Aldridge mentioned that we had served together on the Joint Ministerial Advisory Committee, but he did not mention that we also had a couple of lawyers from the Department of Justice that also served on the committee, and participated in the discussion around our advice on the non-derogation clauses. That information is relevant for your consideration.
Our submission provides information that I believe goes to the issue of why we believe it is essential and important to have non-derogation clauses versus the view put forth by Department of Justice Canada. The department's view is to flag or remind us that the Constitution of Canada recognizes and affirms treaty and Aboriginal rights. We think it is much more than that; otherwise, we certainly would not have been advocating for inclusion of such non-derogation provisions not only in legislation but also in agreements that First Nations communities and peoples negotiate with the federal Crown. It will become clearer to you why that is the case.
At the top of page 3, there is a quote, which we extracted from the first Supreme Court of Canada case that dealt with the meaning of section 35. It took 10 years for a case to reach the Supreme Court of Canada to talk about the significance of section 35.
This quotation from the Sparrow case says:
This is not just a codification of case law on Aboriginal rights that had accumulated by 1982. Section 35 calls for a just settlement with Aboriginal peoples. It renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims by the Crown.
In other words, the courts were part of the process whereby the Crown was able to defeat the rights and the interests of First Nations peoples. The courts could not, I suppose, readily look to or point to anything in Canadian common law or constitutional law that provided a shield against Crown power, as it were.
That changed in 1982. It also transformed the Canadian system from one of parliamentary supremacy to one of constitutional supremacy. That observation is made by the Supreme Court of Canada in its opinion as a result of the reference relating to Quebec separation. In that instance, the Supreme Court canvassed the Canadian constitutional framework in federalism and spoke to the interests of First Nations and Aboriginal peoples in Canada as well.
What that means for First Nations peoples is that in a pre-1982 context, section 91.24 of the Constitution Act, 1867 is the legislative authority on the part of the federal government to make legislation with respect to Indians and, of course, Inuit. In a pre-1982 context, Parliament was supreme. It could legislate at will, virtually, with respect to First Nations rights and interests. That changed in 1982.
Unfortunately, despite this important decision, the old rules of the game really have not changed. The federal Crown, through its lawyers and bureaucrats, still behaves in a pre-1982 context, where they believe that Parliament is still supreme in terms of how they see and view section 91(24) as if section 35 really does not matter in terms of safeguarding and making treaty and Aboriginal rights a reality.
Essentially, we are dealing with the fact that the Canadian government's official policy is essentially non- recognition. Canada prefers to not define Aboriginal rights but, rather, to negotiate and implement practical arrangements that reflect federal government desired outcomes, including legal risk management. That is often what they will put into agreements and legislation.
The arrangements are then implemented through legislation, which means that the federal government not only develops the policies around treaty and Aboriginal rights, like the inherent right policy, but also drafts the legislation. At times, it then prosecutes the legislation against First Nations peoples. Whether it is fisheries legislation or hunting legislation, the Criminal Code, you name it, they will use it really as Mr. Merritt has pointed out: To try to limit what treaty and Aboriginal rights mean. That builds up a body of case law that serves their purposes versus serving the purposes of First Nations people. They are entirely in control of the whole process.
When we see that the federal government has so much control over law-making, policy making, prosecutions, judging the outcomes of prosecutions, and so on, then obviously it is in our interests to try to put some safeguards into legislation that says, "Well, hold on. There are treaty and Aboriginal rights that the Constitution recognizes. Your failure to do a section 35 analysis when you are making these laws puts our rights at risk.''
The Department of Justice is required to do a section 15 analysis when they are drafting legislation, in compliance with equality in the Charter. Something like that should be undertaken with respect to section 35 rights as well but, by their own admission, they do not do not do that analysis. They assume that there is no negative effect on treaty and Aboriginal rights, or if there is, too bad, or you will have to deal with it yourself in court, in litigation, which comes at a cost to First Nations people, Inuit people, and others as well. There are not any checks and balances really in the system of law-making, unless it is done at the level of senators and members of Parliament to be scrutinizing legislation so that these negative impacts do not arise.
Government-driven legislation initiatives merely express the common and civil law view of property and civil rights in Canada. This is also embodied in the federal Interpretation Act, in section 8.1, where it specifically says that it is the common and civil law in Canada that is authoritative about what the law is. It excludes Aboriginal law or Inuit law, which obviously is something that is a reality in this country as well, but not necessarily visible to people on a day-to- day basis.
That process of the lack of scrutiny as to whether or not section 35 rights are affected is ongoing. We have legislation in the House of Commons, Bill C-44, which is an act to amend the Canadian Human Rights Act, where Aboriginal peoples are advocating putting a non-derogation clause because we really do not know what the effect of repealing section 67 will be on the collective rights of people in a community context.
For several months, the federal government undertook a process of talking to people about matrimonial real property, something that I think you are familiar with as well, and the expectation was that there would be legislation introduced in the House of Commons to deal with matrimonial real property. First Nations people believe that it would be necessary to put a non-derogation clause in there as well because, again, we are you not quite sure what the effect of individual property rights would be on the collective ownership and interest of the community as a whole with respect to their lands. These are communal lands, not individual allotments that people can buy and sell on the open market.
Those are recent initiatives with respect to the potential for dangers and impairment of section 35 rights if non- derogation clauses are not included or if there is not a proper analysis.
We have done quite a lengthy examination of the case law which obviously establishes with absolute certainty that section 35 does mean something. The courts are saying that section 35 requires that Canadian common law, statutory law, needs to reconcile with Aboriginal law and Aboriginal rights and title. The courts are saying that reconciliation requires the perspectives of Aboriginal peoples to be taken into account in law-making in this country.
Inserting a non-derogation clause into a statute really does not measure up to that standard when you think about incorporating and accommodating First Nations perspectives into law-making. A non-derogation clause simply will not achieve that end result, but it would be a start. If government is reluctant to accommodate First Nations participation in law-making, in the drafting of legislation, then at least put some protection in it that will safeguard First Nations interests.
We have information in here that really establishes the non-recognition approach of the government about this. It is in their inherent right policy; it is in everything they do. It is all about avoidance: Let us avoid dealing with Aboriginal and treaty rights.
If that is the approach and they are not necessarily vigilant in making sure that their laws are not going to affect treaty and Aboriginal rights, then surely a non-derogation clause is a minimum measure that can be taken to make sure that the rights and interests are protected.
I alluded earlier to the case where the Supreme Court of Canada issued an opinion about Quebec secession. After going through a bit of a background and history about how section 35 came to be a reality in 1982, the court observed that:
The protection of these rights, so recently and arduously achieved, whether looked at in their own right or as part of the larger concern with minorities, reflects an important underlying constitutional value.
That drives home the point that you cannot simply treat and look at Aboriginal and treaty rights as an afterthought or as a red flag to remind legislators that there is section 35. Section 35 needs to be embodied in the laws of this country. It needs to be embodied in the policies of government, aimed at dealing with treaty and Aboriginal rights and generally the interest of Aboriginal peoples.
We have taken the liberty of putting forth some recommendations to this committee, and they are at page 13. There are four points. One, we believe that the federal government should conduct a mandatory and transparent section 35 analysis each time they draft legislation as they do with respect to section 15 of the Charter.
Second, as Mr. Merritt has pointed out, we believe that putting a provision in the federal Interpretation Act, such as they did in Saskatchewan and Manitoba, would be economical, efficient and effective because the Interpretation Act applies to all federal legislation and therefore all federal legislation would be interpreted in a way as to not negatively affect section 35 treaty and Aboriginal rights.
Of course, we believe that the federal government needs to have a meaningful and efficient consultation and accommodation policy. This way treaty and Aboriginal rights could be dealt with in a more substantive manner rather than simply having legislation that would not affect treaty and Aboriginal rights. They should want to deal with it substantively by having procedures and policies in place that will equip the government with the ability to deal with First Nations peoples.
With respect to non-derogation language, I believe that what Mr. Merritt put forth by way of Senator Sibbeston ideas, or Option 6 of the JMAC report, offers the appropriate language for the committee might consider.
Senator Nolin: I am more concerned with the upstream of law-making, making laws and putting in the laws and thinking that everything will respect the rights. I am much more concerned with what we say in French, "la jouissance des droits, l'exercice des droits.'' We have rights, it is not only to mention that you have rights, you need to be able to "jouir de ces droits.''
That is a very important part of the work we are doing now. You do not need to assemble 10 senators to reflect on adding a single or simple clause in any law. We probably can take the work that you have done. I am more concerned about the downstream application of the law, how the application of the law will not limit your "jouissance'' of your rights.
My question is: Have you reflected on that? Is it the regulatory power in legislation that we should look at? Is there some kind of a catch-all clause that would direct the government to adopt regulations that would make sure that those who have the authority to set in motion the applications of the law would take all the steps to respect those rights? That is my main concern. It is not really to have a fancy, nice clause that we think will suit the courts. I do not want you to go to court. I want to know if you have reflected on that.
Mr. Jones: Indeed, we have. Really, a non-derogation clause is a backdoor approach to acknowledging rights; whereas I think — and in fact, this is what the courts have said — that section 35 was the promise of rights' enjoyment by Aboriginal peoples here in this country. We are still on that quest because the federal government's existing policies simply do not do that for Aboriginal peoples. They provide a process for the federal government to deal with its interests and issues. For instance, if you look at the inherent rights policy, it talks about how what they want is certainty in terms of how federal and provincial laws will continue to apply, versus finding a way to accommodate indigenous or Aboriginal laws.
There are approaches in other jurisdictions, which I think this committee might be interested in — the Philippines being one example. Their constitution and their laws always acknowledge that there are indigenous legal traditions that also need to be taken into account in determining what the law is that needs to regulate the relationship between the Aboriginal and non-Aboriginal population. It is much more of an affirmation of rights and the ability of people to enjoy those rights, rather than simply saying do not negatively affect our rights, which I think is your point.
Senator Nolin: I understand having a blanket or catch-all clause, but that does not satisfy my appetite for more clarity. That is why I am talking about the regulatory power, because that is where the federal authority will take its jurisdiction to go into your backyard and infringe on your rights.
Mr. Jones: One of the points we make in this submission is your point that quite often it is the regulatory power that stands to be much more damaging. As you know, if a statute entertains that there will be regulations made that will form part of the overall regulatory framework, the regulations are drafted by the Department of Justice, cabinet approves them, they are published for three or six months and then they become law. They do not undergo scrutiny by the House or the Senate.
Senator Nolin: Also, once it starts, it can last for a long time.
Mr. Jones: It is an executive power. Who will scrutinize those regulations to ensure that they are not in violation of treaty and Aboriginal rights, when you know that no one really has access to the drafting exercise that goes on at the Department of Justice? Then, in deliberation in cabinet, when they pass an Order-in-Council, saying yes, we accept and adopt these regulations and they shall come into force immediately, there is no scrutiny. Yet, it is an important part of the legal framework in which we all live.
Mr. Aldridge: I agree with Mr. Jones' points. An exact example of the point that Senator Nolin raised can be found in the most disturbing of the new non-derogation clauses. It is in Bill C-45, which has received first reading in the other place. What it says is quite remarkable, "The minister and every person engaged in the administration of this act or the regulations must . . .'' It goes on to say in subclause 6(d)
. . . seek to manage fisheries and conserve and protect fish habitat in a manner that is consistent with the constitutional protection provided for existing Aboriginal and treaty rights of the Aboriginal peoples of Canada;
All it says is that they have to try to act in a way that is consistent with the protection of their rights. It is, in a way, 180 degrees away from the point that Senator Nolin was making.
Senator Nolin: Let us say it is a good start. At least they thought of the idea. Maybe we will refine it.
Mr. Aldridge: It contemplates that without this language, fisheries officers could violate the constitutional protection afforded to Aboriginal and treaty rights. It is the reductio ad absurdum of that line of reasoning.
Mr. Merritt: I find it extraordinary that there could be a provision in a contemplated act of Parliament that says officials will try to obey the Constitution. I find that astounding and I do not think there is any acceptable explanation for that provision.
Senator Adams: In Bill C-45, the only thing in there that relates to Nunavut and that Fisheries Act mentions the water board — the water surface rights' board. It can charge people for dumping things in the sea, but there is nothing about our fishing rights in Nunavut. We have the Nunavut Wildlife Management Board and there was no mention of it.
Mr. Merritt: I know the Fisheries Act has any number of provisions that Aboriginal organizations are concerned about. I am sure that any number of them will be appearing before you when you consider that bill.
Senator Baker: To illustrate Senator Adams' point, the laws exist and the regulations, as you say, exist under the Fisheries Act, which are very limited in their exceptions and identification of exceptions. As an example, the Marine Mammals Act excludes beneficiaries. "Beneficiaries'' are defined in the regulations as being only two or three groups of people. It does not cover Senator Adams' area.
In other words, you would be allowed to sell a blue-back pelt if you were a beneficiary under the James Bay agreement. Senator Watt was instrumental in getting the exception, but the point is that it does not go on to define beneficiaries as other persons who should be protected, as Senator Adams says.
I just wanted to ask your opinion on something that is related to all this, which has really frustrated Senator Adams, Senator Watt and myself. We belong to another committee and we heard evidence about a group of people without rights and whose Charter rights, if they exist, were violated in a great many ways. We looked at the case law. We examined all the cases to date as to the application of the Charter, as it relates to cases involving persons who are north of 60. We came upon a great many reported cases. Of course, not all cases are reported, but there is a package of them for which you can illustrate that the law is not applied fairly. The certain progression defined by case law, of what one must provide if one is being interviewed regarding a criminal charge has not been applied to the investigations in Senator Watt's and Senator Adams' area. I do not know how we solve the problem.
Look at all the cases where a person is asked to bring in the tusks — which is the proof, the evidence — into the fisheries office, and then he is charged. It is an investigation without rights to counsel, and it is accepted. The individual who is charged does not have rights to counsel, although that is not said. For example, a police officer in downtown Toronto will hand the individual a card with a 1-800 number to call legal aid prior to being questioned.
There is no law like that. I want to mention that so that when you come back, you might tell us how we can address this within the meaning of the discussion as it relates to the subject.
Mr. Merritt: I have a general observation in response to what Senator Baker and Senator Nolin have said. It seems to me the non-derogation issue is all about where does Parliament tell Canadians that laws start? What is the starting point in the interpretation of new laws that are developed after the Constitution was changed in 1982 and protection was provided for Aboriginal and treaty rights? It seems to me that if you adopt an Interpretation Act provision comparable to what Manitoba and Saskatchewan have done, what you are saying is that the starting point is that when Parliament adopts new laws, it intends to respect the rights of Aboriginal peoples. It does not want these new laws interpreted or administered day in, day out, the kind of thing you are talking about, in such a way as to short-change Aboriginal people.
I refer to this as drive-by infringement. There is a suggestion that even when Parliament does not turn its mind to it, new laws should be interpreted so as to reduce the active enjoyment of Aboriginal treaty rights. Oddly enough, in Aboriginal organizations, we take, in some ways, a conservative view of Parliament's role. If there is an intention to reduce or somehow make less enjoyable or useful the rights of Aboriginal peoples, that should be an issue brought to Parliament when Parliament is considering that new law. The Department of Justice should flag that and should tell you there may be an impact here; you should weigh that; you have an opportunity here from Aboriginal peoples, because you are the custodians of those rights.
At the moment, that debate seems to take place within the precincts of the Department of Justice and the consequences are left to the courts later on, without your having had that debate at first instance. I think there is a conservative view in our world that it is Parliament's role to make those judgment calls. Parliament certainly has the capacity to infringe upon Aboriginal treaty rights. We know that from the case law. The question is whether you want to, and if you want to, how you express that.
The Chairman: Honourable senators, we will suspend until after the vote.
The committee suspended.
The committee resumed.
The Chairman: Honourable senators, I would like to resume the hearings of the Standing Senate Committee on Legal and Constitutional Affairs concerning our study of the non-derogation rights for the Aboriginal peoples of Canada.
Senator Joyal: I would like to thank the witnesses for their presentations, which will help us to understand the complexity of the issue.
I was part of the exercise that enacted sections 25 and 35 of the Constitution in 1982, as was Senator Watt. There are other senators who might not be around this table but are present in the chamber who were also part of that discussion. We wanted to achieve two objectives at that time. The first objective was that for the first time since 1763, we wanted to recognize the rights of the Aboriginal people; those rights enshrined into treaties and customary rights. The second objective was section 35.
Section 25 of the Constitution Act, 1982, protects those rights from any future infringements. It refers to the Royal Proclamation of October 1763 and states:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
From that point on, this section had a remedial effect. It was meant to correct the mistakes that had happened since 1763. It ensured that in new legislation there would always be the recognition that Aboriginal rights must not only be protected but re-established.
When the court interpreted that later on in many cases, the most well-known being the Delgamuuk case, it established what we have to understand by the "honour of the Crown.'' One of the keywords in your presentation today, Mr. Jones, is the last word of your first proposal, "the practice of the federal Crown.''
The problem we have now — and I understand the intervention of my colleague and friend Senator Nolin — is that the Department of Justice found itself in an almost untenable position. They have to act and assume the duty of the honour of the Crown. They have to do more than consult the Aboriginal people. Referring to the Delgamuuk decision, it does not suffice to simply get their views. We have to come to terms with the conflicting views in order to resolve the issues. In other words, in one way, the Department of Justice has the responsibility to assume the honour of the Crown in relation to the Aboriginal people, and at the same time, the Department of Justice prepares legislation for non- Aboriginal people. In any legislation, that is what we have to do.
I mentioned in relation to Bill C-6 in 2003 that there are always two aspects to the statutory initiatives that we must reconcile. We must reconcile our duty to ensure that we act as fiduciaries of the Aboriginal people and that we are not putting ourselves in a conflict of interest position that is adjudicating more for non-Aboriginal people than for Aboriginal people. We are put in that untenable position. That is essentially what was underlying sections 25 and 35. Today, when the non-derogation clause is at stake, it is essentially more on the side of the honour of the Crown, but at the same time, the majority in this country are non-Aboriginal people.
The statutory activities of Parliament until 1982, 120 years, had been essentially to legislate under 91.24 of the Constitution, with the Indians being the preserve of the federal government. As you mentioned, you were under the dictate of the Department of Indian Affairs, without political, legislative or social maturity.
It seems to me that if we are to resolve this issue, we will have to find a way to distinguish the role of the Department of Justice or be very sure that there is a mechanism or a body in place to reconcile that.
Mr. Jones: One of the things that First Nations have advocated in the past, and I think to a certain degree it is reflected in the announcement as recently as last week, is that quite often the federal Crown does find itself in a conflict of interest when dealing with First Nations rights because of its fiduciary relationship with First Nations people, and of course the Justice Department, being the solicitor for the Crown, is in the same position.
Last week's announcement was about addressing the conflict of interest situation, where they will find it necessary in legislation to be developed, to create an independent body that will have a role in dealing with these interests of First Nations and the Crown. It is not only about First Nations interests that are at stake but also federal Crown interests and public and private interests, because the lands belong to private people in some instances where these claims are in existence. There might be something instructive there in terms of having to create some specific body which has a role that does not place itself in a conflict of interest.
One such idea that has been put is of having something called a section 35 attorney general whose specific role would be to act as an independent institution and whose purpose would be to ensure the Aboriginal interest is properly regarded and considered. There are some examples in the United States, because there is a similar trust relationship between the tribes and the federal government. They have actually created a separate office as a trustee whose purpose it is to safeguard tribal interests, knowing that the federal government would be in a conflict if it tried to do the same thing. There might be some precedents as a result of last week's announcement and previous discussions about separating out another body to look after these issues.
Senator Joyal: You have suggested the section 35 test to legislation. You apply the test and ask if the legislation is an infringement on the equality clause, benefit of the law and benefit under the law? That must be done by someone who will have a distinctive role to play and who can then to go to court and defend the decision they took. That is where they are in a conflict. They have the responsibility to implement the rights and also to defend their decision once they have taken it. They are caught in a difficult position.
Consider the territory we have to walk through to return the Aboriginal people to their status in 1763. The Royal Proclamation recognized and the Supreme Court confirmed in the Haida case that the Aboriginal peoples in Canada were not conquered and that their occupation of the land predated the European occupation. That is what the Supreme Court said recently. That means that someone has the responsibility of ensuring that they are reinstated. However, we are caught in a situation whereby the judge is the judge and the party at the same time.
If we are to apply section 35 test to any statutory initiative that any federal parliament will have to take a decision on, we need a more objective judgment and a more convincing report that all the initiatives for consulting the Aboriginal people and resolving conflicting views have been done before the tabling of the statute. We lived through that with the animal cruelty bill. My colleagues around this table were part of that process for three or four years. I would not say we fought with the Department of Justice, but we asked officials there, "What did you do with the Aboriginal people? Did you consult them? Did you try to reconcile their views?'' We did not get the guidelines from the department. The process is defective.
It seems to me if we are to solve this issue, we have to answer the question should we put section 25 as is in any bill, but we have to establish at the same time a mechanism to reconcile those two conflicting views.
Senator Nolin: Not only a "may'' but a "shall;'' it is a process that is a must.
Senator Joyal: There is something defective in the system. Senator Watt and Mr. Aldridge were there when we added sections 25 and 35.
Mr. Aldridge: On the subject of non-derogation and specifically tying it to Senator Joyal's remarks, we would say that the starting point for reconciliation is clarity. For example, in the process Senator Joyal just described, a piece of legislation, cruelty to animals for instance, is proposed, a consultation takes place, an Aboriginal group then presents itself to the minister and says that they are conceptually opposed to this bill because it infringes on their rights. The minister has three possible responses. The minister might say, yes, it does, but I think it is justified because of certain other overwhelming needs. There can be a debate about it. The minister might say, as justice officials described to you, we do not know if it infringes your rights; it might, and if it does, we want to be able to try to justify it later. That would be eliminated if we had someone examining each bill as they do with the Charter, but that is essentially, what the Department of Justice can say; it might infringe your rights. My friend calls that the drive-by infringement. If it does, we want to be able to justify that. The third choice is the minister could say no, it is not our intention to infringe your rights. In that case, put it into an effective non-derogation clause. That is the drafting technique to achieve that.
In one and two, yes, we intend to infringe but it is justified. We do not know if we are infringing but if we are it could be justified, then you do not put in a non-derogation clause. However, you have an open, frank and honest debate about the desirability of that infringement and then Parliament can decide. In number three, you use a non-derogation clause. What you do not do, I say with respect, is do a make-believe non-derogation clause that has no effect whatsoever and put that into the number one or the number two situation to give political comfort at the front end when there will be the inevitable conflict when it gets down the road to the actual on-the-ground implementation. The debate moves from Parliament into the courts, which as Mr. Jones said ends up costing Aboriginal groups a great deal of money and leads to acrimony and division instead of the reconciliation that we all should be striving for, and of which Senator Joyal spoke so eloquently.
Senator Joyal: To help reach a useful conclusion and recommendation, could you look into how that could be defined? How would you define it based on our considerations? How would you define it based on what we want to achieve in the Constitution, so that we have a reasonable, responsible mechanism? How would you define it so that we would not have to rely of Parliament being vigilant enough?
I know Parliament. I have been in it now for 20 years and it is sufficient to say that if a senator or an M.P., who happens to be more sensitive to those issues, is not there for X, Y, Z reasons, the bill passes without questions. The system cannot work that way. The system has to have a system. It is up to us to manage it and to exercise the oversight, but to exercise the oversight there has to be a mechanism in the system; otherwise, we are just spinning on a bill. There are so many circumstances that can influence the result that I am not satisfied that Parliament is doing its job. Parliament has an oversight role, but there has to be enough in the structure to give us the capacity to monitor the results.
Would you think along those lines and see how you can help us? Would you return to the committee and give us your findings? It would be helpful for all the members of the committee. We want to conclude this issue; it is time for us to move forward.
Mr. Jones: This is a start. I am not proposing to be definitive in terms of responding to your question. What is at issue here is the fact that after 1982 nothing really changed in terms of government structure, institutions and organizations. Life carried on as if nothing happened on April 17, 1982. The Department of Indian Affairs continued to exist and continues to exist to this day for the purposes of administering the Indian Act rather than dealing with section 35 rights. The Department of Justice continues to serve the interests of the Crown primarily, which is its job, which is fine, and no one disagrees with that.
What First Nations have done is reflected in an accord that was signed in May 2005. This accord establishes that something significant happened in 1982 and something that the government has failed to come to terms with in terms of its operations, organization and structure.
Case law is developing and there is an emphasis around reconciliation and an emphasis on maintaining the honour of the Crown. The parties negotiated an accord that talks about achieving reconciliation, which is desirable, and such reconciliation can be achieved through parties observing fundamental and important principles, and there are 11 of them. They include upholding the honour of the Crown; constitutionalism and the rule of law being very important; human rights and the observance of human rights; Canadian federalism; pluralism and First Nations diversity; mutuality and so on.
All of these principles were intended to serve the purpose of aiding the parties, the federal Crown and First Nations, to undertake policy renewal, because the policies really have not served the purposes that they were intended to. Policies around the inherent rights, around comprehensive claims, around specific claims, around First Nation governance would need to be revisited and reoriented to be in accordance with section 35. Beyond that there needed to be structural and institutional changes, which would tend to be able to address or at least want to address these conflict-of-interest situations, and would also be intended to be more forward looking in terms of the relationship between First Nations peoples and the Crown. Instead of trying to live in this section 91.24 world, where the government wants to operate on the premise that section 91.24 gives them the legislative power to make laws for Indians, and to do so without involving First Nations people in the development of that law, the parties were to work together to do the policy renewal and the institutional and structural changes. This has been examined many times going back to the early 1980s, through the Penner committee, which was a joint committee. Then, of course, there was the Royal Commission on Aboriginal Peoples, which did an extensive amount of work. I remember the Senate, under the chairmanship of Senator Watt, did some work on examining structural and institutional change. A body of work exists informs on what needs to be done. The parties just need to get on with actually doing it, rather than trying to maintain the status quo, which is, unfortunately, the current reality.
The Chairman: In terms of language for a non-derogation, which is referred to in Option 6, are you, Mr. Merritt and Mr. Jones, in favour of the language? It is as follows:
For greater certainty, nothing in this act should be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.
Do you think that is the best language of all other attempts and options?
Mr. Merritt: That is a very good formulation and is the standard from 1982-96. Senator Sibbeston made a suggestion to incorporate that into the Interpretation Act.
The Chairman: Do you think that one of the recommendations this committee might look at is making an amendment to the Interpretation Act, as they have done in Manitoba and Saskatchewan. First, what about this language?
Mr. Merritt: It is good language, for a particular statute. Senator Sibbeston's proposal offers a long-term solution everywhere. From our point of view, it is preferable. The option that you read is better than the variations that have cropped up since 1996.
Mr. Jones: I agree with the wording in Option 6 in relation to specific legislation but the preference would be to do something in the federal Interpretation Act to be comprehensive.
The Chairman: Mr. Aldridge, of course, that is your view as well.
Mr. Aldridge: We are unanimous.
The Chairman: Are there other senators who would like to pose questions to the witnesses?
Senator Watt: I am not entirely sure but I can understand a matter based on a friendship agreement or a treaty that is supposed to be honoured between the First Nations and the Crown. This is where, I believe, Mr. Jones is coming from. There is a provision in the Constitution recognizing that in sections 25 and 35.
On the other side of the issue and totally unrelated to that particular issue, the Inuit have a problem with a government policy of non-assertion of a right. This is a different kettle of fish that we need to address. In the body of the agreement, the new rights are contemplated the surrendered rights are not considered. This is a problem with the new agreement that I spoke to in the Senate today. It applies to Newfoundland and Labrador and to Nunavut. That is another angle that we will have to look at in this non-derogation clause and whether these suggested options could apply here. I am not entirely sure whether that concept could apply automatically.
I was talking to my good friend, David General, over the weekend when we were wrestling with this after one of the meetings we had with Quebec City and Montreal. It began to bother me when I talked to him and he said that for this reason, they are afraid to enter into comprehensive land claims concepts. He is trying to find a way to enter and take care of the unfinished business through specific land claims. At the same time, he is very worried about whether that will accommodate his needs. He is looking for a way to implement the treaty that he thought the Six Nations had with Britain. Again, I go back to this non-derogation clause and I am not sure whether the same principle and formula could easily take care of it. I would like the opinions of the witnesses on that subject.
Mr. Jones: Thank you, Senator Watt. We make reference to that at page 9 of our submission because it goes to the issue of non-recognition. The United Nations Committee on the Elimination of Racial Discrimination, March 2007, in its Concluding Observations, stated:
22. While acknowledging that the "cede, release and surrender'' approach to Aboriginal land titles has been abandoned by the State party . . .
— in this case, Canada
. . . in favour of "modification'' and "non-assertion'' approaches, the Committee remains concerned about the lack of perceptible difference in results of these new approaches in comparison to the previous approach.
The UN committee did not see where the non-assertion approach advanced the rights and interests of Aboriginal people. It does not because, as our submission states, it is all about avoidance. Rather than accommodating and facilitating the enjoyment of human rights to which everyone else is entitled, Aboriginal peoples in Canada are dealt with in such a way as to avoid dealing with those rights. Again, it goes to the issue of dealing with it upstream, I believe, or downstream — one or the other.
It needs to be dealt with head-on rather than avoiding it. Rather than non-derogation, let us just deal with it.
Senator Nolin: It could be dealt with before the courts.
The Chairman: That is expensive.
Mr. Merritt: The honour of the Crown, to which Senator Joyal referred earlier, is relevant to both parts of your comment, Senator Watt. First, Inuit organizations take the view that the honour of Crown is a concept relevant to Parliament as well as to the executive branch. Certainly, the Crown is part of Parliament so there is nothing unusual about that point. If Parliament is adopting laws without informing and satisfying itself that there are no unintended infringements of Aboriginal rights, then ask yourself whether it is a motive consistent with the honour of the Crown. To unintentionally or casually infringe upon someone's rights is not honourable behaviour, in my view. That is true of individuals as well as the state in conducting itself vis-à-vis Aboriginal peoples.
Second, I agree with the implication, Senator Watt, that to overshoot the kind of qualification of rights necessary to introduce greater certainty or to allow economic development to proceed in areas traditionally used and occupied by Aboriginal peoples is not entirely consistent with the notion of honourable behaviour either. To extract more from people than is reasonably expected in order to allow both parties to proceed with greater confidence in the future is not honourable behaviour. That is particularly so when the courts have remind us that this concept flows from the basis of an imbalance of power. Honourable behaviour has to be assessed accordingly.
The Chairman: Honourable senators, if there are no further questions to come forward now, this meeting will be adjourned until tomorrow when we will continue our study of the non-derogation rights of the Aboriginal peoples.
The committee adjourned.