Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 32 - Evidence - June 21, 2007
OTTAWA, Thursday, June 21, 2007
[English]
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:51 a.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, we are here today to continue our study of the implications of including, in federal legislation, non-derogation clauses relating to Aboriginal and treaty rights of the Aboriginal peoples of Canada. This is the third order of reference from the Senate on this matter but each time the press of other business has meant little progress has been made. We feel it will be different this time.
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 been predominated. There have been some questions before the committee that we have looked at in the last two days of hearings. What are the purpose and effect of such clauses? Are they necessary in view of the constitutional protections that are built in? Might the Interpretation Act be used instead?
Yesterday, the witnesses who appeared before us recommended that we look at the language in the Interpretation Act in the provinces of Manitoba and Saskatchewan. 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?
In order to assist us in our further deliberations of these issues, honourable senators, we have before us Mr. Gordon Polson, Legal Research Officer for the Congress of Aboriginal Peoples. Mr. Polson would like to give us an overview and then we will open the floor for questions.
Mr. Polson, welcome to the committee. We look forward to hearing your views.
Gordon Polson, Legal Research Officer, Congress of Aboriginal Peoples: On behalf of the Congress of Aboriginal Peoples, CAP, I am pleased to appear before the Standing Senate Committee on Legal and Constitutional Affairs today to offer some perspectives from the Congress of Aboriginal Peoples on the implications of including in legislation the non-derogation clauses relating to section 35 of the Constitution Act, 1982.
Before I get into any detailed discussions on this issue, there are a few items I would like to mention in terms of the Congress of Aboriginal Peoples. The organization as such has been in existence since 1971 and the National Chief of the Congress of Aboriginal Peoples is Patrick Brazeau, who is Anishinabe from Kitigan Zibi. Unfortunately, he could not be here today as he had other commitments. He is out of the city for the next few days, but he sends his regards to the committee members.
Along the same lines, CAP is a national organization. It is an umbrella organization that represents both the collective interests of the provincial and territorial affiliate organizations, as well as the individual interests of off- reserve Aboriginals living in urban, rural and remote areas throughout Canada.
As a precursor to the presentation, in terms of expenditures from the government, for every $8 that the government funds for Aboriginals living on-reserve, only $1 is spent on Aboriginals living off-reserve; yet over 50 per cent of Aboriginal people are living off-reserve. As you can imagine, this inadequate ratio of funding has placed the constituents of CAP in a significant disadvantaged position. I am here today to address that issue and to help ensure that our constituents are not placed at a further disadvantage with respect to the future implementation of federal legislation that may have impact on their personal, Aboriginal and treaty rights. That is why CAP accepted the invitation to speak here today.
Relative to the issue under study by the members of this esteemed committee, I believe that there are three considerations that the Congress of Aboriginal Peoples wishes to address. I will list them at this point, but I will get into some further discussions as we go along.
First, there is the possibility that there is no need to include a non-derogation clause in federal legislation because section 35 of the Constitution offers enough protection as it stands. Second, there is the potential for incorporating a provision in the Interpretation Act that speaks to non-derogation clauses relating to the Aboriginal and treaty rights of Aboriginal peoples. Third, there is the inclusion of a non-derogation clause into each piece of federal legislation that will affect Aboriginal peoples.
CAP's position with respect to including non-derogation clauses in federal legislation is that it appears it is more of a policy issue than a legal one. Policy is what informs all drafting and implementation of legislation and the actual interpretation of legislation thereafter. The issue at hand is whether there is a need to include a non-derogation clause in federal legislation.
Before I speak to the various options, I wish to point out why this issue stands before us. I will look at the issue of Aboriginal law in comparison to constitutional law, and other forms of Euro-Canadian law, if you want to frame it that way.
From our perspective, it is important to understand the term "Aboriginal law'' as it stands now and how we look at it. As it stands now, Aboriginal law generally refers to the evolving body of law that Euro-Canadian society uses to legally address issues surrounding the rights of Aboriginal and non-Aboriginal peoples. It is not actually the law of Aboriginal peoples, because Aboriginal peoples have their own legal practices and justice systems. They have been in use since time in memorial. To a great extent, that is where much of the debate surrounds this particular issue, because we have different perspectives and ways of looking at matters.
The whole idea of legal relations between Aboriginal and non-Aboriginal peoples began at the point of contact and, over time, they have evolved. We must look at these legal relations that are informed by a rich socio-cultural and economic history, which is a very integral part of Aboriginal law today.
Unfortunately, this socio-cultural and economic history has not always been treated with the respect it deserves from the Government of Canada. The government's treatment of Aboriginal peoples over the last five centuries has been dismal. Aboriginal peoples have had to fight long and hard to have their legal rights recognized in colonial, Euro- Canadian law.
Despite this difficulty, on a positive note, our struggle came to a climax in 1982, and it resulted in the protection of our Aboriginal treaty rights in the form of section 35 of the Constitution Act, 1982. Looking at this particular section, and to detail it and extrapolate further what section 35 really means, we have to go back to the Supreme Court of Canada, SCC, Sparrow case. When they looked at the underlying purpose of section 35, it is a form of balancing rights and reconciliation between Aboriginal and non-Aboriginal peoples.
Despite this reconciliation, once again, the interpretation by the Canadian government and Canadian courts of section 35 remains a contentious issue. Because of such interpretations, the true perspectives and epistemologies of many Aboriginal people have not been reflected in the purpose of section 35 of the Constitution. There appears to be a gap between the theory and practice: reconciliation and what the decision from the Sparrow case really entails.
There are other cases such as Haida case as well. As I mentioned, the persistence of Aboriginal people has resulted in the federal government beginning to address the gap that I am describing — that there are two different perspectives. An example of that is section 718.2(e) of the Criminal Code. The Gladue case is an example of how the legal system has rejected a form of hegemonic justice while acknowledging the fact that there is equity and equality and a need for a restorative justice system. Even though the Supreme Court of Canada has stated that the rights are not absolute in the Sparrow case, they went further and said that they were comparable to some of the other Charter rights. Any government infringement of those particular rights is subject to a strict minimal impairment test — which was part of the Sparrow decision.
The whole idea coming out of the Sparrow case was that the infringement had to be both minimal and justifiable. This is problematic because the Canadian Charter of Rights and Freedoms is meant to address the needs of individuals, whereas section 35 of the Canadian Constitution looks at the collective rights of Aboriginal peoples. If we look at it in that context, we go back to the issue of socio-cultural differences and world views that cause a clash between Aboriginal and non-Aboriginal peoples.
Just to continue in terms of infringement, if that infringement is found to be minimal and justifiable, such as for reasons of conservation, the government is under a duty to compensate the Aboriginal peoples for the loss of the ability to exercise their rights under the section 35 of the Constitution. Again, this is coming from the Sparrow case.
I am listing a few of the differences here between Charter rights and an Aboriginal and treaty right. In the Charter, for example, they are all enumerated rights, whereas section 35 of the Canadian Constitution does not protect specific rights or treaty rights, because they are not defined or enumerated in the way that they are in the Charter.
The Aboriginal treaty rights are not enumerated. This has led to much ambiguity in relation to the interpretation of section 35 of the Canadian Constitution. Again, the interpretation is not reflective of the world view of Aboriginal peoples. This, in itself, has given rise to the whole notion of whether or not we include the issue of non-derogation clauses in federal legislation.
The fact is, if there was absolute protection then there would be less ambiguity. If Aboriginal peoples were on the same wavelength and had the same world view, then there would not be any need for any non-derogation clauses.
That is not the case. However, at this point I will leave that and just go into the idea of the three options or considerations that I mentioned I would be getting into.
As I mentioned, there are three options. First, the idea is not to include a non-derogation clause in federal legislation since Aboriginal rights are legally protected by section 35 of the Constitution. Second, would be to incorporate a provision in the Interpretation Act that speaks to non-derogation clauses relating to Aboriginal peoples. This could happen by inserting a standard, blanket non-derogation clause in the Interpretation Act, or we could insert a provision in the Interpretation Act that all non-derogation clauses in federal legislation are declaratory in nature. The third item is that the non-derogation clause could be incorporated into federal legislation as a blanket non-derogation clause or non-derogation clauses that are specific to each piece of federal legislation that would be brought forward.
CAP's position is that a blanket non-derogation clause should be included in each piece of federal legislation, which duplicates section 25 of the Canadian Charter of Rights and Freedoms, because relying on the Constitution of Canada, as I mentioned, is a whole process of litigation. The latter presents an issue in terms of access to justice for Aboriginal peoples. We all know of the extraordinary costs of legal fees in addition to the hardships experienced for litigants in terms of the mental, emotional and spiritual experiences they go through in falling within the legal system.
There is a fear too that non-derogation clauses in federal legislation may be interpreted as providing additional protection in terms of the constitutional rights of Aboriginal peoples. The idea here is it will impact negatively on the Canadian government's legal right to justify the limit on Aboriginal or treaty rights. For example, I mentioned earlier, the notion of conservation. There is really no substance to this point because the Constitution is the supreme law of Canada and, as I understand it, it overrides all other pieces of legislation.
The idea is like that in a lower court case in Ontario where they looked at section 25 of the Charter. It says that it confers no new rights but rather shields the treaty on other rights of Aboriginal peoples from interference of other Charter provisions. So in the case of incorporating non-derogation clauses in federal legislation, the intent would be the same, that no additional rights would be conferred by such non-derogation clauses.
Unlike Charter rights, sections 35 of the Constitution does not protect specific Aboriginal or treaty rights. It is very ambiguous in terms of the nature of section 35 and leads to additional uncertainty in the drafting of federal legislation and interpretation thereafter, in addition to, as I mentioned, the socio-cultural differences between Aboriginal and non-Aboriginal people's perspectives on the issue.
A recent public opinion survey conducted by Indian and Northern Affairs Canada reports that one per cent of Canadians view Aboriginal issues as a top priority. One of the reasons we wanted to include the non-derogation clause in the federal legislation is to remind Canadians of the importance of Aboriginal and treaty rights in Canada and the need to comply with the Constitution Act, 1982. Not only does the general public have a lack of awareness, but also this can extend to the judiciary with regard to judicial notice. The judiciary does not take into account the Aboriginal perspective.
In terms of section 2 of the Interpretation Act, a standard, blanket non-derogation clause could be inserted in the Interpretation Act, which would eliminate the need to include a non-derogation clause in each piece of federal legislation. Again, this may not be enough. We need continual reiteration in order to make Aboriginal issues a priority in the minds of Canadians and the judiciary.
The Chairman: You went a little too quickly and I did not get that. Could you repeat what you said about the Interpretation Act? What is your point of view?
Mr. Polson: In relation to the treaty and Aboriginal rights of Aboriginal people, the insertion of the provision in the Interpretation Act could be accomplished by inserting a blanket or standard non-derogation clause in the Interpretation Act, which would eliminate the need to include a non-derogation clause in each piece of federal legislation.
The Chairman: That is your position?
Mr. Polson: No. That is just the second position of three considerations that I have. The third position I will get to.
I will now address the position that CAP is supportive of, and that is incorporating a non-derogation clause into each piece of federal legislation. There is an argument for a need for a standard non-derogation clause, because such clauses tend to cause uncertainty as to their purpose and effect. As I had mentioned earlier, this could be accomplished by inserting non-derogation clauses specific to each piece of federal legislation. As we all know, the ad hoc approach is simply not sustainable.
A blanket statement or a standard non-derogation clause still might not be sufficient to protect the rights of Aboriginal peoples since it does not speak to a specific piece of legislation. I believe that special consideration is essential. That is basically where CAP stands on the issue. They want to incorporate non-derogation clauses into each piece of federal legislation.
Non-derogation clauses in federal legislation help to prevent Aboriginal peoples from being adversely affected by federal law. The non-derogation clause as proposed by the Congress of Aboriginal Peoples will offer protection in the way of additional consultation and accommodation for the rights of Aboriginal people. The Government of Canada has a fiduciary duty toward Aboriginal peoples, which includes a duty to consult and to accommodate, regardless of an Aboriginal or treaty right having been established or not. The negotiation must be done in good faith and in line with the honour of the Crown. The courts are not the means to effectively achieve those goals.
I want to emphasize that it is not sufficient to rely on the Constitution Act as it stands. In my mind, these protections are not reflective of the protection that is needed in terms of Aboriginal and treaty rights. It is not proactive enough. Aboriginal people have not been involved in the process. This process would reconcile the socio-cultural differences in terms of respecting the rights of Aboriginal peoples.
The blanket, standard non-derogation clause being included in the piece of legislation is the position that CAP is presenting, and that it should be read as section 25 of the Canadian Charter of Rights and Freedoms. I hope this will assist the committee in drafting the report and that a meaningful and substantive consultation and accommodation protocol is developed to ensure that the impact of federal legislation on Aboriginal people is minimal.
In conclusion, 25 years after the repatriation of the Canadian Constitution, the gap still exists between theoretical equality and government practice with respect to the recognition and protection of Aboriginal rights. This is an issue we have to deal with on a daily basis. These concerns and aspirations are being dismissed on a daily basis, and we must continue to contend with exclusion and ignorance.
I appreciate the opportunity to make my presentation. I hope it will ease negotiations for dual terms of coexistence with mainstream Canadians. I am available for any questions. The documentation will be circulated to the members.
The Chairman: Some of the witnesses, who have appeared before this committee on this subject matter, have come from the Department of Justice. Have you had an opportunity to review any of the testimony or evidence that Department of Justice officials have given this committee with regard to the issue of non-derogation?
Mr. Polson: As a researcher, I did some review, but I did not do a complete, thorough analysis of every item.
The Chairman: Is there anything that jumps out at you in their testimony on which you want to comment?
Mr. Polson: From what I read, I believe their position is that there should not be any non-derogation clause whatsoever. I want to try to quell the fear; there are no additional rights added by the fact that non-derogation clauses are included, as per CAP's position.
The Chairman: Of the three points that you raised today, first, is there a need to have anything else done since we have section 35 of the Constitution? Your answer is, yes, that we should have something in the Interpretation Act and we should also have specific clauses in every piece of government legislation that deals with the Aboriginal treaty rights. Is that your position?
Mr. Polson: I wanted to give an overview of what I thought was out there and bring our concern forward as well. The first two items were strictly for information purposes and are not the position that CAP takes. CAP's position is to have a non-derogation clause in each piece of legislation that is similar, word for word, to section 25 of the Charter.
Senator Milne: Mr. Polson, thank you for putting this point of view to us today. It is very useful.
The idea of having a standard clause in each piece of federal legislation has not been presented to us before. The problem then is which standard clause to use. There are at least four clauses presently in legislation. Groups that have appeared before us previously seem to have agreed that the best wording is, "For greater certainty, nothing in this Act shall 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.'' They say that is the simplest and clearest wording.
Could Mr. Polson be given a copy of this paper?
I read the second option on the paper.
Mr. Polson: Regardless of the wording, my recommendation is that the clause to be included should reflect section 25 of the Charter. That clause was used until the Sparrow decision.
Senator Milne: This is another option entirely. Section 25 reads:
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
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
Mr. Polson: That is precisely it.
Senator Milne: That is the precise wording that you would prefer. This is a further option to the ones that we have been looking at and that have been included so far in federal legislation.
Mr. Polson: I am not aware of the other clauses to which you are referring. During my review and research, I came across some of them, but I did not know which were on the table here.
Senator Milne: Actually, none of them are on the table. We are open to all suggestions and are glad to hear them.
Mr. Polson: This is the wording that was initially used in non-derogation clauses, and the recommendation of CAP is to go back to using that.
Senator Joyal: Welcome, Mr. Polson. I am happy to see that you are still involved in discussions pertaining to Aboriginal rights.
In your opening remarks, you raised a very important aspect of the question we are considering in this committee, that is, the status of Aboriginal law.
The question of Aboriginal law is a new concept in relation to the definition of the substance of that law. This issue cannot be defined once and for all. Its importance is illustrated as long as cases or problems are being raised. The answer to those problems must take into account the substance or definition of Aboriginal law and how much that Aboriginal law is still binding and of effect, not mainly on Aboriginal people, but on the law of European Canadians, which is mainly the French and the British laws.
It seems to me that the courts are more and more conscious of that. In the last few days, I read the decision of the Supreme Court of British Columbia in the case of McIvor v. The Registrar, Indian and Northern Affairs Canada. You may have heard about that decision. It pertains to the definition of "Indians'' and the status of "Indian'' in relation to the Indian Act.
In its opening remarks, the court addressed the concept of "Indian''; in other words, who should be considered an Indian.
The court stated the following:
The concept "Indian'' is a creation of statute. Prior to the arrival of Europeans, the Aboriginal peoples who inhabited the region that would become Canada had their own forms of social organization with their own names by which to identify their social groups. Fundamental aspects of these forms of social organization included rules for the identification of members of the group, the transmission of membership status in the event of marriage and the transmission of membership status to descendants. These rules were diverse and often quite different from the forms of social organization of the colonists.
That is paragraph 8 of 351 paragraphs. It is a very long decision, and it is the most recent one. It was released on June 8.
It seems to me that there is now a greater awareness by the Canadian court of the importance of Aboriginal law. When this committee dealt with the harmonization of the French civil law with the British common law as it stands now in its development in Canada, it mentioned the importance of the Aboriginal law tradition. That was mentioned by the members of the committee, and we appended observations to our report on that bill. There is a much greater awareness now of the importance of Aboriginal law. In Canada, there are three different legal systems.
How can we take that into account when we are asked to include an across-the-board non-derogation clause for each and every statute that might affect the rights of Aboriginal people?
Mr. Polson: You said that there is a greater awareness of Aboriginal law as defined, and you are right. I adhered to that particular point when I mentioned that 718.2(e) has been an example of that situation. However, that was from 1999. You are talking about a more recent decision — as of last week — whereby this whole concept of definition of "Indian,'' for example, is a fabrication of legislation.
Regardless of what advances have been made, I still feel there is still a long way to go. That is why I said that we must make that awareness and go further, because, in reality and in all honesty, we are dealing with three levels of the justice system here. We are talking about civil, common and Aboriginal law. I believe there might have been an opportunity that went out the window in Charlottetown. I do not want to talk about water that is under the bridge and long gone. Although the water might have been contaminated and the smell still exists; nonetheless, I believe that there was an effort made. If we missed the boat, then we still have to get up, brush the dust off our clothing and move on and see where we can go with this.
Including a blanket clause in each piece of legislation is the reality. Section 35 of the Constitution is a special deal for Aboriginal peoples. We must take the consequences of those special deals for Aboriginal peoples. In the Powley case, for example, people did not know what would happen at that the time. One has to take the blows that come with it. That is the fact of section 35 that I am talking about. One has to take the consequences of the action that was done in the past. It is important to include in each piece of legislation a responsibility or duty not only to consult and accommodate Aboriginal peoples in that context but also, in a broader perspective, to ensure that there is some cohesiveness and understanding between Aboriginal and non-Aboriginal perspectives, word views.
By making this effort and including each piece of legislation, we are taking a step forward in that direction.
Senator Joyal: The problem we have in one way is that when the Department of Justice prepares or drafts a statute, they have the responsibility to decide if the draft statute might affect the Aboriginal peoples' right — and I would add also, a "law.''
If they do that by themselves while the Aboriginal law is still in a state of restatement or rebirth — because for all those years it was set aside — how will the Aboriginal peoples be involved in the process of that analysis? As you say, they will interpret Aboriginal rights in the context of the Aboriginal rights meaning under section 91.24. Those are the statutes that were adopted about 150 years ago. Here, the court referred to the act of 1850, the first act adopted by the province of united Canada legislature in defining the status of "Indian.''
In the system, how will we ensure that the point of view of the Aboriginal people, as much as they are in a position to express their law, will be part of the evaluation done by the Department of Justice so that it will not be left to the Department of Justice alone? Then you will have to fight and say, "You did legislation late, but what you did not understand when drafting that legislation is that you affected our rights.'' What are your views on that?
Mr. Polson: I believe the point you made about the Department of Justice review as a piece of legislation in terms of how it will affect the Aboriginal and treaty rights of Aboriginal peoples is discretionary. It is not like a Charter right, where it is mandatory or understandable. Legally, a review must be done.
In my understanding, the practice is that one goes through drafting legislation and at the end of the whole process and exercise, a non-derogation clause is put in there. However, a Charter right — and that is what I was trying to state in my presentation — is different. We are dealing with two different concepts here; we are dealing with individual rights and collective rights. That is creating much ambiguity and misunderstanding because we are not on the same wavelength.
If you want to make it discretionary that the Department of Justice reviews the effect of any piece of legislation on the rights of Aboriginal peoples and the treaty and Aboriginal peoples' rights, then I agree totally with that. It then goes to the whole notion of equality. The same practice is being done for Charter rights and collective rights.
As section 35 of the Constitution stands right now, it is pretty ambiguous. That is why there is difficulty. We have to start somewhere. If you include it there, then I believe we have a long way to go. We must embark on some process to ensure that we achieve that vision. I would be amiss if I had said that 25 or 40 years ago we would look at having a section 35. I recall when Aboriginal rights were not even recognized.
Over the course of the last few years, there have been some advancements made, but we are only partially there. By making these incremental steps that I am talking about, I believe we will slowly achieve what we hope will be fair treatment for the rights of Aboriginal peoples in terms of Aboriginal rights and treaty rights.
The Chairman: Professor Bradford Morse is a professor of the common law section at the University of Ottawa and co-director of graduate studies. Professor Morse has vast experience in Aboriginal affairs and approving relations between Aboriginal peoples and other Canadians. He has been involved with Aboriginal government matters such as land claims, environmental disputes and constitutional and treaty negotiations, among many other things. Honourable senators, he comes very well steeped in issues relating to non-derogation clauses.
Bradford Morse, Professor, Faculty of Law, University of Ottawa: It is a pleasure to see you, as well as your colleagues. It is an honour to be invited to appear before you today to deal with this particular special examination by the standing committee on a topic that is important but tends to fly under the radar screen of parliamentarians. It arises only from time to time, but I believe it is an excellent example of the opportunity that the Senate provides to examine issues that are crosscutting. The House tends to focus so much on the particular bill of the day that is before them rather than on issues of this nature, which really can arise in so many contexts.
Let me apologize for the absence of a written submission, but unfortunately I have been ill of late and have had other commitments. I was unable to get that in written form to submit to you.
Thank you as well, Mr. Chairman, for your particular introduction on my background. Aboriginal legal issues are a field in which I have been working now for about 33 years, in a wide variety of different contexts.
For the last 30 years or so, I have been a law professor at the University of Ottawa, but I have also advised many First Nations, Metis and other Aboriginal organizations, including the Native Council of Canada, the predecessor to the Congress of Aboriginal Peoples, which Mr. Polson so ably represents. It is a delight to see him here today.
I have also worked for Maori organizations in New Zealand and Aboriginal organizations in Australia. I have worked for a variety of different governments over the years, so I have had the benefit — or the disadvantage perhaps — of addressing many of these issues as an advocate on behalf of Aboriginal organizations, and as an advisor, from time to time, for governments, various royal commissions and other bodies.
I will come back to one of those because it is relevant to today's topic. That was my involvement as a research director for the Aboriginal justice inquiry in Manitoba from 1987 to 1990. One of its recommendations is germane for this discussion.
Let me hasten to add that I am not formally trained as a legislative drafter, although I understand there are particular concerns. I have taught many of them over the years, but I do not come as a professed expert on legislative drafting, but rather more on legislation process and the jurisprudence in the area.
It is important to note that the issue of the non-derogation clause in relation to the unique legal rights of First Nations, Metis and Inuit peoples in Canada did not arise with the Constitution Act, 1982. It did not arise even in the negotiations that took place over the several years prior to that. The earliest example I am aware of is in the context of the Northern Pipeline Act, which was passed in 1977. I see Senator Adams remembers this, and I am sure some other senators may, as well.
Ironically, as it turns out, it is included within that act as section 25 — not section 25 of the Charter, but there is perhaps a little irony in its connection.
Let me quote that for the benefit of the senators who may not have it in front of them. Section 25 has a heading entitled "Native Claims,'' with a marginal note saying "Native claims unaffected.'' Section 25 then goes on to state as follows:
Notwithstanding this Act, any native claim, right, title or interest that the native people of Canada may have had prior to April 13, 1978 in and to the land on which the pipeline will be situated continues to exist until a settlement in respect of any such claim, right, title or interest is effected.
This is prior to the patriation discussions and to the Constitution Act, 1982, so this does not all begin in 1982. It speaks to the particular concerns in that context of the First Nations, Metis and Inuit peoples of the Mackenzie Valley in terms of the potential former Mackenzie Valley pipeline, which is now back with us some 30 years later.
They were expressing a particular concern, as they had before the inquiry chaired by the then Mr. Justice Thomas Berger, that the development of the pipeline might affect their rights — and clearly might affect the rights they wished to pursue through agreements with the Government of Canada. They were looking for a new relationship with Canada and they did not wish to have that disrupted or effectively undermined by legislation that was not, on its face, directly intended to achieve that.
There is concern about it. That concern obviously — and more generally in the context of the constitutional discussion that occurred on patriation — was very much present in submissions made particularly to a joint committee in which Senator Joyal, in a former life, was actively involved. This question was a serious concern from all of the national and regional First Nations, Inuit and Metis organizations appearing.
The government, then led by Prime Minister Trudeau, did hear this to some degree, and did come forth initially with a clause to include in the Charter, which was then section 24 and has now become section 25 with the proclamation of the Charter, to try to address the particular concern that Mr. Polson had mentioned — the tendency of the Charter to particularly emphasize individual rights and the particular concerns of indigenous peoples on this land of their collective rights. Their concern was that those collective rights might be infringed upon or diminished in some way by other substantive provisions of the Charter. The government did come forth with that response.
Initially, that was the only response. It was a protective one, intended as a shield, as a non-derogation clause but without the substantive provision, which was really to address the concerns moving forward, to recognize Aboriginal and treaty rights. That ultimately came in, disappeared, came back, was slightly amended and is now the section 35 of the Constitution that was passed in 1982.
Both sections 25 and 35 were subsequently amended through agreement of the first ministers conference in 1983, and with the proclamation of those amendments in 1984.
Much of the attention has naturally tended to focus on clarifying section 35 rights, as it is sometimes put, or confirming those rights with greater specificity to avoid conflict in the future, as the national Aboriginal organizations have submitted. While we have had first ministers conferences in the 1980s — Mr. Polson referred to the Charlottetown process in which the national organizations were all involved, as well as Meech Lake in the interregnum — we have not really been able to succeed in constitutional change in this regard. Therefore, Parliament continues, under its normal responsibility through both Houses, to enact legislation.
The question is when focussing on legislation — particularly legislation that is not directly addressing the concerns of First Nations, Inuit or Metis peoples, singly or collectively, could those laws be having a negative effect, even if that is an unintended or never-considered effect?
I have had a chance to hear, unfortunately, only part of Mr. Polson's presentation. John Merritt and Jim Aldridge appeared yesterday, and I had some advance idea of their presentations and some benefits in that regard.
In my research, I see at least 20 current, regular federal statutes, including the Northern Pipeline Act, that have some form of non-derogation clause specifically in reference to Aboriginal and treaty rights. That is obviously in addition to section 25 of the Charter itself.
The terms have varied slightly, but the purpose of Parliament, at least as I discern it, in advocating the inclusion of such clauses — and particularly by the Senate, in a number of contexts — has been this desire to ensure that the act as passed, when passed for an entirely different purpose, does not denigrate in any way from the Aboriginal and treaty rights that are recognized in the Constitution. That was true in the Northern Pipeline Act before the constitutional change in 1982, and it is still true now with those rights recognized in section 35 as part of the supreme law of the land.
That is really the driving objective of Parliament. Perhaps not from time to time of government or the Department of Justice in particular, but the purpose has been that the legislation not do something that parliamentarians had not intended it to do. If they had intended it to do so, they could have done so expressly; and then one would question whether or not that was constitutionally valid.
One of the by-products of this being done on 20 occasions is that we do have some different wording in different statutes. That always gives rise to lawyers asking questions. There is a Latin phrase, still very much part of the common law, which translates as the idea of if you express one thing, you are excluding something else. Well, if you express one thing in one act and a similar kind of thing, but differently, in another one, surely that must have some meaning. At least, it gives rise to the question of whether there was an intention to have a different meaning.
If parliamentarians were expressly on the record as saying that they considered the clause that they used in one act and have rejected it in favour of this other for clear reasons to give us a travaux préparatoire, then perhaps we might know the answer to that, but we generally do not. It raises the dilemma for lawyers and potentially for the courts to see if there is some legal significance from these variations.
That gives rise to two questions. One question is whether this different wording that varies from statute to statute is really meant by Parliament to have a different legal effect or different effect in the particular bill, or is it that the differences that in fact arise subsequently give rise to that different legal effect?
On the particular issue before this committee, we have virtually no judicial guidance whatsoever. It remains, therefore, as the kind of question that law professors love to give on examinations where there is no clear answer. Mr. Polson may want to respond to that about his experience at the University of Ottawa in that regard. It raises the potential for real challenge. It could arise in litigation in the future. While it may not have arisen to date, it can. It has clearly been an issue that the Department of Justice has raised from time to time in the past as causing it concern, and it desires to see more standard language throughout so at least this aspect does not arise.
There is also some concern about the way in which clauses are drafted. Is it the intent of Parliament to try to ensure that the act itself does not affect Aboriginal and treaty rights, for shorthand form, or is it the concern that the act would not be construed in the future as affecting those rights, even though the act may itself actually affect those rights?
There is a concern here about some of the assertions by the government or the Department of Justice from time to time that its preference for the non-construing language is really to ensure that in the future there is the possibility to raise the argument before the courts in accordance with the Supreme Court of Canada's guidance in the Sparrow case, that the act may violate those rights, and the question then is, can the violation be justified in accordance with the Sparrow test? That is as opposed to a non-derogation clause that says explicitly that this act does not affect those rights. It is not that how one might interpret it was not intended to, but it does not, that Parliament is speaking as clearly as it can in this regard.
I know time is of the essence. Let me try to leap to particular suggestions, one of which is in response to the comments and questions of Senator Joyal. One approach clearly is the approach that has been adopted first by the Province of Manitoba and then by the Province of Saskatchewan. I referenced my earlier involvement with the Aboriginal justice inquiry in Manitoba, as we like to believe that we influenced the legislative change in Manitoba. Both of these provinces have changed their general provincial Interpretation Act to try to give a clear message.
The Chairman: The witnesses yesterday told us they concurred on that.
Mr. Morse: Then you are aware of that, and I am sure also of your colleague Senator Sibbeston's recommendation in this regard in the past.
I would also support that. In particular, it helps avoid what can be a debate or question as to whether or not any particular bill might or might not affect the rights of First Nations, Inuit or Metis peoples. That clearly is something on which there can be some debate when the bill has an entirely different purpose in this regard.
The necessity to have that debate at present requires, therefore, members of Parliament and senators to be ever vigilant in asking that question as to whether or not any bill before them might do this. Of course, it is always possible that one might miss this question in relation to a particular bill; or, having raised the question, one might conclude that this bill clearly does not do it, then we subsequently discover, through judicial interpretation, that that view was incorrect, that the bill does do something that parliamentarians had not thought it would at the time.
Including it in the federal Interpretation Act as a blanket provision is a message to all courts and all lawyers, whether in government or outside, that all federal legislation should be interpreted with due respect to the importance of section 35 rights in the unique position of First Nations, Inuit and Metis peoples in Canada.
As an alternative — and this is something that Mr. Polson referred to toward the end of his comments — the Minister of Justice can be compelled under the Department of Justice Act, as he is at present in dealing with the Charter, that all bills to be introduced by the government must be considered prior to introduction for their compliance with the Charter. A similar provision can be included in the Department of Justice Act — and that could be as an alternative or in addition to the federal Interpretation Act — that compels the Minister of Justice to engage in a similar review on all bills, to ask the question whether or not this bill might intentionally or unwittingly impact upon those rights and, therefore, needs a non-derogation clause.
Whatever his conclusion would be, I would encourage that that provision of the Department of Justice Act compel the Minister of Justice to formally report to Parliament on his conclusions and the reasons therefore, so that that conclusion can be put in the public eye and all parliamentarians can be aware of that and question it as they feel is appropriate.
I am sorry to be so long-winded.
The Chairman: Your remarks are very much appreciated. There is much food for thought.
You mentioned the Northern Pipeline Act in 1977-78. As you know, there was an earlier act, the Indian Oil and Gas Act of 1974. In that act the language was:
Nothing in this Act shall be deemed to abrogate the rights of Indian people or preclude them from negotiating for oil and gas benefits in those areas in which land claims have not been settled.
You are also aware that there was a subsequent act, since repealed, called Bill C-48, the Canada Oil and Gas Act. The language in that is also, I would think, of interest to a law professor who is in these areas. It says in section 8:
Nothing in this act abrogates or derogates from any aboriginal title, right or claim that the aboriginal peoples of Canada may have had prior to the coming into force of this act.
There is a series of Canadian statutes that have been recognizing, even before 1982, that these are rights that must be acknowledged and preserved in Canadian statutes. We have quite a history of it even before repatriating the Constitution.
You talked about the fact that there is a formal process for the Minister of Justice for dealing with Charter issues, but no such formal process exists for section 35 rights. The Department of Justice provides a review process to assess whether proposed federal legislation is Charter-compliant, and we hear about it in this committee all the time. However, no such formal process exists for section 35 of the Constitution; but under section 35 rights are not specifically defined. While the courts have provided some direction and Mr. Polson gave some reference through the Sparrow case and so on of the types of direction that are given, much remains unknown about section 35. It seems to leave it wide open for the Department of Justice. How would you put some controls on those parameters since there is so much to be defined?
Mr. Morse: Thank you, Mr. Chairman, both for your amendments to my list and for your comments and question in that regard.
I will provide a couple of comments. One is that it would be a relatively rare legislative drafter working for the federal government who is not fully aware of the Charter. It is, however, a rare legislative drafter that is fully aware of section 35 and the legal position of Aboriginal peoples in Canada. It is not just at the final review stage of a bill to determine whether it is Charter-compliant, but in the early stages of construction of a federal bill, it is done by legislative drafters who are well attuned to the Charter. That does not mean they are always successful in this regard or their instructions allow them to be, but they clearly are aware of the Charter.
Section 35 in particular is in a different order. I quite agree that the jurisprudence or the case law on section 35 is not as extensive as our Charter litigation, nor is the case law as clear by any means, as the Charter litigation; nor is the language of section 35 perhaps as clear.
On the other hand, again, for parliamentarians involved in the drafting of the Charter back in 1981 and 1982, I suspect in retrospect, 25 years later, they might feel many of the clauses in the Charter have not been interpreted or evolved in a way over the years as clearly as they thought in 1982 that they would be. The Charter itself is clearer but by no means entirely crystal clear.
Having a compulsion on the minister to report will trickle down within the legislative drafting process. It will elevate the attention that legislative drafters bring to bear on any bill that they are dealing with to consider these issues. They clearly deal with the Charter because of its greater notoriety, but also because of the presence of that obligation on the minister. It is something that every minister of Justice and his or her staff are aware of, and every deputy minister and so forth, as they sign off along the way. Therefore, having such a provision would assist.
As with the Charter, they continue to have to look at the case law to see how it is evolving and reconsider their views. I anticipate they would have to do the same in reference to section 35. We will be getting greater clearance in the future. The question here, in a sense, is not whether the law absolutely does not conflict with section 35, but rather we are really asking legislative drafters to ask themselves, might it? Is there some way that this bill might affect rights, even though I am not fully certain what those rights in section 35 are, might it effect? If so, then let us address it through a non-derogation clause.
Senator Bryden: Could you repeat your statement in relation to the obligation on the Department of Justice to provide a clear position in relation to the constitutionality of the bill?
No, I am sorry, what in fact happens now with any bill in relation to its constitutionality, not as it relates to section 35 under the Charter. Can you indicate again what the obligation is?
Mr. Morse: Yes. At one level the Minister of Justice should never allow any bill to be introduced by the government side that he or she believes is unconstitutional. There is, in theory, a general obligation on all ministers of justice to consider that. However, by statute Parliament has compelled the Minister of Justice particularly to ensure that the bill is compliant with all terms of the Charter of Rights and Freedoms. That is a statutory obligation on the minister over and above their normal responsibility. That means the minister, in effect, is warranting to Parliament that this bill introduced by government does not violate the Charter. That effectively, within the process of developing the bill, means that this question has been fully canvassed by policy analysts, by the promoters of the bill within the relevant department and by the legislative drafters themselves.
Senator Bryden: You went on to say, and I believe I have it right, provided the instructions to the justice people allow them to make that sort of categorical statement. What did you mean by that?
Mr. Morse: Cabinet officially issues instructions to the legislative drafters on every bill. I am not suggesting cabinet would ever expressly tell the legislative drafters to draft a bill that is believed to be unconstitutional. However, the instructions will be on the substance of the bill — really, the objectives of the bill. In drafting the actual bill in accordance with those instructions, their focus will be on those instructions. Unless they are expressly directed to be raising this issue, they are not really encouraged to be coming forth with additional concerns that are not in their instructions.
Senator Bryden: In another hearing we were informed by the Minister of Justice — not the present one but a Minister of Justice — that that is not the approach that his policy people take. They expect the Department of Justice, DOJ, will develop the policy of whatever the issue is that the executive wish to implement. The job of the Department of Justice, in his opinion at least, is to provide them with information that says that justice feels they could defend that policy against a Charter challenge.
Mr. Morse: One of the intriguing things about this, particularly in terms of the Charter compliance, is that this has been a responsibility now for many ministers of justice over the years and, of course, many officials. This has evolved somewhat sporadically or erratically over time. It is quite clear when the content of a bill is coming from other than the Department of Justice itself, for example, a Fisheries Act is before Parliament now, that the content of that bill is largely generated by the Department of Fisheries and Oceans. The legislative drafters of the bill are Department of Justice employees. In that capacity, they must wear their, if you will, DOJ hat, the Minister of Justice must confirm that the bill prior to introduction will be compliant with the Charter. However, you are right, the substance or policy of it will come from that particular department. The legislative drafters then work with the department that is sponsoring the bill, by and large, rather than the Department of Justice itself.
Senator Bryden: The position taken was not to answer the question of whether this is constitutional or Charter- compliant, but whether one is comfortable that one could mount a defence if there is a Charter challenge or a constitutional challenge. That seems to me quite a different situation.
Mr. Morse: If one looks at the record of the Department of Justice in terms of the constitutionality of legislation or the defences they mount in many circumstances, they are not batting a thousand. The issue really should not be whether they can mount a defence, but whether they are guaranteed to win, whether they are absolutely certain that they are right that this is not in contravention of the Constitution. That is the standard that I believed was the original intent on that obligation, but it may not be shared by all who have carried it out.
Senator Andreychuk: Picking up on that point, I do not believe it ever intended that we could guarantee from the department. Rather, we wanted a reasonable certainty or standard that was more than, "We will try it and see what happens.'' In fairness, I do not believe any lawyer working in the Department of Justice Canada would want to have to guarantee a bullet-proof piece of legislation, because that does not exist.
Mr. Morse: No, thank you, senator, perhaps I misspoke with zeal.
Senator Andreychuk: I wanted that on the record. We started adding non-derogation clauses pre-Charter, which I understood. Then, the Charter came along, and I thought that the certainty of protection was in section 35. The constitutional changes are there. We then started adding more non-derogation clauses in all different shapes and manners of wording. I remember sitting at this table during the Nisga'a study and saying, "We have section 35 for your collective rights and past rights. We have a clause that has been used before and now you are changing it again. Is it because you do not want to comply with some standard?'' To which we heard, "We are afraid we will lose some rights,'' and the uncertainty, "What is this all about?'' I know that some groups said they did not have that wording and wondered why another group would get that wording. It led to confusion. What we are doing is helpful.
We want to go through a process to create some certainty, so we use the word "certainty,'' in that we are complying and protecting the rights intended. We draft a bill directed at Aboriginals for a land agreement or something else. We can understand that the department should apply it, but there is also a school of thought that virtually anything we do in Canadian society will have some impact on the Aboriginal community. Where do we draw the line for having significant impact on Aboriginal rights? We could take a stand-alone piece of legislation, but if how we use our budget in Canada and where we put the legislation on the dockets in the Parliament have an effect on the Aboriginal issues, where do we draw that line?
The other debate — we have not had much of it here but I have in another committee — is the dilemma of the protections vis-à-vis individual rights in the Charter and collective rights clearly stated in section 35 and in some non- derogation clauses. In your view, how does that debate work out?
Mr. Morse: I would suggest that it is only appropriate to look at a non-derogation clause in a somewhat limited way. It is not to be used to suggest that the law will not affect Aboriginal peoples at all because everyone who lives, breathes and walks these lands is affected in some way or another by almost any law. Rather, it is to try to reflect the concern that a law focused on one purpose may unintentionally affect rights that are recognized and affirmed by section 35 of the Constitution. One should deal with it solely in the context of those rights in section 35 rather than a law impacting on Aboriginal peoples in a general way. That narrows the scope.
It is quite appropriate in particular bills to suggest also that the intention, for example, is to advance individual rights and interests of Aboriginal peoples, distinct from the collective rights recognized in section 35. There may be circumstances in which Parliament may want to express its intent more clearly. As such, it might choose to put an exception, if you will, in the non-derogation clause, such as to say, for example, part 3 of this act is not subject to the non-derogation clause provision, because Parliament has thought this through; therefore, it is an intentional matter.
Even if one deals with the kind of comprehensive approach of using the federal Interpretation Act, any other statute coming along can make an exception to the provision in that act. By so doing, that makes it explicit, so it has been considered. The big fear, in a sense, is that it has not been considered or may not have been considered correctly, as things subsequently turn out.
The Chairman: You said that you were concerned that there is a great deal of different wording in many different statutes and that you believe having something in the federal Interpretation Act might be the solution to that. Given the possibility of different wording of non-derogation clauses arising in these different existing statutes that you talked about, are you also suggesting the repeal of all existing non-derogation clauses if new wording were put in the federal Interpretation Act to clear up this problem?
Mr. Morse: I cannot say, senator, that I have really thought that through act by act. My view is that the federal Interpretation Act would be the most appropriate place for the overarching provision. The question that you raise would be an excellent one for this committee to pursue if it favours that approach; to ask the question bill by bill, depending on the clause you are recommending for the Interpretation Act, of whether we need to do an override or whether we can leave the particular non-derogation clause in certain acts untouched or whether we need to repeal them.
Depending on how the clause is drafted in the Interpretation Act, it could be a fail-safe clause, such as, where a federal statute does not contain a non-derogation clause, then the provisions leave all the existing ones intact, if that seemed to be appropriate. It will warrant an act-by-act review of the precise clause in relation to your proposed model for the federal Interpretation Act.
Senator Nolin: I am stubborn and my colleague will testify to that. I am concerned about the instruction or interpretation that we want the courts to have. However, I want to be more proactive, because I do not want a court to decide. I want the application of the law to respect those rights. Rights are important, as long as "la plénitude et la jouissance des droits'' are present. What can we do? Have you reflected on the courses of action that we could take? Should this be accomplished through the regulatory process? I raised the question of regulatory powers yesterday with Mr. Jones. We will have to look at that if we want to do a good job of trying to protect and isolate those rights from any intrusion or infringement.
Mr. Morse: I welcome those comments. I share your concerns and I agree that these are not matters that should be left to the courts to resolve. As I mentioned earlier, the courts have not answered the questions in this regard.
Senator Nolin: It takes eight years.
Mr. Morse: At best, if the question is properly posed.
It is important for Parliament to be proactive, which is one reason that attempting to address the issue comprehensively through the federal Interpretation Act is preferable, as well as amendment of the responsibilities of the Minister of Justice, because that makes it proactive within government before it comes to Parliament. We need it at both ends. The Interpretation Act will primarily be used in a litigation context, but it does become a reference point for government as well and in negotiations entirely unconnected to litigation. Knowing that it is there, like knowing provisions in the Canada Evidence Act are there, impacts on the way in which the law happens outside of courtrooms.
Those are appropriate methods. I confess that I am not sure if this committee can go further than that and beyond the question. Of course, it is possible to have regular reporting to Parliament. We do that with annual reports from many commissions and tribunals. That might be a way to ensure that this remains alive on a regular basis within the parliamentary process.
Senator Nolin: Senator Bryden is an expert in scrutinizing regulations. Parliament scrutinizes regulations but only in a very limited way. We look only at the legality of them and whether they are ultra vires. Would it be possible to add to that scrutiny the area of those rights? I believe the regulatory power is full of intrusions that might affect those rights.
Mr. Morse: I confess that that is not a matter that I have considered, but it has great potential. I know that one challenge the Senate has had in fulfilling that objective or mandate is getting the government to engage.
I remember, from a former life as the chief of staff to a federal minister in Indian and Northern Affairs Canada, having great difficulty and largely no success in persuading Department of Justice colleagues to respond to Senate requests for information on regulations. Even when we were willing, we could not get it done.
Senator Nolin: We have our ways.
Mr. Morse: It is an excellent idea to consider, and I thank you for that. I will consider it further.
Senator Joyal: Before addressing a question to Professor Morse, I would like to return to Mr. Polson's reference to Aboriginal law. In its report on Bill S-10, to harmonize federal law with the civil law of the Province of Quebec and the common law, dated November 25, 2004, under the chairmanship of Senator Lise Bacon, the committee said, on page 2:
Your Committee wishes to make an additional point, however, about Canadian law. There is a third historical source of law — Aboriginal traditional law — that pre-existed the two other sources of law. It is composed of the customs and traditions central to the culture of our Aboriginal peoples. Canada has yet to adequately address that oral legal heritage.
We were encouraged by the testimony of the Minister of Justice, who spoke of his personal commitment, and that of his Department, to work with Aboriginal peoples to identify and to better appreciate Aboriginal legal traditions and to consider how they can be brought into the mainstream of our legal system. We note also the ongoing work of the Law Commission of Canada in this area and the research conducted at the University of Ottawa and the University of Saskatchewan. Your Committee is also concerned with the timeframe for progress in this area. . . .
. . . It is your Committee's fervent position that a way should be found to integrate Aboriginal legal traditions into Canadian law alongside the civil and common law in a manner that will better reflect Canada's diversity.
Those comments are as important today as they were three years ago, and that brings me to my question.
Since it is a domain of law that is charting unknown territories — because, as I said, it disappeared for so long because the other law was trying to occupy the exclusive lens of legal tradition in Canada — it becomes a key question in the Department of Justice as to who will have the responsibility to study proposed draft legislation in relation to the Aboriginal laws or rights that it might affect. That question was clearly raised in the McIvor case that I previously quoted, because that case was decided in favour of Aboriginals as a violation of section 15(1) of the Charter. The act that was adopted is a 1985 act, which was struck down by the court.
Following the adoption of the Charter, it was the responsibility of the Justice Department to go through all statutes, find out which were in violation of the Charter, and bring forward an omnibus bill to streamline the statutes of Canada. Parliament did that according to the Charter provision.
You will remember, Mr. Morse, that that was a very important issue that we discussed at the committee at the time. In other words, we clean up.
This is a blatant case of violation of the Charter in an act that was supposed to have been scrutinized in that exercise and was found to be totally in accordance with the Charter.
Since there have been so many cases found to be in contradiction with the Charter, how can we ensure that the understanding and appreciation of Aboriginal law will be considered fairly in the Department of Justice if the Aboriginal people are not part of the exercise?
Mr. Morse: As Senator Andreychuk reminded me, one may not be able to guarantee or be certain about an outcome, but clearly more can be done to minimize the risk of being contrary to the Constitution.
The most effective way is to have active involvement of appropriately selected representatives of First Nations, Metis and Inuit peoples. There are lawyers within the Department of Justice who are Metis and/or First Nations people. They are not there in a representative capacity, so I do not believe government can rely upon individuals of good will and talent for this; they need to be engaging in that discussion in a more formal and appropriate way.
I agree with you on the importance of this. The Supreme Court of Canada has affirmed it further. The Delgamuukw decision dealing with Aboriginal title has made clear that the property law of Aboriginal title is the property law of the particular nation concerned prior to the arrival of Europeans.
We have had our highest court in the land, albeit it stepped back a little bit since then to some degree, saying clearly that traditional Aboriginal law is part of the Canadian law. We are a tri-juridical country, not merely a bi-juridical one. As the federal government is attempting to reflect in both the common law and "droit'' civil, it must also pay attention and seek to respect and reflect the law of indigenous nations. That presents a huge challenge in a country such as ours. There is not a single indigenous nation sharing a common law, as in New Zealand with the Maori sharing a law common among Maori. We have a huge variety in the country, so that means it will be difficult. It means it might be impossible to be as certain as one would like, but it does not mean that one should not try at all. Not trying is effectively saying that while we know there is a third legal system in the country, and it is part of our law, we will not pay attention to it; that clearly seems to me to be an unacceptable approach.
The challenge as well for Department of Justice is it generally sees the drafting of bills as something secret and confidential that it does not wish to talk about. However, it does pierce that veil from time to time. We have seen government announce earlier this month in its proposed new specific claims tribunal legislation that it will do so; clearly, at the policy stage, prior to the drafting of the bill, there is an opportunity for proper discussions and representations to be made across tables between government representatives and representatives from the relevant national Aboriginal organizations.
Senator Joyal: Should we not create an office of Aboriginal law within the Department of Justice, whereby that office would be in touch with the University of Ottawa, the University of Saskatchewan and the Law Reform Commission, as much as it continues to exist, and other sources of knowledge and expertise as much as they develop along the line, so there is a better centralized capacity to review the draft legislation with objective of Aboriginal law in mind?
Mr. Morse: There is, in a sense, an Aboriginal affairs director within the Department of Justice, but it is very much not an office of Aboriginal laws or Aboriginal legal systems. That would clearly elevate the attention that might exist within the federal government and create a coordinating body or secretariat to engage in the kinds of external discussions that I am suggesting and you, Senator Joyal, are suggesting should occur.
Senator Milne: I do have some problems with an oral tradition of Aboriginal law that existed 200 or 300 years ago. When I look at how Euro-Canadian law has evolved in the last 200 or 300 years, particularly when it comes to women's rights and the rights of minority groups within the Aboriginal community itself, it is considerable. I would not want to go back all the way on every single issue, and this is an area where the former Law Reform Commission might have been able to step in and guide us.
Mr. Morse: If I can comment on that, Senator Milne, just to clarify, I am not disagreeing with you in that regard. Similarly, the common law and the origins of the civil law are from the societies in which they have evolved. It was less than 35 years ago that matrimonial property rights did not exist in the province of Ontario. With respect to the question of looking at traditional laws of indigenous peoples, referring to prior to the aftermath of legislative change on the Murdoch case, I am not suggesting that one looks back to Aboriginal law as to what it was prior to contact 400 years ago and assume that that is the law today, because laws in all societies evolve, including, in my experience, the indigenous societies in Canada. The point is that they exist, evolve and will continue to evolve in response to changing circumstances in the world in which we live.
It is that evolving state of Aboriginal or indigenous laws that have their origins in an earlier period but have themselves evolved over time that is being characterized as part of the Canadian law today.
Mr. Polson: I will just respond in a way that I did earlier, and I do not know if the message came across to the extent that I wanted it to. The question has taken on a further note in that it is the notion of the integration of Aboriginal law and the recognition of a third level of a judiciary justice system.
I go back to the point I made earlier, namely, that there is a fiduciary duty for the Government of Canada, and we can go back and look at Guerin and extrapolate to the point that we say this duty includes consultation and accommodation. That comes out of a more recent case, namely, the Haida case. If we will look at the notion of establishing some type of protocol for accommodating at least the examination or investigation of the form and ways to implement this notion of integration of Aboriginal law into the current system, then I believe that it can be done in a way that consultation and accommodation says, in that it has to be meaningful and substantive. If we look at that particular notion of consultation in that context, the federal government is under the obligation to initiate that process. If we are to have a process that explores and examines those issues, then we have to start by looking at what is available. It is at the discretion of the federal government to make the first move on it at this point, as directed by the Supreme Court.
Senator Joyal: With respect to the duty of the Department of Justice to report on the Charter, it is section 4.1 of the Department of Justice Act, and I would like to quote the exact wording because the definition of a word sometimes has different consequences.
Section 4.1(1) states the following:
Subject to subsection (2), the Minister shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity.
Those are the exact purposes and provisions. It is very broad. One can discuss the purposes of a clause; it is so vast as a term. It is important to keep that in mind when we are having our discussions.
The Chairman: Mr. Polson and Mr. Morse, on behalf of the committee, I would like to thank you both for coming, presenting and taking a series of difficult questions and giving some interesting responses.
As you know, we have had witnesses before you. We have had officials from the Department of Justice, and we have before us a whole variety of evidence that we must now analyze. Thank you for your contribution to this important process.
Honourable senators, we will now move in camera to discuss the ongoing business of the committee.
The committee continued in camera.