Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5 - Evidence for January 30, 2008
OTTAWA, Wednesday, January 30, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-11, An Act to give effect to the Nunavik Inuit Land Claims Agreement and to make a consequential amendment to another Act, met this day at 4:05 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators and witnesses, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our study of Bill C-11.
We were provided documents by Senator Watt in addition to some letters that have been sent. With your agreement, I will read the identification of those documents, which will be filed as exhibits with this committee, into the record.
Inventory for Bill C-11 with respect to Nunavik Inuit Land Claims Agreement:
1. Bill C-11.
2. Letter to Pita Aatami, President of Makivik Corporation, May 8, 2007.
3. Letter from Pita Aatami, President of Makivik Corporation, May 11, 2007.
4. Briefing notes on the agreement prepared by Makivik Corporation, April 4, 2007.
5. Letter to the Minister of Indian Affairs and Northern Development, June 6, 2007.
6. Letter from the Minister of Indian Affairs and Northern Development, September 18, 2007.
7. Letter to the Minister of Indian Affairs and Northern Development, October 16, 2007.
8. Legal opinion on Bill C-11 and on the agreement and summary.
9. Debates of the Senate on the bill on June 18, 20, 21 and November 14, 2007.
10. The speech at second reading of this bill by the Honourable Charlie Watt, Senator, on November 29, 2007 and an associated press release.
11. Letter to the Honourable Benoît Pelletier, Minister for Aboriginal Affairs, Province of Quebec, December 14, 2007.
12. Letter to Claude Longpré, Chief of Staff, Office of the Minister responsible for Aboriginal Affairs, January 21, 2008.
13. A letter to Pita Aatami, President of Makivik Corporation on January 29, 2008.
There is also mention of the electronic link to the full text of the agreement, which I believe we all have in hardcopy as well.
Thank you for bearing with that administrative formality. It is now a great pleasure to welcome to this committee representatives of the Nunatsiavut Government. We have with us William Barbour, Minister of Lands and Resources; and Veryan Haysom, Legal Counsel to the Nunatsiavut Government.
You both have come a long way; thank you very much for being with us.
Mr. Barbour the floor is yours.
William Barbour, Minister of Lands and Resources, Nunatsiavut Government: Thank you and good afternoon. I am here on behalf of the Nunatsiavut Government in response to an invitation to appear before the Standing Senate Committee on Legal and Constitutional Affairs in connection with its consideration of Bill C-11, the Nunavik Inuit Land Claims Agreement, NILCA.
I have with me Veryan Haysom, one of our legal counsels, who has done work on the agreement between the Nunavik Inuit and the Inuit of Labrador. He is here to help with any technical questions that may arise.
The Nunatsiavut Government supports the Nunavik Inuit Land Claims Agreement and, on behalf of the Nunatsiavut Government, I am in favour of Parliament passing Bill C-11. I will give you some background information on the Labrador Inuit and briefly explain why we support Parliament's ratification of the Nunavik Inuit Land Claims Agreement.
The Labrador Inuit number approximately 6,000 individuals who live mainly in five communities on the north coast of Labrador and in the two central Labrador communities of Happy Valley-Goose Bay and North West River.
The Labrador Inuit are represented by the Nunatsiavut Government, which was created on December 1, 2005, when the Labrador Inuit Land Claims Agreement came into effect. I was elected as an ordinary member of the first Nunatsiavut Assembly and appointed to the Nunatsiavut Executive Council as the Minister responsible for Lands and Resources in the fall of 2006.
The Labrador Inuit have Aboriginal and treaty rights for the Labrador Peninsula and the offshore waters of the peninsula. The peninsula falls partly within the jurisdiction of Newfoundland and Labrador and partly within the jurisdiction of Quebec. Labrador Inuit have occupied this territory and have sustained it since time immemorial. Our rights on the Labrador side of the jurisdictional boundary are recognized in the Labrador Inuit Land Claims Agreement.
Our ancestral territory is used by other Aboriginal peoples, particularly the Nunavik Inuit, who live mainly to the northwest of us in Quebec, and the Innu, who live to the southwest in Labrador. We have tried to maintain good relations with all of our neighbours. Even when we have had political disagreements, we have maintained our personal and family connections and our mutual respect.
We have had political disagreements with the Makivik Corporation in the past, but they have settled that through an overlap agreement negotiated by Makivik and the Labrador Inuit Association. I am proud to say that the overlap agreement was negotiated by Pita Aatami, President of Makivik Corporation, and me when I was president of the Labrador Inuit Association. After 20 years of tough, on-again, off-again talks, this agreement was formally signed by Mr. Aatami and my successor in office, William Andersen III, in Kelowna, B.C. on November 24, 2005.
Our overlap agreement is based on some simple and fundamental principles. It identifies the overlap area and provides reciprocal recognition and accommodation of our respective rights and interests in the overlap area. The rights of the Nunavik Inuit in our overlap area are recognized in Article 29 of the Nunavik Inuit Land Claims Agreement. The rights of the Labrador Inuit in the portion of the overlap area that lies off the shore of Quebec will be recognized by an amendment to the Labrador Inuit Land Claims Agreement. The Aboriginal rights that the Labrador Inuit claim in the portion of the overlap area that is in Quebec remain to be settled at some future date.
The spirit of sharing and cooperation on which our overlap agreement is based is perhaps best illustrated by what has been made possible in relation to the Torngat Mountains National Park. The Labrador Inuit and the Nunavik Inuit have a right to harvest freely throughout the park. We have an impacts and benefits agreement in relation to the park, and we participate as an equal party with the Government of Canada on the cooperative management board for the park. This means that each party appoints two members of the board and the three parties jointly agree on the chairperson of the board.
This past summer, I witnessed the first meeting of the board, and it made me proud that every member, including the Parks Canada appointee, is an Inuk. A Memorandum of Agreement to provide for the necessary amendments to our treaty has been completed between the Nunatsiavut Government, the Government of Canada and the Government of Newfoundland and Labrador. It will be ratified following Parliament's passage of Bill C-11 and will be coming into effect on the date on which the Nunavik Inuit Land Claims Agreement comes into effect. The Torngat Mountains National Park Reserve will also become an official national park on that date.
You can see from this that the Inuit of Labrador have a real and direct interest in Bill C-11 being approved by the Senate. I take this opportunity to appeal to the Senate, through the committee, to approve Bill C-11.
Thank you. [Mr. Barbour spoke in his native language.]
Senator St. Germain: Thank you, Mr. Barbour, for your presentation and thank you, Mr. Haysom, for being here.
In theory, if Bill C-11 did not pass, what impact would this have on all the people that have negotiated this agreement and the surrounding Inuit communities?
Mr. Barbour: I made reference to the cooperative arrangement that we now have with the Makivik Corporation, with whom we have had many dealings over the years. If the Nunavik Inuit Land Claims Agreement is not passed, we already have the provisions for the amendments to allow for our land claims agreement, so I do not feel it really affects that. For me, it is the cooperative nature that we have presently with all of the parties — the Makivik Corporation, the Nunatsiavut Government and the federal government, in this case. We want to keep those relationships intact. Does it directly affect the communities? I am not sure I can answer that specifically.
Senator St. Germain: You have the Labrador Inuit land claims settlement — your agreement. Has it brought stability and allowed you to develop economically in a better fashion than you did before? Has it brought certainty to your community?
Mr. Barbour: On a personal level and in my capacity as Minister of Lands and Resources for the Nunatsiavut Government, it has brought certainty. We know what we are allowed to do. We know what the commitments are that were made by both the federal and provincial governments, and we know what the agreement allows for in terms of the stakeholders out there.
Our land claims agreement also allows for other players — in this case, the Makivik Corporation and the Nunavik Inuit — to have certain percentages, especially in our offshore.
Senator Watt: [Senator Watt spoke in his native language.]
I just thanked Mr. Barbour and Mr. Haysom for appearing in front of the committee. We have known each other for quite a number of years. We have also worked side by side for a number of years over that time, since 1970, I believe.
I was one of the first persons to visit Labrador from the Quebec side by snow machine — that goes back a long way — to encourage the Labrador Inuit to get involved in dealing with the question of their rights. At that time, if you remember, the question of rights was far from being recognized anywhere in the country — or in the world, for that matter.
It was not until we began to pursue it when the Constitution was being repatriated back to Canada. That is when the interest of the Inuit as a whole, from the Arctic, along with the First Nations and the Metis, began to highlight that we must get involved. I believe you were the president of your organization at that time, Mr. Barbour, or perhaps it was a little bit later on. I remember Mr. Haysom was directly involved at the beginning.
As much as I do not like to give anyone a hard time for trying to get what they believe in, at times it is my responsibility as a senator. The Senate is an arena of sober second thought and it also has a responsibility to protect the interests of ethnic groups and minorities, especially the Aboriginal groups.
I want you to know that this is where I am coming from. I am not here deliberately to obstruct any process that is taking place. However, at times I must highlight what I consider is an obstruction that will come down the road.
I have put forward, Mr. Barbour, seven sets of an argument, and I want the legal minds to examine to see whether our constitutional rights are being violated. That was the original point. As you remember, leading up to the 1982 repatriation of the Constitution, we were able to entrench section 35 at the time. One could say this is already entrenched in the highest laws in the land, and, therefore, our concern about losing our rights is unfounded.
However, when we study closely the legalities of the legislative draft of Bill C-11 and the agreement together, we begin to realize that constitutional rights are being lost if it is not contemplated within the treaty itself. What is left over is gone forever.
A number of different areas have not been taken into account: traditional knowledge, traditional equipment and cultural and intellectual property. They are not found anywhere in the text. At the same time, it puts this agreement in a position where what is recognized by the treaty can also be eliminated. Rights could also be eliminated through the regulatory process. That is another aspect of this bill that concerns me greatly.
The Statutory Instruments Act is an act of the Government of Canada. In a sense, that act will not apply to this agreement, meaning we would be operating outside of the act. As an individual Inuk or collectively, we would have no mechanism other than the Statutory Instruments Act to protect our interest.
I am concerned about many different areas. It would take time to go through each area, so I am just showing you a few examples.
The agreement also provides that Nunavik Inuit renounce their claim against the government or other persons for any damages past, present and future, known or unknown, contrary to Article 8 of the Civil Code of Québec and contrary to judicial rights under the Canadian Charter of Rights and Freedoms, contrary to the Québec Charter of Human Rights and Freedoms.
We need to have that corrected. I am not opposing the agreement if it is to be corrected. Down the road there are serious consequences with which we will have to live. I am trying to have my colleagues and legal minds look at this. As Inuit, we will be living with this text for a long time. One foot is on the Quebec side governed by civil law, but the other is on the ocean side governed by common law. We have not even begun to examine, let alone harmonize, the two sides.
We are creating more problems. Hopefully, if the Senate is willing, I will be asking for some delay — not to block the agreement completely, but to take a good look at those problems before we make a huge mistake. As you know, there are many agreements out there already that are not working.
The Chair: Perhaps we could hear the witnesses' comments now.
Mr. Barbour: [Mr. Barbour spoke in his native language.]
I will be looking to our legal counsel for some assistance with respect to Senator Watt's points.
Overall, when I look at the Labrador Inuit Land Claims Agreement in its finality, I know I am dealing with a constitutionally protected agreement. No law is higher than the Canadian Constitution. That gives me some safety of mind knowing that our agreement is protected by the highest law of the land.
On the more technical points, I well ask Mr. Haysom to add to that.
Veryan Haysom, Legal Counsel, Nunatsiavut Government: Senator Watt that is quite an agenda of issues you have laid out on the table. Let me try to address them to the best of my ability.
In terms of the question of whether or not constitutional rights are being violated as a result of the enactment of the treaty, I believe you identified three issues: Inuit traditional knowledge, intellectual property and the use of traditional equipment. As I understand it, you were asking whether or not the treaty is positioning those rights in a way that is not constitutional or that is in violation of the Constitution.
I claim no expertise on the Nunavik Inuit Land Claims Agreement. Obviously, I have worked on issues from the point of view of the Labrador Inuit and not from that of the Nunavik Inuit.
At first blush, as I understand the certainty provisions, they do not apply to rights related to self-government. It would seem that would mean the certainty provisions do not apply to the traditional knowledge and the intellectual property rights. I may be wrong on this, but in terms of my understanding of Article 5 dealing with wildlife and the harvesting of wildlife, there is nothing in it that would prevent use of traditional equipment.
That is something we have looked into from the point of view of the Labrador Inuit because they will be harvesting in the offshore of Quebec, under the same regime. I am satisfied that the right to use traditional equipment has not been taken away.
I have difficulty understanding what the concern is with respect to the question of rights being eliminated through regulatory process. The basic principle, as I understand it, is if there is any legislation — and that would presumably include subordinate legislation, which is what regulations are — that is in conflict or inconsistent with the treaty, then the treaty prevails with respect to the inconsistency or the conflict. Therefore, if there is some regulation that is enacted that would be contrary to the terms of the treaty or in conflict or inconsistent with the treaty, then the treaty would prevail to trump the effort to regulate in a way that is not approved by the treaty.
On the Statutory Instruments Act, Senator Watt, I cannot answer that question; I am not familiar with the issue. I have seen the clause in the bill; I believe it is clause 11. It seems to me that the bill is in the hands of Parliament. There is obviously an intent and a reason behind that. Presumably those who are familiar with it either have addressed it or will address it for you.
The question of a renunciation of claims against the federal government has been a fairly standard clause in land claims agreements since the Nunavut Land Claims Agreement, if not before, dating back to 1993. As I understand it, that is a logical consequence of the requirement of the federal government for certainty. As anyone who is engaged in the treaty negotiation process knows, one of the objectives is to obtain certainty of rights for the federal, provincial and territorial governments as well as for the Aboriginal parties. Governments are concerned that once a treaty is settled and the issue of Aboriginal rights and the consequences and implication of those rights have been dealt with, it does not want thereafter to face litigation on the basis of precisely the rights that they dealt with in the treaty.
It is a difficult issue with which all of the negotiators have to grapple. Certainly it seems as though there is some understandable reason and rationale for it for all parties. It is a clause with which we have all lived.
The question of delay is for the Senate and the committee. I would urge that it be very carefully considered. These processes and negotiations have gone on, as you well know, Senator Watt, better than most of us know, for decades. There are perceptions of substantive justice, procedural justice and process justice. One of the grave problems, speaking personally, with land claims policy and the settlement of land claims is that they take so long. In consequence, it tends to become disaffection and to drive up the cost of settlement to the point where litigation, which is the alternative, starts to look much more attractive. In considering delay, I would suggest that the issues be carefully considered. I am confident that senators understand those issues and that the Senate will look at them.
If I may, I have one short comment in response to Senator St. Germain's question. If the Senate were to not approve this bill, the consequences would have to be very carefully considered. Certainly, when the Labrador Inuit were engaged in the process, it was difficult and ended for the Labrador Inuit in a vote by the Inuit to ratify their agreement. If Parliament had subsequently said, no, it was not prepared to honour that ratification, not only would that have caused a great deal of consternation for the Labrador Inuit and those who have been engaged in the process in good faith for many decades, but also it would have had reverberations throughout the country for the land claims and treaty settlement process. Those are my observations.
The Chair: Senator Watt has asked for a brief supplementary because we have other senators who want to put questions.
Senator Watt: Mr. Haysom, you mentioned two points to which I would like to respond. First, you said that you do not know any regulatory aspects that would extinguish the rights of Aboriginal people. One important area to the Inuit is contemplated in the agreement as a commercial right but not as a subsistence right. This is important because the Inuk should have the right to eat, live and survive above everything else. Only the commercial aspect is addressed in the proposed agreement, and that really worries me. I am one of the Inuk, and I know for a fact that we Inuit, no matter where we are, are not ready to be transformed into something other than who we are and the way we are at this time. That is a fact of life.
Second, you talked about clarity. Not only should the government have clarity but also we Inuit are entitled to have clarity in any piece of proposed legislation that might have an impact on us. That is why I am asking for justice for my people and for you. It might not sound like it at this point, but I am speaking for you, for Inuk and for Aboriginal peoples.
Mr. Barbour: From our side of the agreement, subsistence hunting and fishing come first and foremost over everything, whether sport hunting or commercial activity. Although I have not read the Nunavik Inuit Land Claims Agreement, I would think that that would also be the same in that case.
I made reference to the proposed Torngat Mountains National Park. I make note to the peoples in my province of Newfoundland and Labrador, where I live, and to my friends over in Nunavut, that in the Torngat Mountains area, the Inuit have the exclusive right to hunt polar bears; hunting and fishing by non-Aboriginals are not permitted. We have the exclusive right to do that in the park. I make those points.
Senator Milne: Mr. Barbour, with respect to this overlap claim that you have negotiated on the Torngat Mountains and the proposed national park, I understand that the rights that will be set out in this agreement, once we pass it, will be included by way of amendment in your own agreement. What is the process for that?
Mr. Barbour: They already have provisions in the Nunavik Inuit Land Claims Agreement that allows that to happen, and in our case, under the Labrador Inuit Land Claims Agreement, we have a provision for amendment already in the agreement.
Senator Milne: Will happen automatically?
Mr. Barbour: The process is set out for it to happen.
Senator Milne: Does this agreement include a satisfactory dispute resolution mechanism?
Mr. Haysom: The overlap agreement between the Labrador Inuit and the Nunavik Inuit contains a dispute resolution mechanism within it. Essentially, the parties will establish a dispute resolution body of their own. Where there are questions or disputes as between Inuit, the Inuit dispute resolution mechanism will deal with that.
Under the Labrador Inuit Land Claims Agreement, there are also dispute resolution mechanisms that would apply to certain disputes if they involved the Labrador Inuit treaty or governments with jurisdiction on the Labrador side. That dispute resolution mechanism would be available for the Nunavik Inuit in relation to their rights on the Labrador side.
We understand that there is a dispute resolution mechanism in the offshore portion. The Labrador Inuit would be able to take concerns there should they arise. We have taken a look at that; they appear to be satisfactory.
Senator Joyal: I have a question that might appear technical but may have some important constitutional implications.
Page 245 of the Nunavik Inuit Land Claims Agreement deals with Article 29 to which Mr. Barbour referred in his presentation. I am referring to the text, if you have that available, the agreement that we are implementing with this bill.
I am specifically referring to Part 29.5, entitled National Parks, and in particular to Part 29.5.3, which says:
An Nunavik Inuit park impacts and benefits agreement shall not form part of the Nunavik Inuit Land Claims Agreement, is not intended to be a treaty or land claims agreement and is not intended to recognize or affirm aboriginal or treaty rights within the meaning of sections 25 and 35 of the Constitution Act, 1982.
Let me put my understanding of this section in non-Aboriginal person terms. I understand that there was a dispute between the Labrador Inuit and the Nunavik Inuit over the ownership of the Torngat Mountains. That has been settled by a decision of the Federal Court in 1998. Following that decision, there was a negotiation with the federal government on the way the Nunavik Inuit could be involved in the management of the park that was established in the area of the Torngat Mountains.
In the agreement that was entered into, there would be negotiations on ways for the Nunavik to exercise their rights within the park limits and boundaries.
I find it difficult to understand that when there is an agreement on the ways the Nunavik will exercise their rights, it is not part of the affirmation of the rights of the Nunavik Inuit within section 25 of the Charter. It seems to be odd to recognize that when Aboriginal people exercise their rights under the law to enter into an agreement over the management of an area that that it is not an affirmation of their self-government right, which is included in section 25. Section 25 of the Charter recognizes the rights of Aboriginal people to self-government.
How can you sign an agreement with the government to measure the impacts and benefits of your presence on a piece of land, not recognize it and deny that you are, in fact, exercising your rights within the Charter?
If they are not exercising their rights under the Constitution, what type of rights are they exercising? It might look technical, but it raises an important issue in relation to this agreement. Again, I am trying to understand it. Maybe there is a refinement of thinking that exists of which I am not aware. However, I thought that section 25 of the Charter recognizes the rights of Aboriginal people to their land. According to that, the management of their land was part of their rights.
How can they manage their land while, at the same time, we would not recognize their rights? That is what seems to be understood when you read that section of the agreement included in the overall agreement that we are asked to sanction in Parliament for Bill C-11.
Mr. Barbour: I will give a very brief answer and Mr. Haysom will explain the more technical part.
In terms of the national park from the Labrador Inuit side, in the negotiation of our land claims agreement, we thought it was always understood that this is an overlap area. It has been used by Labrador Inuit and also by Nunavik Inuit. From our side, we wanted to protect areas in Labrador that will not be open to mineral development. There has been a lot of mineral exploitation in Labrador. We wanted to protect an area and, by doing that, create a park. When we create a national park, Parks Canada must be the landowner. Newfoundland and Labrador transferred over to Parks Canada that piece of property so that we would never see development.
However, in the Nunavik Inuit Park Impacts and Benefits Agreement, we protected our rights so that our ability to subsistent hunting and fishing in the park, negotiated from both sides, included exclusive hunting rights of polar bears in that area of Labrador. Therefore, we feel we protected the land in a way and also ensured our ability to hunt and fish. In other national parks, there is no hunting and fishing, which we have allowed for ourselves.
Senator Joyal: When you signed an agreement with Parks Canada over the management of the area you wanted to protect, were you not exercising your traditional rights? As such, it is part of the meaning of sections 25 and 35 of the Charter.
I cannot understand it. You are exercising your rights to manage your territories in conjunction and cooperation with Parks Canada. That is very positive as an objective, but how is that not an exercise of your constitutional rights, your rights protected by the Charter, when you do it for yourself? In signing the agreement with the federal government, were you not recognizing that it was within the meaning of sections 25 and 35 of the Charter?
Mr. Haysom: Senator Joyal, Mr. Barbour is passing that one to me. It is a technical question in a certain sense, as you recognize, but there are relatively simple ways of understanding it from a layperson's point of view — not that I am suggesting you are a layperson, senator.
Perhaps the better way to understand that particular clause is to understand it in the context of implementation. Very similar provisions, if not identical provisions, will be found in the implementation section. In fact, these clauses and similar ones are relatively common in a number of treaties now. A park impacts and benefits agreement is a subsidiary agreement — as would be an implementation agreement. Effectively, it says that the treaty recognizes that you have a right to hunt throughout the national park, period. That is what the treaty does.
From the point of view of parks management, it might be necessary to say that we would like to conserve the resources on a certain river or that we would like to be able to introduce tourists into a certain area. If there will be impacts as a result of that, and if there are potential benefits as a result of those impacts on your rights to do what you have the treaty right to do, then they will be dealt with in the impacts and benefits agreement.
An impacts and benefits agreement could cut both ways. In other words, having agreed to treaty rights — for example, the right to hunt in the national park — if the federal government then ganged up on the Inuit in a negotiation and tried to take those rights away, we would not want that to be a constitutionally protected subsidiary agreement. It is always a subsidiary agreement; it does not confer Aboriginal and treaty rights. It must conform to the Aboriginal and treaty rights that have been agreed to in the treaty. A subsidiary agreement is an implementation agreement.
Section 25 of the Charter covers Aboriginal and treaty rights and other rights of the Aboriginal peoples. It is not confined merely to Aboriginal rights and treaty rights. Therefore, the shield that is provided by section 25, I would suggest, would extend to rights acquired under park impacts and benefits agreements.
Senator Joyal: I understand your explanation. However, it does not answer the legal nature of the principle that, in law, the accessories carry the principle. This means that if you sign a subsidiary agreement, it does not change the nature of your own fundamental rights. If you enter into an agreement with the government — that it is the way to manage treaty rights — I believe it is part of your sovereignty in terms of the affirmation of your own rights to manage it the way that you wanted to.
If I am the owner of the land, I can decide to exploit the land myself, or I can sign an agreement with a third party jointly to exploit the land and share the benefit. It does not change the nature of my rights; and I do not see why I would have to recognize in the subsidiary agreement that it is less an affirmation of my rights than the principal title that I hold on the land.
That is why I feel the distinction you tried to make carries its question marks in terms of the implications for the future, as you said, of a dispute between the Aboriginal people concerned and the government — in that case — or any other third party that might feel they have rights on the land that is being exploited.
Mr. Haysom: Senator, I believe I understand your point and your analogy. Let me put it in terms of your analogy, if I can.
If you are the owner under civil law or common law of a piece of land, and then you want to deal with a third party in relation to that piece of land and your rights to it, your rights to that piece of land do not derive from your agreement with the third party. Your rights are there before you start to deal with the third party; and that is precisely the situation that we have here, with impacts and benefits agreements.
The rights of the Aboriginal party are enshrined in the agreement; they are constitutionally protected. How those rights will be implemented with respect to the Crown will be an implementation of those rights — not as a rights- seeking exercise, and not as a rights-defining and delivery exercise, but as a matter of implementation. That is the analogy.
As the owner of a fee simple, you lease your property to someone. You are not making a negotiation about the rights of whether or not you are entitled to fee simple rights. Those you have, and you are now taking those rights and dealing with them effectively, instead of reopening a treaty.
Senator Joyal: Yes, but the title I have on a piece of land is inseparable from my rights to exercise the privilege of the title, which is essentially the harvesting — the three types of rights that are underlining the title of property.
When I own this piece of paper, I can decide to lend it to Senator Milne, and she will pay me 25 cents for each hour she uses it. I can decide to tear it apart and burn it. I have that right; or I can have the right to read it and improve my knowledge about the Constitution of Canada. Those are the three underlining rights.
When an Aboriginal people sign an agreement or enter into an agreement with Parks Canada, they are exercising their title rights to those lands. They are self-governing.
Mr. Haysom: Absolutely.
Senator Joyal: When they are governing themselves in that way, that does not diminish or reduce their fundamental rights to the title that they own that land.
Mr. Haysom: No, indeed; it is an affirmation of the fact that they have those rights. That is precisely the way this clause works. It is not reopening the question of whether or not there are rights; those rights are now a given. The Inuit are now, through their impacts and benefits agreement, utilizing those rights. If they choose not to enter into an impacts and benefits agreement, or if they choose to renounce it, then their rights remain intact.
It is a question of how you realize those rights without reopening the treaty and without reopening the negotiation over those rights. The job of the recognition and affirmation of the section 35 rights is either done in section 35 as an Aboriginal right or as a treaty right. Then you have subsidiary agreements that allow to you deal with those rights without, in every instance, having to reopen the constitutional question.
The Chair: I would ask Senator Joyal if we have reached an agreement to disagree on this point, bearing in mind that Senator Baker and Senator Sibbeston have questions.
Senator Joyal: As they say in court, there are nuances in the bill because of the constitutional implication that such an affirmation carries in an agreement that will be sanctioned by a piece of legislation. Essentially, I am trying to understand the implications because it might come before the courts and a judge might ask what it means. The text contains nuances that carry many consequences, unintended at times. This is not an affirmation of treaty rights, so there is a need to pause and reflect.
Senator Sibbeston: National parks and land claim agreements seem to be treated somewhat differently. While parks areas are generally in the traditional areas of Aboriginal peoples, they remain Crown lands. Therefore, they do not hold the same status as other lands that Inuit people have ownership and control over. That has been the experience, judging from the Inuvialuit land claims process in 1984. A park was established and lines were drawn on a map to delineate areas of certain rights within the park. However, once that is done, the park remains Crown land and is managed and governed under the Canada National Parks Act.
While the negotiations were continuing in a particular park in the Inuvialuit area, large mineral deposits were discovered. The Inuvialuit wanted to mine those deposits, but that was not possible because they had agreed to terms in that regard. I know from experience with land claims agreements that national parks are treated differently from Aboriginal lands and the Canada National Parks Act continues to govern. While the Aboriginal people get hunting rights in the park, their rights are greatly diminished with respect to commercial possibilities and so on.
That is likely the situation that we are dealing with here. Any agreement with respect to implementation is subject to an agreement apart from the main land claims agreement. That is my understanding of it, and, therefore, I understand why it is done this way in this case.
Senator Andreychuk: I have an understanding of this not from a legal point of view but from a layperson's point of view. In talking about exercising your rights, you are confirming that you have those rights. You have to have the rights first before you can exercise them going into this agreement. That is what you mean by ``subsidiary,'' is that right?
Mr. Haysom: Yes, that is correct.
Mr. Barbour: With regard to Senator Sibbeston's comment, the national parks are Crown land. However, we chose, through an overlap agreement with the Makivik Corporation, to protect an area from further development where, potentially, there are minerals and mineral exploration. We also protected our rights to subsistence hunting and fishing in that area; rights that no one else can have. The area is Inuit only.
In terms of the overlap agreement that Senator Sibbeston referred to, in our case we still have two, three or four categories: the national park, Crown land; the community lands within our five communities that are controlled by our community; the Labrador Inuit land that we control; and the settlement area, which is also provincial Crown land. Land claims agreements have these categories of land. We chose, on our side, to protect an area of the national park to keep it pristine.
Mr. Haysom: Senator Andreychuk has encapsulated, in layperson's terms, the point that I was trying to make but was unable to do. I do not need to add anything to Senator Sibbeston's or Mr. Barbour's remarks.
Senator Baker: I enjoyed listening to our witnesses respond to the questions today because both of them are tremendously knowledgeable. Mr. Barbour, whom I know personally, has a great history in this area over the past 20- 30 years; and Mr. Haysom has litigated most of the questions discussed here today in the Supreme Court of Newfoundland and Labrador and the Court of Appeal.
Senator Watt raised the important question of the protection of subsistence rights and the right to use traditional methods of hunting and fishing under these agreements. He said that the commercial rights were addressed but not the subsistence rights. As Senator Watt knows, in the Marine Mammal Regulations, under the Fisheries Act, section 27, regulations governing marine mammals exclude beneficiaries, who are defined in the definition section as being those persons who are covered by certain treaties. All the court cases in Newfoundland and Labrador today over bluebacks and whitecoats, for example, would not affect those who are considered to be beneficiaries under these treaties; if they are defined as beneficiaries and if they are within the definitions covered by section 27 of the regulations under the Fisheries Act cover.
Perhaps Mr. Barbour or Mr. Haysom would care to comment on this, although I do not know if it is appropriate for Mr. Haysom to do so.
Mr. Haysom: Senator Baker, thank you for your kind words. I am not sure that I will be able to live up to your billing and expectations.
Unfortunately, I do not have the Marine Mammal Regulations in front of me so I am not able to refer to the specific sections and provisions that you mentioned. However, as I understand the principles not only of the Nunavik Inuit Land Claims Agreement but also the Labrador Inuit Land Claims Agreement, the treaty rights that are conferred, which clearly include subsistence harvesting rights, are protected by the treaty. As such, if there are regulations or if there is legislation that seeks to take away those rights, it would be unconstitutional and invalid unless it can be justified.
Senator Baker: What section is that under?
Mr. Haysom: Under section 35 of the Charter. It has been with us since the Sparrow case and has been elaborated in various ways since then. The essence of the justificatory test is one in which there must be an overriding purpose, one that fundamentally will be of sufficient national and, perhaps in these cases, international importance that will allow for some restriction of the Aboriginal rights. The treaty sets out the process for that.
For example, in the Nunavik Agreement under Article 5, under the wildlife section, if the minister wishes to overrule a decision of the board with respect to harvesting rights and techniques, the minister can only do so on very specific and limited grounds. Also, the minister can only do so after following a very specific process which involves a formalization of the consultation requirement and the consent requirement that was set out in the original Sparrow test.
Therefore, the rights that we are talking about are not absolute rights whether they are Aboriginal or treaty rights. The great advantage of having them in a treaty is that it sets outside the considerations, criteria and processes that must be followed in order to deal with those rights validly under legislation.
I would suggest that those principles would apply equally to the Marine Mammal Regulations and the act.
Senator Baker: Madam Chair, it might be interesting, when we ever have an opportunity, to ask the government to amend these regulations to ensure that the beneficiaries in the Labrador case would be covered by these exceptions under the Marine Mammal Regulations, under the Fisheries Act.
The Chair: We do have other witnesses waiting. These witnesses are also extremely interesting and knowledgeable. I will allow a very short second round for senators who wish to ask questions.
Senator Joyal: I wish to make an additional comment to the point that I raised. I have never seen an agreement of a common law or civil nature whereby the person would have said, ``I enter into an agreement, and I signed that agreement with a third party, but that agreement is not an affirmation of my property rights under Article 4 of the Civil Code of Québec or underthe common law.'' I have never seen it in any commercial or civil matter. This affirmation seems equivalent to that example.
That is why I am asking: What consequences can we draw from such an affirmation or which consequences would a judge draw from that affirmation?
Mr. Haysom: The essence of what is happening in Article 29, Part 29.5.3 is this: Having recognized and enshrined rights in the Constitution and afforded them constitutional protection as treaty rights, starting to reopen or renegotiate those rights is a matter of constitutional business.
Part 29.5.3 can be explained as follows: ``We have hereby recognized and affirmed those rights. Go about your business by making ordinary contracts in accordance with the ordinary contractual laws of whatever jurisdiction is relevant. However, as you do that, do not reopen the constitutional questions and renegotiate treaties so that you have to go through precisely this process every time you want to reach an agreement with a department of government or a third party.'' That is effectively what that is driving at.
Senator Joyal: Is that what you would plead in court?
Mr. Haysom: Absolutely. I believe that is the intention and that is the effect. This is all within this context.
The Chair: I am sure there is a simple answer to this. Mr. Haysom, if your argument holds, then why would this clause not say that the Park Impacts and Benefits Agreement is not intended to recognize or affirm, alter or diminish, derogate et cetera. I hope you understand what I mean.
Mr. Haysom: The simple answer is because it cannot derogate except, obviously, with the consent of the rights holders. If the rights holders wish to use their rights in a way that is a derogation, they may do so. However, it is not a constitutional derogation from their rights; it is merely a contractual arrangement for such period of time as the contract subsists.
Senator St. Germain: Did I not hear you say that sections such as this are in other agreements? I believe Senator Sibbeston inferred that the Inuvialuit agreement contains similar sections as a result of a national park that was established at the time that agreement was signed. Senator Joyal, I believe you were in the other place at that time.
Is this revolutionary, or do you have any knowledge of this being in any other agreements?
Mr. Haysom: Yes, it is in other agreements. It was revolutionary and new probably in the Nisga'a agreement. I am not sure that it appeared in any agreement prior to the Nisga'a agreement, but I may stand to be corrected. I am not aware of it in the Inuvialuit agreement, but I did not understand that to be Senator Sibbeston's point.
I believe it started with the Nisga'a agreement and next appears in the Labrador Inuit Land Claims Agreement. Perhaps it also appears in the Tlicho Agreement. I am fairly confident of that. This is not new or revolutionary at this stage; I believe it goes back to the Nisga'a Final Agreement.
The Chair: Thank you very much for an extremely interesting session. We are very sorry about time limitations, but I am sure you are familiar with the political imperatives that produce time limitations. As I said at the outset, we are very grateful to you for having joined us and for having been so forthcoming in your testimony.
Honourable senators, we are now privileged to have with us — and again, we thank you for coming a very long way to be with us this evening — from the Village of Quaqtaq, His Worship Johnny Oovaut, Mayor; and from the Village of Inukjuak, His Worship Johnny Naktialuk, Mayor.
Gentlemen, forgive me if I have butchered your names. I hope you understand that we are very pleased to have you with us.
His Worship Johnny Oovaut, Mayor, Village of Quaqtaq: I am not an expert in anything, and English is not my first language. I might not understand some words, but I will try my best.
The Chair: It sounds pretty good to me.
Mr. Oovaut: We were talking about this agreement and looking at it. There are both complaints and approvals.
We did not hear too much about this agreement as far as the technical aspects go; they were not explained to us. We were quite apprehensive about going through the same loss that we had with the James Bay agreement, when we lost our Inuit rights to the land.
We have not really heard about this agreement. As I said, we do not understand the language too well. We do not understand why Nunavut is still in this agreement when it is supposed to be a Nunavik agreement. There are many things we do not understand about this agreement.
We have some questions ourselves. There are areas that we like but there are some that we do not like with this agreement. We can only say that we have always understood that the islands belonged to Nunavut, and we always wondered why they belonged to Nunavut when they have never even seen those islands. We never understood this.
I guess we are quite naive because we do not have the perception that we own anything, such as the land, whereas the governments own even the sky. They are now fighting over the North Pole because they say they own it. We have always shared the land. We are a culture of survival. We are a culture that tries to survive and help each other.
As a matter of fact, the other day I was speaking with a friend who is from Africa. He said that the Inuit cannot run the world because they are too nice. What I am trying to say is that we always thought we owned these islands as the people of Nunavik. We always thought that they belonged to us. Some of our relatives and fathers are buried on those islands; some hunters wanted to be buried on those islands because they lived off of them, and we continue to do that today.
We are quite confused. We hear one side of the story and the other side, too. Eventually, we would really like to own those islands — to say that they are legally our islands, Nunavik islands. [Mr. Oovaut spoke in his native language.]
His Worship Johnny Naktialuk, Mayor, Village of Inukjuak: I do not have a lot to add to what Mr. Oovaut mentioned. Most of the islands are in front of us and north and south of us. We have a long history with the islands that we use for our livelihood, as Mr. Oovaut said. We never figured those lands belonged to people, but we always used them from time immemorial, and we would like to continue to do so.
As Mr. Oovaut said before, with the agreement, we hear about certain technicalities, and there are certain areas where there are legal and technical disagreements. As he said before, we do not profess to have knowledge about or a handle on that particular area. The majority of the people that I have talked to are very happy that when this agreement goes through, we will finally own something — and even subservice has been mentioned.
As Mr. Oovaut said, we need clarification on our side and much of it is not really our jurisdiction. We need to be informed properly, and if there are two sides to the argument, we would like them to sit down and work this out. A majority of the people voted for the agreement. We were told that this would be an improvement from the previous agreement, that this time around there would be more benefit for us. Hopefully, this agreement is better than the first one so we do not repeat the same mistake.
Senator St. Germain: I know from the opening remarks of Mr. Oovaut, you are not used to doing this. You both represent communities as mayors. Mr. Naktialuk, you have 794 eligible voters and 744 voted — 725 voted ``yes,'' and 18 voted ``no.'' Mr. Oovaut, in your case, there were 180 eligible voters and 137 voted — 134 voted ``yes,'' and three voted ``no.''
My understanding, from the presenters representing the people that signed the agreement and that appeared before us, is that they went on radio and did everything possible to inform the people of what was in the agreement.
Is that correct? Did they go to each community, and were they on radio informing the people what they were buying into when they voted in such large numbers in favour of this agreement?
Mr. Naktialuk: Yes, there was a lot of information that came from the groups that dealt with this file. I do not remember if all sides came into town, for example, people from government and town, because I may not have always been around. I am not sure.
Senator St. Germain: I do not know if you understand. I have worked on many of these agreements, and I am not an expert. However, the more of these agreements one works on, the more one finds similarities. Much is the same in these agreements, whether it is the Nisga'a, the Labrador Inuit, Nunavut, or whether it is your case. A large amount of time and money has been spent on establishing this treaty so that you would own land — although I do not believe any of us own the land, rather it is the creator, God or whoever, who owns the earth, and we are just temporary tenants. When I say the creator that does not necessarily mean the Bible, because my people — the Ojibwa, the Cree and the Sioux — believe in a creator that is not based on biblical standards.
If you were assured of exclusive use of these islands for your people, do you not feel it is a benefit to enter into this agreement?
I have sat on the Standing Senate Committee on Aboriginal Peoples for years. There is nothing in this agreement that I know of that differs greatly in any way, shape or form with respect to asserting rights, whether it is for hunting, fishing or the management of these properties.
Do you believe that most people, if you give them a copy of this, could fully understand these agreements?
Mr. Oovaut: My 81-year-old father will not understand these words. There are no terms in our language for some of these words. For example, for the word ``computer'' we call it something brain-like. Therefore, he will not understand this agreement in government language. I can read English. I do not understand it. Therefore, how would my 81-year- old father understand it?
Also, people take for granted that they have informed the population through the radio. I do not believe it is an acceptable form of communication to inform people of important agreements such as this. We did not have any public forums or meetings.
At the time of the James Bay agreement, Senator Watt travelled to discuss the agreement with the people face-to- face.
I do remember one meeting with the negotiators, and they were talking about which islands we would choose. As for travelling before the vote, that was done only a few days before the vote took place. I only had time to read a section or two because every time I started reading this, questions arose.
We found it very odd — and we were wondering if it was legal in Canada — that people were informed that if they do not vote, it is considered a ``no'' vote. Is that democratic?
It felt like we were being forced to vote ``yes'' because we only heard the good side of the agreement, which was that we were going to get some money and some islands. For the longest time, people could not understand the 80-20 per cent issue. They wondered what islands they were talking about and what the 20 per cent was. We discovered it was Akpatok Island and Digges Islands that were considered the 20 per cent.
As I said earlier in my presentation, we have always thought we owned these islands, and when the opportunity came for us to legally own them, we voted ``yes.'' We were afraid that we would lose these islands if we did not vote, as we would be considered to have voted ``no.''
Also, it was quite unfair because young people of legal voting age are usually not interested in politics. They would also be considered to have voted ``no.''
The Chair: This is true across Canada.
Mr. Oovaut: Why were we forced to vote by telling us that if we did not vote it would be considered a ``no'' vote? We want those islands; we did not want to vote, ``no.''
The Chair: Who told you that, Mr. Oovaut?
Mr. Oovaut: [Mr. Oovaut spoke in his native language]
We heard this on the radio.
Senator Watt: They were proponents of this agreement.
Mr. Oovaut: It is like blackmail.
The Chair: Mr. Naktialuk, did you want to add anything?
Mr. Naktialuk: No.
Senator St. Germain: I will pass for now.
Senator Watt: I would like to echo what Senator St. Germain said about the fact that we do not even have ownership of the land.
We are here today to deal with the question of agreement because originally, we were the owners and occupiers of the area in question. That is title. The federal negotiators have stated quite clearly that in order to remove the obstacle, we have to remove the titles and replace them with fee simple. That is the whole question.
I am stating that because that issue was humming around the discussions that took place between the Labrador leader and former Senator Riel about why they were in the negotiations. I wanted to make that clear.
I welcome both of you.
[SenatorWatt spoke in his native language]
Do you want me to translate that? For the benefit of the people who do not understand my mother tongue, I am welcoming the witnesses, telling them to feel free to express how they feel and to not feel strained. They should say what they need to say. We are here to listen to what you have to say about the agreement.
Mr. Oovaut: How much time do we have?
The Chair: Since we started late with you, we have at least half an hour, maybe a little more. It is important to us to hear what you have to say.
Senator Watt: I will get to the point of what they have said concerning their lack of understanding of this agreement. When the negotiators travelled around the communities, they expressed as much as they could according to their ability using the radio and another forum — likely from time to time talking to people on a one-to-one basis.
You indicated that even though you speak and read English, you have difficulty understanding the content of the agreement: what you are gaining, what you are losing and the consequences. That is quite important.
The Supreme Court of Canada has made a ruling that outlines the stages they have to go through to deal with the question of infringement of their rights.
[SenatorWatt spoke in his native language]
I am translating ``infringement'' to Inuktitut just in case.
Would you be in the agreement if the committee came to the conclusion — I am not saying that they will, or that we will succeed — to allow Inuit of Nunavik to have a clearer understanding of what the next generation will be living with; to not put it in force for at least two years if the agreement is found to violate constitutional rights and that certain instruments that are supposed to protect us as human beings cannot be utilized for our benefit, when other Canadians have such a privilege? If they come to that conclusion, then I guess Makivik Corporation could rescind. In other words, this would not apply to us.
Would you be willing to come to that conclusion? I ask this because if this ever ended up in the Supreme Court of Canada — or any other court for that matter — I do not consider this bulletproof. There are many grey areas that need to be dealt with beforehand. This two-year period that I am suggesting will give us an opportunity to review this carefully. Hopefully, the Indian and Northern Affairs Canada will be willing to revisit some of those issues, not with an attempt to kill the bill completely but rather to put conditions on it.
Would that be acceptable in your mind? We need to know what is happening to the Inuit, what the consequences will be and what the benefits will be.
People in the North do not understand, for example, why it is when they have 100 per cent ownership of the land that they end up with 80 per cent plus a cash payment of $53 million. If they are the owners, why are they getting bait? The people are asking these questions in the North. They deserve to know that title has been removed and replaced by fee simple ownership. This is not a small matter and the people need to know. Otherwise, we will end up going to court because many of our people will be violating the law, and they will be punished for something that they believe is their right to do — the right to live, the right to life.
This is what I have been hearing from various people in the North. I hope to have a response from you as to whether a delay of two years is acceptable before the agreement comes into force.
Mr. Oovaut: Yes, I would agree. However, it is too bad that it has to be after the people have voted. It would have been better if it had been done a year in advance of the date of voting so we could have had time to ask our questions.
We asked questions about the beluga whales, which are mentioned in section 5.3.7. The issue of beluga whales is more controversial than this agreement.
Our apprehension about this section is that, in some way, it will be used to enforce the beluga management plan. I was wondering why this section was included when it is a regulatory harvest at the moment and regulated by the Marine Mammal Regulations under the Fisheries Act. The federal government is not set up to enforce that law. Will we give them more power to enforce the issue of the beluga whales? We have no federal courts, no lawyers and the federal government has no offices there.
Will this give them the power to start setting those up? The answer to this question is unclear.
To respond to Senator St. Germain about the islands, we will continue to use them with or without an agreement. They will not simply disappear; they will be there, and we will continue to use the islands for as long as we can.
There is another issue. I have always had archaeologist friends, and ever since I was a little boy, I have been aware of archaeology. I know the remains of Inuit have been removed by archaeologists. The comments I got from my archaeologist friend was that he wished that Nunavik Inuit owned those islands so he would not have to go to Nunavut to get a permit. I said that that would be great: We should own those islands so we can issue permits on that because Laval University had a five-year dig on Diana Island and removed over 100,000 artifacts. We have never seen those artifacts. Also, there is a special island — I have a picture here — called Qajartalik Island, where there are faces carved into soapstone. We would like to protect those areas.
Nunavut will not be around to protect those islands. They cannot see them. When he talked about Davis Inlet, the Premier of Nunavut said, ``It is so far away from you that you should not be concerned about it,'' and vice versa.
Senator St. Germain: How long have your people been negotiating this agreement? It is hard for us to understand that your people have negotiated this over many years. This is not something that has been thrown at you. It has developed over the years as an agreement in good faith with your people and some of your leadership. Obviously, these are people who have been elected by your people, and it is similar to much of the legislation.
I sit as a legislator, and there are many issues that transpire that go through these particular institutions here that I do not fully understand. However, I have to accept it on good faith if I elect someone.
The Chair: This is not a supplementary.
Senator St. Germain: Do you know how many years this has been negotiated?
Mr. Oovaut: Yes, we have heard this before. We have talked about this for 13 years. We were told they were negotiating a land claims agreement, but we were never told the details of it. That is all we heard. We heard the headlines, but we did not hear the details.
Senator Watt: You stated that this two-year delay mechanism that allows us to digest the agreement and have a clear understanding of it should have been done before. It may even allow us to go back to the federal government to say that it cannot be lived with because it does not make sense. It may allow us to even go as far as to take a good look at the harmonization between the civil law and the common law. As a Quebecer, the civil law applies to you, and the common law will apply to the offshore. It will be a nightmare for us, especially when there is already movement on the authority side from Fisheries and Oceans Canada.
As my good friends have highlighted, the Fisheries Act and the Endangered Species Act puts the beluga into the category where it cannot be harvested. In the agreement itself — you highlighted this — it says that it will be locked in for 20 years. The scientific community and the traditional knowledge group disagree on whether there is a shortage of beluga. If there is no shortage, they should not be under the Endangered Species Act. A number of people have been charged for harvesting and should not have been.
I hear your concerns about the beluga matter and so on. That would be dealt with within the two-year period rather than you ending up living with this agreement now.
Do you agree? I am asking that question again, even though you answered when you said that this should have been done before.
Mr. Oovaut: On the issue of beluga whales, I would use this agreement to lock in better quotas. For example, Kuujjuaq has 2,000 people — this is just an example — therefore, let us say that we will get 50 whales for Kuujjuaq, 15 for Aupaluk and so on. If this agreement can do that, fine, but if it will be used against us, I say, ``No.''
Mr. Naktialuk: I would like to touch upon the first question about time. It would help everyone all around to take the time needed to revisit particular areas where we hear contradictions, such as interpretations from the legal side. Some of us are in the middle because all sides want to be believed, and we are not sure who to believe.
Certain areas, particularly legal areas, need the two sides to sit down and come to an agreement.
We were also informed at the time of the community visits that there is a provision for conflict resolution in this agreement. We were told that was missing in the first agreement. However, this time around, they put in provisions for that. We believe it should be used to iron out the conflicts.
Since the 1980s, we have been hearing about this on and off. As Mr. Oovaut mentioned, we hear about the highlights only. The one I remember was that, at the time, the 80 per cent and 20 per cent were the other way around: The government had 80 per cent and the Inuit had 20 per cent of the lands. Many years later, with all the work they have done, it is now 80 per cent for us. These are the types of things that we hear about, and not the technicalities or the legal aspects of it.
Senator Milne: I am very disturbed by what the two gentlemen have told us about how they were informed about what was contained in this agreement.
When we come to vote on this, we should make some sort of comment, along with our report, that points out that two of the mayors of the region raised questions about how thorough the information package was that was sent out to the people.
Mr. Oovaut, you mentioned two islands in particular. Are these two islands that you feel that you will own or you will not own? Are these the 20 per cent or the 80 per cent?
Mr. Oovaut: They are the 20 per cent.
Senator Milne: They are the 20 per cent that you will not own. Will you still go ahead and use them anyway?
Mr. Oovaut: We cannot use them; they are cliffs.
Senator Milne: You are quite happy, then, not to have those, is that right?
Mr. Oovaut: They are bird colonies.
Senator Milne: We were told that the portions that the government was reserving were mostly like that.
Mr. Oovaut: Yes, they are bird colonies.
Senator Milne: That is encouraging for you people as well, I would hope.
Was there any approach during the information session to educate the Inuit women? Will they have equal benefit and access to all these rights that the male population will have? Was there any discussion about that whatsoever?
Mr. Oovaut: Where does it mention ``male'' and ``female?''
Mr. Naktialuk: I never heard about it.
Senator Milne: That is why I am asking you.
Mr. Oovaut: I will answer with a question: Where does it say that?
Senator Milne: Therefore, it does not. It just guarantees everyone exactly the same rights, is that it?
Mr. Oovaut: The intention to inform the population was there; the time frame to do it just was not sufficient. Any politician always tries to benefit their constituency. It would be political suicide for Makivik not to do that because we would vote them all out. There were always good intentions.
Senator Milne: You also, as mayor.
Mr. Oovaut: Yes.
Senator St. Germain: There is no question that lengthy negotiations have taken place, gentlemen. I would hope that everything in the agreement — as I have read it and looked at it — is consistent with other agreements. Hopefully, you will find it in your heart to work within it. I believe it will be to the benefit of your people. Other than that, thank you for coming here.
The Chair: I will ask the researcher if he can help me here. In response to Senator Milne's question, this day, somewhere in this pile of documents, I read the statement in black on white that this agreement applies equally to male and female persons. I cannot find it now, so I will see if we can look into it.
Senator Milne: I cannot find the documentation we received from a woman about the beluga whales. I know it was in my reading pile today, but I cannot find it either.
Senator Watt: You have heard me a number of times on the radio talking to the people, and also talking to you people individually, that the big concern I had was violating our constitutional rights. The constitutional rights legally did not exist or were not recognized until 1982.
We have heard a number of times from the people that support this agreement that their constitutional rights in no way will be impacted by this agreement. The argument used is that the Constitution is the highest law of the land and, therefore, their rights cannot be impacted.
However, I have been arguing differently. They will be impacted because what will be recognized is only what is in the treaty. At the same time, what is in the treaty can be removed and dealt with or meddled around with by a set of regulations.
Knowing that fact, we have negotiated in the past, under section 25 of the Charter, something called a non- derogation clause. It is meant to be a protection in case that happens. That non-derogation clause is not in the bill.
We recently made a report as a committee here, just before Christmas, on a non-derogation clause. I will ask you a question, Mr. Oovaut, on this one; listen carefully. I will recommend to the committee to use a non-derogation clause to protect our Aboriginal rights. Would you be in agreement with that or do you not mind if you end up losing your Aboriginal rights? There is so much uncertainty. Maybe that question would be considered to be too direct.
Senator St. Germain: A little bit.
Senator Watt: Do you want me to reverse that a bit?
Senator Stratton: No.
Mr. Oovaut: I can answer that. It cannot be bad to put it in writing to protect the Aboriginal rights. Also, because of the word ``assimilation,'' where the non-Inuit culture wants us to assimilate into the non-Inuit culture. It cannot be bad to put that into writing. That is all I can say. This is a controversial word that I have heard before, but I would say that we are a distinct society.
Senator St. Germain: We have heard that before.
Mr. Oovaut: It is true. Who can live in the Arctic like we can? Not too many people can live there like we can up North. It is our home, and we must protect it. We must also protect our culture and our people. Maybe a better word is that we are quite unique in Canada, to be who we are.
We are different, I should say. I would like to point out that I am pushing to have a 4,000-year celebration in Nunavik to prove that we have been up there for 4,000 years.
The Chair: Will your archaeologist friend help you prove that if proof were needed?
Mr. Oovaut: Yes, I have the proof.
Senator Watt: The agreement provides that Nunavik would receive over a period of 10 years $50 million in exchange of their existing Aboriginal rights. With 11,000 Nunavik Inuit, this means less than $500 per person, per year over the period of 10 years. Is that enough?
Senator St. Germain: Where are you getting this information, sir?
Senator Watt: I am getting it from the agreement.
Senator Stratton: How do you define ``enough?''
Senator Watt: It is a question of what can be done with $500 per person. Is that what I am worth as an Aboriginal person?
Senator Stratton: Please tell us what you mean by ``enough?''
The Chair: Mr. Naktialuk, are you trying to respond to this question?
Senator Andreychuk: When the senators give him an opportunity, I believe.
Mr. Naktialuk: The majority of people that I have heard from, the money is there. However, the majority of people feel that owning the islands is more important than the money.
Senator St. Germain: Good.
Senator Andreychuk: That is encouraging.
Mr. Naktialuk: We always thought we owned the islands. When we were told that we did not, we are happier that we are getting the islands back regardless of the money. We were not sure if the money was put there to ensure that we voted, ``yes.'' That is up for debate.
Someone mentioned assimilation, and if I was informed correctly, even our James Bay and Northern Quebec Agreement was signed before the policy of assimilation was abolished. This is the type of information we learn after the fact, if we look deeper.
We hope the government is dealing with us honestly. However, if there is anything in the document that looks like a policy of assimilation, we would appreciate that if a conflict exists that a resolution be found in order that we do not lose this agreement and the islands and, therefore, have to start all over again.
The Chair: Thank you. I said at the outset and I repeat that we are grateful to you for coming all this way.
Mr. Oovaut, I wish to respond to something that you said. I would like to assure you that every member of this committee — and I feel I can assure you every member of the Senate — wants to do what is right for your people, which includes recognizing that you are different. You do have historical and present differences from other Canadians and we care — we all care. We may have disagreements on what seems to be the best practical way to go forward, but I want you to know, as an article of faith, that we all really care about doing the best thing that we can for you.
Senators, I would draw to your attention that in your information on the committee there is a brief that was submitted by Mr. Joanasie Koperqualuk.
This committee will meet tomorrow at 10:45 in this room. We shall proceed to clause-by-clause reading of two bills — Bill S-213 and Bill C-11. Bill S-213, you will recall, is Senator Lapointe's bill.
Senator Watt: I do not want to interrupt, but I have a question. Since you highlighted Mr. Joanasie Koperqualuk's written statement — and this is my first year on the Standing Senate Committee on Legal and Constitutional Affairs as a member — how will we proceed? Will we hear what he has to say?
The Chair: He was not able to join us. That is why we asked him to submit a written brief. Normally, it would not be the procedure to read into the record the material that is available in written form. It is available in both official languages, which is why I drew it to the attention of the members of the committee to ensure that they would be able to consult it before we meet tomorrow.
We can also file that brief as an exhibit.
Senator St. Germain: Will we file that tomorrow morning?
Senator Andreychuk: You can do it now.
The Chair: I would consider that the committee has agreed to do that now.
Senator Watt: I have another question.
The Chair: Senator Watt, is there any reason we should keep our witnesses with us?
Senator Watt: It is important that they hear the question that I raise because they will be transmitting what they hear from the other people, what they have to say and what we have to say. That is important.
I anticipate there will be a huge amount of written documentation arriving. I know that when my people catch on, they catch on. However, it took a while for them to catch on to what is happening here. This will be triggered sooner or later, and there will be sets of written briefs that will arrive.
How will we deal with them after the fact?
The Chair: If the committee has conducted clause-by-clause consideration of the bill and has reported back to the Senate following that, then it would be incumbent upon us, if we thought this was necessary, as senators and as members of the committee, to draw the attention of the Senate to materials that we thought the Senate needed to know about during the third reading debate.
Senator Milne: That could also occur at the report stage.
The Chair: Yes.
Senator Watt: There would be sort of a sunset clause, then. Will what comes from the North no longer have an effect?
The Chair: Not necessarily, no.
Senator Watt: That is what I want clarification on.
Senator St. Germain: It can be tabled in the Senate.
The Chair: Material can be tabled and debated in the Senate. There is no sunset clause until a bill has received third reading. If that bill has been amended, then it must go back to the House of Commons. Tomorrow morning's events are just one more step in what is bound to be a longer process.
Senator Watt: Thank you for that.
Mr. Oovaut: Concerning the 20 per cent of the lands, I spoke only for Akpatok Island. With the Inuit, there are caribou people and those who live by the sea. There is a particular community that does use that island of the bird colony — for collecting eggs and so on, for sustenance.
Just to show you how silly the word ``assimilation'' is, I would rather that you assimilate into the Inuit culture and become Inuit.
The Chair: If you asked me to do what Inuit do, I would be dead.
Mr. Oovaut: I am just trying to prove a point. It is silly for people to ask us to assimilate into their culture.
The Chair: We do not want you to be assimilated.
The committee adjourned.