Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 5 - Evidence for January 31, 2008

OTTAWA, Thursday, January 31, 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; and Bill S-213, to amend the Criminal Code (lottery schemes), met this day at 10:52 a.m. to give clause-by-clause consideration to the bills.

Senator Joan Fraser (Chair) in the chair.


The Chair: As you are aware, honourable senators, this meeting of the Standing Senate Committee on Legal and Constitutional Affairs has two items on its agenda: clause-by-clause considerations of Bill C-11 and Bill S-213. I would propose that we address first Bill S-213 because I think it is the shorter and simpler matter to deal with.

You may you recall that in our last meeting before the Christmas break, we did very briefly discuss this bill. I believe I notified the committee at that time that we had been assured by the law clerk that Bill S-213, which is now before us, is the same bill as Bill S-211, which the Senate adopted in the last session of this Parliament. It is also the same bill as an earlier incarnation, which was studied by this committee and, if I recall, was even amended by this committee. What we have before us now, therefore, is the same bill that this committee passed in an earlier Parliament and that the Senate as a whole passed and sent to the House of Commons in the last session of Parliament, on October 17, 2006.

Therefore, honourable senators, are we agreed that we shall move to clause-by-clause consideration of Bill S-213?

Hon. Senators: Agreed.

The Chair: Agreed. Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed. Shall clause 1 carry?

Hon. Senators: Agreed.

The Chair: Agreed. Shall clause 2 carry?

Hon. Senators: Agreed.

The Chair: Agreed. Shall the title carry?

Hon. Senators: Agreed.

The Chair: Agreed. Is it agreed that this bill be adopted without amendment?

Hon. Senators: Agreed.

The Chair: Agreed. Is it agreed that I report this bill to the Senate?

Hon. Senators: Agreed.

The Chair: Agreed. Congratulations, Senator Lapointe.

Senator Lapointe: Thank you all for your understanding of the situation. I appreciate what you have done.


The Chair: I will report to the Senate this afternoon.


This brings us to Bill C-11. Before the formal routine, let me ask if there are senators who wish to propose amendments to this bill.

Senator Watt, do you have photocopies of your amendments that we can circulate? The clerk has some and we will have more copies made to be provided for all senators. Senator Watt, I have the text of one amendment. Will there be others?

Senator Watt: Going clause-by-clause, I propose to deal with only one.

The Chair: Thank you very much. We will proceed on that basis. That will be an amendment to clause 12.1.

Senator Watt: Clause 12.1 and clause 12.2.

The Chair: Does everyone now have a copy of the text of the amendment that Senator Watt will be proposing when we arrive at that stage? Has everyone had a chance to look at it? We will have a fresh chance to discuss it when we get there.

Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-11?

Hon. Senators: Agreed.

The Chair: Agreed. Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed. Shall the preamble stand postponed?

Hon. Senators: Agreed.

The Chair: Shall clause 1 stand postponed?

Hon. Senators: Agreed.

The Chair: Senators, would you be in agreement to group clauses 2 through 12? Senator Watt is actually proposing 12.1, a new clause. We would stop after clause 12 and he could make his motion then. On that basis, we shall group those clauses.

Shall clauses 2 through 12 carry?

Hon. Senators: Agreed.

The Chair: It is agreed. Senator Watt, do you wish to make your motion?

Senator Watt: Yes, I would like to make a motion to amend the bill to insert a new clause, 12.1 and 12.2, on page 4.

The Chair: Do you want to read it or would you like the clerk to read it?

Senator Watt: Do you want me to read the whole amendment for the record? I move that Bill C-11 be amended, on page 4, by adding, after line 26, the following:

12.1(1). Within ten years after this Act receives royal assent, a review of the previous provisions and operation of this Act and the Agreement may be undertaken by Makivik.

(2) Makivik may submit a report on any review undertaken under subsection (1) to the Minister referred to in subsection 12.2(1).

(3) The Minister shall cause any report submitted under subsection (2) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives it.

12.2(1). Within ten years after this Act receives royal assent, a comprehensive review of the provisions and operation of this Act and the Agreement shall be undertaken by the Minister designated by the Governor in Council for the purpose of this Act.

(2) The Minister shall cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is completed.

The Chair: Thank you. For discussion, Senator Watt, could you explain the purpose of this amendment for us?

Senator Watt: I have highlighted and provided the reasoning here as well. In late October 2007, the Auditor General of Canada tabled a report after the Inuvialuit Final Agreement was signed in 1984 after 10 years of negotiations. This agreement is similar to the one for the Nunavik Inuit Land Claims Agreement. That is the reason behind that. I thought it was important.

We are very troubled to read in the conclusion of the report, on page 28, paragraph 3.88:

We conclude that Indian and Northern Affairs Canada (INAC) had not met some of its significant obligations and management responsibilities for implementing federal obligations related to the Inuvialuit Final Agreement.

While section 35 of the Constitution of Canada, 1982, recognizes and protects existing Aboriginal and treaty rights, Aboriginal people are legitimated to expect that the government would perform and deliver its constitutional commitments to promote equal opportunities for them.

We expect that the government and the department act in accordance with the Constitution of Canada, 1982, to promote and to protect existing Aboriginal rights instead of extinguishing them.

The Chair: Comments, senators?

Senator Sibbeston: I would just say that if there is support for this amendment, I think it is appropriate. I would maybe like to have had included that the agreement be properly implemented, but if the reviews of the provisions and operation of this act to be done by Makivik and also by the minister cover implementation, then that is good. As we know, acts and agreements are made and we find that the government does not follow through. They are not properly implemented. Maybe a provision that requires a review every 10 years will alleviate the problem by putting pressure on both the parties to ensure that the act and the agreement are properly implemented. Therefore, I feel it could be a positive thing.

Senator Oliver: Yesterday we had Aboriginal witnesses, lawyers and other experts here. They explained the process through which they learned about this statute. They told us how it was explained to them and what representations were made.

Can Senator Watt tell me whether he has discussed this change with any of the Aboriginal groups who will be affected by this amendment, or is this something new? Have they had a chance to read it, vote on it and discuss it? If they have not been told about it, is it fair to change what they have already voted on and agreed to?

Senator Watt: First, Senator Oliver, I can say only that the fact that they voted on the agreement, 78 per cent in favour, does not necessarily mean that they were properly informed of the content of the agreement.

Senator Oliver: They were not informed of this either.

Senator Watt: Neither have they been informed of this. This amendment basically allows them to be able, down the road, 10 years from now, to hear whether the obligation of the government has been fulfilled over that period.

In the past, they were not properly informed or there was misleading information, because they were informed on the basis of the summary but not on the text itself. When you read the summary and the text, they are entirely different. That has been one of our arguments and, hopefully, this will not happen again.

Senator St. Germain: I, too, have a concern, similar to what Senator Oliver has brought forward. The inference that these people have not been informed puts into question the integrity of the leadership of the people who negotiated this agreement. This was negotiated over a number of years. It did not just pop out of the ocean at a moment's notice. There has been considerable discussion over the years in this region about their trying to enter into a comprehensive agreement with the federal government.

Therefore, with all due respect to Senator Watt, I question his assumption that people were not informed. The statement was even made that the people there were ignorant of the facts, but I do not believe they were. I am sure that everyone does not know every detail that is in this agreement, but that does not justify foisting an amendment of this nature on these people after this lengthy negotiation in good faith.

I think one of the mayors here yesterday, Mr. Naktialuk, said that the most important aspect of the whole process was that they gain certainty with regard to the islands. For us to accept this as an amendment, I think, would be an affront to that First Nation.

I am sure that Senator Watt is acting in good faith. I am not questioning his intentions, but I think what he is doing is an affront to the leadership and to those who negotiated and voted for this agreement. There is no question, as Senator Sibbeston said, that implementation is a problem; we know this. As a matter of fact, we have instituted a study, which is just commencing.

The Chair: Your committee?

Senator St. Germain: The Standing Senate Committee on Aboriginal Peoples — not my committee, but Senator Sibbeston's and all of ours. We have instituted a study that will take place immediately. We are trying to report back by the end of April because of the numerous complaints about the implementation of the Inuvialuit agreement, the Cree-Naskapi agreement and the 20 various agreements that have been arrived at across the country, which are not being treated properly by Indian and Northern Affairs Canada. INAC is a problem.

It would be an affront and an insult to the people who voted, to the people who negotiated, and to the whole process, if we were to accept this amendment as such. Thank you.

Senator Milne: It is my understanding that this amendment in no way alters the agreement that was signed and voted on by the people of Nunavik — in no way whatsoever. All it does is require a report to occur 10 years from now, if that is what they want.

Senator Watt: My point has already been made by Senator Milne, so I will not expand on it much further, except to say that this amendment does not take away anything from the leadership. It merely gives the leadership more credibility. That is the way I see it; nothing more.

Senator Sibbeston: The amendment says that after 10 years Makivik and also the minister will conduct ``a comprehensive review of the provisions and operation of this Act.'' On further review, I believe that that refers to the agreement. Clause 5 of the bill says that the agreement is approved, given effect and declared valid. This amendment provides for a review of the agreement as such, and I am wondering if that is what we want. My concern is that there is a whole new initiative or industry growing up in our country, which is the question of implementation of land claim agreements. It is has been discovered after many years that agreements are made in good faith but the federal government in particular does not implement the agreements as the agreements provide.

The problem is implementation and not so much the terms of the agreement. Therefore, if this amendment were to look at implementation, that to me would be a very good thing, and we would set a new standard, a new approach in our country, that 10 years after a land claims agreement is reached, a review is done of the implementation. That would be as positive step, but if this amendment goes back and looks at the terms of the agreement, that is a whole different matter. I am concerned, and I think we need to be very sure about what is being sought here.

The Chair: I will be interested to hear comments. I think the word ``operation'' is a synonym in this context for implementation. As I read this, it is provisions and operation, not paragraph 1 provisions or paragraph 2 operation. It is very difficult to examine the implementation of something if you do not look at what is being implemented. It would be the agreement that was being implemented, which is a very complicated document.

Senator Sibbeston: If the general feeling and understanding is that we are not looking for a review of the agreement to see whether changes to the basic agreement should be made, but rather looking at whether or not the agreement has been implemented, then I support that intention, but I cannot imagine the government agreeing to have an agreement wholly reviewed every 10 years.

The Chair: For greater certainty, Senator Sibbeston, this amendment does not say every 10 years. This amendment says within 10 years — once for Makivik and once for the minister, within the same time frame.

Senator St. Germain: Further to what Senator Watt was saying, the actual terms of reference of the agreement may not be altered. However, what I am really concerned about is an endless delay. I will use an outside wild card that you would not expect from me to illustrate my point, and that is the Kelowna Accord. These people have negotiated in good faith, and they are expecting an agreement now. With changing governments and so on, if we start delaying this by adding amendments that are designed possibly with good intent, I think this whole process could continue on in perpetuity.

This is important, and Senator Watt knows the importance of getting these agreements ratified. When the Tlicho bill came before us we made sure it went through as quickly as possible because the people who negotiated had waited. This process has taken along time. I am not saying that this should be expedited irresponsibly. It would be irresponsible on our part to accept an amendment that would delay the process. If there were some other way of getting it into the process, I would agree, but to delay the agreement and deny these people their basic negotiated position would be a travesty.

Senator Andreychuk: I am mindful of our fiduciary responsibilities in such agreements, but I think that by accepting this amendment we would go over the line back to paternalism. The Makivik know perfectly well what they can do and what they should do for the future. They have the same discretions as other citizens and their rights are constitutionally protected. For us to say that they may do this or that smacks very much of paternalism. They can come to their own conclusions about whether the agreement is working for them or not.

Also, I hear that the Standing Senate Committee on Aboriginal Peoples will be discussing the particular problems of INAC and implementation. I may not be the best lawyer in Aboriginal law, but I know that when you say ``review of the provisions'' you are looking at whether it is a good or a bad deal. You are inviting people to question the deal.

Now, I do not think that is what is intended here. People have negotiated in good faith. Our responsibility is not to determine whether this is the agreement we would have reached. We are not parties to the agreement. I do not think we should step into those shoes.

I know that Senator Watt has, for good intentions, been moving the line to look at whether this is the kind of deal that should have been made, but my role is to determine whether there was a negotiation and a process, and I have to respect the Aboriginal leadership. To pass this amendment would indicate that we do not have faith in that Aboriginal leadership. We do not do this in agreements when the Canadian government signs with others. Why would we introduce suggestive comments about what the Makivik can do? The Makivik can make up their own minds. I have great respect for the leaders who came before us who said that they did the best they could, and that is what we should be looking at, not intervening in the contract, not supplanting their leadership with ours, not telling them how to do their job. We have had too many years of that and I do not want to go back to it.

If we think that the process and the ratification were flawed or that they did not follow their rules, that is another issue, but no one has raised that issue. Many people have said that perhaps they do not understand the full content of the agreement, but there is not one Canadian who can say that he or she knows the content of all the agreements the Canadian government signs on our behalf.

The Nunavik Inuit elected their leadership, and I think we have to respect the negotiating process. I do not think this is the time to intervene with suggestions or otherwise. Unless someone can tell me that the Makivik Corporation wanted this amendment, I do not see how we can intervene at this point.

Senator Joyal: Various points of view have been expressed here that I would like to address. First, I do not think this is a way of challenging the leadership of the Makivik Corporation. It would be if the first paragraph said that the review shall be undertaken. That would put specific obligation on the Makivik Corporation, thus changing the responsibility of the Makivik Corporation under statute. However, that is not what it says. It simply gives them a tool to press the government to respect the substance of the agreement. They might decide to use that tool or not, depending on how the government implements its obligation. It was said around this table that the unfortunate precedent of Indian and Northern Affairs Canada is not to respect its obligations. The present Standing Senate Committee on Aboriginal Peoples is studying past agreements that have not been respected by INAC. That committee is undertaking one study now. They could have undertaken the James Bay and Northern Quebec Agreement. It is, unfortunately, the history of disrespect for 25 years or so.

The issue of good faith was not on the part of the Aboriginal people. If we have to question it, the bad faith is on the government's side. This amendment gives the Makivik Corporation an additional capacity to maintain the good faith along the road. That is essentially what it says.

On the other hand, this amendment addresses the past lack of capacity of the government; it bestows on Parliament a formal obligation to come back on the way that agreement has been implemented. That is essentially what it does. It does not change a word of this agreement, as Senator Milne has said. It does not change it. It gives an opportunity to the Makivik Corporation, on the basis of past history of non-respect of such agreements, to inform Parliament of its fiduciary duty of how those obligations will be respected in future. It does not prevent implementation.

I agree with Senator St. Germain: It does not change anything. As soon as this is amended, it immediately takes into operation this agreement. It ensures that we have added an insurance policy that the government will stand by its obligation, because precedent shows that the government does not respect its obligation. I do not want to list all of them. However, if we are at the stage of discussing 600 land claims pending, it is because the Government of Canada has not respected its obligations in the past. There are 150 years of history of not respecting its obligations.

In my opinion, this amendment is a welcome addition to this bill. I think it will make the bill more effective and will prevent the kind of situation that the Standing Senate Committee on Aboriginal Peoples finds itself in where the committee has to look into goings-on because the result and the expectations have not been fulfilled. That is essentially what this bill maintains, I think, in the present context. I do not think it undermines the status and the responsibility of the three Aboriginal groups involved in that agreement. That is my sincere conviction.

Senator Stratton: How long did it take to reach agreement? I would like to have your attention, honourable senator. How many years did it take to negotiate?

Senator Watt: This agreement?

Senator Stratton: Yes. I understand that it has been thirteen years.

Senator Watt: You do not need a year to negotiate something like this. There are people who are making a living off of those Aboriginal people.

Senator Stratton: I do not want to get into a digression. I am simply saying it has taken 13 years. This affects your people. You have been around throughout the length of that negotiation. For the most part you knew what was going on; you would have heard the concerns of those people that they were not being informed.

If you were aware of dissatisfaction, despite the fact that the vote was overwhelmingly in favour of accepting this agreement, why would you not have made sure that this clause was included? You could have gone to the minister or to Veryan Haysom, the legal counsel, and asked them while this was being negotiated.

Why now? That is my question. My opinion is that this is another delay tactic used against the implementation of a very critical bill, which these people have voted overwhelmingly in favour of. Raising this objection now is reprehensible. You could have done it two years or four years ago when you sensed that there was something wrong, but you choose to do it now. I want to know why this objection is being made now. Why would you not have done this while the negotiation was being discussed?

The Chair: Senator Stratton, your said at one point that you were not asking a question, but your last remarks were a question. Do you want Senator Watt to respond or was that a statement?

Senator Stratton: He can respond in his turn. I do not want him to do it twice.

Senator Watt: He does not want my response.

Senator Oliver: I think Senator Sibbeston made a very good point when he said that some of the language in this amendment forces a review of the agreement. The operative word used several times in this amendment is ``review.'' Given how ``review'' is qualified by using the clear language of the amendment, it is a review of the agreement. Proposed clause 12.2 says that there shall be a review of the agreement.

If Senator Sibbeston is correct — and I believe he is — this forces a review of the agreement, the very thing the witnesses here yesterday said they had agreed to quite overwhelmingly. This may force a change in the things they have agreed to after years of negotiation, talk and discussion. That is not what they voted for. Thinking of the Interpretation Act, clause 12.2 says ``shall'' not ``may.'' It is not permissive, it is mandatory; they shall review the agreement.

Therefore, I think that Senator Sibbeston is quite correct. He has put his finger on a major problem and it should be considered.

Senator Baker: Point of order. Regarding the review, I think that Senator Oliver is pointing out that the amendment says ``shall'' for the minister but ``may'' as far as the corporation is concerned.

Senator Adams: There are several issues. Mayors from the communities came yesterday, and I heard them speak before the committee.

If the minister did not accept the amendment, the bill would automatically die again. Now we do not know what is going to happen with government. This was not passed before we broke last year. Now it is getting close again to the break for summer.

I have a little difficulty with the amendment. Some of the witnesses before the committee suggested an amendment to some of the clauses of the bill; however, nothing comes from the organization. I have a bit of difficulty with that. If we do that in the Senate, we are not going to be popular. In the meantime, we are delaying the bill. If the minister does not accept the amendment, the bill will come back here again. The bill could sit in the House of Commons for another year and there will be nothing in the regulations and nothing will change for the people of the North. They will not accept that.

If the amendment came from those people there, from the people who were organized together, and from the mayors and so on, I would support it, but not from the committee.

Senator Sibbeston: Madam chair, as I continue studying at the words in the bill, I realize — and I say this with much respect for Senator Watt, his cause and his concern for the people — if this amendment is passed as is, it will throw the whole land claims negotiation process into chaos because there will be no certainty. The words in the amendment are ``a review of the provisions and operation of this Act and the Agreement.'' That would make it possible within 10 years to have the provisions of the act and the agreement reviewed.

Senator Oliver: Exactly.

Senator Sibbeston: Therefore, in my view, it will throw into chaos the whole process of negotiating, the give-and- take process of land claims and some certainty once an agreement is reached, because whatever happens with an agreement, the government or the other side will know that in 10 years the provisions of the agreement will be reviewed. Therefore, there will be a whole lot of uncertainty. I am very concerned about this. Is this what we want to happen to the whole process of land claims agreement making? In my view, it will be a chaotic situation.

If implementation is all that is required here, then why do we not make an amendment to provide a review of the implementation of the agreement? If we just add the words, ``review of the implementation provisions and operation of this act and the agreement,'' that will restrict the process to a review of the implementation and not so much of the provisions of the act and the agreement.

We need to deal with this situation in a serious way. These words are serious. It will throw the whole process into chaos. There could never be an end. There will be a 10-year review, and at that point will there be another amendment to provide another 10-year review? It will make the whole process uncertain throughout. We need to look at this very carefully.

The Chair: I do not want to block discussion. I just want to be as clear as we can in this discussion. As I noted earlier, this proposal does not call for repeated reviews. It calls for two independent reviews within 10 years, nothing more than that.

Senator Stratton: No, but you could add it later.

The Chair: Anyone can add anything later, I suppose, but what we are talking about right now is a call for two reviews, not repeated reviews. We are not being asked to vote on repeated reviews.

Senator Stratton: Once the door is open, the door is open.

The Chair: That is a political argument which committee members are free to make. The test of the amendment does not say that. That is the only point I am trying to make at the moment.

The second point that I would draw to your attention is that the agreement actually does include an amending procedure. Therefore, it is not beyond the bounds of what this committee may properly study to contemplate the possibility of amendment to the agreement, since the agreement itself sets out an amending procedure, but we are not in the context of this proposed amendment to the bill looking at an amendment to the agreement.

I know that all senators have strong views about this bill and this agreement and the right course for senators to follow, but I really think it is very important for us to be clear in our discussion about what precisely is before us.

Senator Sibbeston: Madam Chair, may I comment on what you said?

The Chair: Yes.

Senator Sibbeston: Without question there are amendment provisions in the agreement, but they are strict provisions requiring the consent and the involvement of both parties to the agreement. In this case here, you will have a situation where the Makivik may and then the minister shall, and so it puts the parties in different standings. There could be a review. The minister can have a thorough review of the provisions and say we do not like all these clauses after all. We are going to change it and get the House of Commons and Senate to pass a provision. The agreement that had been made by the Aboriginal people with the federal government could really be changed by the federal government as one of the parties only. I think these amendments leads to further chaos in the future.

Senator Oliver: I agree.

The Chair: My reading of the agreement is that the amending procedure for the agreement does not provide for unilateral amendment by the Government of Canada or by any other party to the agreement.

I read article 2.13 to say:

Amendments to this Agreement shall require the consent of the parties as evidenced by:

(a) in respect of Her Majesty, an order of the Governor-in-Council, and

(b) in respect of Nunavik Inuit, a resolution of Makivik . . .

The Government of Canada, the Parliament of Canada could not do it alone.

Senator Stratton: That is what he said.

Senator Sibbeston: That is what I am saying. The agreement provides for —

Senator Andreychuk: For a point of clarification, both parties have agreed on how the agreement can be amended. The two parties to the contract, to the treaty, have agreed on how they could amend it. We would be amending the amending formula. I think that is a simple way of putting it, because we would be suggesting how the Makivik could add to the amending formula and how the minister could — maybe not legally or technically, but it is a political red flag.

With respect, I think we should be talking about observations, and I would encourage Senator Watt to withdraw his motion and to put in observations, because I think that that would be the way for this committee to go and the way we have acted before. We have every right to suggest and to give our opinions but not to interfere with the agreement. These two proposed clauses interfere.

The Chair: I am glad that you made the distinction between political conclusions drawn on the basis of the amendment and what the amendment actually would say, because that is important. We will be opening the floor for a discussion of observations in due course, but at the moment we are on the amendment.

Senator Andreychuk: I just want to make my point clear. By accepting this amendment we would be adding to the amending formula within the agreement.

The Chair: Legally, I do not follow that.

Senator Andreychuk: Legally, with respect.

The Chair: I would like to have some further evidence on that.

Senator Watt: I do not know what more to say. My Aboriginal colleagues, especially Senator Sibbeston, seem to be arguing that this will cause more chaos in the future. I do not buy that. I do not agree with that, as you know if you have listened to me and have read some of my comments from the time that I started this disagreement to the agreement. I guess you have not been listening and you have not been reading what I have put forward. There will be chaos for the people who are impacted.

I felt perhaps we should take the responsibility as committee members to try to move forward. In my opinion, it does not take away from anything. In our past experience with the government, they have been very much in chaos in the sense of not implementing the various sets of agreements. On account of that, there have been many payouts of taxpayers' money — not once, but several times.

As committee members, we should be cautious about whether we are properly serving the general public of Canada. If we put ourselves in the position again of turning a blind eye to what is happening in this country, it is not good.

For these reasons, at least as a minimum as committee members, we should come forward with what I am trying to come forward with. It does not take away from the leadership of Makivik Corporation. It does not categorically say that chaos will be created because we are going to review certain operational things regarding the implementation.

To me, that makes sense. How would you feel if your constitutional rights were going to be taken away from you? We are not even addressing this issue.

If it happened to another group in society in this country, they would be very alarmed. I am here as an individual senator to do the best I can to reflect my representation on the basis of what I know.

You do not know. You have not heard the campaign that was put forward to the people. You do not know what text was used. I know and I have heard. I am one of them. I speak fluent Inuktitut; I am not guessing.

My concern here is the people. What will happen to the people when their rights are taken away? They are going to be appearing in front of the court and not have anything to hang their hat on to say, ``I have my rights to protect me,'' at least for the purpose of argument. That is taken away.

At the minimum, at least we could try to give some kind of certainty, which this does not provide. All it does is look at the operational side of the implementation.

Senator St. Germain was pointing out that they are reviewing this. Witnesses have come forward saying all we are dealing with is a low level of bureaucrats. For this reason, we are not getting anywhere on the implementation.

We are stuck. All of Canada is stuck not knowing whether to move forward reluctantly. Maybe that is a part of it — the reluctance. To me, this is total discrimination. What else can I say?

The Chair: I have one more senator on the list, Senator St. Germain. Then I propose that we suspend to think about this for five minutes.

Senator Stratton: No. Let us ask the question.

The Chair: Yes; and then move to the vote. This committee is meeting within its scheduled meeting time, Senator Oliver.

Senator Stratton: I disagree.

Senator St. Germain: I think this basically reopens the negotiations. This is what I wrote down before Senator Sibbeston spoke. It certainly erodes certainty.

The Inuit people of this region said that they are seeking development. They want to improve their plight and be able to improve their standard of living. I can assure you, as a business person first and foremost for the major part of my life, the greatest thing that any business wants is certainty. There will be no development if it is an open-ended situation where people are expected to come in, and in 10 years or prior to 10 years, negotiations can be re-opened on the agreement itself and on the implementation of it.

We have heard witnesses here saying that all rights are being protected. I honestly believe that anything we do here is basically a delaying tactic. I think Senator Adams, who is from that part of the country, put it best. He used the analogy that if we delay this thing, it is like torturing animals. I am certainly not comparing the Inuit to animals. However, the fact remains that it is a torturous process because of the time that it has taken, and this basically undermines the negotiations that took place in good faith.

Honourable senators, there is no way that we can legislate honour into the government. We are the government. Senator Joyal has been here for years; Senator Sibbeston and others have sat here for years; and Senator Gustafson has been in this place longer than I have — he has been here for 30 years and I have been here for 25. You cannot legislate or regulate honour. If the honour of the Crown is not there by way of implementation, we have to change it with leadership. We have the powers in this place, and we should be using them.

My final statement, Madam Chair, is that we should never let perfection become the enemy of the good. This is not my proverb, but we should never do that. I do not believe that perfection will ever be achieved in any of these agreements. I think we should pass it as it is and respect the democratic will of the people who voted over 78 per cent in favour of this particular agreement that was negotiated.

The Chair: I have a request from one side of this committee for a brief caucus. The last time we held a clause by clause —

Senator Stratton: How long?

The Chair: Five minutes, and then we will go to the vote.

Senator Stratton: Thank you.

The committee suspended.

The committee resumed.

The Chair: Colleagues, for your information, I understand that Senator Oliver has business elsewhere and Senator Gustafson is now a voting member of this committee.

Senator Joyal: Madam Chair, I would like to propose an amendment to the amendment put forward by Senator Watt in proposed clauses 12.1 and 12.2.

I propose that the three words ``provisions and operation'' on the second line of 12.1(1) be deleted and replaced by the word ``implementation.''

Following that, I propose that in the second line, fourth paragraph, under 12.2(1), ``provisions and operation'' be replaced by the word ``implementation.''


In the French version, subclause 12.1(1), on the second line: ``entreprendre un examen des dispositions et de'', I suggest striking the words ``des dispositions et de'' and replacing them with the French words ``de la mise en''.

The Chair: So it would be ``entreprendre un examen de la mise en application. . .''

Senator Joyal: ``. . .de celle-ci et de l'accord.'' And, in the same way, in subclause 12.2(1), on the third line: ``examen approfondi des dispositions et de l''', I suggest striking the words ``des dispositions et de l''' and substituting the words ``de la mise en''.


The Chair: Perhaps Senator Joyal could explain his proposal. He has made a motion, but he has the right to speak to it.

Senator Joyal: Honourable senators, I think the original intention of the proposal was concentrated on the implementation of the act and the agreement and of course not on a reopening of the negotiation or a reopening of the act outside the procedure that is provided in the agreement. Essentially, it is regarding the implementation of the act and the agreement that the opportunities are afforded to Makivik Corporation and that the obligation is put on the minister. Therefore, the minister has the responsibility to look into the implementation and its responsibility within the act, as a minister of the Crown. Regarding the Makivik Corporation, if it wants and it feels that a study of the way the implementation has taken place would be helpful for the objective of the agreement, then Makivik can decide to do it. It is left up to them. However, the amendment would allow Parliament to make sure that if there are problems, Parliament would, in due time, receive a report. Parliament would then decide how to act on the basis of that report.

Senator Andreychuk: I think that removing the words ``provisions and operation'' is helpful. However, we are still interfering with a negotiated agreement between the Makivik Corporation and the Government of Canada, and we are not party to that agreement.

Part 23.3 of the Nunavik Inuit Land Claims Agreement refers to the implementation committee. There is a structure for reviewing the implementation, for monitoring it, for providing certain materials and making recommendations on a two-year basis and on a 10-year basis. We are interfering in an implementation strategy that has been agreed to by the parties. Again, the parties are not asking us to amend this. We are interfering with the agreement.

I appeal to senators opposite to think about observations, where we give suggestions, but I do not think we should become party to the agreement. While we have an obligation, we can also ask for information about the progress of implementation at any time. We have a perfectly good Aboriginal committee that has seriously taken on implementation.

I do not think that the amendment is warranted. We have talked about delay. It could, in fact, scuttle the entire agreement. I think it is going too far to try to reopen the agreement by virtue of the amendment, even with this new change. The agreement should stand, and the exhaustive implementation strategy in Part 23.3 of the agreement should be maintained.

Senator Adams: Usually in a committee, when there is an amendment, we have a legal adviser. When a committee wants to amend something, we have to have a legal adviser to make sure the words will not affect the rest of the bill. We have legal advisers in the Senate, do we not?

The Chair: The Senate has a law office. This committee does not have a lawyer on staff to furnish instant advice, but there are a number of lawyers in its membership.

Senator Adams: Before the committee does anything, we should have legal advice to look at it.

The Chair: Does any other senator wish to speak?

The question then is on the subamendment proposed by Senator Joyal, which, if I may paraphrase, removes in English the words ``provisions and operation'' in the two places where they appear, and substitutes the word ``implementation'' for those words.


And in French, on the two occasions when the words ``des dispositions et de l''' appear, we are removing those words and replacing them with the words ``de la mise en''.


Are senators ready for the vote? All in favour of the subamendment?

Some Hon. Senators: Agreed.

The Chair: Opposed?

Senator Stratton: I would like a roll call.

The Chair: The clerk will call the roll.

Senator Andreychuk: No.

Senator Baker: Yes.

Senator Gustafson: No.

Senator Joyal: Yes.

Senator Merchant: Yes.

Senator Milne: Yes.

Senator St. Germain: No.

Senator Stratton: No.

Senator Watt: Yes.

Senator Zimmer: Yes.

Adam Thompson, Clerk of the Committee: Yeas, 6; nays, 4; abstentions, nil.

The Chair: I declare the subamendment carried.

We move now to the motion in amendment as amended.

Are honourable senators ready for the question? Those in favour of the amendment as amended please say ``yea.''

Some Hon. Senators: Yea.

Some Hon. Senators: On division.

The Chair: Carried, on division. Shall clause 13 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 14 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 15 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 1 carry?

Hon. Senators: Agreed.

The Chair: Shall the preamble carry?

Hon. Senators: Agreed.

The Chair: Shall the title carry?

Hon. Senators: Agreed.

The Chair: Is it agreed that this bill be adopted as amended?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Chair: Carried, on division. Does the committee wish to consider appending observations to the report?

One senator wishes to discuss observations. The committee will go into an in camera session now to discuss possible observations.

The committee continued in camera.

The committee resumed in public.

The Chair: Is it agreed, honourable senators, that I report this bill to the Senate as amended with observations?

Hon. Senators: Agreed.

The Chair: I thank you all very much.

The committee adjourned.