Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 30 - Evidence for February 27, 2013
OTTAWA, Wednesday, February 27, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-207, An Act to amend the Interpretation Act (non-derogation of aboriginal and treaty rights), met this day, at 4:17 p.m., to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon, and welcome colleagues, guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. We are meeting today to begin our consideration of Bill S-207, An Act to amend the Interpretation Act, which deals with non-derogation of Aboriginal and treaty rights. This bill was introduced in the Senate by the Honourable Senator Charlie Watt, from Inkerman, Quebec, on December 13, 2011.
According to the summary, the purpose of Bill S-207 is to amend the Interpretation Act to prevent any other legislation from abrogating or derogating from the Aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982.
This is our first meeting on the bill, and these committee hearings are open to the public and also available via webcast. You can find more information on the schedule of meetings, webcasts and archives on the parliamentary website under ``Senate Committees.''
I was going to introduce the members, but we will do it at a later date. We have new members joining the committee, but I will wait for a later date to do that when it may be more appropriate.
We begin with our first witness. I am pleased to welcome the Honourable Senator Watt to introduce his bill before the committee today.
Senator Watt, you have the floor.
Hon. Charlie Watt, sponsor of the bill: Thank you, Mr. Chair.
Honourable senators, thank you for the opportunity to speak with you today on the subject of Bill S-207. For those of you who were here during the discussions of the Standing Senate Committee on Legal and Constitutional Affairs in 2006 and 2007, you will remember having had the background on this bill because it draws on the work adopted by the Senate standing committee in the 2007 report called Taking section 35 rights seriously: Non-derogation Clauses relating to Aboriginal and treaty rights.
Because you were well versed on this issue I will keep my remarks brief, but for the viewing public I will give a short overview of why I have introduced this bill.
As honourable senators know, I have been in this chamber for almost 30 years. Before my appointment I led the negotiation on the James Bay and Northern Quebec Agreement, which was the first modern treaty in Canada. It was concluded in 1975.
I then directed the implementation of the agreement through the creation of business and administrative tools, such as Makivik Corporation, which is a first rights corporation; the Kativik Regional Government, which is a public body; the Kativik School Board, which is another public body; the Kativik Regional Police Force; and the Kativik Environmental Quality Commission, an economic development instrument.
This modern treaty provided the basis for all treaties in Canada that came after it but before the patriation of the Constitution. At that time, we had no constitutional protections that explicitly recognized our rights. The James Bay and Northern Quebec Agreement also led to the first amendment of the Constitution, specifically section 35, following 1982.
For the record, I was also part of the repatriation of the Constitution and led the negotiations of section 35 on behalf of the Aboriginal people. At the beginning, the best we could do was to come up with a unified legislation, an attempt to tie the hands of the two legislatures, federal and provincial, because there was no constitutional recognition at the time. Then during the patriation, we made sure our rights contained in the agreement would be constitutionally protected.
I still have a deep interest in this subject and continue to follow the process and evolution of the system very closely. Over the years, I have learned to juggle the thinking of parliamentarians and Aboriginals. Sometimes it is a very difficult job.
Notwithstanding that the Supreme Court has made it clear that as of 1982 the Constitution prevails over Parliament, we have seen a shift of parliamentary authority as government bureaucrats take control of issues that are not theirs to claim. In some cases, the bureaucrats are dictating to Parliament what Parliament should do on specific issues. That is not their place.
Honourable senators, Parliament needs to maintain control of certain critical issues. One of those issues is the ability to direct government bureaucrats as to the place of Parliament in the rule of law. I believe that Parliament exists for the will of the people, and it is our role to uphold the honour of the Crown and to protect the Constitution and the rights of all Canadians. If we do not have a mechanism to hold them accountable, departments will continue to make private judgment calls on policy, and parliamentarians will be kept out of the loop on some delicate and important issues. The courts have held clearly that policy is not law. All Canadians want to assume that our government is looking out for our best interests. We need to ensure that the dialogue of Parliament will be open and available to the Canadian public.
Honourable senators, beyond this I believe we need this bill to bring consistency and clarity to the legislation. Existing federal statutes do not all contain non-derogation clauses. Amending the Interpretation Act would make it clear that all legislation is intended to be read as having a non-derogation clause.
This bill also functions as a signal to drafters of legislation that all statutes must be consistent with section 35 and section 25. It will make sure that Constitutional protection is afforded to Aboriginal rights and that treaties are respected and protected. It will ensure that they are considered at the drafting stage and throughout the process.
For many, the inner workings of the Department of Justice seem to be a mystery. In my opinion, the department should have a more transparent vetting process to bring understanding to how some bills manage to pass scrutiny; but that is beyond the scope of what I am here for today.
In Bill S-207, we are asking that Aboriginal people be treated fairly and equally with the same rights assumed by all Canadians. This is reasonable, responsible and consistent with the Constitution, which has been the law of the land since 1867 and enhanced in 1982. It is also consistent with the fiduciary duties of the Government of Canada. This bill does not top up or add anything to existing Aboriginal rights in Canada. This bill does not address the content of section 35. This bill is only about process. This bill does not change existing treaties. It does not change the rights of anyone. This bill forces derogation issues to be flagged by the department to give Parliament the chance to debate the issues and bring the debate into the open so that it cannot be avoided or removed from parliamentary scrutiny.
I will say again that this bill is simply a statement of parliamentary intent. If Parliament wishes to infringe on Aboriginal rights, this bill says that Parliament must declare its intentions. Although it is a simple approach, this bill will prevent overzealous government employees from overstepping their mandate to cause undue stress in Aboriginal communities and unnecessary, expensive and often-repeated conversations in Parliament.
This bill could be seen as a small gesture of good faith for the government as it moves forward with its consultations with First Nations and other Aboriginal groups in Canada. Some honourable senators might think that this bill will be retroactive, but this is not the case. In my view, this bill declares Parliament's desire to have all its legislation interpreted so as to protect Aboriginal and treaty rights, past, present and future.
In Bill S-207, which is a bill of the people, I have kept the language simple, concise and cost-neutral. As a senator, it is my privilege to consult with Canadians and to create opportunity for consultation in person. I had strong input from legal counsel from national Aboriginal organizations.
Although we are looking at this in the context of federal legislation, I would like to remind honourable senators that the provinces are already dealing with this. To date, the Manitoba and Saskatchewan legislatures have adopted an almost identical non-derogation provision. Bill S-207 is rooted in the study conducted by the Standing Senate Committee on Legal and Constitutional Affairs. For this reason, I would like the Senate to send it to the House of Commons for debate.
Senators, I know that we might face some grumbling from government workers in departments accustomed to calling the shots, but we have the responsibility and the right to keep this dialogue respectful of the Constitution and in Parliament where it belongs. Nakurmiik. Thank you.
Senator Fraser: Senator Watt, welcome back to this committee. Senator Watt was a member of this committee for quite a few years, including the years when we were doing the study of non-derogation clauses. He was very helpful to us at that time.
The report you mentioned by this committee as a result of that study in 2007 suggested that the Interpretation Act be amended exactly as your bill proposes. The report went further and recommended that existing non-derogation clauses, which are scattered throughout various bits of legislation in various forms, some stronger than others, be abrogated — removed — as a result of this.
You have chosen not to include that in your bill. Was that so that, as you said in your statement, we would take this bill going forward rather than retroactively, to avoid difficulties that way?
Senator Watt: Yes, that is exactly what I am trying to say here. I do believe that when Parliament goes through the pieces of legislation that have already been dealt with, when they decide to bring them back for review, maybe at that time they would be able to deal with it. However, at this point I see this as sort of adding on to something that may not be necessary at this point, so I left it out.
Senator Fraser: Just one other question, if I may, chair. I want to be very clear about the impact of this bill.
The Interpretation Act applies to all federal legislation once it becomes law.
Senator Watt: Correct.
Senator Fraser: However, as you know, in the Sparrow case in particular, the courts have said that sometimes rights — and that would include Aboriginal rights — have to be balanced off against other rights or matters of pressing public interest.
If we adopt your bill, will Parliament still have the power, when a bill comes before it, to insert some form of separate non-derogation clause where it is deemed necessary?
As I read your bill, and as I listened to you, it seemed to me that what you were saying was that if you have to go further than this clause, it has to be done on a case-by-case basis, on a special basis, and subject to debate in Parliament. Am I understanding you?
Senator Watt: In a sense, that is the direction I am going in. It would be very important to the Aboriginal groups that if the signal could be provided, there will be entrenchment beforehand. That would give the Aboriginal groups a chance to thoroughly study it and see what the implications will be. If we ended up having sort of a blanket but without indicating that from time to time there will be infringement, and when infringement takes place, then we have to deal with it at that time, so maybe the specific amendment can be dealt with.
The Chair: There is a non-derogation clause in, I think, 19 separate acts currently. If you incorporate a non- derogation clause in the Interpretation Act, what will the impact be? Will that create a significant degree of confusion? Do you see impact occurring as a result of two different wordings?
Senator Watt: This is one of the concerns we had so that we do not end up providing confusion on this. Rather than try to deal with it at the same time, what has already been done before and the way that the procedure will be in the future, if you try to deal with them, it might cause some confusion. We are trying our best to separate the two.
The Chair: Ultimately, you would see these other statutes being amended?
Senator Watt: The already existing statutes will be dealt with when they are brought in; maybe that is when we can deal with it.
Senator White: I am reading through, and my understanding of what you are saying — and thank you very much for being here today — is the suggestion that each and every time Aboriginal groups would look at whether there would be an impact. Would they not do that now anyway, without this clause?
Senator Watt: Not necessarily, no. From my experience over the last 30 years, that does not always happen, unless these Aboriginal groups are demanding that a non-derogation clause be inserted into the bill.
Senator White: As there has been in 19 bills.
Senator Watt: In those four bills that I can remember clearly, related to Aboriginal issues, they were designed to deal with non-derogation, specifically geared towards the actual needs of that particular community. If the community desired to have a non-derogation clause, their interpretation would have to be incorporated into that. That might not apply to other Aboriginal groups. It is almost tailor-made. I do not want to wrestle with the ones that have already been done; otherwise we may end up having a lot of Aboriginals upset over those things because they thought they already dealt with them in the past.
Senator White: I know you have talked about Northern Quebec and, in particular, the Inuit. What kind of opinion are we getting from Inuvialuit, Nunavut Tunngavik, NCI, Labrador Inuit in relation to this?
Senator Watt: In relation to Bill S-207? After the report was done by the Standing Senate Committee on Legal and Constitutional Affairs, we looked at the recommendations very closely. On top of that, I was also a part of this, to a certain extent, even though I was not part of the committee at the time. Their legal people certainly were involved.
We had direct input from all those national organizations. They were also representing the regional organizations, such as in Labrador, for example; Makivik Corporation, which is Quebec; Inuvialuit, which is the Western Arctic side; and Nunavut. We had definite input, and the directions were also given, in other words, the legal people I was able to put together, as a group of people, to help us to move forward and advance the recommendations of the Standing Senate Committee on Legal and Constitutional Affairs. I did not change anything other than dropping a few things, but tried to advance what was recommended, word for word.
Senator White: In saying that, you anticipate support from each of those groups?
Senator Watt: Yes. As a matter of fact, up until last night, I know that tomorrow there will be another witness coming in from Nunavut. I know that their legal representative was very much part of the process, but I was a bit worried, so I had to talk to them yesterday to see where they would be coming from. There is strong support.
Senator White: You did not lose them overnight?
Senator Watt: No.
Senator McIntyre: Senator Watt, thank you for your presentation.
I had an opportunity the review the December 2007 report, of which you were a member. I found it to be a very interesting report.
In reading the report, it appears to me that over the years, Parliament has been faced with various post-1982 federal non-derogation clauses relating to Aboriginal and treaty rights. Those clauses can basically be broken down as follows: the original wording, the revised wording, the wording proposed in the 2007 report and, finally, the clause proposed in Bill S-207.
I note that the non-derogation clause proposed in the 2007 report differs from the English version of the clause proposed in your bill. In your opinion, are there any material differences between the two versions?
Senator Watt: This is one of the issues that, when we move forward, I was going to indicate that we need to have somebody to make the move that there will be English and French identical. As a matter of fact, I even had it written down. I think it is important for it to be interpreted the same way. I am not sure whether I am answering your question.
Senator McIntyre: What I am driving at is that there are various different wordings. For example, I read the original wording, I read the revised wording, I read the wording in the December 2007 report, and I read the wording in Bill S- 207, and every time I find a different version.
Senator Watt: I agree with you.
Senator McIntyre: I am just wondering if this will not lead to more confusion on the part of parliamentarians and Aboriginal people.
Senator Watt: I hope when they review the legislation that was brought forward in the past that there will be time to make some corrections on them to follow what I am trying to propose here. We end up with the one set of interpretations rather than five or six interpretations, but that is the case today. I agree with you.
Senator Joyal: I have a comment on the French version. I know it is not your mother tongue. I have a question about the French text of clause 8.3. It seems to me there are two negatives in the first sentence and two negatives equate to a positive. That is a rule of grammatical logic.
I think the French text should read:
[Translation]
Nul texte ne porte atteinte...
[English]
In my opinion, the word ``pas'' after ``porte'' is redundant.
[Translation]
Nul texte ne porte pas atteinte aux droits ancestraux issus de traités.
[English]
If you say ``Nul texte ne porte pas atteinte,'' it means that they affect the rights. Before we vote, Mr. Chair, I would like to check that translation. It seems to be defective. I might be wrong, but at first sight when I read it, it seems to be defective.
The Chair: Is that the only discrepancy you find in the French?
Senator Joyal: If we want to be faithful to the English version — and I think the English version is the meaning Senator Watt is looking for and is well defined in the committee report from 2007 — we should review that, through the research staff from our library, before a future meeting. I wanted to raise it immediately so we have time to check it for consideration. I do not expect Senator Watt to make comments because it is not his mother language.
Senator Watt: The only thing I can say on that is my French is not up to par, even though I have some difficulties with English, too. Perhaps the amendment could be looked at during the time you are doing clause-by-clause consideration. That would be my recommendation.
Senator Joyal: That is why I raised it immediately. I think it is very important.
The Chair: We can have an amendment during clause-by-clause consideration of the bill.
Senator Joyal: My first question is in relation to the comments that were made by the Minister of Justice to the report of the committee in a letter dated July 24, 2008. I think you have a copy of that letter, Senator Watt?
Senator Watt: I might have it, but I do not have it with me at the moment.
Senator Joyal: Maybe I can provide you with a copy. I am sure you have read it.
Senator Watt: Maybe you can summarize it so I do not take up too much time.
Senator Joyal: When the chair tabled the report in the Senate on December 13, the committee wanted, according to our rules, to get a formal, written reaction from the minister to the report of the committee. The minister reacted in due time and in an extensive letter — almost two and a half pages — to the various recommendations in the report. The reason I raise it is because he commented on the need to bring clarity to the non-derogation clause.
I will quote his bottom paragraph of page 1:
We find the Committee's proposals for a legislative solution for this problem — i.e., the insertion of a new universal clause in the federal Interpretation Act (recommendation 1) and the repeal of existing non-derogation clause in individual statutes (recommendation 2) — worthy of serious consideration. These proposals make a positive contribution in advancing the search for a solution to the difficult issues relating to non-derogation clauses. We do, however, have questions about the practical difficulties involved in repealing existing clauses.
In his first answer he seems to recognize the appropriateness of solving the issue with a universal clause, the way you propose in your bill, and then of course the difficulties of repealing existing clauses in some bills that have been adopted since 1982, as was alluded to by Senator McIntyre.
It seems later on in the letter that he links both recommendations to one another — in other words, the adoption of universal declaration — the way you do to a simultaneous act of repeal in the statutes that have already been adopted.
It does not explain why. It continues:
As a result, the Government of Canada will need to carefully consider the legal and practical implications of proceeding with recommendations 1-2.
He does not pronounce clearly that the two operations should be done simultaneously. He recognizes that there is difficulty in the second one.
I would like to hear your views on the fact that you have separated the two steps: The first step would be adopting a universal declaration, as was mentioned in the universal clause you have enshrined in your bill. The second step would be to review the other statutes in which there are non-derogation clauses that might be of a different language, which is at the source of the whole problem anyway. Why, in your opinion, is it sound to proceed the way you think it should be done in your bill?
Senator Watt: I think it would be very difficult to try to make modifications to what has already been dealt with. I do not think that would be that easy. Without knowledge of whether the procedure is there — the process — I cannot really give you a clear answer to that because I do not know what process exists to deal with past legislation that has already been dealt with.
On top of that, speaking from the Aboriginal perspective, some of the non-derogation provisions that have been highlighted in legislation that has already been passed, like the water bill as an example for Nunavut, were tailor-made for that particular subject matter. Who am I to say that this should be changed because it provides a different set of interpretations? I do not feel comfortable with that, until someone comes up to me and says there is a definite process to deal with it.
I am basically saying that if they do review the old legislation, when that happens I do not know what the procedure is, and how often that takes place. Then there might be time to see whether they need to be amended, because I know for a fact there have been different sets of interpretations to non-derogation provisions that have already been passed.
This is what leads me to try to come up with some sort of a standard. I have been here for nearly 30 years. We spent a lot of our time talking about Aboriginal issues and non-derogation issues. It was nothing but arguments back and forth. It is wasting time and a lot of money at the same time. Hopefully this will help to pave the way so that we do not end up having a hang up all the time when we are dealing with Aboriginal issues.
Senator Joyal: Your approach would not prevent any future legislation from adopting a non-derogation clause that would answer a particular situation the way you have already mentioned?
Senator Watt: I am not suggesting that we should stop that. That is another avenue I could have taken. I want every piece of legislation to have a non-derogation clause, not only a non-derogation clause but also, if there is an infringement, the requirement for negotiations — give and take. I do not think we are at that process at this time. We are not negotiating.
Senator Joyal: If I may go on with the letter, of which you have a copy, in the middle of the upper paragraph of page 2 the minister continues:
We will also want to canvass the views of Aboriginal groups with respect to these proposals, and the Report as a whole, before considering any endorsement or implementation of recommendations 1-2.
Senator Watt: What does that mean?
Senator Joyal: I want to discuss with you the meaning of that because the minister says, ``We will also want to canvass the views of Aboriginal groups with respect to these proposals.'' Is the proposal that you are putting forward in this bill for our consideration today, in your opinion, the one that would have a consensual basis among Aboriginal groups? I know you know about the Inuit, but other Indian groups are covered by this.
Senator Watt: Yes, I would say so. I consulted pretty widely with not only the heads of the organizations but also well-known Aboriginal judges and lawyers. I feel very comfortable with the approach that I am taking, given that they are the ones, in a sense, putting the pressure on me to get it done — people like Chief Wilton Littlechild, the Honourable Justice Murray Sinclair and a few others. I consulted with a large number of people on a one-to-one basis, not through the organizations. Over the years, I have learned to appreciate their input into the work that I have been doing for more than 40 years on Aboriginal and constitutional issues. Those are the people that I fully rely on to give me good advice; and I believe they have done that.
Senator Joyal: Let me put the question in the negative, as it is done in French. Have you encountered any opposition to this initiative?
Senator Watt: In terms of having direct dialogue with individual key people, no. One group recently indicated that they were not too happy with my bill because, apparently, I did not consult with them.
An Hon. Senator: Was it the Blood Tribe?
Senator Watt: No, it was not the Blood Tribe. It was the Idle No More movement. The argument is not detailed enough, so I have been trying to go after the leader. I have written a letter to her and tried to correspond by email, but it simply boils down to ``you have not done a proper consultation.'' I do not know what more I can do.
Senator Fraser: I have a supplementary question to Senator McIntyre's question, although first I would observe that when this bill came before the Senate, the Idle No More movement did not exist. I do not know how you could have consulted them when they were not there.
Coming back to the fundamental question of the wording of non-derogation clauses, one of the most interesting things about our study was the stark fact that over the years the wording of non-derogation clauses inserted by governments of both stripes was consistently weakened, just a little bit every time. It was the subject of some concern to us, and that concern was intensified by some of the testimony we heard from officials, who basically indicated that they did not want non-derogation clauses to mean anything. Rather, they wanted them to be weak and watered down, which we found troubling.
Senator McIntyre is right: The wording in your bill is not exactly the same as the wording the committee recommended. The committee recommended that ``Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.'' That was the committee wording. Where the committee said ``every enactment shall be construed . . . ,'' your bill says ``no enactment shall be construed so as to abrogate or derogate . . .'' When I first read your bill, I thought you were taking a shorter, slightly cleaner route to what seemed to me to be the identical purpose.
Senator Watt: It is the one already in the recommendations.
Senator Fraser: Am I wrong? Did you change the wording for any other reason?
Senator Watt: No, there were no other reasons. It was recommended by the national lawyers directly involved in this that I do it in that fashion.
Senator Fraser: Thank you. Did I understand you to say that you have brought a version of a potential amendment to the French text to get rid of the double negative?
Senator Watt: That is all I have, basically.
Senator Fraser: You could leave it with the clerk, perhaps.
Senator Watt: It is to have the French version amended to make it the same as the English version. That is all I have.
Senator Fraser: Thank you.
The Chair: That wraps it up. Thank you very much, Senator Watt, for your appearance today.
Senator Watt: Thank you, honourable senators. It has been my pleasure. Maybe I will get back into the seat again one day.
The Chair: I am pleased to introduce Bruce Becker, Senior General Counsel, Aboriginal Law Centre, Justice Canada; and Paul Salembier, General Counsel, from Aboriginal Affairs and Northern Development Canada. Mr. Becker, please proceed with your opening statement.
Bruce Becker, Acting Senior General Counsel, Aboriginal Law Centre, Justice Canada: Thank you for having us. I have an opening statement, and my colleague will assist with respect to technical questions pertaining to legislative drafting or to AANDC's legislation.
[Translation]
I appreciate the opportunity to appear before this committee with respect to Bill S-207, an Act to amend the Interpretation Act (non-derogation of aboriginal and treaty rights) which proposes the inclusion of a non-derogation clause in the Interpretation Act.
[English]
Bill S-207 is a Senate public bill so I do not have the background on the drafting of the bill as might be expected generally for a government bill. I hope my appearance today will assist the committee with respect to the issue of non- derogation clauses generally, on which subject much has been said by officials of the Department of Justice in appearances before this committee from 2003 onwards. While I do not intend to repeat all of what my colleagues have said previously, I would like to highlight some of the fundamental legal and constitutional principles related to the use of non-derogation clauses as well as some issues that may assist you in considering Bill S-207.
As you are aware, section 35 of the Constitution Act, 1982 recognizes and affirms the existing rights of the Aboriginal peoples of Canada. As the Supreme Court found in its 1990 decision in Sparrow, section 35 provides very strong but not absolute protection for Aboriginal and treaty rights. Laws limiting section 35 rights will apply only if the limitation can be justified pursuant to a strict test as described in Sparrow and subsequent cases.
At a general level, the justification test has two steps. First, there must be an important legislative objective; and second, the manner in which the government attains its objective must uphold the honour of the Crown and be consistent with the special fiduciary relationship between the Crown and Aboriginal peoples. This could involve considering, for example, whether the limitation is minimally impairing. Each infringement will require a justification that reflects the specific circumstances of each case.
It is important to emphasize the strength of this protection for Aboriginal and treaty rights. Laws that are inconsistent with section 35 will be inapplicable. In addition, the protection of these important rights is based on the Constitution and cannot be diminished by ordinary legislation. This justification test is also consistent with the concept of reconciliation, which the Supreme Court of Canada has identified as the underlying purpose of section 35. Reconciliation requires the balancing of preexisting rights of Aboriginal peoples with the rights and interests of other Canadians. This is an important part of our constitutional framework. To the extent that non-derogation clauses could have the effect of limiting the ability to balance competing rights and interests, careful consideration of the implications of including such clauses in legislation is needed.
The Department of Justice has noted previously to this committee the general legal presumption that every provision in a statute is intended to mean something. With respect to non-derogation clauses in legislation, the question is this: What, if any, more specific protection is intended to be provided by such clauses beyond that already provided by section 35? Through the years, as this committee noted in its report on the issue in 2007, non-derogation clauses have appeared in several different forms and have been included specifically in 19 federal statutes.
[Translation]
It is important to point out that an amendment to the Interpretation Act of this nature would apply not only to future legislation, but also to all existing federal legislation.
[English]
Take the Fisheries Act, for example. As you know, the act is a comprehensive regime to manage and preserve the fisheries. Both Aboriginal people and non-Aboriginal people access the fishery. Many Aboriginal groups either have or claim to have Aboriginal and treaty rights to fish that are protected by section 35 of the Constitution Act, 1982. The Department of Fisheries and Oceans seeks to manage the fisheries in ways consistent with the constitutional protection given Aboriginal and treaty rights by balancing the rights, claims and interests of all user groups.
For example, if infringements of Aboriginal or treaty rights are necessary for conservation purposes, the Department of Fisheries and Oceans currently can argue that the infringement is justified. Would it be argued that a general non-derogation clause would limit Fisheries and Oceans' capacity to ensure conservation? It is also important to note that the implications of a standardized non-derogation clause are not confined to legislation of general application.
Legislation relating specifically to Aboriginal peoples, such as statutes dealing with the management of reserve lands, other assets or self-government, can raise important issues. This type of legislation may have an impact on Aboriginal or treaty rights, but the interrelationship between the legislation and rights can be complex. These complexities are best worked out in the substantive provisions of the legislation as necessary.
As previously stated, there are 19 non-derogation clauses using a variety of different and tailored wording. Bill S- 207 would supplement these existing clauses with another non-derogation clause, thereby further increasing the uncertainty about what the desired interplay is between section 35 protected rights and the legislation in those 19 instances.
Aboriginal and treaty rights are provided strong protection by section 35 of the Constitution Act, 1982. The Supreme Court of Canada has developed a test in Sparrow for legislation that infringes section 35 rights, which places a high threshold on governments looking to justify the infringement of rights. The questions are these: What, if anything, would the proposed non-derogation clause add to what section 35 already provides? Is any additional protection intended across the range of statutes to which it might apply?
I would be happy to address any technical questions you may have.
The Chair: I have one question that you may not want to respond to because it is not a technical question. Earlier, Senator Fraser referenced her interpretation, and perhaps it was also the interpretation of the committee that reviewed this issue a number of years ago. There was concern with the range of non-derogation clauses in the legislation and that there was increasing use of these clauses to provide greater flexibility. Do you have any response to that issue?
Mr. Becker: That was quite well addressed by some of the witnesses that appeared on that study. The evolution in those clauses was designed essentially to try to deal with the question of whether additional protections were intended or whether the non-derogation clauses at issue were intended to be merely reflective of existing protections provided by section 35. That debate is reflected in the committee's report.
Senator Fraser: Thank you very much.
I do not know if this is comes under the heading of technical question, but it certainly seems to me to be pertinent to part of this issue. One of the things committee was struck by in its initial study was the fact that because Aboriginal rights in the Charter are not defined — existing Aboriginal treaty rights, which is potentially a fairly important field — whereas other rights, such as equality of the sexes and the right to vote, are set out in some detail. However, because Aboriginal rights were not defined, there could be very great human and financial burdens on Aboriginal people who wanted to prove that a given piece of legislation did in fact infringe on their rights, did derogate from their rights.
Do you know how much such a legal proceeding in the case of a single bill might cost, going from first hearing up to the Supreme Court? Would we be into the many hundreds of thousands of dollars?
Mr. Becker: There would be a vast range that it might entail, depending on the complexity of the case, how high it went.
Senator Fraser: Meanwhile, I hope you will agree with me when I suggest that there is at least an argument to be made that because those rights are not defined in the Charter in a way that many other rights are, that it is useful to have a general — or maybe specific — non-derogation clause in legislation that might have an impact on Aboriginal rights.
Mr. Becker: My response to that would be whether it is intended that it provide some additional protection from unintended impacts on those rights, though how one characterizes that might be questionable. Part of the issue is getting down to whether the intention of this bill is to just once again reflect the protections that are already there and available and in section 35, and where the court has developed what amounts to a fairly nuanced way of dealing with the interaction.
Remember, this deals not just with bills and laws going forward, but all those already on the books. That test is nicely tailored to the specifics that might be engaged in any particular case. That is one great benefit to the test that the court has developed in dealing with section 35; it is actually nuanced. The facts of the case, what the government did — including whether it consulted — are all on the table in terms of whether the law will be applicable if there is an infringement of the rights.
Senator Fraser: All those careful tests and guidelines would still be there. This bill would not diminish those.
Mr. Becker: It would still be there. The question is if it adds more and whether you ever get to those tests.
Senator Fraser: If you sit on this committee for any length of time, you rapidly become aware that there are many unintended consequences to legislation that Parliament has adopted or is thinking of adopting.
Paul Salembier, General Counsel, Aboriginal Affairs and Northern Development Canada, Justice Canada: Could I add to my colleague's response? The question was whether this bill assists because Aboriginal and treaty rights are largely undefined, at least in the Constitution Act.
However, before this bill can apply there needs to be a finding that there is an Aboriginal treaty right before, in the same way that you need to find an Aboriginal or treaty right exists before section 35 is applied. This bill would not assist in defining what these rights are because you need to have a finding that the rights exist as a starting point before you even apply the interpretation provision.
Senator Joyal: Establish them before deciding if they are affected or not.
[Translation]
Senator Boisvenu: First of all, gentlemen, I would like to thank you for appearing before the committee.
I worked in the Quebec Department of Natural Resources and Wildlife for 15 years. The department worked very closely with Aboriginal people and, when the government passed the Fisheries Act, it had to consider section 35 of the Charter in terms of prioritizing wildlife use.
The first priority was Aboriginal rights, the second priority was sport fishing and the third was commercial fishing. When we were establishing quotas or reducing the allowable catch in a given body of water — take Lac Saint-Pierre, for example — we said that the sector first affected was the commercial fishery, then the sport fishery and lastly, the Aboriginal rights.
I am trying to understand how this bill is going to improve the application of section 35 of the Charter, given that the provinces have to observe it when they establish ancestral rights. Given that hunting and fishing are part of the Aboriginal peoples' basic ancestral rights, how will Bill S-207 improve that unique aspect of fundamental Aboriginal rights? Is my question clear?
[English]
Mr. Becker: As my colleague just mentioned, it is not clear; I do not think that this bill actually adds anything in terms of clarity of rights.
With respect to the fishery, there is also the issue of the duty to consult, which I think was mentioned in this committee's report of 2007, and how that links with the Crown's obligation to recognize and honour the section 35 protected rights of Aboriginal people. Certainly, that component is an important implementation issue with respect to all sorts of areas of federal legislation. I cannot say that I see a particular benefit to this bill vis-à-vis the obligations to consider and respect Aboriginal and treaty rights dealing with the management of the fishery, or any other similar jurisdiction.
Mr. Salembier: Again, I am not sure that it clarifies rights. The real problem we have with non-derogation clauses is that courts have never interpreted a non-derogation clause, so we do not even have the first indication of what these clauses really mean, what they do, what impact they have. That is a problem.
Now, I have even had one Aboriginal lawyer suggest to me that maybe they really mean what they tell the court: When they are reading a statute they should always read a statute so as not to infringe. Therefore, there should never be a finding of infringement, in which case these clauses will have a negative impact on Aboriginal people seeking to assert their rights. That is an unlikely interpretation.
The other interpretation is that these clauses do nothing. There is a principle of statutory interpretations called the presumption against tautology, which tells the courts that when you come across the provision of a statute, you always seek to give some effect to that provision because they say Parliament does not legislate in vain. They do not repeat themselves for no reason. They do not add things to a statute if they are not there for a purpose. That invites the courts to give some meaning to these clauses.
Again, I think that militates against the idea that maybe these clauses mean nothing, that they are just here as a nice political gesture but that they are actually meaningless.
That leaves us with the last option, which is that these clauses do something; and that is what Mr. Becker referred to. He said that perhaps these clauses could be interpreted to take away the government's right to justify an infringement, as in the case you talked about in fisheries — that a government would not be able to say that these conservation measures they are putting forward have a valid, federal objective and, therefore, they should be justified; and we have consulted; and we have devised the statute in a way that minimally impairs the Aboriginal rights in question.
Yes, Aboriginal rights are not absolute any more than Charter rights are absolute, and because they are not absolute, sometimes they can be infringed on by federal statutes, like the conservation statute for fisheries. If this interpretation clause or any other non-derogation clause were to be construed to take away the government's ability to justify, then that means all the Aboriginal rights might have a much greater impact on the whole federal regulatory regime than would otherwise be the case without such a clause. That is why we have been suggesting that a clause like this is dangerous because we do not know what it does. It is like shooting in the dark — you do not know what is out there or what you will do. I take the senator's suggestion that you are unsure about the effect of many laws that are put in place. This is one where we know the courts have given no indication.
[Translation]
Senator Rivest: My question is along the same lines as Senator Boisvenu's. If I understand correctly, in terms of fishing, a number of rights exist at the moment; they have been always recognized and they are guaranteed by treaty or by other means.
You mentioned the legislation about resource conservation. In which way could the proposal prevent the passage of legislation on conserving the resource, the fish in this case? Because, in any event, if there is a difference of opinion, and if that affects recognized rights, there is always the possibility — and there must always be the possibility — for the government to negotiate a way of doing business with the Aboriginal people's representatives rather than simply moving forward without consultation.
In my opinion, Senator Watt's initiative seeks to establish an adult relationship between general societal goals and the basic rights of Aboriginal peoples. Aboriginal people too are aware of general societal imperatives. That is why it would be best to proceed in an adult and responsible manner. Do you understand?
[English]
Mr. Becker: The answer to your question relates back to what my colleague was just saying. The concern might be that the interpretation provision proposed in Bill S-207 could be construed at the level where there could be no infringement of the right.
If the courts were to interpret this non-derogation clause to provide a priority for Aboriginal rights or not allow even the delegated authority under the act to take measures to conserve where that might conflict with existing rights, then there would not be room for the current test in section 35 to even engage because the question would be dealt with as a matter of interpretation of whether the minister had the ability to actually infringe the rights.
Senator McIntyre: I can understand the concerns coming from Aboriginals, in a sense. Those concerns were first addressed by the Supreme Court of Canada in Sparrow. As you rightly pointed out, Sparrow says that section 35 rights are not absolute and, therefore, not immune from regulations. The Crown can infringe, but if it infringes, the infringement has to be justified. It must serve ``a valid legislative objective,'' such as natural resource conservation, keeping in mind the special fiduciary relationship between the Crown and Aboriginal people. Of course, further questions have to be addressed, such as fair compensation and consultation.
If we do not adopt Bill S-207, are we saying that we are stuck with two very important documents, namely, section 35 of the Constitution Act, 1982 and section 25 of the Canadian Charter of Rights and Freedoms? Is that it? If so, there is no need for non-derogation clauses.
Mr. Becker: Clearly, section 35 will continue to operate without this.
Senator McIntyre: There is no question that we have these two important documents: section 35 of the Constitution Act, 1982 and section 25 of the Canadian Charter of Rights and Freedoms. They will never go away unless this Parliament does away with it, but it never will.
Mr. Becker: The nuanced test that the Supreme Court devised in Sparrow and subsequently refined balances Parliament's ability to legislate with these important section 35 protected rights and will continue to operate without a non-derogation clause. Section 25 will continue to operate vis-à-vis Charter interactions with these collective rights, but those do not appear to be directly at issue in relation to this bill.
Senator Joyal: Mr. Salembier, you said that Parliament included non-derogation clauses in 19 bills and that we have been shooting in the dark; we did not know what we were doing. Do you contend that?
Mr. Salembier: Yes and no, I suppose. There is a degree of uncertainty because we do not know how the courts will interpret it; but we have a fair idea of a range of possible meanings. It is possible that in each of those cases, and I was involved in only two or three, it is basically a calculus. You ask: Even if this kind of meaning is given to this clause, will it have such an important impact that it would negate the effect of this statute? As well, a political calculus goes on, as you are well aware, in making these decisions.
In each of those cases the decision was made that the potential impact was tolerable from a policy point of view or beneficial from the political point of view, so those clauses went in in that form.
I was involved recently in Bill S-8 in respect of safe drinking water for First Nations, which has a very different non- derogation clause. An important policy objective was to protect health and safety on reserves, so that clause has a specific exclusion to say that even if the court is to give it a very dramatic effect, the court is directed to not do so if it would have the effect of undermining the protection of the safety of drinking water. In that case, a different calculus took place in deciding what kind of clause would be acceptable. In fact, the wording of that clause was negotiated between the Minister of Indian Affairs and Aboriginal groups.
Senator Joyal: The problem is still on the table, according to the letter of the minister. You were in the room when I read the letter of the minister.
I do not know, Mr. Becker, whether you were instrumental in drafting that letter, but it states verbatim:
In terms of the Committee's specific proposals for addressing the issue of non-derogation clauses, the Government of Canada —
That makes it quite clear that it is not only the minister but also indeed the Government of Canada.
— agrees that the current ad hoc approach to the inclusion of such clauses in individual statutes is unsustainable and leads to a number of problems and risks.
What do we do from there on? Do we totally set aside any non-derogation clause in the future, or do we have an approach such as the one proposed by Senator Watt that puts it in the Interpretation Act? If there is such a case as Mr. Salembier has mentioned, for example, with regard to clean and pure drinking water, we can devise in legislation an answer specific to the needs that we want to address and that you have spelled out well in relation to water.
It seems to me we have conundrum. If we do nothing, we are damned, and with the 19 we have put in we are damned also, because, as Mr. Salembier said, we are shooting in the dark. Where do we draw the lines in the Department of Justice?
Mr. Becker: I am certainly not —
Senator Joyal: That is the word of the minister. It is on the letterhead of the Minister of Justice and Attorney General of Canada.
Mr. Becker: I am familiar with the letter. I did not draft it; it was before my time. I am not here to provide any further follow-up on behalf of the government in terms of this committee's report, but within the limits of looking at Bill S-207, I think that you can reasonably infer that the concerns with respect to a non-derogation clause have not been resolved in the interim.
Yes, clearly, having 19 clauses of different shapes and sizes is not optimal from a certain perspective, but perhaps this last case that my colleague just mentioned shows some light at the end of the tunnel in terms of specifically tailoring at an early stage, where there appears to be some prospect of legislation infringing Aboriginal or treaty rights, how that interaction is intended to occur.
Senator Joyal: In other words, we will answer on a case-by-case basis as problems appear, and for sound policy issues we will shape an answer that will be reflective of the balancing of those interests that you have described.
Mr. Becker: That does provide the opportunity to measure and understand the interaction between the legislative scheme that is being considered and the section 35 protected rights that might be infringed, and work out how that is to operate.
Senator Joyal: However, it does not solve the problem that, in principle, where we stand in terms of those individual statutes is unsustainable and leads to a number of problems and risks, as the minister's letter stated.
Mr. Becker: I cannot contradict the minister on that.
Senator Fraser: I am trying to wrap my mind around your reasoning. We are not talking about a constitutional amendment; we are talking about a simple amendment to the Interpretation Act. There is nothing that I can see in this bill, and I would like you to tell me whether I am right or wrong, that would diminish the government's or Parliament's right to work through different versions of a non-derogation clause for individual pieces of legislation where that was necessary. I think Senator Watt confirmed that in his testimony.
Mr. Salembier, I do not understand why you would see, to use your word, ``danger'' here. Can you try to square my circle for me, please?
Mr. Salembier: I hope the word I used was ``risk'' and not ``danger.''
Senator Fraser: I am pretty sure I heard the word ``danger.''
Mr. Salembier: I will clarify. It is simply a question of risk, which is really the range of possible interpretations that something can be given. If you put it in the Interpretation Act, it will apply to all existing statutes. There are a couple of thousand statutes out there on which no analysis has been done about the potential impact of a non-derogation clause, but you would be automatically applying it to those thousands of statutes. As I said, depending upon what interpretation the court gave, that could significantly undermine the policy objectives that the federal government was seeking to attain in enacting those statutes.
Senator Fraser: If a court has said that a given piece of legislation infringes on rights, any Canadian rights, do we not find ourselves in Chief Justice McLachlin's dialogue situation where the court says that although you may have valid objectives you have not gone about it the right way so go back and fix it, and the government says, ``Oh rats,'' and asks Parliament to fix it? This is a known dynamic. Why would it not apply here?
Mr. Salembier: As you say, that is the way section 35 currently works. The risk would be, depending upon how the courts interpreted it, that it might preclude that dialogue, that the courts might say that the federal government has unilaterally waived its right to seek to justify an infringement, and as soon as any infringement is found, for example, in fisheries, the federal government just has to walk away and the statute will not apply, without any analysis being given to, as you mentioned, federal objectives, minimal impairment, adequate consultation and those other sorts of things.
Senator Fraser: Then the dialogue would involve taking another look at the Interpretation Act, would it not?
Mr. Salembier: I am sorry?
Senator Fraser: The dialogue between the courts and Parliament would at that point shift away from the specific piece of legislation that led to such a judgment and would come back to the question on the Interpretation Act. Should a court take the extreme position you outline? We are not talking about a constitutional amendment; we are talking about the Interpretation Act. We could come back and do another amendment, could we not?
Mr. Salembier: If you pass a law that has negative consequences, you can always repeal it, but I am not sure that justifies passing a law in the first place that might have negative consequences.
Senator Fraser: That depends on whether you think it could have negative consequences.
Senator Joyal: If the Government of Canada is in court against an Aboriginal group on the interpretation of a statute, that Aboriginal group can always claim section 35 if they feel that they have a treaty right or an Aboriginal right. In other words, in that context I do not see how the Interpretation Act would be superior to the obligations that are contained in section 35 that would be alleged by the Aboriginal group to support their contention that the legislation goes against their treaty rights. It seems to me that when you are in the court at that level it is the Constitution that prevails. The Interpretation Act becomes secondary to the letter of the Constitution.
I do not understand your risk at that level when the Government of Canada would be in court facing an Aboriginal group that alleges existing Aboriginal rights on the basis of the Constitution. I am a lawyer and I know that if I go to court to plead, I would plead the Constitution instead of a statute to support my contention if I can rely on existing treaty or Aboriginal rights.
Mr. Salembier: I do not think we were suggesting that this bill would affect how section 35 operates. What we would see is a First Nation coming and asserting their section 35 rights, proving their rights, and then it comes to infringement. Then, once they have done all of that, when it comes to infringement then they would bring forward this clause in the Interpretation Act and say, now this clause means that the government cannot even start on the justification, is not allowed to provide a justification for why this infringement is really in pursuit of a valid federal objective and is reasonable in all the circumstances, which means minimally impairing, full consultation, et cetera. That is what we worry about, that this would be a second bullet in the gun, after section 35, and it would be something that would stop the federal government from engaging in a justification analysis that might be warranted in the circumstances.
Senator Joyal: I do not follow you, because the Sparrow criteria have been drawn by the court on the basis of section 35, not on the basis of a non-derogation clause that would have been included in a statute, if I read the Sparrow case rightly on this. The Sparrow case stems from an interpretation of section 35 of the Constitution. The test of minimum impairment, duty to negotiate, duty to uphold the honour of the Crown — the three criteria in the Sparrow case — do not stem from a non-derogation clause; they stem from the Constitution.
At the moment the government is in a court and has to justify its infringement, it would be on the Sparrow case criteria, not on a non-derogation clause that happens to be existing in the general interpretation of the statute, especially in such a case where we all know that most of those cases pertain to the protection of fisheries rights, hunting rights or self-government management on reserve and so on.
It seems that you are trying to give to the non-derogation clause a scope that, in my opinion, humbly put to you, does not at all meet the substance of section 35 and the impact that it would have in any case in a debate in a court of law.
Mr. Becker: Might I try a response to that? Let me phrase this somewhat differently. Clearly, I would not expect a First Nation in the context you are describing to just come in and argue the non-derogation clause. They would be coming in and arguing there were Aboriginal or treaty rights that were infringed in whatever the case might be in the hypothetical. Once they have established that in fact there is an Aboriginal right or treaty right that is engaged or infringed by the legislation, the argument would not turn immediately to section 35 but would turn to whether the legislation operates, given the non-derogation clause. If in fact the court concluded on the basis of the non-derogation clause that the legislation did not prevail over the right or was not intended to operate in the face of that right, you would never get to the section 35 dialogue that we have been talking about.
Senator Joyal: We have no case law to the position you are putting to me at this stage. We have no case law whereby there has been a decision of a Canadian court at the highest level whereby that has happened in the past, on the 19 statutes where there is a non-derogation clause. You are construing now a reasoning on the basis of a supposed risk, but that risk has never been checked in court or in any case, unless I am unaware of past decisions.
Mr. Becker: You are right in that I am certainly not aware of any case that deals with a non-derogation clause dealing with this in particular, but I can give you an example of a case or a similar context that illustrates this risk quite well. This committee is well aware that much of the wording that is contained in this clause relates back to section 25 of the Charter, in both French and English. The courts have been struggling with the interpretation around section 25 for years as well. The Supreme Court of Canada most recently dealt with interpreting section 25 in a case called Kapp in 2008. While the majority of the court concluded that it did not need to deal with the section 25 issue in that case, there was a dissenting judge who went through the wording that again was essentially constructed the same way — shall not be construed so as to abrogate or derogate; that is a key component in section 25 — ne porte pas atteinte, the French — and the judge went through methodically the French and English versions of those in the section 25 context.
I am not saying there is a direct parallel, but the wording is very similar, referred to some other similar wording that had been considered by the court in the Canadian Bill of Rights another generation earlier, and concluded that, in fact, the wording meant — particularly the French wording was clear — that there was a priority given, and there was not going to be a balancing, and concluded that section 25 operated essentially as a shield, is how we framed it.
There is at least an analogy that was dealt with at the Supreme Court using very similar wording. Again, I am not saying this is directly applicable, but the wording is very similar, in fact I think derived from section 25. Again, the majority in that case actually expressed some concerns with the minority reasoning, so this may not be how it lands, but it illustrates how particular judges may approach it, and we do not know where it will land.
Senator Joyal: I am happy to hear that the majority on the court had a sound interpretation of the bill, but of course you can never predict 100 per cent that the judges will always interpret your statute the way the Justice Department has drafted it and the way that the government intention has been expressed when Parliament voted on those bills. The jurisprudence books of Canada are full of cases that I could quote you, since I have been in Parliament, in which the representatives of the Justice Department have assured us it was Charter-proof according to section 11 of the Department of Justice Act, that the intention was clear, that there was no mistake possible about the objective of the legislation, and the in following two years we found ourselves in court and the bill was set aside, as you know. That came from your own shop. No one can predict at the end what a court or a judge might decide. The important thing is to be sure that what there is in the Constitution is well understood and takes paramountcy in the interpretation of the legislation and the protection of the rights of the people, because that is what we are talking about here. We are talking here about protecting the rights of the Aboriginal people of Canada from time immemorial before, as the Supreme Court said in the Delgamuukw case, before the European immigrants came to establish themselves here 500 years ago. We are talking about something very serious. As you said, it is about a section of the Constitution that defines and protects their rights.
It is important when we legislate in relation to that that we keep in mind the paramount objective. As you said quite properly, there is a question of balancing. The court will never refuse to balance the competing rights of the Aboriginal people and the sound objective of public policy to protect the life of the individual, as in the case of water that you mentioned, or the livelihood of the people who have been living for time immemorial by fishing and hunting.
We all know that. We know the history of the jurisprudence of the Supreme Court in relation to sections 25 and 35. I think it has been progress. I do not think we can conclude on the basis of the history since 1982 that, in fact, the Government of Canada has been prevented from legislating the objectives of sound public policy for the benefit of all Canadians in relation to the interpretation given to section 35. I do not see how a non-derogation clause could endanger that aspect of reality, on the basis, as I said, of past jurisprudence in relation to section 35.
The Chair: You are not required to respond.
Senator Joyal: They do not need to agree.
The Chair: It has been an interesting discussion. Thank you, gentlemen, for your contribution to the committee's deliberations. It is much appreciated.
Before we adjourn, we are meeting again tomorrow. We have two witness panels and then clause-by-clause consideration. We hope to start the meeting right on time so we do not run into problems with our attendance in the chamber.
(The committee adjourned.)