Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 30 - Evidence for February 28, 2013
OTTAWA, Thursday, February 28, 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 treaty rights), met this day at 10:30 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning, and welcome colleagues, invited 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 continue our consideration of Bill S-207, An Act to amend the Interpretation Act, dealing with non-derogation of Aboriginal treaty rights. The bill was introduced in the Senate by the Honourable Charlie Watt, a senator from Inkerman, Quebec, on December 13, 2011.
According to its 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 second meeting on Bill S-207 and these committee hearings are open to the public and also available via webcast. You can find more information on the scheduled meetings, webcasts and archives on the parliamentary website under ``Senate Committees.''
To lead off today, our first panel is from Nunavut Tunngavik Inc. I am pleased to welcome Cathy Towtongie, President, and Laurie Pelly, Legal Counsel.
Madam president, I understand you have an opening statement, so the floor is yours.
Cathy Towtongie, President, Nunavut Tunngavik Inc.: Thank you, Mr. Chair. I am honoured and humbled to be in attendance. It is wonderful to meet Vernon White, who has been in Nunavut, and Senator Watt, and to meet your deputy chair, Senator Fraser.
I am pleased that the Senate has done excellent and tremendous work on the report in 2007. That is a logical, rational approach that you have taken on the constitutional issues. It was excellent work.
Thank you for inviting me to appear before this committee today. NTI represents more than 25,000 Inuit of Nunavut for the purpose of asserting and defending the rights of Inuit under the 1993 Nunavut Land Claims Agreement.
First, as president, personally and professionally I would like to applaud the Senate, its committee and individual senators for your insistence that the important issue of non-derogation of Aboriginal and treaty rights gets the immediate attention it deserves.
The non-derogation clause, as you know, is an interpretive statement. In an act where Parliament has not turned its attention directly to the infringement issue, a non-derogation clause simply indicates that Parliament does not intend to derogate from Aboriginal and treaty rights protected by section 35 of the Constitution Act. In other words, the clause relays to the courts and the public that the act does not unintentionally do something that Parliament did not intend it to do.
Since 1998, non-derogation clauses with an entirely different purpose have appeared in federal laws. The introduction of various and more and more objectionable clauses has thrown the interpretative clause of federal law on this issue into confusion.
NTI lawyers first noticed in 2001 that a modified non-derogation clause appeared in a late draft of the Nunavut Waters and Nunavut Surface Rights Tribunal Act. The modified clause inserted a new phrase: that nothing in the act shall derogate from ``the protection provided'' for Aboriginal and treaty rights by section 35. NTI soon realized that the new clause appeared in a number of other statutes that have significant potential to impact Aboriginal and treaty rights, such as the Mackenzie Valley Resource Management Act and the Canadian Environmental Protection Act.
No other Aboriginal representatives that NTI contacted at that time had been made aware of the new wording. As we came to learn, the new wording was the Justice Department's attempt to change the meaning and impact of non- derogation clauses.
As you know, under Sparrow, Aboriginal rights are not absolute. The protection provided under Sparrow allows an Aboriginal right to be infringed in limited circumstances: where there is a valid legislative objective and the infringement is justified in accordance with the honour of the Crown, including whether the infringement is minimal, and there has been adequate consultation and compensation, if necessary.
Rather than reflect Parliament's intention not to infringe, the new language reflected the possible intention to infringe Aboriginal and treaty rights to the extent permitted by Sparrow. However, the rights that may be infringed are not identified in the laws in which this language occurs. They may not have been the subject of parliamentary debate. They may not have been considered by Parliament in relation to the objectives of the laws in question. In fact, Parliament is left totally out of the mix.
In 2007, Department of Justice witnesses admitted to this committee that the purpose of the new language is to allow government to keep the ability to argue later that a particular infringement, which was unidentified at the time of Parliament's consideration of a bill, is justified.
As NTI stated to this committee in 2007, this approach confuses the Justice Department's intentions and preferences with those of Parliament. The fact remains that the Department of Justice does not favour non-derogation clauses. Rather, they want to have a free hand to later be able to interpret new laws as having infringed Aboriginal rights all along. This is the case even where the department has not given Parliament prior notice of that possibility when the law was being considered.
Since 2007, and despite this committee's final report, Taking Section 35 Rights Seriously, matters have become worse. Five years later, the government's commitment to carefully consider and consult with Aboriginal peoples respecting the final report remains unfulfilled.
In an emboldened fashion, the most recent version of what the government says is a non-derogation clause is, in reality, a derogation clause. Bill S-8, the Safe Drinking Water Act purports to expressly authorize the act and regulations to derogate from Aboriginal and treaty rights to the extent necessary to ensure the safety of drinking water. Not only is the description of this section by the government misleading, in terms of infringement it goes much further than the law permits.
Furthermore, regulation making is primarily the responsibility of Department of Justice officials, not Parliament. Unlike statutory proposals that must go through three readings and committee reviews, Parliament has virtually no say with respect to new regulations.
Mr. Chair, when will this end and who will end it, if not Parliament?
Section 35 is a constitutional mechanism. Bill S-207 offers a thoughtful and workable solution to this steadily worsening problem. Incorporation of the original non-derogation language in the Interpretation Act will press the restart button. It will provide that, as a default, where Parliament has not otherwise considered the infringement of Aboriginal and treaty rights, it does not intend an act to be interpreted to infringe.
It will also allow Parliament, in its role as the representative of all Canadians, to consider the possible infringement of Aboriginal rights in particular cases and make a decision as to the desired balance between legislative objectives and Aboriginal rights. It will also require the Department of Justice to bring to Parliament's attention the possibility of infringement where it is a potential issue.
Mr. Chair, at this sensitive time in the reconciliation of Aboriginal peoples and the Crown, and given Canada's colonial history toward Aboriginal peoples, the responsibility of Parliament to safeguard the rights and interests of Aboriginal peoples is particularly important. NTI urges the committee to recommend the adoption of Bill S-207 to the Senate.
Thank you so much.
The Chair: Thank you. We will begin our questioning with the deputy chair of the committee, Senator Fraser.
Senator Fraser: I have a couple of questions. One concerns the government's response to our committee report in 2007, where they said they would carefully consider what we suggested and would consult with Aboriginal peoples. As I understand your presentation, there has been no such consultation.
Ms. Towtongie: I am sorry to say there has been no consultation. I think the Government of Canada has to take into consideration the Inuit lifestyle, in particular with regard to conservation and the environment. There is a mechanism in place. You must realize as committee members that Nunavut is the Arctic and it is fairly new to legislation. We need some movement on this issue.
I will turn it over to Ms. Pelly.
Laurie Pelly, Legal Counsel, Nunavut Tunngavik Inc.: That is correct; I am not aware of any consultation with Nunavut Tunngavik on that non-derogation report.
Senator Fraser: If they have not consulted you, possibly they have not consulted other people, either. It has been more than five years now.
Second, I share your concern about the recent tendency to allow derogation not only in law but also in regulations. We are talking constitutional rights here, and simply to give the regulatory powers the authority to derogate from constitutional rights strikes me as being worrisome. Are you aware of any regulations that have in fact been passed that in your view derogate from section 35?
Ms. Towtongie: Yes, there are. As you realize, section 35 rights are not absolute.
Senator Fraser: No.
Ms. Towtongie: A properly constructed non-derogation clause is useful as an interpretive tool. It relays to Parliament that Parliament does not intend to infringe Aboriginal rights. However, it is entitled to do so in certain circumstances in adopting the legislation.
On the legislation, I will turn that over to Ms. Pelly.
Ms. Pelly: There are regulations on the books certainly which are not consistent with Inuit rights under the Nunavut Land Claims Agreement. The Nunavut Land Claims Agreement, as you know, has been in effect since 1993, and there has been adequate opportunity for the government to change those regulations to bring them in line with the Nunavut Land Claims Agreement. In many cases, it has not done so — perhaps most cases. There are some cases in which government is working with NTI to change pre-existing regulations to comply, but I would say certainly that there are regulations on the book which derogate from Inuit rights.
Senator Fraser: Thank you, very much.
Senator Jaffer: First, I want to thank Senator Watt. He has single-handedly kept this issue in front of the Senate for many, many years and has worked very hard to that end. I have watched him with admiration regarding how he has kept this issue in front of us. He deserves a lot of credit for this work.
I am very concerned about the statement you made on page 5 about the Justice Department's intentions and preferences. This is a great concern to me when I hear from you who know this issue very well that you feel that the Justice Department does not favour non-derogation clauses. I would appreciate it if you could expand on page 5, the second paragraph. Is there anything specific that has happened that gives you this impression? Why are you saying that? I am sure you have a reason, but I would like you to expand on that.
Ms. Pelly: I think it is evident from the testimony of the Justice Department before this committee as recently as yesterday that the Justice Department does not favour the non-derogation clause and, in effect, has used rather inflammatory language to describe the non-derogation clause, calling it dangerous and risky. It tends to suggest that what is really a very simple clause that is an interpretive tool for the courts is, somehow, a powerful instrument that will be bring the rights of non-Aboriginal Canadians into threat or risk. In my view, that is a drastic overstatement.
Both the original non-derogation clause and the one contained in Senator Watt's bill are very rational. As was mentioned yesterday by some of the senators, it will promote a reasoned analysis by Parliament and an opportunity to consider whether Aboriginal rights, which are existing and proven by Aboriginal people, are threatened or whether they wish to infringe on those rights, which is their right to do, as we know under Sparrow. To suggest that they are dangerous, risky things is an overstatement and reveals the views of the Justice Department.
Senator Jaffer: My other question was that the non-derogation clause proposed by the Standing Senate Committee on Legal and Constitutional Affairs' report — Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights — differs a bit from the English version of the clause proposed in Bill S-207. In your opinion, Ms. Pelly, are there any material differences between the two versions?
Ms. Pelly: The version that is contained in Senator Watt's bill is a version that of course was the original non- derogation language and is good language. It is perfectly acceptable. As stated, NTI supports Bill S-207 and the language therein. In fact, it may be a wise decision to include that sort of language in the amendment because the language is familiar to Parliament and is contained in a number of previous acts.
The language that was in the standing committee's report is a positive statement for protection of Aboriginal rights. I think in comparing them, NTI would say that statement is preferable and appropriate, and I do not it think in any way goes too far. It is fully justified by Parliament's duty to protect Aboriginal people and their existing rights, which are already constitutionally protected.
There is a difference in terms of it being a positive statement. In terms of legal effect, I would not think it is a huge difference because it is an interpretation of the intention to respect Aboriginal rights.
Senator Jaffer: You prefer the one that is in Bill S-207?
Ms. Pelly: Given our druthers, would take the one in the final committee report, but I think Bill S-207 is a good non- derogation clause. We support it. It is perfectly adequate and we support the bill.
Senator White: My question relates to consultation with groups specifically on this legislation and whether or not Inuvialuit, Labrador Inuit and other Inuit organizations outside of Nunavut have also been consulted about this and whether or not they would have the same sense of support for this legislation. I do not expect you to speak on their behalf, but I am sure you have had discussions at some point.
Ms. Towtongie: First there is a new law called the Safe Drinking Water for First Nations Act. The campaign has come full circle regarding the constitutional and legal status of Aboriginal and treaty rights, and it affects all of us. For the first time, that law would contradict promises made to Aboriginal peoples and their treaties and the primary interpretation of these treaties.
Many Aboriginal Peoples are desperate for improved water supply after the case of federal underfunding.
In a cruel feature of the new law, the eligibility for future federal funding support for improved water services would be tied to a willingness to live under the new derogation regime created by the proposed law. The new law, the Safe Drinking Water for First Nations Act, has been developed without the required consultation with those affected. That is the issue.
Ms. Pelly: With respect to Bill S-207, I am not aware and NTI has not spoken to the Inuvialuit and Makivik on that. I would leave that to Senator Watt and others to describe their position; I really could not speak to it.
Senator McIntyre: Thank you for your presentation. I note that non-derogation clauses apply to Manitoba, Nunavut and Saskatchewan interpretation acts. I also note that the Nunavut and Saskatchewan non-derogation clauses are similar as opposed to the Manitoba non-derogation clause, which is slightly different.
I further note that the language used in Bill S-207 is slightly different from the language used in the Manitoba, Nunavut and Saskatchewan non-derogation clauses.
What impact, if any, will Bill S-207 have on Manitoba, Saskatchewan and Nunavut?
Ms. Pelly: As I understand it — and I am not an expert on the Manitoba and Saskatchewan non-derogation clauses — that would be applicable to their provincial legislation, whereas Bill S-207 relates specifically to federal legislation. I do not expect that that Bill S-207 would have an impact on those bills.
Senator McIntyre: Would Bill S-207, if it becomes law, cause confusion in any of those provinces or territory?
Ms. Pelly: I do not believe so. As I understand it, the Manitoba and Saskatchewan non-derogation clauses are similar.
Senator McIntyre: Saskatchewan and Nunavut are similar.
Ms. Pelly: I actually have not examined those clauses personally. I am relying on the testimony previously in evidence and the Taking Section 35 Rights Seriously report. It is my understanding that those non-derogation provisions are similar to what is in the final report of the standing committee. They are clearing non-derogation clauses and there has not been any difficulty with respect to their representation. I do not see how the plain and clear language in Bill S-207 would engender any confusion.
Ms. Towtongie: You are right. The interpretation act approach has been employed by Manitoba and Saskatchewan. To date, these provinces have not experienced any practical problems. It has been a practical solution.
Senator McIntyre: I understand that, but if Bill S-207 becomes law, would it cause confusion?
Ms. Towtongie: I do not think so. Bill S-207 is a default provision. It interprets legislation where there is no expressed parliamentary intention. In any given piece of legislation, if the Department of Justice believes that there is a possibility of the bill affecting Aboriginal and treaty rights, it would bring that to the attention of Parliament. Parliament can decide how it wishes to handle that particular issue in the bill. It is a default provision.
The Chair: As a supplementary question, courts operate on the assumption that every clause in an act was put there for a purpose. I think that courts seek to give it effect. On that basis, as a follow up to Senator McIntyre's question, is there not the possibility that Bill S-207 could end up being interpreted in a way that goes beyond section 35? Do you not see that as a possibility?
Ms. Pelly: I do not see anything in Bill S-207 that could in any way be interpreted to go beyond section 35. It is simply stating Parliament's intention not to take away or derogate from any existing Aboriginal or treaty rights. It is not clear to me how that could in any way interfere.
The Chair: As I said, the courts tend to believe it is put there for a purpose and then seek to give it effect. That is the concern.
Ms. Pelly: Perhaps I did not understand your question. What specific language are you concerned about?
The Chair: I am concerned about the interpretations of the courts. That is the issue. You are the legal counsel and I am asking you if you see that as a possibility.
Ms. Pelly: I do not see any part of Bill S-207 that the court could not give instruction to that would cause the court concern.
Senator Joyal: If you read the proceedings of our committee yesterday, you will note that I quoted from a letter from the Minister of Justice in July 24, 2008. It was in relation to the report of this committee regarding the non- derogation clause, especially the comment made by the minister in reference to Recommendation 1, which is essentially the substance of Bill S-207.
I want to quote from the minister's letter again in relation to the consultations that were supposed to take place following the report, especially Recommendations 1 and 2 that are at stake in Bill S-207:
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.
To your knowledge, did that consultation take place with your organization or with other Aboriginal organizations that you would be aware of in the last five years? This letter is dated, as I mentioned, July 2008. It was the intention of the Department of Justice, or at least of the Minister of Justice at the time, to canvass the views of Aboriginal groups with respect to the endorsement of Recommendation No. 1, which was essentially related to the entrenchment of an Aboriginal non-derogation clause into legislation.
Ms. Towtongie: We have not been consulted. We were never requested for consultation. That is just to make them appear as if they had consulted with us. Unfortunately, as President of NTI, we have not been consulted.
Senator Joyal: Are you aware if other Aboriginal groups might have been consulted?
Ms. Towtongie: No, not to my knowledge. I am the co-chair of the Land Claims Agreements Coalition across Canada with modern-day treaty agreements, 29 of us who have signed agreements with the Government of Canada. We were not consulted.
Senator Joyal: The other thing that puzzles me is in relation to consultation. You gave us the example of Bill S-8, the Safe Drinking Water Act. You, of course, point out the derogation clause which, in fact, is not a non-derogation clause, as you said: it is a derogation clause. It is a free hand to derogate, the way I read it. Were you consulted by the government before the legislation was drafted with that derogation clause?
Ms. Towtongie: Unfortunately, no, even though the 2007 United Nations declaration says ``free, prior and informed consent,'' which is a test. We were not consulted on the Safe Drinking Water Act. We were never informed of the bill prior to the writing of it, or in the middle of it. It just appeared at the last moment, and then our staff caught it.
Ms. Pelly: I would concur: We have not been consulted on Bill S-8.
Senator Joyal: Were you consulted in the past for other legislation where there are derogation clauses of that type?
Ms. Pelly: No, we have not been. In the Nunavut Waters and Nunavut Surface Rights Tribunal Act, which was the bill we first reviewed and discovered the new language that provided protection, we were working with the Government of Canada and Justice Department on that legislation. It is legislation to specifically implement the Nunavut Land Claims Agreement, and that provision was not drawn to our attention. We happened to notice it in reviewing the bill in the later stages.
Senator Joyal: In other words, from your own experience and standpoint, you have never been consulted on the basis of the Sparrow case. In other words, prior to the inclusion of a derogation clause into legislation that affected your rights or your status, you have never been consulted on the basis of the Sparrow principles such as minimum infringement, an alternative approach that could be taken, the compensation and the justification generally.
Ms. Pelly: That is correct, senator. We are not aware of any process by which the Justice Department or other government officials conduct that sort of exercise and bring to the attention of Aboriginal peoples specifically, or generally, provisions in legislation that may infringe their rights. We are not aware that that happens at all.
Senator Joyal: In other words, the Justice Department, or any department involved in legislation, would put that derogation clause in legislation, but you would never be made aware of it before, and if it lapsed, to your knowledge, you are stuck with legislation that contains a general derogation clause like in Bill S-8.
Ms. Pelly: That is correct. We are in fact stuck with many of the so-called weak, confusing non-derogation clauses that have been brought to the committee's attention in the past. We are aware that there has been testimony from the Justice Department that they had certain Aboriginal groups onside in the Safe Drinking Water Act. I cannot really comment on what consultation they did with certain specific groups in order to obtain their agreement to that language.
Senator Joyal: Let me put it in more general terms. No body is between the Justice Department and you whereby the Justice Department would go to that body to inform Aboriginal peoples that they are contemplating legislation that will or might affect Aboriginal rights.
Ms. Pelly: That is correct. Such a body would be really useful, as was brought to the attention of the committee, to address issues where government may perceive itself to have a conflict or to be addressing competing interests, to have a group or body that would look specifically at whether Aboriginal and treaty rights are being affected by legislation would be extremely helpful.
Senator Joyal: That kind of ``solution'' does not exist in the present system of the Justice Department or other departments that affect your rights.
Ms. Pelly: That is correct, to my knowledge.
Ms. Towtongie: As a Canadian, I would be disturbed by the technique being adopted into law making because it allows for future erosion of Aboriginal and treaty rights to be carried out through the executive branch of government by way of regulation.
Senator Joyal: Of course, because you add the regulation to that. There is no other consultation mechanism when they draft regulations to implement the objective of legislation. You are stuck in the same position with the regulation that might ensue from the adoption of a statute by Parliament.
Ms. Towtongie: That is true.
Senator Joyal: As you said, the regulations are sometimes more specific than the general objectives of legislation. In fact, it is really there that the impairment of your rights might take place because that is how legislation is implemented. In practical terms, your rights might be affected.
Ms. Towtongie: Regulation writing, as you are aware, is with the Department of Justice officials.
Senator White: Thanks again for being here today. It is appreciated.
I was going through discussion on Bill S-8, the Safe Drinking Water Act. My understanding is that the legislation actually refers specifically to reserves. NTI might not be consulted because there are no reserves in Nunavut anyway.
Ms. Pelly: The Safe Drinking Water Act goes beyond dealing with reserves. However, I think there is a significant question as to whether that act does impact on Nunavut Tunngavik Inc., because it refers specifically to Aboriginal bodies that have jurisdiction over water.
Senator White: Not specifically to on-reserve?
Ms. Pelly: That is correct. By the language of the act, Modern land claim agreement Aboriginal organizations are allowed to opt in.
Senator White: Nunavut could opt in if it chose to.
Ms. Pelly: We would have to look carefully at the definition of Aboriginal bodies having jurisdiction over water, because Nunavut Tunngavik does not.
Senator White: No. The Nunavut government would, but the NTI would not.
Ms. Pelly: And the Nunavut Water Board as well.
Senator Joyal: I am still concerned that we are in a conundrum here. There is no system to resolve the position of the Aboriginal people in relation to a future situation whereby non-derogation clauses or derogation clauses would be proposed in legislation. If you are not made aware, the risk is that that legislation will be adopted without your being made aware of that. Sometimes that legislation is complex, and the main issue related to that legislation might not be of concern generally to Aboriginal people and they might find themselves stuck with a non-derogation clause of which they were not made aware, and of which parliamentarians were not made aware either.
I am again trying to reflect upon the objective of Bill S-207. In fact, is Bill S-207 not the solution to that situation?
The Justice Department does not seem to really have any interest in canvassing the views of Aboriginal people in respect to the derogation of their rights, either as a matter of principle, as you stated, because they are not interested in those clauses, or in specific legislation whereby it is not a priority or certainly a concern for them to consult you.
Ms. Towtongie: That is true. The administration of government is making these regulations, not the elected members of Parliament, and that is an issue. Ms. Pelly can fill you in on that. The administration is making the regulations and the Parliament has no say on it.
Ms. Pelly: I think you are correct, senator, if you are suggesting that Bill S-207 is a solution or at least a partial solution to this issue because it will require the Justice Department and other officials to bring forward to Parliament situations where it feels that Aboriginal and treaty rights could be affected by legislation. Otherwise, of course, the Interpretation Act would apply. They would have to specifically turn their minds to potential impacts on Aboriginal and treaty rights, and that is really what we are looking for them to do.
The Chair: As there are no further questions of our witnesses, I would like to thank you both for travelling here today. We very much appreciate your contributions to the committee's deliberations.
Honourable senators, we have before us our second panel of witnesses. From the Congress of Aboriginal Peoples is Betty Lavallée, National Chief, and Ron Swain, National Vice-Chief. Appearing before us as an individual is Sébastien Grammond, Dean of the Faculty of Civil Law at the University of Ottawa.
Ms. Lavallée, would you like to begin?
Betty Lavallée, National Chief, Congress of Aboriginal Peoples: Kwe, bonjour, hello. Good morning, Senator Runciman and committee members. It is a pleasure to be here on the traditional territory of the Algonquin peoples to speak to you about the non-derogation clause of Aboriginal and treaty rights.
I am the National Chief of the Congress of Aboriginal Peoples. Since 1971, the Congress of Aboriginal Peoples, formerly known as the Native Council of Canada, has represented the interests of off-reserve, status, non-status Indians, southern Inuit and Metis peoples throughout Canada. Today, over 60 per cent of Aboriginal peoples now live off-reserve. The congress is also the national voice for its affiliate organizations that advocate on behalf of Aboriginal peoples living off-reserve.
Bill S-207 is legislation that speaks to the heart of our organization. As you are most likely aware, the late Harry Daniels was the President of the Native Council of Canada, later the Congress of Aboriginal Peoples. He was instrumental during the constitutional talks in ensuring Aboriginal and treaty rights were recognized in the Constitution Act, 1982, under section 35. For obvious reasons, we believe it is important to protect Aboriginal and treaty rights and ensure that we are not being tampered with.
In December 2007, the Senate concluded its final report entitled Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights. The Congress's viewpoints were included in this report, and we continue to support this outlook, which is consistent with the Senate recommendations.
Following the Constitution Act, 1982, in 1986 non-derogation clauses were inserted into federal legislation to prohibit the act in question ``to abrogate or derogate from any existing aboriginal or treaty rights of aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.'' Not every act included this clause. Some acts that directly or indirectly affected Aboriginal interests were overlooked.
Further, between 1998 and 2002, it went unnoticed that the wording of this clause had changed. It was slightly altered from ``nothing in this Act shall be construed so as to abrogate or derogate from any existing Aboriginal or treaty rights'' to ``nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing Aboriginal or treaty rights.'' A legal expert, Jim Aldridge, pointed out in the Senate report that this change in wording ultimately makes this clause ineffective.
We know the reason for slightly altering the wording was due to the Supreme Court of Canada's Sparrow decision in 1990. This decision determined that constitutional protection for Aboriginal and treaty rights is not absolute, that in some circumstances new laws could infringe upon Aboriginal and treaty rights.
A non-derogation clause provides a much-needed safeguard for Aboriginal people across Canada. The Royal Commission on Aboriginal Peoples has acknowledged:
The Métis and non-status Indian people, lacking even the protection of the Department of Indian Affairs and Northern Development, are far more exposed to discrimination and other social disabilities. It is true to say that in the absence of Federal initiative in this field they are the most disadvantaged of all Canadian citizens.
As the chief of a national Aboriginal organization, I can attest that this statement from 1996 still applies today. It is frustrating to see Aboriginal and treaty rights being forgotten. The inclusion of a non-derogation clause in the Interpretation Act would be a step forward for the Government of Canada to not lose sight of its constitutional mandate.
Adversaries may suggest that this process is unnecessary because we already have safeguards in place under the Canadian Charter of Rights and Freedoms. Specifically, section 25 acts as a shield to protect Aboriginal and treaty rights. However, this is not defined as the Supreme Court of Canada has not provided a definitive interpretation of the relationship between section 25 of the Charter and section 35 of the Constitution Act, 1982. We must not forget that section 35 of the Constitution has not yet been defined.
Another important issue relating to consultation was in the Senate's final report. The committee acknowledged the need for greater consultation and further recommended:
That the Department of Justice develop a process, to include consultation with broadly representative Aboriginal groups, for reviewing federal laws and regulations already in place based on these criteria, and report to Parliament on its findings.
The congress agrees that it would be beneficial to allow for much more enhanced consultation on legislation that has an impact on Aboriginal and treaty rights.
Given the past discrepancies with non-derogation clauses of Aboriginal and treaty rights and the importance of upholding these rights, it is crucial to include a non-derogation clause in the Interpretation Act.
I sincerely hope that my presentation will assist you in clarifying the issues relating to this complex subject matter regarding non-derogation clauses.
The Chair: Thank you very much.
Mr. Grammond?
Sébastien Grammond, Dean, Faculty of Civil Law, University of Ottawa, as an individual: Thank you, Mr. Chair. I will speak in both languages, and I will start in French.
[Translation]
I would first like to draw the committee's attention to the French text, which in my opinion is not proper French grammar and is different from the English text. The French text reads ``nul texte ne porte pas atteinte.'' Instead, it should read ``nul texte ne porte atteinte.'' I also think that ``nul texte ne porte atteinte'' is not an accurate translation of the English version, which reads ``No enactment shall be construed.''
There is this idea of interpretation in ``so as to derogate or to abrogate.''
Allow me to quote the French version of the Manitoban act which reads:
Aucune loi et aucun règlement n'ont pour effet de porter atteinte aux droits.
So I think that it is necessary to take a closer look at the French version.
As for my overall assessment of this bill, I would first need to know the intended purpose of the bill. In my opinion, it is not clear. There are two possible objectives. First, one may think that the purpose of the bill is to reinforce an existing safeguard. The fact that the section already refers to section 35 of the Constitution leads us to believe that there is indeed reference to an existing safeguard. If that is the case, the provision may be redundant. Moreover, similar provisions in federal legislation that has been adopted over the last 20 years or so, as well as similar provisions in the Interpretation Act in Manitoba and in Saskatchewan, have never been enforced by the courts. This leads me to believe that it is not a major instrument in protecting aboriginal peoples' rights.
A second possibility is that the section seeks to ensure an additional protection of aboriginal titles and aboriginal treaty rights. If that is the case, it would be necessary to specify what measures should be taken beyond the protection that is already laid out in the Constitution. In its current form, the text does not clearly explain what measures should be implemented beyond those found in section 35. One may wonder if it would be wise to grant such an additional protection.
The Supreme Court of Canada ruled that the government should, for example, maintain the possibility of making decisions regarding the management of fisheries, fishing quotas and fishing permits. If aboriginal titles benefited from a protection that went beyond that, one may ask if this government authority could be challenged. This authority must be exercised while respecting the obligation to consult and accommodate. I get the impression that the purpose of this bill is to simply state a presumption based on interpretation. It repeats elements that already exist and flow from a principle of constitutional law, which is the presumption of the constitutionality of laws. That is to say that laws are interpreted in a way that makes them compatible with the Constitution. This is a well-known principle of constitutional law.
I would also like to point out that the wording used in section 8.3 bears some resemblance to section 25 of the Constitution Act, 1982. Moreover, we do not really understand the full scope of section 25. Section 25 seeks to harmonize two elements of constitutional law: rights and freedoms guaranteed by the charter and aboriginal rights. However, in this case, we are not dealing with two elements of constitutional law but rather with legislation as it concerns constitutional rights. This is a different problem.
[English]
In the 2007 report of this committee, it has been said that such a provision would have a pedagogical effect. It would remind civil servants applying federal laws that they have to respect and to comply with the Aboriginal and treaty rights of the indigenous peoples. Probably that is where the real purpose of this bill lies. It is to give directions to those who draft laws and to those who apply the laws to keep in mind the rights of the indigenous peoples.
In my view, the report of the committee contained other suggestions that would be more effective and that deserve your consideration. For example, in its third recommendation, the committee said that the government should ask the Minister of Justice to report on the compatibility between draft bills or legislation and Aboriginal and treaty rights. It also recommended that the Department of Justice undertake a process, within the department, to assess whether draft bills or regulations, or government action more generally, is in compliance with Aboriginal and treaty rights. It would seem to me that processes of this nature are more promising than a presumption in the Interpretation Act that is not, as we can see from close to 20 years of experience, taken into consideration by the court.
I suggest you might want to look at the recommendations made in 2007 by the committee. In fact, I think this would go a long way toward representing the duty to consult that the federal government has with respect to potential infringements of Aboriginal and treaty rights that are protected in the Constitution.
A clearly defined process for the assessment of potential violations is a more promising way than simply introducing a provision in the Interpretation Act.
The Chair: Thank you, sir.
We will begin the questioning with the deputy chair, Senator Fraser.
Senator Fraser: Ms. Lavallée, as has been noted, it is now more than five years since this committee tabled its report on non-derogation clauses, and the government's response to that report said ``very interesting proposals, but particularly in regard to the recommendations reflected in the bill now before us, we have to consult with Aboriginal peoples.'' Have they consulted with you? Has the government consulted with you?
Ms. Lavallée: No. When the government looks at the Congress of Aboriginal Peoples, because we are off-reserve, status, non-status, they do not believe that we have any Aboriginal and treaty rights even though we know we do.
We are all aware of the latest decision that just came down from the Federal Court of Canada, Daniels. That is a court constitutional reference we have been working on for 12 years. We played an instrumental role in the Constitution Act, 1982. The late Harry Daniels fought tooth and nail to have our rights as Aboriginal peoples recognized, regardless of what title or label was stuck on you at the time, because we knew eventually at some point these issues would be rectified. As our people became more educated and more proactive in paying attention to what was happening politically in Ottawa, these issues would start to be challenged. Now we are seeing the benefits.
Senator Fraser: However, no consultation?
Ms. Lavallée: No consultation.
[Translation]
Senator Fraser: Mr. Grammond, welcome to the committee. Or rather I should say welcome back, since this is not the first time that you have come here.
[English]
In response to your thing about how we got to where we got, I was a member of the committee at the time when we did that report. One of the elements that influenced our decision to make Recommendation No. 1, the non-derogation clause in the Interpretation Act, was the sense that there was a glissement, a sliding in the writing of interpretation clauses that started out being very straightforward basically saying, ``In case anyone forgot, section 35 applies.'' Then they were progressively weakened to the point where derogation was being permitted by way of regulation, which is a very strange way to approach the matter of constitutional rights. At the time, I think quite a few committee members thought, ``Okay, stop already; go back to where we should have been in the first place with a standard non-derogation clause in order to make it just that little much more difficult to provide for derogation.''
My question concerns the notion that the government be required to examine and certify compliance with Aboriginal rights. I signed onto that recommendation, and I still think it would be good if it could happen properly. However, the longer I stay here, the more often I see bills come before us that have been certified to be in conformity of the Charter of Rights and Freedoms but turn out not to be.
I know you are aware of the case now before the courts. I do not want to comment on it except to say that perhaps some of the allegations that have been made were not surprising to those of us who have watched the process I was talking about. I am not pointing the finger at governments of any political stripe here. There is an institutional dynamic that effects all governments and the bureaucracy behind them.
How realistic do you think it is to put one's faith in that kind of an assessment process, given what we know about how similar assessments have been made?
Mr. Grammond: That is a very topical question given the media reports lately.
There are several ways of doing that. In Recommendation 3(a) the committee discussed something that would be along the lines of section 4.1 of the Department of Justice Act, which essentially puts in place the mechanism that you mentioned.
I know that allegations have been made about this process. We must keep in mind the fact that this section essentially asks the Minister of Justice to criticize bills that are put forward by the government, which could be seen as a breach of cabinet solidarity. It was a good intention, but there is perhaps a political problem with that sort of process.
There might be other ways to do it, and I think Recommendation 3(c) is another way of doing it, which would be an internal process within the department. One could also think of other processes, such as an officer of Parliament who would be tasked with doing that or giving the Auditor General jurisdiction over these issues. Unfortunately, I have not come here today with a blueprint of what that process would be, but I think it is possible to imagine a process that would give some guarantee of independence and that would result in a closer look being taken at whether bills are in breach of Aboriginal treaty rights. This question deserves more thinking.
[Translation]
Senator Boisvenu: Good day, Ms. Lavallée, Mr. Swain and Mr. Grammond. It is always interesting to listen to you. I do appreciate the work that Senator Watt has done on this issue, but I do have some questions about the way that this bill will be used, namely, how it will improve both the respect and recognition of aboriginal basic rights.
Yesterday, I alluded to the problem pertaining to the Canadian Fisheries Act that provinces must comply with in enforcing their commercial, recreational and subsistence fishing regulations, among other things. In the 1980s, Quebec had to amend its own regulations in order to give priority to the rights of aboriginals, for example, which historically had been subordinate to the rights of recreational fishers. We saw that section 35 had a very significant impact in Quebec.
The same problem occurred with hunting. I am a native of Abitibi and I worked a great deal with the Algonquins. I was regional director at the ministère des Loisirs Chasse et Pêche, and so I had to work with the aboriginal chiefs on a daily basis to manage the moose hunt in places such as the La Vérendrye reserve, where we had major problems because white people were subject to much more restrictive regulations than the aboriginal people. I would like to talk about the night hunting ban. No one was allowed to do this, neither the aboriginal people nor the white people. Nor could anybody fish in spawning grounds.
Between 1985 and 1990, many discussions were held with the aboriginal people in order to make the moose hunt more flexible. Now aboriginal people have the right to hunt at night, but white people do not. Aboriginal people also have the right to hunt using a light, something that white people are not allowed to do. Section 35 of the Charter really did lead to in-depth changes to the hunting regulations in order to give aboriginal people greater subsistence hunting rights, rights that are not given to the white population.
Mr. Grammond, do you believe that section 35 of the charter is effective with respect to the acknowledgment of ancestral and basic aboriginal rights? In adopting Senator Watt's bill, do we not run the risk of seeing the same situation occur that took place in Saskatchewan and Manitoba, where the courts to some extent are disregarding the legislation? Could the same thing happen with this bill with respect to the courts' acknowledgment of aboriginal rights?
Mr. Grammond: With respect to your question as to whether section 35 of the charter is effective, I think that progress has been achieved. Obviously, some people feel that things have gone too far, while others feel that things have not gone far enough.
I believe that the Supreme Court has done significant work in trying to make practical sense of this section which provides aboriginal rights with real protection, while reconciling this protection with the interests of the rest of the population.
I would also say that this is an interpretation that assigns a fair role to every stakeholder in the system, and which finally recognizes that it is up to the government and aboriginal peoples to solve problems and that not everything can be resolved by the courts. That is why the court has provided for an obligation to consult, one that does not dictate the results but suggests that the parties must negotiate in order to find a solution. Under these circumstances, there is a much higher likelihood that the solution will be more acceptable to everyone than a court-imposed decision. So the Supreme Court has interpreted section 35 in some very interesting ways, particularly in the approach taken by Chief Justice Beverly McLaughlin.
As regards the second part of your question, I think that an interpretation rule such as that one, which simply reiterates protection already afforded under the Constitution, may pass unnoticed or not be taken into account. Why? Because people usually turn to the constitutional provision because it has constitutional weight.
It is important to understand that the Interpretation Act applies only in the absence of any intent to the contrary and that is part of the legal interpretation process. We must always look to the intent of the legislator and, when this is expressed clearly, that is what we apply, not any presumption stemming from the Interpretation Act.
I just do not want us to adopt a measure which would constitute a promise that will yield few or no results. I am not against this type of measure per se, but I do feel that we should instead focus on concrete measures that the aboriginal people and the government can discuss for the purpose of finding mutually acceptable solutions.
First of all, this is the essence of the obligation to consult established by the Supreme Court nearly 10 years ago. Furthermore, this is the spirit underlining the recommendations made by the committee in 2007, as it tried to implement the process. As Senator Fraser said, the process is not perfect and perhaps needs some further thought, but that is more or less the message that I wanted to convey and my impressions after reading the bill.
Senator Boisvenu: If I understand your answer correctly, the problem lies much more with the consultation process — which is often lacking — rather than in any additional legislation that does not add very much to the negotiation process that further confirms the right to the recognition of aboriginal rights. In your opinion, therefore, does the real problem lie with the process?
Mr. Grammond: I think so. In my opinion, we should implement a process and this perhaps should be spelled out in a piece of legislation. I believe that it would be more useful to establish a process that will get the government to consult with the aboriginal people and find appropriate solutions in the case of legislation that may violate aboriginal rights. If that were the case, we would identify the problem and we could try to resolve it rather than simply include a directive stating that no legislation should violate such rights. However, if the act did cause harm, the problem is not resolved.
[English]
Senator Jaffer: I wish to thank all three of you for being here. It is very interesting for me to listen to all of you.
The issue of consulting comes up all the time. Ms. Lavallée and Mr. Swain, if you were designing a consultation process with CAP and the Aboriginal community what would that look like for you? What kind of process? As you can imagine, we have been waiting for five years because the government said we were going to consult, but when I was listening to this it made me feel humble because you have been waiting even longer. I would like to hear from you about what the consultation process should look like.
Mr. Grammond, you are very aware of the issues that you speak of and I would also like to hear from you. If you were looking from a court process, what would the court accept as a consultation process?
Ms. Lavallée: Thank you for the question, Senator Jaffer. To me, if we have not learned anything from the last couple of months.
I was the chief and president for the New Brunswick Aboriginal Peoples Council for 16 years prior to coming to the national level. Before that, I was in the military for 17 years. I am used to a consultative process where it moves down the chain and back up the chain. Any time I had consultations with my people, I went out to the communities, to the grassroots people, and had town hall meetings with them.
If you want people to buy into change, to modernize, to move forward, to become productive citizens and to work hand in hand with government, then you have to include them in a process. It is easier to have a process and have it accepted when you are part of the problem solving. That is how I have always worked.
At the national office, I take any opportunity that I get to meet and talk with our affiliates. If we are going to talk about a certain issue and there are funds available, those funds are normally pushed right to the lowest common denominator, right to the community level. It does not stop at the national organization; it does not stop at the headquarters of the PTO. It goes right to the community so that the community people have input into what is happening.
To take it a step farther, if you have gone on our website since I have been there as the leader, you will find that even all our financial information for our national office is now published online. All our audits are published online so that every person on the ground can see what is happening at the national level, including my salary, my expenses, our policy and procedures, and how we conduct business on a day-to-day basis. Our bylaws are now published. If I want people to believe in me and to trust me, then I have to include them in the dialogue or I will not be an effective leader.
Ron Swain, National Vice-Chief, Congress of Aboriginal Peoples: I am the National Vice-Chief of the Congress of Aboriginal Peoples. I wanted to let all of the senators here know that our colleague here gave evidence on the successful Daniels case that identified Métis and non-status Indians as Indians under section 91.24 of the Constitution Act. I bring that up because he is a learned person and has expertise that goes beyond me and my colleague the national chief. As Aboriginal people, some of us live a very simple life, and we need to consult with experts in that field and be able to put it in language that we can understand. Part of consultation is communicating, as the Aboriginal culture, down to the lowest denominator — the community people. However, when we are doing that consultation, we need resources to hire the experts, to interpret that, to convert it into a language that we can understand and then to communicate it to our people.
What happens, unfortunately, is that, first, there is it not enough money in our consultation for that process to take place. Second, it is time-consuming. If there is money that comes forward, our consultations take time.
I do not know if you all remember back to the constitutional process when Ovide Mercredi had to leave the room to go to consult with the chiefs who were outside. I was sitting in a room behind our delegation, and it was frustrating for all of the premiers and for the Prime Minister at the time because it slowed everything down. That was just the National Chief of the AFN going to consult with a small group of people in the other room. I was just a young man then, watching this whole process develop, and it was very clear that the way we did business was totally different than the way that mainstream Canada did. I wanted to emphasize that as an example.
Senator, I am glad you asked that question. Our consultation processes are slow and kind of deliberate. When you are consulting, it is based on consensus building, as Senator Watt can attest, and that is a slow process.
The Chair: Mr. Grammond, do you want to respond?
Mr. Grammond: Yes. It is true that it is a long process, but in my experience, once they have made a decision, they stand behind it. You can trust that they will go that way because they reach a consensus. That is an important point to make.
I think your question was: What would this process like? What would be the main thing?
Senator Jaffer: What would the court like? You are experienced in these issues.
Mr. Grammond: I think the first step is to have a process within government to identify potential infringements of Aboriginal treaty rights either in legislation and regulations or in government action — the issuing of permits or things like that.
This is not an easy task because the scope of Aboriginal and treaty rights is not always clearly defined. I think we all know that.
Once a potential impact has been identified, then I think this process should be designed so as to seek out the input of the indigenous peoples who are concerned and whose rights would be affected and then to initiate a process of discussion so as to try to reach a mutually agreeable compromise as to how we could implement a measure in such a way as to minimize the impact on Aboriginal and treaty rights. Is compensation in order, or is there any other solution?
I think Chief Lavallée said, ``It is much better when we are part of the solution.'' I think the whole purpose of all of these processes is to make the indigenous peoples part of the solution, to integrate them into the decision making process. That should be the spirit in which this would be implemented.
Also, funding is an important issue. I have friends in Indian communities who say, ``I have piles of requests for consultation on my desk, and I do not have the resources to answer them.'' It is important to have proper funding for that process.
Senator McIntyre: Thank you to all of you for your presentations. My first question is: What do the words ``abrogate'' and ``derogate'' actually mean? Is there a difference between the two?
Mr. Grammond: That is a good question. These words are in section 25 of the Charter. It has been 30 years now, and we do not have any definitive interpretation of them. ``Abrogate'' could be the totally nullification. ``Derogate'' could be some impingement. We do not have, especially in the context of section 25, which I assume would be more or less the same context as here, any definitive interpretation of what those words mean.
Senator McIntyre: We also find those words in the non-derogation clauses, yet none of those clauses have been tested in court.
Mr. Grammond: To my knowledge, they have not.
Senator McIntyre: That is right.
You have all spoken about consultation. In light of the fact that Bill S-207 is a Senate public bill as opposed to a government bill, who would be responsible for carrying out those consultations, or does it really matter? Maybe this question should be addressed to the Department of Justice?
Mr. Grammond: Yes, I would like to know their answer, but let me give you the elements.
If you are asking the question in terms of the duty to consult as it has been designed and applied by the Supreme Court, you have to ask who has a duty to consult. It is the Crown? Who is the Crown? I think that, in the context of a bill before the Senate that is not a government bill, this leads to difficulties. It may be that the Senate would wish to conduct some of these consultations itself. However — and I am really thinking out loud here — the Supreme Court has said that it is possible to use existing processes as a way of discharging the Crown's duty to consult.
In the context of the Senate, it might be that hearings of a committee like this, if they give the indigenous peoples an appropriate voice and an appropriate occasion to voice their concerns, might fulfill the duties. I know that some Senate committees have been touring Canada. That might be a process as well. Mind you, the message the Supreme Court sends is that consultation must be tailored to the facts of each case. It is obviously difficult to answer that question in the abstract, but I hope that this provides some guidance.
Senator McIntyre: I think the answer will probably rest with the Crown. Whether it is a Senate public bill or a government bill, the Crown is still responsible, bearing in mind the fiduciary relationship between the Crown and the Aboriginal peoples. That is my interpretation, anyway.
Mr. Grammond: That is a possibility.
Senator Joyal: Welcome, Ms. Lavallée, Mr. Swain and Mr. Grammond. Thank you for the reminder of Mr. Daniels. I remember very well when he was a key witness before me, so many years ago, in 1981, and the contribution he made to have the Metis recognized in the Constitution. As you know, the original resolution did not contain the recognition of the Metis. When I look into the Federal Court case whereby he fought again to have recognition of the federal government's responsibility for the Metis, I see the remedial initiative that has to be taken.
I want Professor Grammond to remember that we are here in an exercise of remedial non-recognition of Aboriginal rights for centuries, and those people fight to be consulted. They are not consulted. We have recommended that government consult them. The government, in its letter of 2008, undertook to consult them. ``We will also want to canvass the views of Aboriginal groups,'' and they then refer to the recommendations we are discussing now in Bill S- 207, and the government did nothing, for five years — nothing.
We have Bill S-8 before the Senate, the Safe Drinking Water Act. The government is supposed to consult them because there is a derogation clause in that bill. They have never consulted them either.
We can dream the ideal world, but the world of today, in the system as it works, it works against the recognition and the respect of their rights. I have seen that for the 40 years I have been in the Parliament of Canada, since 1972.
Bill S-207 is a small step, but there is no other step that they can compel the government to take to consult them. The government consults them with what fits the purpose of the government. Nothing compels them to consult. When their rights are infringed, they try to go to court. Who pays when they go to court and how long does it take to get a decision whereby the court asks the government why they have not consulted?
You have to understand that there is a systemic weight against the recognition and the fair respect of their rights and the legislative role of the federal government, which acts for the benefit of the whole of Canada and for all Canadians — White, non-White, of any stripe or colour.
This is what it is, this bill. We are not in an ideal world. We are in the real world, and in the real world the consultation does not work on a daily or regular basis. That is why I think this bill, which is the first recommendation of our report, even though it is small, could be a reminder to those who draft the legislation that they have to take into account the rights of the Aboriginal people.
Ms. Lavallée, when is the last time you were consulted by the federal government on a bill or major initiative?
Ms. Lavallée: My last consultation was on matrimonial real property rights. I think that was about two years ago.
Senator Joyal: Is there any other legislation you remember being consulted on?
Ms. Lavallée: We were part of the consultations on governance on the old Bill C-7.
Mr. Swain: That was in 2002, I believe.
Ms. Lavallée: I thought 2007, around that time.
Senator Joyal: The first incarnation of the bill. I remember that, yes.
Ms. Lavallée: I think basically the matrimonial real property rights were pretty well the last real bills that we were consulted on.
Quite frankly, the reason goes back to the reality that a lot of times these changes or bills more or less pertain to Indian Act issues, and not having the same recognition as what Daniels is attempting to do is what more or less keeps us out of the consultative processes.
Just picking up on what Professor Grammond had to say, even the provincial governments will not talk, in most cases, to the off-reserve Aboriginal peoples. If you do not have a status card and you are not on-reserve, then, as far as they are concerned, you are no one; you are just another ordinary person in the province. I am speaking from experience, having been through the lobster wars, Burnt Church; having been through the Bernard decision, the Marshall decision. When the Marshall decision came down, we thought in New Brunswick and on the East Coast that finally we would make some headway with our pre-confederation treaties. We were part of the treaty process. It was through our organization in New Brunswick, through our former leaders Gary Gould and Alan Semple who wrote the beginning of the treaty process on the East Coast, our land is the Maritimes. Lo and behold, the government comes out with it only pertaining to what they consider to be the modern manifestation of the treaty, which was the Indian Act. We were totally personae non gratae.
This is an issue and the reason we are supporting this. It has always been somewhat of a joke internally, especially when we have to grapple with court cases. With section 35, is the box half full or half empty? We do not know. Some of these issues are starting to be resolved, but not at the rate they should be.
Any tiny step to have section 35 rights acknowledged and/or protected is a step forward for us.
The Chair: Mr. Grammond, I will give you an opportunity to respond to what Senator Joyal had to say, and then we will have to move on so other senators have an opportunity. Please be as concise as possible.
Mr. Grammond: I acknowledge that there are political realities that I may not be aware of, but I would not give up on consultation. It is important and has dramatically changed the landscape of indigenous peoples' law in this country over the last 10 years. True, the process does not always work; true, the non-status people or off-reserve people are still often ignored, and that is something to be repaired. However, I would say consultation and integration in the decision- making process is the way forward.
Senator Fraser: On the matter of consultation, Mr. Grammond, it seems to me we have a Catch-22 if we essentially say that only the Crown consultations count. It is pretty clear that when the government wants to do something it does not necessarily consult with all the persons affected.
When the government does not want to do something, it really does not consult, and the evidence is pretty clear that the government does not want to tie its hands in any way, as far as non-derogation and derogation are concerned, which is where private members' bills can serve a very useful public purpose.
I do not know whether you have had a chance to consult Senator Watt's testimony from last night.
Mr. Grammond: Unfortunately, not.
Senator Fraser: He, himself an Aboriginal person, consulted widely before bringing this bill forward. The Senate committee study, I would argue, concentrated a fairly prolonged form of consultation in which every Aboriginal witness said, ``We want this situation addressed and fixed.'' Their preference in most cases was for exactly what this bill proposes to do. Does that not constitute consultation?
Mr. Grammond: It certainly does constitute a form of consultation. I have not assessed it to give an opinion as to whether it would comply with a duty to consult, and it would probably be difficult to do so, but certainly it does constitute some consultation. If the representatives of national indigenous organizations say, ``We want it,'' that is certainly consultation. I was not talking so much about consultation regarding this particular bill but consultation in general as a way to prevent further infringements of Aboriginal treaty rights. I think that is the key.
Senator Jaffer: Professor Grammond, you are so familiar with this issue. Over the years, have you seen a dilution of non-derogation rights with new bills being introduced? At the beginning you said that there is the Charter and then there is the act. Do you see that, as acts are being introduced, there is a bit of dilution of non-derogation?
Mr. Grammond: It may or may not; it depends on the intent, and it is difficult to say. It can be observed that initially they were framed more or less in the way that we see in this bill. Later the wording was something like, ``It does not detract from the protection afforded by section 35 to Aboriginal treaty rights.'' That is certainly narrower in that the first formulation does give the impression that it might go beyond the protections of section 35, although it is difficult to tell because we have very little final authority on what this means and on what section 25, from which this has been copied, means.
The Chair: Thank you all very much for your appearance here today. You have been very helpful to the committee's deliberations.
We will now move to clause-by-clause consideration of the bill.
Senator Jaffer: I understood that we normally do clause-by-clause consideration on another day so that we can reflect. I see that once or twice we have not followed that process.
The Chair: This was discussed at length by the steering committee, and the steering committee unanimously agreed to conduct clause-by-clause consideration today.
Senator Jaffer: Are we moving away from —
The Chair: Not in the usual conduct of business, but in this one instance, yes.
Senator Fraser: Speaking for our side, I can assure Senator Jaffer that in steering I regularly give the sermon about not doing things on the same day, but there were reasons for proceeding today on this bill.
The Chair: Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-207, An Act to amend the Interpretation Act (non-derogation of aboriginal treaty rights)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Senator Joyal: When we started the study of this bill, I mentioned that the French version was defective. I intend to move that Bill S-207 be amended in clause 1 on page 1 by replacing in the French version line 7 with the following:
[Translation]
``8.3. Nul texte ne porte atteinte aux droits''
[English]
It is essentially to remove the word ``pas'' from line 7.
The Chair: Copies of the amendment are being circulated.
Does anyone wish to pose a question to Senator Joyal?
Senator White: This is a little different than the other ones we have gone through. I take it we still have an opportunity to debate this in the Senate?
The Chair: Absolutely.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: The motion in amendment is carried.
Shall clause 1, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill, as amended, to the Senate?
Hon. Senators: Agreed.
That concludes the proceedings. Thank you all.
(The committee adjourned.)