Proceedings of the Special
Senate Committee on Bill C-110
Issue 3 - Evidence
Ottawa, Wednesday, January 24, 1996
[English]
The Senate Special Committee on Bill C-110, to which was referred Bill C-110, respecting constitutional amendments, met this day, at 9:30 a.m., to give consideration to the bill.
Senator Noël A. Kinsella (Chairman) in the Chair.
The Chairman: Honourable senators, the committee will come to order. Today, we have organized an important day of discussion and work. The plan is that a number of our guests this morning will make their presentations. Rather than following the practice of having a series of questions after each presentation, we will hear, seriatim, all the presentations so that this afternoon we can have a focused round table discussion with a lot of back and forth dialogue.
Our first distinguished visitor this morning is from the Assembly of First Nations, a gentleman who needs no introduction, the National Chief of the Assembly of First Nations, Chief Ovide Mercredi.
Mr. Ovide Mercredi, National Chief, Assembly of First Nations: Thank you, Mr. Chairman. First, I want to introduce Grand Chief Blaine Favel, who is the head of the chiefs in the province of Saskatchewan. With us as well is Armand McKenzie, who is a lawyer with the Montagnais of Quebec. As you know, Chief Favel will be making his own submission to you later this morning.
Honourable senators, I thank you for inviting us to make this presentation today. Bill C-110 represents a significant violation of the legal principles guiding Crown conduct with respect to Canada's constitutional and lawful obligations regarding inherent aboriginal and treaty rights. The process being utilized to push this legislation through does not allow for our input nor the input of Canadians generally. The content of the bill is a straitjacket that is so seriously flawed it cannot be fixed at some point in the future.
Bill C-110 is not good for anyone. It may only serve to exacerbate an already difficult situation with respect to national unity issues. What is of most concern to the First Nations is the fact that the self-imposed restrictions on federal authority will undermine its ability to fulfil its responsibilities respecting First Nations.
These measures will make it nearly impossible to finish the aboriginal constitutional agenda begun in 1982. The unfinished business with Canada's aboriginal peoples has been repeatedly put on the back burner while federal politicians seek to placate Quebec.
Do not forget that there have been two outstanding issues to be addressed since patriation. The issue of Quebec's full inclusion into Confederation is a long-standing matter that must be resolved for there to be constitutional peace in this country. There is also the much longer outstanding issue of bringing First Nations into their rightful place in this country. Both issues involve collective rights and the recognition of diversity and the supreme law of Canada.
You cannot bring about the required recognition of First Nations self-determination and responsibilities only through federal policy measures. The inherent right of self-government can only be implemented and respected if it is explicitly recognized in Canada's supreme law, its Constitution. There is no other way to resolve the conflicting jurisdictions in a coherent and rational manner but through the clear recognition of the inherent authority of First Nations governments.
The federal government is now seeking to put in place measures that will give any region of Canada a veto over future amendments which may be proposed to clarify the status of inherent rights within Canada's constitutional framework. Federal and provincial governments want clarity with respect to the jurisdiction of aboriginal governments. First Nations want provisions ensuring that all levels of governments respect First Nations jurisdiction. The need for such provisions has been recognized since patriation and was acknowledged in the most recent constitutional discussions.
We fear we may be excluded from future discussions affecting our constitutional rights, just as we have been excluded from the design of this legislation which clearly impacts upon our futures. Why is it that Canadian politicians so easily accept their own government's propaganda when our leaders clearly come before the few available forums declaring their opposition to the measures of their governments? We need an honest discussion of these matters. We do not feel this type of forum provides for that.
We do not expect anything positive from you on our behalf. We know you will not consider ensuring this bill includes provisions to protect First Nations citizens from the negative impacts of these measures you are undertaking. We know you intend to pass this bill as it is, with no provisions for our constitutional interests and no thought of the future.
These constitutional considerations were not simply created in 1982. These aspects of Canada's constitutional reality are derived from the long-standing relationship of the Crown with First Nations, the original inhabitants of this land. This relationship has been established clearly and affirmed through the Crown's treaty relations with First Nations. We are the only people on this land to have treaties with the Crown. Your law requires these treaty relationships to be respected.
This nation-to-nation relationship is part of Canada's earliest constitutional provisions, including the Royal Proclamation of 1763. This long-standing part of Canada's Constitution reaffirms the recognition of the nation-to-nation relationship of the First Nations and the Crown. It guarantees the Crown's protection of our interests in lands and resources and requires our consent in dealing with such matters.
We must tell you that you are playing with our future and this is unacceptable to us. Your government's actions do not respect this important relationship, without which your confederation would not exist. This bill derogates from the First Nations-Crown relationship in a very serious manner. We have not been asked for our consent; nor have we been asked to contribute to designing the measures now being undertaken.
Canadian law recognizes that the Crown has a duty to ensure that the treaty and aboriginal rights of First Nations are protected. The Liberal government claims to accept the inherent right of self-government as a right recognized and affirmed in section 35 of the Constitution Act of 1982. Therefore, the Government of Canada must, at a minimum, ensure that this right is not derogated from any of its actions.
If this government were serious about recognizing our rights, it would not be putting impediments in the way to the ultimate recognition of aboriginal people as full partners. Instead of leaving doors open for us to walk through, it seems as though this government is locking these same doors.
This bill clearly limits the future possibilities for the amendments required to complete the aboriginal constitutional agenda. It is as if the Crown's constitutionally acknowledged responsibilities to protect our rights were suddenly cast aside in a shallow bid to secure the support of Quebec voters. These measures clearly weaken the very federal and constitutional authority First Nations depend on to secure their rights.
We are not even convinced the proposed measures are good for Quebecers or Canadians. What input has any citizen had into this process? Unilateral measures will never help to unite Canada. Faulty laws like this cannot be corrected. Bad laws could lead to political deadlock or, worse, political chaos.
We want to know the rationale of the federal government in granting its veto power to five regions which it has arbitrarily determined. Why are you changing the rules for amending the Constitution prior to concluding the outstanding constitutional business already begun with us? Will senators be prepared to accept this government's claims that the inherent right of self-government is sufficiently recognized and protected?
While you are prepared to take drastic measures under the guise of protecting Quebec's unique status within the framework of Confederation, the protection of First Nations, whom your laws recognize as having a unique relationship with the Crown, is to be left to policy measures.
We are not opposed to the aspirations of Quebec. Our mandate is to protect the interests of all First Nations, including those within what is known as Quebec. The recognition of the jurisdiction and authority of First Nations governments must accompany any measures which will ultimately affect our rights and constitutional relationships within Canada.
In view of the rising tensions within our communities, much of it due to the unilateral actions of your governments, we would have thought it in your best interests to ensure that we are included in your constitutional plans. It makes no sense to exclude us at this point in time because we have nowhere else to go. This is our home. We have no roots elsewhere.
Senators, what power do you have to save our country from self destruction? How have you used your power in the past to uphold the honour of the Crown in its relations, discourse and responsibilities concerning my people, the First Nations in Canada?
Senators, as the custodians of the chamber of sober second thought, what values or principles have you adopted in the past to ensure that the acts of the House of Commons are fair, honest, legal and just to First Nations? Can we expect this chamber to uphold the honour of the Crown and guard our treaty and aboriginal rights from being trampled and violated by the ministers of Parliament whose view of Canada does not include the aboriginal people?
We have made this trek before, coming to the Senate to appeal for intervention, to seek your support to protect our rights and freedoms. The most recent disappointment was the unwillingness of the Senate to defend treaty aboriginal rights against the Honourable Allan Rock's efforts to ram gun control measures against everyone in Canada.
What values and principles did the Senate use then to address our appeal for assistance? The House of Commons was in clear violation of its constitutional obligations to give paramountcy to the constitutional rights over gun control legislation. Yet the Senate did nothing to defend our rights and therefore did nothing to uphold the honour of the Crown. Should we expect anything different in your consideration of Bill C-110? I suppose the answer is that we should expect something different, and we do, but I believe the answer will be the same.
You, as partisan affiliates of federalism, will do what the House of Commons does - act as if we have no definitive rights and freedoms as indigenous peoples in this country. You now govern for yourselves, often to the detriment of First Nations.
Even if this bill did not pose such a threat to our interests, it is clearly not good for Canadians either. Bill C-110 is not a vision for a united Canada; it is a nightmare of political and regional dissension.
Mr. Chairman, I want to conclude my comments by reminding senators around the table, those who were involved in the Meech Lake Accord and others who might have been around during the Charlottetown Accord discussions, that the demise of the Meech Lake Accord was based on the fact that it was unjust to First Nations; that that accord was prepared without any due input from us, without regard to our rights; and that the exclusion was resented by our people. At the first opportunity when we had the legal means to defeat it, we did, without regret.
But when it comes to the Charlottetown Accord, that was the alternative way of dealing with issues of importance in Canada. It was an inclusive process. The results were ultimately rejected by the Canadian population, but the process was right.
What is missing now in terms of the constitutional requirements in Canada is a government that is interested in uniting Canada. What we have in Parliament is a government that is afraid of the word "Constitution", a government that is trying to address national unity problems through measures such as jobs and addressing the economics of the country.
The fact remains that the proposals of the Prime Minister will cripple Canada in terms of future constitutional reform. The fact remains that what is dividing the country right now is its inability to reform itself, including the restrictions placed on constitutional adjustments.
No amount of economic incentives will create unity in the country. Canada's standard of living is recognized throughout the world as the highest amongst the industrial nations. Many politicians, including the Prime Minister, are very apt to brag about that standing in the international community. However, in spite of the high standard of living enjoyed by people in the province of Quebec and elsewhere, with the exception of the people whom I represent, you still have unity problems. So it is not economic improvement that will bring about unity in the country.
The only potential you have is to work with every particular interest in the nation, to be inclusive in your approach, and not to shut any doors to any options for bringing people together. The constitutional door has been shut by the Prime Minister. The Senate should make it very clear in its deliberations that no option should be left unused by Canada in its efforts to maintain national unity.
For our people, Gustafsen, Ipperwash and, before that, Oka provided another alternative, an alternative which we do not want, but an alternative which we cannot avoid if the nation continues to treat us as if we do not exist. That is the current relationship that we have with the Liberal government. When it comes to First Nations, we do not even make the priority list for invitations to unity discussions.
The Indian leaders have been greatly offended during the referendum discussions by the absence of any reference to aboriginal people in the four major speeches made by the Prime Minister. Not one single reference was made.
What was the message being conveyed by him? As Indian leaders, we heard the message, "We do not care about you. Your rights and interests in Quebec do not matter to us. We are prepared to trade you off as long as we keep Quebec within Canada." That is the message we received.
The second message which we interpret is an even darker one. The Liberal government was afraid to deal with the aboriginal issues because they were afraid of a backlash in Quebec. As I said to the House of Commons, I think they misread the Quebec population. Prejudice and racism is no more prevalent in Quebec than in the rest of Canada. By addressing our issues, you will not lose Quebec. In fact, by addressing our issues, you are more likely to gain Quebec because their future is tied to our future. There is no way that the sovereigntists can take the entire province without addressing the treaty and aboriginal rights of the First Nations in that province. We are tied together.
What is missing here in the discourse about the future of the country is our presence in any meaningful role. My efforts to try to break the doors open with the unity committee have been met with a wall of resistance. I have written to each member of the committee to try to arrange an opportunity to talk to them. In each case, they defer me to the Minister of Indian Affairs.
I wish to tell the committee that the Minister of Indian Affairs does not speak for Indian people. He is a servant of the Crown. He represents the federal government, not the Indian people. Hence, we take great offence when we are told by this unity committee, "Go see Ron Irwin because he is on our committee; he can speak for you." That is not how constitutional change should be approached and it is not how our interests will be protected. That is not the process that will keep us happy.
The Chairman: Thank you, Chief Mercredi.
We will hear next from the Congress of Aboriginal Peoples.
Mr. Dan Smith, President, United Native Nations: Thank you, Mr. Chairman. Before I begin, I should like to introduce myself. My aboriginal name is Haalikqlis. I am from the Kwakiutl territory in British Columbia. I am president of United Native Nations, which in British Columbia represents the interests and concerns of aboriginal people residing in the urban, remote and isolated areas. At this point in time, we have approximately 28,000 members in our organization. Our affiliation with the national organizations is one of cooperation to tighten and strengthen that circle of cooperation. I want to thank you for providing us with an opportunity to appear before the special Senate committee examining Bill C-110.
We would like to start by introducing our organization and by telling you whom we represent. The Congress of Aboriginal People, or CAP, was formerly known as the Native Council of Canada. Our organization is one of four national political organizations and has been one of the major players in the constitutional processes which have preceded this current unity initiative. We represent the interests of aboriginal people who live off reserve.
According to the latest Canadian census, there were just under 600,000 people of aboriginal descent residing off reserve. By comparison, the census showed only 186,900 status Indians on reserve. While a census may underestimate the size of the aboriginal population, the trend is clear: An increasingly larger number of aboriginal people are living off reserve and they are increasing their percentage of the total aboriginal population.
When you factor in the high birth rate of aboriginal people and the fact that the aboriginal population is much younger than the Canadian average, it is not surprising that urban aboriginal people is the fastest-growing segment of the Canadian population. With Canadian baby boomers approaching retirement and increasing their reliance on old age security, these young aboriginal people are the key to the future viability of these programs. Our goal is to ensure that these young people are equipped with the skills and other tools to ensure that they contribute to these social and economic initiatives, rather than being a drain on the system.
If we start our presentation focusing on the demographic and social conditions of our people, it is because we believe strongly in the need to strengthen the economy and to secure a place for aboriginal people in it. Jobs and economic growth are a priority. Canadians, including aboriginal people, want us to place our emphasis there.
We have had an opportunity to review the presentations made by the Minister of Justice, and the statements made by the Prime Minister and the Minister of Indian Affairs, suggesting that Bill C-110 will not infringe or derogate from aboriginal and treaty rights, including the inherent right of self-government. This may or may not be the case. However, it will almost certainly be more difficult to amend the Canadian Constitution in the future by making regional consent a condition precedent to any proposed constitutional amendment. In our view, we should not be further complicating the amending formula by adding additional procedures; we should be simplifying it.
We have spent the better part of the last 15 years attempting to further define and entrench aboriginal and treaty rights in the Constitution using the general amending formula, without success.
Under the general amending formula, we have been unable to attain support from at least 7 provinces possessing 50 per cent of the population. Since Quebec has refused to participate under the current amending formula, this has meant, in practice, that aboriginal amendments have required support from virtually every other region of the country. Bill C-110 further strengthens the power of the regions and, we fear, enhances the prospect of continued constitutional stalemate when it comes to further elaborating on aboriginal and treaty rights.
The Canadian government also suggests that the inherent right of aboriginal self-government is already in the Constitution, with the implication being that the aboriginal constitutional agenda is complete.
It is not. There are many outstanding aboriginal constitutional agenda items that were unresolved in previous attempts to amend the Constitution. These issues must find a constitutional forum.
The federal government's inherent-right-of-self-government policy has the same affliction as Bill C-110; that is, it can be reversed by the government of the day. It is this vulnerability that has made these non-constitutional approaches difficult to accept. In the case of self-government, we have yet to see any tangible differences between the new self-government policy and the one that was in place prior to the federal policy announcement last summer. We can only hope that Bill C-110 suffers the same fate.
At the same time, we realize that the Prime Minister needed to make good on his commitment to the people of Quebec. The Minister of Justice, Allan Rock, suggested Monday that the initiative was a practical, effective and serviceable way to deliver on a promise in a tangible way within a short period of time.
That may be the case; but it is not clear that government has a new strategy in the works. We believe there is a need to broaden the unity initiative by addressing aboriginal constitutional issues and developing a mutually acceptable forum for further dialogue. We believe that any new strategy must include our participation and we urge the committee to recognize the importance of full aboriginal participation in any new constitutional initiative.
I would also remind the committee that traditional authority of aboriginal peoples throughout Canada is still in place. We are working toward enhancing that by providing the necessary education and awareness for non-aboriginal governments to better understand that the First Nations people have retained a governing system since contact.
Senator Eugene Forsey said that the government-to-government relationship between the Government of Canada and the governments of the aboriginal people of Canada is likened to a marriage, and that changing this relationship would involve an amazingly complex process.
At this point, Mr. Chairman, I should like to ask Mr. Jim Sinclair to complete our opening remarks.
Mr. Jim Sinclair, President, Congress of Aboriginal Peoples: Good morning. I have been involved in these constitutional discussions for a number of years. Even from the Victoria conference, I had some ideas regarding our involvement and our place in Confederation, and we have been working towards those goals for an number of years. As you recall, in 1982, when we brought the Métis into the Constitution, with the recognition of the three peoples, we faced a lot of difficulties.
Even though our rights were clearly entrenched in the Constitution, the implementation of those rights has been very difficult over the last few years. During the latest failures of the discussions that were had - and I hate to say "failures", because many people put their lives, hearts and a lot of work into them and they had the right ideas in mind, I suppose, but we just could not get together - I felt that the reason I could not support each accord, Meech Lake in particular, and Charlottetown, was the fact that they did not include land for our people. One of the things I think this country needs to understand is that land is important to us. We cannot be isolated on reservations. They are small; we have outgrown them.
We live in the second-largest country in the world and have a population of approximately 30 million. We have the most resources of any country in the world. Ninety per cent of us live within 100 miles of the U.S. border. When I consider that fact, I can see no excuse for not putting any emphasis on the basis of land for our people.
Each time we come back to this table, I hear us talking about our rights and how we can implement those rights. What we need is the opportunity. As Prime Minister Trudeau said many years ago, "Don't talk about your rights; get out and exercise them." The problem we encounter when we try to exercise our rights is that we face a number of laws and court action rather than political discussions to solve some of these problems.
The money spent in the Supreme Court on aboriginal issues and aboriginal rights costs this country a lot. The vetoes that are being presented in this new offer through Parliament may have been done with the best intentions of bringing this country together. However, each time our rights are entrenched and people guarantee our rights, another law is put in place to step over us. That puts us in a position of asking, "Are we here or are we there?" We can never catch up. That is a problem in this country and that is a problem for us.
As I said before, self-government is not something whereby every 100 years we sit down and make a deal and go home. It is an ongoing thing. It occurs on an everyday basis. It needs change every day. We are new at it and it will take us a lot of time. We need help.
I was involved in the last round of the Quebec referendum. We could see, as could everyone, that it was very close. If Canada wants to remain together, it should not be putting up walls like vetoes. If the real intent is staying together, then instead of giving everyone additional powers, we should look at ways of making very clear the cost of leaving this country and what must happen when you want to get out.
Take, for example, the issue of 50 per cent plus one. I do not see anyone addressing that. Why not 75 per cent? Why not make it difficult to leave this country? If you are to give people vetoes, everyone can use that veto to say, "If I do not get this or that, I will get out." That is the wrong approach. I want to see people get together and not use this power to stay apart. Each time this step is taken, it is stepping on us as well, and we do not have a chance to catch up.
This is the first round of 1997 talks. I do not believe that this country will remain together without some constitutional concessions and constitutional changes. You will not do it by an act of Parliament alone. You must work very hard, and people will have to become involved.
As the national chief said, the past has disappointed us. Nothing has really happened in terms of advancing our rights and our cause. This causes us many difficulties.
For example, at present, many of our young people, who account for more than 50 per cent of our population, are not working. There is approximately 90 to 100 per cent unemployment in our communities. We have alcohol and drug-abuse problems. There is concern about the future drain on the pension plan by baby boomers and how we will pay for those pensions. Our people are not included in the economy. How will you ever have a social safety net in the future if you have people who are not contributing now and who are a drain on the economy - not through their own fault but because of government regulations and laws?
A lot of time and effort has been put into building prisons and creating welfare systems that abuse our people and take our responsibility away from us. When will we be allowed to get out of those prisons and enter the real world where we can make decisions and carry our own weight in society? You must make some decisions during the next few months concerning whether you will continue to incarcerate us and forget about us or whether you will give us an equal opportunity in this country. That is important to us.
As I said, you are talking about who will pay the bills in the future. It will not be us, because we do not have jobs. Furthermore, it will not be us if we do not get out of jails, if we do not break away from the welfare system, if we do not get out of foster homes, or if we do not get into the real economy. Someone said to me, "Why should we hand you money every year?" It is done to make you look good. We have a minister who, every spring, has some money for social welfare. He hands it out to help the poor. He offers a few dollars for training to help the poor. This is done on the whim of the government, who gets the glory for the little they hand out. Why do you not take a look at the GNP? Why do not you take a look at the resources of this country? Look at it as part of our share so that we can spend that money the way we feel like spending it. We can deal with issues such as pensions and defence, where we pay our fair share. Some of that money must come to us because of our resources - that is, resources that we own and share in Canada - not because we are welfare recipients.
In northern Saskatchewan, northern Alberta and northern Canada, large profits are being made by big corporations that are taking away our resources. Profits also accrue to provincial governments, who then send them back in the form of welfare cheques to the very people who should be working there in the first place. Whether we will remain in a prison system or whether we will be set free is what Canada is about to me.
In this country, when you talk about freedom, you talk about people. It is difficult to find a cause. Revolutions are usually caused by people who have an axe to grind, and involve the poor or poverty. The issue we are talking about involves a very rich province fighting with the federal government, which has wealth, and other parts of Canada. It is a fight over power, not over people. If this country wants to remain together, it must do some hard work to get there.
I am prepared to help in the best way I can to keep this country together, even though we are now paying a price to do it. When the federal government grants to the provinces a veto, or satisfy them in terms of what they want to do economically or politically, it takes away the programs that are intended for us at the federal level, for which the government has a fiduciary responsibility, and transfers those programs to the provinces. In so doing, the federal government makes us a pawn of the provinces. Those moneys are ours and it is our decision as to how we want to spend them. We must address those issues.
Many of the witnesses around this table have participated in many meetings over the years and have heard the same story over and over again. At each conference, the reply to us is "no". I have heard "no" so many times that I do not know if I could go back to another conference to hear it again. I want to hear people say: "Yes, we can do this. Yes, we can free the aboriginal people of this country. We can free them to work, to educate themselves and to take their place in Canada." We do not have to live, as we have done for so many years, with chains around us. We need governments that will address not only those issues I have spoken about, but also the issues that are of concern to all of us in this country.
Let me be clear about this: Either you will spend more money - money the taxpayer cannot afford - for this welfare mentality and this welfare economy or we will move out of that and carry our own burden and our weight this country. That means freedom for us. That is a decision that you must make.
Mr. Smith: Mr. Chairman, I introduced myself with my nickname, Dan Smith. Because of the fact that non-aboriginal people could not pronounce Haalikqlis, they gave me this other name.
The Chairman: I wish to thank Haalikqlis and Mr. Sinclair. We will withhold our general cross-examination and replace that by a round table discussion with all the leadership this afternoon.
If the witnesses from Inuit Tapirisat of Canada are in the room, perhaps we can hear from them now.
Honourable senators, it is my pleasure to welcome the president of Inuit Tapirisat of Canada, Rosemary Kuptana, who is well known to many in this room, and Wendy Moss, who is also known to many in Parliament, having been in the Library of Parliament not too long ago.
Ms Rosemary Kuptana, President, Inuit Tapirisat of Canada: Thank you. Since we have a rather lengthy presentation, I will ask Wendy Moss to assist me in reading our presentation into the record.
The Inuit Tapirisat of Canada is opposed to Bill C-110. It is not a measure that is conducive to constitutional renewal or national unity in the long term. This bill cannot do anything except aggravate the constitutional gridlock that we have experienced in the past.
Bill C-110 represents a shift from the neutral amending formula of any combination of seven provinces with 50 per cent of the population to one that incorporates and encourages regionalism and provincialism in the worst sense of those words. Bill C-110's proposal that a combination of provincial and regional vetoes be created by legislating restrictions on the federal Parliament's power to consider constitutional proposals is, in our view, an unconstitutional attempt to amend the amending formula in Part V of the Constitution Act, 1982. The Constitution Act, 1982 sets out very specific procedures and formulas for amending the Constitution, and it specifically addresses the role of the federal government and the role and the requisite number of provinces required for various changes to the Constitution in this process.
Bill C-110 violates the requirements of Part V of the Constitution Act, 1982 in at least two ways. First, Bill C-110 binds the federal government by removing the discretion provided to the federal Parliament by section 38(a) of the Constitution Act, 1982 through the guileful device of appearing only to bind the discretion of ministers. However, it is not only the discretion of ministers to present constitutional amendments that is being restricted; it is also the discretion of the federal Parliament to approve proposed amendments that is being affected by preventing their presentation to Parliament. This aspect of Bill C-110 violates the intent and the letter of the law laid down in section 38(a).
Second, the binding legislative procedure proposed to the federal Parliament in the exercise of its power under section 38(a) effectively amends the formula for provincial consent set out in section 38(b). No longer can any seven provinces combine to provide the approval required by section 38. Those seven must now include Quebec, Ontario, B.C., and the right combination of provinces from the defined regions. In our view, this is more than a manner and form requirement. This bill goes to the substance of the amending formula.
Furthermore, Bill C-110 will fundamentally affect the rights and interests of aboriginal peoples in the northern territories in a very negative way. In past constitutional discussions, the consensus of opinion has been that a constitutional amendment entrenching the inherent right of self-government would require the agreement of seven provinces with 50 per cent of the population. This veto proposal would obviously change that formula through an extra-constitutional mechanism, making constitutional amendment on aboriginal matters much more difficult if not absolutely impossible to achieve in the future.
We note that the current amending formula is already regarded by many constitutional experts as being too rigid. This proposal simply aggravates the very problem that has prevented progress on constitutional reform sought by Quebec, by aboriginal peoples, and by other provinces and regions of the country.
ITC is also firmly opposed to the application of provincial or regional vetoes on the creation of new provinces. We wish to point out to this committee and to Canadians generally that the Inuit people have tolerantly witnessed the establishment of an entire state and, with it, the evolution of the territories and new provinces in our traditional homelands. I think it is fair to say that, as Inuit, we have consistently attempted in every way to be partners in this nation-building. We did not drive people from our lands. We have not been xenophobic. We have welcomed, in fact, the Charter of Rights and Freedoms in our homelands. Yet, when the day may come for Nunavut to evolve from a territory to a province, our dreams for our new province will be subject to the vagaries of regionalism and provincialism in every sense of the world. To us, this is not nation-building.
As the Government of the Northwest Territories pointed out yesterday, Bill C-110 would hamper the ability of the federal government to initiate constitutional amendments to realize the Nunavut territory. In particular, an amendment is obviously required to the Charter of Rights and Freedoms to refer to the Nunavut territory. There is no reason why the federal government and the federal Parliament should not be empowered to initiate such an amendment, given its treaty commitments and its own legislation committing it to the creation of the Nunavut territory by 1999.
Bill C-110 cannot be properly assessed separate from the larger context of the federal government's most recent unity efforts. Accordingly, we find it necessary to make some remarks about the federal government's overall national unity strategy that has taken place to date.
First, the Inuit see nothing in the federal government's strategy to date that inspires confidence or faith in its handling of the national unity file, and I am hoping that this will change. Its performance during the last Quebec referendum was not impressive. The federal government's overweening confidence in an easy win and its failure to prepare for plan B to deal with the possibility of a sudden shift in favour of sovereignty were obvious failures.
Since the referendum, the development of national unity proposals prior to their introduction to Parliament has been marked by secrecy and a closed-shop attitude. Bill C-110 and the distinct society resolution were prepared on the advice of a handful of federal advisors and bureaucrats, and then rushed through the House of Commons with unseeming haste. Since the referendum, the federal government has shifted from an ill-justified overconfidence that the referendum would be easily won to a paralysing fear that has caused it to resort to the closed-shop approach. It is not even clear how Quebec's outstanding constitutional agenda will be served by this bill, assuming, for the sake of argument, that it is constitutional. With all of these vetoes, how will any constitutional change on any front ever be achieved in the future?
Apparently, a key aspect of the federal government's latest strategy is the exclusion of aboriginal peoples from the 1997 constitutional conference. As aboriginal peoples, we are being told to get out of the way in the federal government's latest panic over Quebec. One of the reasons cynically offered by this government for our exclusion is the federal government's proposed or supposed recognition of our inherent right of self-government as a constitutionally protected right under section 35 of the Constitution Act, 1982. The Inuit have always said that recognition of our inherent right of self-government would signal our inclusion as full and equal partners of Confederation. Recognition of our inherent right of self-government as a constitutional right is a reason for including aboriginal peoples in constitutional conferences, not an excuse for excluding us.
Ms Wendy Moss, Advisor, Inuit Tapirisat of Canada: The federal government has yet to propose any realistic strategy for effectively addressing the prospect of another sovereignty referendum. The proposal to use the disallowance power, a virtual dead letter in political terms, does not make sense nor the rationale offered for using it. The real issue at stake is not whether the provincial government has, in the opinion of the federal government, asked a referendum question that is unclear; rather, it is the duty of the federal government to communicate effectively with the Quebec population so that the choice at stake is clear and to make clear its intent to uphold the Constitution of Canada.
In the last referendum in Quebec, the question posed was tied to a bill introduced in the National Assembly of Quebec that was clearly unconstitutional. It was the federal government's duty to challenge this legislation. It should have intervened in the first Bertrand case, and it should be actively intervening in action brought by Stephen Scott on behalf of five Quebec citizens in Quebec Superior Court, Singh v. A.G. Quebec.
We would ask this question: Why has not the federal government been active by challenging the clearly unconstitutional legislated initiative of Bill 1, respecting the future of Quebec?
Another important issue is the intent of the sovereigntists to achieve independence in flagrant disregard of the democratic wishes of the Inuit and the Cree in northern Quebec as well as our constitutional rights. The federal government must address the issue of territorial integrity and partition, and it must address this critical human rights issue. The message that the federal government must articulate is a simple and clear one. Sovereigntists cannot have it both ways. If democratically held referenda are sufficient mechanisms to partition Canada, then democratically held referenda are sufficient to supposedly partition Quebec. We clarify here the Inuit position that if northern Quebec chooses to remain in Canada, that is not a question of secession from Quebec; it is a question of respecting the right of the peoples of that territory to remain in Canada as they are now and their right to maintain the status quo.
Just as important, the rights of aboriginal peoples under section 35 of the Constitution Act, 1982 and the James Bay and Northern Quebec Agreement support the Inuit right to remain in Canada with our traditional territories. The Prime Minister, Parliament and the Government of Canada are duty-bound to respect and protect those rights.
A major flaw of Bill C-110 is its removal of the federal government's current powers to initiate constitutional reform proposals necessary to preserve and promote Canada's national unity. The central government, of all governments in Canada, should have this power. To propose otherwise, as this bill would do, is an abdication of responsibility. The federal government should, at the very least, be preserving its constitutional powers to deal with national unity issues, especially given the potential we all realize for this crisis to deepen.
Ms Kuptana: Finally, despite our disappointment in the federal government's performance, the Inuit believe that Canada will stay together. We believe that the future of northern Quebec will determine the future of Canada, and the Cree and the Inuit have demonstrated their very intention of keeping northern Quebec in Canada. The Government of Canada must respect, uphold and protect the Constitution of Canada and our constitutionally protected treaty rights. We believe that other Canadians will insist that the Government of Canada respect the Constitution and respect our right to continue to choose to live in Canada.
The government cannot be afraid of open debate on these questions. Canada has never been well served by attempts to control and manage discussions of our national unity problems in a closed and secretive manner. The government cannot exclude aboriginal peoples from a role alongside the provincial government's in any formal discussions or negotiations relating to the Constitution, including the 1997 constitutional conference.
We eagerly await the unity report of the cabinet committee. Several days ago, Minister Rock said before this committee that the government will take a new direction and demonstrate some leadership. We wonder whether the government's idea of leadership means exclusion of aboriginal peoples from the 1997 constitutional conference on the amending formula. We wonder whether the new strategy will address the interests and the rights of aboriginal peoples in the national unity question, or whether this government will continue making every effort to ignore the fact that our rights and interests play a central role.
Apart from these committee appearances before Parliament, we have not been consulted in the preparation of this report or in the preparation of the current initiatives such as Bill C-110 and a distinct society resolution.
One way or another, we will ensure the Inuit voice is heard by the Canadian public and within the international community.
Mr. Chairman, we have some specific recommendations to make before this committee today with respect to the amending formula and national unity issues. First, we recommend that this committee should recommend to the government that it reconsider this proposal in its entirety for the reasons that we stated regarding constitutionality and the threat to national unity inherent in increasing the rigidity of the amending formula.
In the alternative, the committee should recommend that, should the government decide to proceed with Bill C-110, it should be amended to exclude Part II of the Constitution Act, 1982; section 35 of the Charter of Rights and Freedoms; section 91.24 of the Constitution Act, 1867; or any other constitutional provision relating to aboriginal peoples or aboriginal peoples' rights from the new amending formula proposed in this bill; and that the bill be amended to provide an aboriginal consent requirement for any amendments to Part II of the Constitution Act, 1982; section 25 of the Charter of Rights and Freedoms; section 91.24 of the Constitution Act, 1867, or any other constitutional provision relating to aboriginal peoples or aboriginal peoples' rights.
Specifically, ITC recommends the adoption of the following amendment in the form of a clause to be added to Bill C-110. It reads:
Nothing in this Act shall be construed as derogating from the rights, duties, powers or privileges of the Government and Parliament of Canada to propose or to authorize an amendment to:
(a) recognize, affirm or protect the aboriginal peoples and their aboriginal and treaty rights or other rights and freedoms, or
(b) to preserve and protect the national unity and territorial integrity of Canada.
That concludes our written submission.
I would close by saying that inherent in our presentation today is our necessary participation in any constitutional fora that take place. The solutions to our very complex national unity problems will not be found by exclusionary practices, such as trying to shut out aboriginal peoples from the 1997 constitutional conference.
If there is a concern on behalf of the federal government with respect to the size of the agenda of the 1997 conference, that concern should be fully discussed with aboriginal leaders as well as provincial and territorial premiers or leaders. If that were the case, Inuit might be willing to agree to limit the agenda to the amending formula. We may also agree to postponing other issues to later rounds if other participants in the amending formula process agreed to do so. However, if the government decides to discuss matters that would affect our inherent right of self-government or other constitutional interests, such as the constitutional recognition of Quebec as a distinct society, then obviously those kinds of issues should be included in the constitutional conference.
We look forward to having discussions with you this afternoon.
The Chairman: Thank you, President Kuptana. We take note that attached to the written submission, which has been circulated but not read, is your statement on federal aboriginal self-government policy. It is a four-page addendum annexed to your statement.
From the Métis National Council, we are honoured to have the president, Mr. Gerald Morin.
Mr. Gerald Morin, President, Métis National Council: Thank you, Mr. Chairman and committee members. My colleague is Mr. Tony Belcourt, the President of the Métis Nation of Ontario.
Thank you for giving the Métis National Council and the Métis Nation this opportunity to present our views with respect to Bill C-110 and the broader issue of constitutional renewal in Canada.
I am particularly thankful to the Senate committee for instructing your people to ask us to make a presentation because the House of Commons Standing Committee on Justice and Legal Affairs invited other aboriginal groups to make presentations to them on Bill C-110. That is good and right, but they did not invite the Métis Nation and the representative body, the Métis National Council, to make our views known to that particular committee.
Our purpose here today is to caution against pursuing in haste what is believed by some to be a solution to the Quebec crisis narrowly averted in the October referendum.
While perhaps well-meaning, as can be witnessed by the response from all quarters, Bill C-110 is clearly not a solution as it has been rejected outright by many ordinary Canadians, by Quebec, and by the aboriginal peoples. While their reasons for doing so are varied, those reasons must nevertheless be taken into account.
In our case, as a Métis aboriginal people and nation, the lack of enthusiasm to embrace Bill C-110 is based on both historical and contemporary reality.
Historically, our people have endured a significant disadvantage within Canadian society, both as aboriginal peoples and as citizens of Canada. Contemporarily, our people are still suffering disadvantage, again both as aboriginal peoples and as citizens of Canada.
I do not propose to go into detail on these matters, as they are well known to Canadians generally, and to your committee specifically. However, we must make clear the immediate threat which looms on the constitutional horizon with Bill C-110. If Bill C-110 passes, the fact is that our people will continue to live in uncertainty with respect to our aboriginal rights and freedoms. In this connection, we are still in a constitutional limbo with respect to section 91.24 of the Constitution Act, 1867, being the issue of which level of government, federal or provincial, has the constitutional mandate and jurisdiction or competence to deal with us. As well, our basic right to feed our children by hunting and fishing is still being denied us. Finally, we are still frozen out of the various land claim processes.
Our only hope for the future lies in constitutional renewal, in the renewal of Canada as a whole, including all peoples and interests in Canada. If this bill passes, it will be the death-knell for the rights of our people, as further constitutional amendments recognizing, elaborating and implementing our rights will be virtually impossible. As the experience of the 1980s has shown us, a stand-alone aboriginal constitutional process cannot and will not succeed.
On the other hand, the Charlottetown process of 1992 proves that a concerted Canadian approach can work. Only through a fundamental restructuring based on constitutional change can we attain a revitalized and renewed Canada, a Canada that accommodates the major interests and rights of all of its citizens, keeps the country whole and accords the aboriginal peoples and nations our rightful place.
We therefore propose that this honourable committee take the high road and seek to convince your colleagues, the Prime Minister and the House of Commons that Bill C-110 is not a solution, or even part of the solution. The Prime Minister and the House of Commons must be persuaded to take a Charlottetown-plus approach to building a new Canada.
In this connection, we offer the following blueprint for the remodelling of Canada which we believe is required. I have also had the opportunity to have some discussions with some members of government with respect to this particular approach that we are advocating here today. Through a Charlottetown-plus approach, everyone must be involved with all the issues on the table: aboriginal peoples' rights, Quebec's aspirations and so forth. Canadians must be able to take pride, credit and ownership in creating a new Canada.
The consultations must include all interested Canadians through direct federal government communication and dialogue in all regions of Canada, including especially Quebec. The consultation should include constituent assemblies in each province and territory outlining ideas and options for a renewed Canada but not proposing or advocating substantive proposals. While aboriginal peoples should be involved in these general consultations, we must also have our own parallel consultations.
Following the consultation process, negotiations between the federal, provincial and territorial governments, and the representatives of the aboriginal people, should immediately commence. These negotiations could involve secondary representatives consisting of opinion leaders and representatives of interest groups as observers. The negotiations should also be televised in order to keep the public informed.
Upon achievement of a negotiated agreement, a referendum organized by the federal government should be held in all regions of Canada to gauge support for the proposed constitutional amendments.
The role of the Prime Minister: The Prime Minister must make the future of Canada the number one priority and initiative of the government. He and his ministers and caucuses must travel the country and speak directly to Canadians, calling on them to be a part of the process. This process, however, must involve people of all political stripes and must include the aboriginal peoples' representatives as equals to the federal and provincial leaders.
It is expected that a Charlottetown-plus approach will arrive at constitutional amendments providing the foundation of a renewed and economically prosperous Canada. If this can be achieved, Canada can rightfully take its place as the best country in the world in which to live. It could be a beacon of hope for struggling democracies around the world, and would serve as a model nation. Further, as it relates to our people, and aboriginal peoples in Canada generally, it would also serve as a model and leader in the current discussions on the rights of indigenous peoples taking place between indigenous peoples' representatives and various government officials within the United Nations and the Organization of American States.
Let us agree to take a high road.
The Chairman: Honourable senators, we thank Mr. Morin for that presentation and look forward to his participation in our round-table discussion this afternoon, which will begin at two o'clock.
Honourable senators, on your behalf, I would welcome a number of distinguished witnesses from the Federation of Saskatchewan Indian Nations. I will call on Chief Favel to introduce the delegation.
Mr. Blaine C. Favel, Chief, Federation of Saskatchewan Indian Nations: I would thank you for granting the federation the opportunity to bring forward the details of a perspective which you have probably not heard about from any of the other presenting First Nations organizations.
Before I proceed with our presentation, I should like to introduce some of the First Nations leaders of Saskatchewan whom I have brought with me to grace your halls. They are Chief Lindsay Kay from the Sakimay First Nation; our legal counsel and constitutional scholar, Ms Mary Ellen Turpel-Lafond; Chief Terry Sanderson of James Smith Cree Nation; Chief Roy Bird of Montreal Lake Cree Nation; and Chief Richard Poorman of the Kawakatoose Cree Nation.
Our presentation this morning will focus on how we believe the passage of Bill C-110, respecting constitutional amendments, will impact our relationship with the Government of Canada and our future in Canada, particularly with regard to the issue of constitutional amendments.
The organization in which these chiefs are partners is the Federation of Saskatchewan Indian Nations. This organization celebrates its fiftieth anniversary in 1996 and is considered one of the strongest Indian organizations, not only in Canada but throughout the world. We run North America's only Indian university; we have an institute of technologies; we run our own financial institution; we are involved in casinos; and we are involved in a whole host of activities involving the inherent rights of self-government and treaty implementation.
The Federation of Saskatchewan Indian Nations is representative of 74 First Nations with 10 tribal councils spanning Treaties 4, 5, 6, 8 and 10.
Also with our delegation today are two of our own senators, your counterparts from the Indian government side. They are Senator Hilliard Ermine and Senator Solomon Sanderson of the FSIN Senate. The FSIN is quite sophisticated in structure and committed in advocacy. One of our strengths is our own Senate. We brought our senators along today to illustrate to you that the Senate is not simply a rubber-stamp institution, but one with the responsibility of sober second thought and the responsibility to recommend change and alternatives when required.
The position that our organization has long stood for has been the protection of the relationship that we have with the Government of Canada. The basis of our relationship and our co-existence is found in Treaties 4, 5, 6, 8 and 10, which span across the province of Saskatchewan. The position of our elders and our Senate is that treaties will always be the foundation upon which we relate to your people. The treaties are the basis of how your ancestors, particularly in western Canada, acquired the right to share the land with us and acquired the right to live in peaceful co-existence with us.
The basis of treaties is the basis of mutuality and consent. Treaties were not unilaterally imposed by either our people or by yours. It was a process of negotiations and a process of consent. Yet through history, the relationship that we have had with your government, with the people of Canada, has been diminished from the original treaty relationship. The offensive elements of the Indian Act, which forbade our people from continuing with our cultural distinctiveness, the residential schools, the permit system and the whole host of cultural atrocities that were placed upon my people is something that has diminished and has taken away from the treaty relationship.
First Nations have maintained our commitment to treaties. In spite of the harshness of the relationship and the negative history that we have with you, we are committed to our treaties. We are committed to living in a spirit of peaceful co-existence and to continue with the spirit of consent.
In order to maintain our original relationship, we have fought for many, many years - particularly since 1982 - to start down the path of reconciliation and the path of attempting to move back to the relationship of peaceful co-existence and of mutual consent.
Much work remains to be done in the area of constitutional protection of treaty implementation and of the inherent right of self-government. A position that we put to you is that the politics of exclusion, which is found in Bill C-110, severely hampers our efforts to move forward with this process of reconciliation and to move forward with justice.
You cannot tinker with Canada and exclude First Nations people. You cannot continue to believe that you have the divine right to rule because history tells you will otherwise. Sitting there in your seats looking at us, you are not superior to us. We are not inferior human beings sitting on this side of the table. We have the right to have our original relationship under treaties respected; we have the right to move forward with constitutional amendments. But Bill C-110 raises the threshold to such an extent that the old amending formula will no longer apply, particularly when it comes to constitutional recognition of our rights and the continuation of our efforts forward.
Since the time that section 35 was entrenched, we have moved away from the politics of exclusion and potentially a constitutional convention. Our legal scholar would strongly argue that a constitutional convention has been established of including First Nations people as they move forward with section 35(1) of the Constitution. We look at this constitutional convention, as we have had a relationship with you, in trying to have the process of treaty implementation affirmed in the Constitution and having the inherent right of self-government recognized. We rely on this constitutional convention.
You have moved away from your own history of exclusion, a history of exclusion which you have had for the past hundreds of years, only recently in the past 15 years. Yet, with Bill C-110 you are quickly changing your position and moving backwards toward exclusionary government.
As you contemplate moving backward and as you contemplate excluding First Nations people from future discussions, keep in mind also that, as senators of the Government of Canada, you stand in a trust-like relationship to us. The Supreme Court of Canada, in a number of cases, including Sparrow, has indicated that the Government of Canada does not sit with respect to First Nations people as adversaries. That is to say, it does not sit as people who are opposed in interest to First Nations positions but as the original occupiers and owners of this land that we have agreed to share with you. Particularly through treaty, you sit in trust to us. You have a duty of good faith when it comes to First Nations aspirations.
If you add these two elements together - namely, the fact that in the last 15 years we have moved toward a constitutional convention of bringing First Nations people to the table and you also consider that issue in light of the solemn obligation that you have - you sit not as individual senators but as part of an institution that has trust responsibilities to First Nations people.
If you look to our senators and take guidance from them, we urge you to act. We urge you to act with respect to Bill C-110 in the following fashion. If you take any of the foregoing presentations or your responsibilities as an institution of sober second thought seriously, you would clearly see that First Nations people are excluded from this process; that we have no voice in Bill C-110; and that if this bill goes forward, you have turned away from including us and have shut the door on us when much work remains to be done in the areas of treaty implementation and recognition of the inherent right of self-government.
The Federation of Saskatchewan Indian Nations has debated Bill C-110 at our legislative assembly that we concluded in early January. The chiefs unanimously rejected Bill C-110. I come to you with a message that we do not support exclusion and believe that we must continue to work together to have the history of First Nations peoples recognized and our rights in the areas of treaties entrenched in the Constitution. We recommend that the bill be opposed.
If Bill C-110 is not opposed by this chamber, at a bear minimum, with respect to your fiduciary obligations to our people and to the constitutional conventions which have been established, we recommend that non-derogation clauses be put into the bill so that when we come to the table in 1997, our rights and the issue of exclusion will not be placed before us.
The non-derogation clause that we propose is contained in the kit that we have shared with you. It states:
Nothing in this Act shall be construed as derogating from the rights, duties, powers or privileges of the Government and Parliament of Canada to propose or authorize an amendment to the Constitution of Canada to
(a) recognize, affirm or protect Aboriginal peoples and their Aboriginal and treaty rights or other rights and freedoms, or
(b) preserve and protect the national unity and territorial integrity of Canada.
We further recommend to you as a third point that in 1997, a strong message be sent from this chamber that when the constitutional amending formula is revisited, First Nations people fully participate and that there be no longer this regression into exclusion.
You must live with your own history. Your history has shown you that excluding our peoples has caused us great harm. Inclusion and participation of First Nations people is no threat at all. In fact, it is actually good for you.
Further, we also recommend that the national unity proposals which are now being prepared have some form of First Nations participation; that there be disclosure to our people; and that there be participation by our people in the preparation of these proposals.
In closing, thank you for the opportunity of appearing before this committee. Thank you for the grace and the hospitality that you have demonstrated to our own senators. We hope that, by their presence, you also have the courage and the political will to act on these presentations. Otherwise, you are simply a rubber stamp. We believe you are more than that. We have heard from our own senators that you have a strong and important role to play. Thank you very much.
The Chairman: Thank you very much, Chief Favel. We trust that you will participate in the round table discussion we have organized for this afternoon.
Mr. Favel: Mr. Chairman, we will not be in attendance this afternoon at 2:00 p.m. Our chiefs have other business in the city. If asked to do so, our legal counsel, Ms Mary Ellen Turpel-Lafond will participate. In the event that we are not here this afternoon, we are prepared to answer any questions that you may have for us immediately.
The Chairman: The Chair extends the invitation to Ms Turpel-Lafond to participate. It will be of great value to my colleagues on the committee, given your tremendous background in constitutional law.
I will exercise the Chair's prerogative and take advantage of two circumstances. First, we are a little bit ahead of schedule - great management of this committee is being demonstrated - and we would like to use that time. We have about half an a hour to deviate a little from our plan and take advantage of the presence of the chiefs who are here and start a dialogue.
Senator Andreychuk: Mr. Favel, thank you for your presentation and your written report. You have made your points, and you have made them well, not only in this room but often and loudly in Saskatchewan. From my point of view, there is no misunderstanding of your position.
I wish to ask you about two points. First, the Minister of Justice, who was here two days ago, indicated that the federal government had taken into account aboriginal rights and that section 35 was not being violated in any way by Bill C-110 because treaty rights would not be affected by passage of Bill C-110. You have made it clear that you believe that they will be.
Have you had an opportunity in the last number of years, certainly since section 35 was put in place, to determine how you decide, with the federal government, that your rights are being affected? There is a consultation process which I have always understood to be a broad interpretation of section 35. Minister Rock seemed to have narrowed it so that the federal government determines whether your rights are being affected.
When and how do you come to make your analysis of when section 35 is being violated? How do you believe the Constitution protects or involves the federal government consultation with you?
Second, this legislation will involve regional vetoes. Therefore, we are talking about provinces or groupings of provinces. Have you been able to determine the Saskatchewan government's position? Have you had discussions and consultations with them? How do you believe that regional veto will impact on you at the provincial level?
Mr. Favel: With respect to the position put forward by the Minister of Justice Allan Rock that nothing in the bill impacts section 35, we would very respectfully disagree with that position.
The issue of section 35 and the full attainment of explicit recognition of the inherent right of self-government in the Constitution and explicit recognition of the process for treaty implementation is not yet complete. We have not finished the work that has been put initiated by section 35. We believe the process for implementation was attempted in the 1980s through a number of constitutional conferences on this point, but that work remains undone.
This legislation impacts section 35 in that it elevates the standard which we must fulfil in order to have these rights recognized. The previous constitutional standard of seven and five with aboriginal consent is now elevated with the regional vetoes. It brings us essentially to the point of the Meech Lake Accord, and it will require consent of all provinces to amend the Constitution and have First Nations' rights recognized.
With respect to your question, also in part one, on how you believe the process should be determined with the Government of Canada when aboriginal rights are to be determined, we would like to see some form of process where we could constructively join in, but that dialogue has not taken place with respect to this bill. I have put our position before the Minister of Indian Affairs, and it is that we believe this bill severely violates section 35, but there has been no direction as a result of our presentation.
Clearly, although the courts have laid out the fact that the Government of Canada sits in a trust-like position to First Nations people, the Government of Canada at many times deviates from its trust responsibilities. When it comes to land claims, for example, we often find ourselves in an adversarial position with the Government of Canada.
We believe it is clearly unfair to have the Government of Canada determine when there is a conflict and when there is not. If they are the sole judge of when there is a conflict of section 35, there will never be a conflict of section 35 because, in their opinion, nothing will ever conflict with section 35. We believe it is unfair that they should have this power of interpretation.
With respect to the regional vetoes and the Government of Saskatchewan and the prairie provinces, this strengthens the Government of Saskatchewan's position. We have a number of ongoing activities and dealings with the Government of Saskatchewan. Although that government has been, for the most part, supportive of the inherent right of self-government and has been our ally at the constitutional table, and Premier Romanow has been supportive on many levels, this strengthens their hands and further puts First Nations people in a position of inferiority and lack of power when it comes to constitutional vetoes.
Senator Andreychuk: Were there consultations with Minister Irwin before the preparation of Bill C-110, or was your presentation to Minister Irwin after it had been announced?
Mr. Favel: I spoke to Mr. Irwin after it had been announced.
Senator Andreychuk: What is the situation with regard to the provincial government?
Mr. Favel: We raised this matter with the premier when we met in December. At that point, he had not yet formally responded to the Bill C-110 proposal. I will be seeing the premier tomorrow in Regina and we will likely revisit this issue.
Ms Mary Ellen Turpel-Lafond, Legal Counsel, Federation of Saskatchewan Indian Nations: On the first question, which relates to section 35 and its impact, I understand from the presentation of Minister Rock and also from correspondence from the Prime Minister to some of the chiefs such as chief Matthew Coon Come - and I am sure he will speak to this issue when he appears later this morning - that there is a perception on the part of the government that, in section 35 this inherent right of self-government is now explicitly recognized. It is important to confirm or reiterate that that is far from clear. While it would be our hope that it is there explicitly, and I certainly would go before the Supreme Court of Canada and argue that point, I am not at all confident that it is there in clear enough terms or with appropriate protections to make it a meaningful right within the context of federal and provincial powers. In terms of recognition of First Nations government as a third order of government, it is not nearly that specific.
What is the impact on section 35(1)? The impact is that Bill C-110 introduces a new amending formula on top of the existing amending formula in section 42. The new amending formula requires virtual unanimity because it essentially gives a region or a province a veto that could forestall an amendment that would make more explicit the aboriginal right of self-government or any amendments affecting aboriginal people, not only self-government, but other amendments as well. This bill will have a clear and direct impact.
A suggestion was made in this committee that somehow this bill is limited, that it has an expiration date and that it is only here for a short period of time. It is important to recognize that there is no expiration date in the bill. This type of legislation tends to become more permanent once enacted. It is very difficult to undo the legislation after that point. It is not hopeful for us to think that at some point in the future this bill could be repealed and the door re-opened. This is a final piece of legislation, and it has a direct and immediate impact on section 35(1).
Senator Murray: Do you see a constitutional problem as distinct from a policy or political problem with protecting the rights in self-government agreements, under section 35, that may be brought about in the process that Mr. Irwin has now launched? Is that a constitutional problem?
Ms Turpel-Lafond: Yes. The difficulty is that the process launched by Mr. Irwin in which the federal government has attempted to define the inherent right of self-government was, in and of itself, a unilateral policy. Mr. Irwin is not the Supreme Court of Canada. The government does not have the final word on what the Constitution means. They have put forward an interpretation of what self-government would mean with the possibility of it leading to treaties, which is a significant concern for the Federation of Saskatchewan Indian Nations because we already have treaties. We do not necessarily want to have new treaties with some type of constitutional status when we are attempting to get our existing treaties implemented. There are issues around that policy which we have never been able to work out in any reasonable way with the federal government despite the new policy. There are certainly problems with the concept of treaties.
The other point I would make - and this is clear from the negotiations that are under way on self-government and land claims across the country - is that most provincial governments and the federal government in certain instances, as in the Yukon, take the position that self-government agreements are not treaties.
Senator Murray: I think Mr. Irwin's position is that he would only try to entrench them if all parties agreed.
Ms Turpel-Lafond: No self-government agreement in this country at this point has any constitutional protection. The Yukon self-government agreement does not have that.
Senator Murray: If it took all parties to agree to entrench it, it would take all parties to agree to change it. There would be that protection. Once there, the agreements would be entrenched.
Ms Turpel-Lafond: My point is that having a self- government agreement recognized as a treaty right under a section 35(1) requires, first, an acceptance on the part of the federal, provincial or territorial governments to do that. The other side of the argument that we are presenting is that it should be more explicitly and automatically part of the Constitution of Canada as part of the unfinished business of section 35. It should not be a discretionary policy to decide whether to recognize aboriginal governments as a third order of government. The way it is now, it is completely discretionary.
Senator Andreychuk: I want to follow up on the issue of fiduciary responsibility. The minister has a fiduciary responsibility, as do all parliamentarians. In this bill, any minister would be transferring his or her responsibility in this one particular way to provincial vetoes. Do you believe that that impacts in any way on the fiduciary responsibility to aboriginal peoples?
Mr. Favel: In the transfer of veto authority to the regions, the federal government has discharged itself of responsibility for aboriginal people. It will be very difficult for them to move forward with us for amendments to the Constitution to recognize section 35 once they have transferred their veto authority to the regions. We view that as a problem.
The second problem in transferring their authority is that the process for amending section 35 is not yet complete. Bill C-110 raises the fence so high, and the federal government has raised the fence so high, that it cannot be seen as anything else but damaging and negatively impacting First Nations' governments.
Senator Andreychuk: One theory is that if the government moves this responsibility, the fiduciary responsibility may follow. The provinces or the regions, whichever term you wish to use, may now have this responsibility.
Ms Turpel-Lafond: The difficulty is with the first act. When the Parliament of Canada and the Government of Canada - which includes the Senate - and any officer of the Crown bears this fiduciary responsibility, the decision to absolve oneself or to pass on that responsibility is, in and of itself, a breach of the fiduciary relationship. It has been done without "best interests" in mind.
The key to a fiduciary relationship is that the fiduciary must act in the best interests of those with whom he has his relationship. The relationship here is with, vis-à-vis, the First Nations of the country. The best interests of the First Nations is to see this unfinished constitutional business finished. If you pass your veto or your consent over to five regions and provinces, you have then made that virtually impossible.
The first act is the key issue in the fiduciary relationship. You cannot say, "We will pass it around, and hopefully they will act in a fiduciary capacity too". That is a clear breach of the original fiduciary relationship as defined by the courts.
Senator Marchand: When I first heard the speeches in the House of Commons on Bill C-110, I took a lot of comfort in the fact that our people were well protected or shielded from the effects of Bill C-110. However, as we go along, we are hearing that that really is not the case. I am happy that you are here today to give us some background on how the bill will impact your group.
Tell me about the non-derogation clause. Do you have agreement with other organizations, or is this strictly a Saskatchewan presentation?
Mr. Favel: The position we put forward in terms a non-derogation clause is a Saskatchewan position. It has been shared by other organizations which see the need for further explicit protection. The Inuit have made their position known. I do not want to steal the thunder from Grand Chief Coon Come, but I believe he will also have similar types of presentations.
If we had more time, and if more opportunity were made available for other aboriginal groups, a consensus would be quickly put to language for the protection of our rights. However, given the short time frame we have had to make our presentation, and given the lack of opportunity for other groups to come forward, we have not had a chance for everyone to endorse our position.
Senator Marchand: You will understand the context in which commitments were made by Mr. Chrétien toward the end of the referendum campaign. I know that our people say we have no place to go. We are not going anywhere. We have been here for a long time. I also know that our people are concerned about the possible breakup of the country.
Can you comment on that, the fact that Mr. Chrétien was in a box toward the end of this referendum campaign and he had to do something. Would he have been better off to do nothing, or was this a better effort than nothing?
Mr. Favel: In commenting on the Prime Minister's national strategy, my interest is primarily the protection of the rights of treaty First Nations in Saskatchewan. I would like to limit my comments to that. Keep in mind, however, that the response to the bill has been suspect across the land. Provinces are being given vetoes, and some provinces do not want it. Some have not asked for it.
For a long time, we have been asking for a recognition of the inherent right to self-government in the Constitution. We have asked for that for many years. Instead of dealing with that issue, we are actually taking a number of steps backward and regressing in our position.
Senator Marchand: As you know, constitutional changes have been pretty few and far between since Confederation. In our own history, until 1982, constitutional changes were not very important because they did not happen very often.
On the legislative side, one of the most important acts which has ever happened in the lives of our people is their achieving the federal vote in 1960. Many of your opening remarks related to the overall or everyday lives of our people and not to the Constitution.
As non-treaty people in B.C., we are busy negotiating land claims. We will probably end up with some treaties. Are we in more danger vis-à-vis our fiduciary rights versus the people who already have treaties? Are we in more jeopardy because of Bill C-110 than you? Do you have more protection; or does it matter?
Mr. Favel: I do not know if it particularly matters. It is difficult to quantify degrees of difficulty and degrees of danger. Suffice it to say that both the aboriginal people of British Columbia and the treaty First Nations people are impacted by this.
On the aboriginal rights side of the equation, the explicit recognition of the powers of aboriginal peoples and what quantifies an aboriginal right, be it the right to fish or the right to self-government, is not explicitly addressed in the Constitution. From that perspective, the rights of your people in British Columbia are severely impacted as are the rights of our people.
Our people have been engaged, since we signed our first treaties, in the pursuit of recognition of the spirit and intent of those treaties and of the relationship of partnership. Much work remains to be undone. However, the impact of Bill C-110 is to forestall, quite clearly, the fulfilment of the aspirations of the B.C. First Nations and the aspirations of Saskatchewan First Nations to have our treaties fully implemented in their spirit and intent.
Senator Marchand: The failed Charlottetown Accord had a package of self-government built into it. I know Mary-Ellen Turpel and others had a lot to do with that work. Ovide Mercredi was certainly the leader of our team.
He has not said it in so many words, but I expect Mr. Irwin is motivated by that failure and by the commitment of the Liberal Party and the Liberal government regarding the inherent right of self-government. Is it a useful exercise he is now undertaking?
Mr. Favel: The issue of constitutional implementation and constitutional recognition of the inherent right of self-government is our objective. If we are in a position where our rights are not recognized in the Constitution, we are always in a position of never-ending dogfights with the provincial governments and with the federal governments to have our rights recognized on basic issues.
The fulfilment of our treaty right to hunt, for example, will be constantly eroded by the provincial governments unless it is clearly, constitutionally protected as a treaty obligation. That is our objective. That is the issue to which we speak this morning.
Senator St. Germain: I welcome Mr. Favel and his group, as well as the senators from his nation.
My concern is that all senators are being banded together. I do not necessarily think like all the other senators at this table. Our hearings on Bill C-68 should indicate that some of us think as individuals. We are working for the betterment of all Canada and of all people of Canada. I can understand the distrust and the disgust that was espoused by Grand Chief Mercredi.
My question is simple. Unfortunately, we are put into these apparently untenable positions. Senator Marchand just stated that "you will understand" the commitments of the Prime Minister. He made reference to the fact that he was boxed in.
In my opinion, we put ourselves into these boxes by failing to deal with situations in advance and because, in the past, we have bought people off with taxpayers' dollars as opposed to dealing directly with the concerns of our natives, of Quebecers or of Canadians across this country.
The dilemma in which I find myself is how I should handle this situation so that the outcome will be in the best interests of Canada. A disunited Canada is a disadvantage to all of us, aboriginal peoples and everyone else. I do not want to jeopardize the cause. In the same breath, I do not want to do something that is wrong. Two wrongs do not make a right. If they have created a wrong, I do not want to ratify it in this particular place.
I am distraught and insulted that the government has distributed a pamphlet in the province of Quebec stating that this is law before it has passed this place or before it has received Royal Assent. The only way anything can become a law in this land is if it passes through both Houses of Parliament and receives Royal Assent.
You have proposed an amendment which includes a derogation clause. The suggestion has been made that we should include a sunset clause in this particular piece of legislation so that it expires at or prior to the constitutional discussions of 1997. Is that an option, in your view?
The Inuit presentation this morning made reference to that. The notion of repealing legislation is basically a non-starter. Every time a piece of legislation is passed, we all lose a little bit of freedom. The repealing aspect is virtually negligible in this country.
What do you think of a sunset clause that would provide for a termination date respecting the measures contained in this bill, if it is necessary, as the other side claims, for the government to save face in response to the promises made by the Prime Minister?
Mr. Favel: The concern is the movement away from the constitutional convention which has been established. The constitutional convention established in the recent past has been to include First Nations and aboriginal people. Regardless of whether there is a sunset or an expiry clause on the legislation, we will still be excluded. You are simply saying we will be excluded for only a little while. Does that make sense? Coming from Saskatchewan, does that idea make common sense to me?
I recommend that the non-derogation clause be included. When we revisit this issue, the vetoes which have been given to the provinces, essentially giving them full authority that unanimity is required to amend the Constitution, should be extended to all other issues except for First Nation and aboriginal issues with respect to the inherent right of self-government.
That is the position we are putting to you. It is a minimum position. Our first position, if we had our druthers, would be explicit recognition of the inherent right of self-government. We are not saying that; we are saying non-derogation. We would say there should be a non-derogation clause, and if you want to support that further with an expiry date or a sunset clause in the legislation, so be it.
Regardless of what you are contemplating, we urge you to act. We came to you on gun control and we heard nice things. Senators came to Saskatchewan.
Senator St. Germain: I got high blood pressure from it. We voted against it.
Senator Marchand: Nineteen of your members voted for the gun bill.
Senator Andreychuk: Not all of yours.
Senator St. Germain: The entire aboriginal community was opposed to it, Senator Marchand, and you were the only aboriginal who voted for it. That is the sad part.
Senator Marchand: That is not sad.
Senator St. Germain: To get back to my question, Mr. Favel, if we do not block this bill, with the establishment of regions and the vetoes that are to be given to these regions, we set this precedent, and do you not think in the long haul, in future constitutional negotiations in regard to your people, that this will have a negative effect because we are adding vetoes? Certainly my province of British Columbia is to receive a veto. Do you not think this will be detrimental to the entire process of future negotiations? When you have all these vetoes out there, how can we possibly avoid gridlock? That is the question that I have to ask you. If we put in the non-derogation clause in regard to your people for this aspect, it does not mean to say that future constitutional negotiations would not give vetoes to all these regions and further complicate the ability to amend our Constitution in the future in regard to things that you may require.
Mr. Favel: The veto powers clearly have an impact on First Nations participation and First Nations involvement in putting forward proposals regarding the inherent right of self- government. With respect to regional vetoes, once they are out they may not come back, and that is the concern.
With regard to decisions which do not have an impact on aboriginal peoples, if that subject is of any consequence, our only issue is the protection of the rights of our people. In the absence of this Senate killing this bill, I think the protection that we would like to see is the non-derogation clause.
The Chairman: Honourable senators, it is now time to hear from our next witness. I had on my list Senator MacEachen and Senator Beaudoin.
Senator MacEachen: I think we should go on to hear the next witnesses.
The Chairman: We will have you first on the list.
Senator Beaudoin: I have a few questions and, as such, want to be sure that the two witnesses will be here this afternoon.
The Chairman: Ms Turpel-Lafond will be here.
Senator Beaudoin: Will the chief not be here?
The Chairman: Their legal counsel will be here.
Mr. Favel: I will make every effort to change my afternoon schedule to be here.
Ms Turpel-Lafond: We will be in attendance for the first hour this afternoon.
The Chairman: We will begin this afternoon with Senator MacEachen and yourself, Senator Beaudoin.
Thank you, chief, and your colleagues. We will see you this afternoon.
Honourable senators, it is my pleasure to invite to the table our next group of witnesses, the Grand Council of Crees of Quebec, led by Grand Chief Matthew Coon Come. Welcome again, Chief Coon Come.
Mr. Matthew Coon Come, Grand Chief, Grand Council of Crees (of Quebec): (Speaks in aboriginal language)
I welcome the opportunity to appear before this committee, Mr. Chairman. With me is Kenny Blacksmith, the Deputy Grand Chief and also the vice-chairman of the Cree Regional Authority. With me also is Mr. Paul Joffe and Mr. Andrew Orkin, both of whom are constitutional lawyers and advisors.
I thank you for inviting the Grand Council of Crees to appear before this committee of the Senate reviewing Bill C-110. I understand that it is your wish that discussion in this forum on this legislation, and discussion of the broader context, be positive and forward-looking. I believe that the defence of aboriginal and treaty rights, the rule of law, and justice for all peoples is always a positive action.
The legislation before you is, in our opinion, inadequate and unacceptable from the perspective of the James Bay Cree. I will not only speak to the bill but also to the unity debate of which it is a part.
Regarding the referendum of 1995, in spite of everything, we are not the ones threatening to separate; we are the ones threatening to stay. Therefore, it is ironic, in this context of Quebec separatism, that the James Bay Cree should be appearing before you arguing and appealing for recognition and protection of our rights.
One week before the Quebec referendum of October 1995, the James Bay Cree held our own referendum. Our results were decisive. My people spoke with one voice, not two. We withheld our consent as a people that the Government of Quebec separate us and our traditional territory from Canada.
In 1975, the Crees and the Quebec Inuit signed a land claims agreement with Canada and Quebec. The treaty rights arising from that agreement were entrenched in the Constitution in 1982. These treaty rights include a right to the ongoing relationship with the federal and Quebec governments, and a right to Cree consent to any changes in this relationship. These rights are fundamental to us. We are a people, the James Bay Crees. It is our human right not to be transferred again and again between self-declared sovereigns like cattle in a field.
Last December, we engaged one of Canada's prominent polling organizations to study a number of secessionist-related issues for us. Our poll establishes solidly that more than 8 in 10 Canadians agree that aboriginal peoples who want to remain in Canada with their lands have the right to do so.
Surprisingly, nearly 2 out of 3 Quebecers agree that aboriginal peoples in Quebec have the right to choose to remain with our lands in Canada. It seems that Quebecers are far less willing than their leaders to claim rights for themselves while denying them to others.
Our poll establishes that three-quarters of all Canadians would support the federal government enforcing the Constitution and laws of Canada so that the James Bay Cree and their traditional lands might remain in Canada in the event of Quebec separation. This support is broadly based across all demographic and regional groups outside Quebec.
In Quebec, this scenario has a major impact on the intentions of Yes voters. Under this scenario of federal enforcement of the Constitution and laws to protect our right to remain with our lands in Canada, almost one-quarter of former Yes voters would now vote No or become undecided.
Our poll establishes that clear action by the federal government to uphold the constitutional laws of Canada to ensure that the Crees and their lands would remain with Canada would benefit a No vote substantially. Our poll also establishes that most Canadians, and a majority of Quebecers, and even a majority of Yes voters in Quebec, support our right to choose.
In addition, our poll shows a significant decline of enthusiasm among Quebecers - even among Yes voters - for the holding of another referendum in the scenario of federal support for the law which we describe.
Our position is based on a treaty with Canada which exists right now. Our position does not assume anything other than a desire and an obligation on the part of the federal government to declare that it will uphold our constitutional and legal rights.
There is nothing that prevents the Government of Canada, in the form of Mr. Chrétien and Mr. Rock, from standing in the House of Commons and stating next week, next month, and every month thereafter, "We are bound. We have no choice but to uphold the Constitution and the laws of Canada. If Quebec votes to secede, we will uphold the constitutional and legal rights of the Cree to remain in Canada with their lands and the resources they contain."
That is a positive position: the federal government upholding the Constitution, upholding the law, and affirming a treaty relationship entered into between the Cree and the Crown. This position does not assume a Yes vote in another referendum followed by a unilateral declaration of independence by Quebec. We are saying that if our rights are upheld now, another referendum may possibly not be held. If one were held under the scenario we have raised, it may well be lost.
Of course, we Cree are interested in affirmations of our rights for their own sake, but it is now absolutely clear that a timely and firm affirmation of our aboriginal, treaty and other rights is also in the national interest. We call upon the federal government to make these affirmations without further delay.
With respect to the initiatives before you, including Bill C-110, the James Bay Cree have never tried to deny other peoples of Canada their aspirations. However, we insist that any fundamental reforms to the Canadian federation not be made at the expense of the Cree and other aboriginal peoples. This position is founded on basic principles of respect, justice and equal rights of peoples which you have continued to defend and affirm.
We wish to work with the federal and provincial governments to seek increased accommodation for the priorities and concerns of all peoples within Canada. However, this does not mean that whatever the Government of Canada puts forward in a unilateral fashion is appropriate; nor does it mean that it is balanced or fair; nor does it automatically mean that the proposed initiatives serve to meet any stated or common objectives.
I must also underline that this federal unity initiative has reached its present point without meaningful aboriginal involvement. To exclude aboriginal peoples from fundamental reform in Canada is to violate an established convention dating back to the constitutional reforms of the early 1980s.
Even in the case of the Meech Lake Accord, federal and provincial governments claimed that aboriginal peoples were not included only because the subject matters purportedly did not affect us. This is not the case with Bill C-110. In any case, a non-derogation clause was specifically added to the Meech Lake Accord in order to emphasize this point.
The present process is hardly consistent with cooperative federalism. We must object to the unilateral manner in which the Government of Canada has chosen to act. We cannot accept legislation that increases the powers of non-aboriginal governments to thwart our aspirations for further constitutional recognition and elaboration of our fundamental rights. Federal representatives have repeatedly stated that they cannot see why aboriginal peoples are opposed to Bill C-110, since, in the government's stated view, it does not derogate from the rights of aboriginal peoples guaranteed under the Constitution of Canada.
These federal representatives fail to acknowledge that this bill encumbers any future constitutional elaboration of aboriginal rights with a new layer of vetoes. They fail to acknowledge that this bill constrains the federal Crown from even tabling constitutional initiatives to protect the rights of the Cree and other aboriginal peoples in the context of a Quebec secession. They fail to acknowledge that empowering the provinces with additional vetoes serves to unfairly diminish the relative status and position of aboriginal peoples within the Canadian federation.
The Grand Council of Crees has a number of other basic objections respecting Bill C-110. We believe that the federal government has failed to consider adequately the serious realities posed by the secessionist context in Quebec.
Premier-in-waiting Lucien Bouchard has promised that there will be another referendum in Quebec in order that Quebecers can vote to secede from Canada. Therefore, it only makes common sense that any reforms proposed by the Government of Canada must be carefully assessed in light of this secessionist context in order to determine their potential consequences.
Should a future PQ government in Quebec proceed to hold another referendum so as to unlawfully secede from Canada, it is quite possible that the Government of Canada would want to table constitutional amendments in advance which would safeguard Canadian and aboriginal interests.
For example, it may be necessary to protect the territorial integrity of the country, or at least those areas of Quebec where the peoples concerned have chosen freely and democratically to remain with Canada. This might conceivably involve the tabling of proposed constitutional amendments in a timely manner - that is, prior to a unilateral declaration of independence - which would only take effect in the event that an illegal and unilateral secession were proclaimed. In our view, Bill C-110 could tie the hands of the Canadian government to act in this way to protect the country.
In view of the continuing threat of an illegitimate secession by Quebec, it appears to us that the adoption of Bill C-110 is a medicine that could worsen the illness rather than being a cure. We believe that this would be negligent and that Canadians should be aware of these concerns.
It is difficult to predict what type of constitutional proposals the federal government may need to table in the context of the destabilizing threat of Quebec secession. However, the key point is that Bill C-110 must be clear that it is not intended to restrict timely federal constitutional action in this context.
I am advised that it is possible that Bill C-110 is unconstitutional in whole or in part. The Constitution Act, 1982 empowers the federal government to table any constitutional amendment that relates to the interests of the country and its peoples. The only restrictions are those concerning such limited matters as the exclusive right of provincial legislatures to amend their own constitutions.
Bill C-110 would alter the rules for a constitutional amendment to the Constitution Act, 1982, without going through the required process of amending the Constitution. Clause 1 of the bill would prevent a minister of the Canadian government from even tabling a constitutional amendment on any matter where a new veto is provided to the various regions of Canada under the bill, unless these regions first consent to the proposed amendment.
In addition, to create additional vetoes in relation to the various provinces or regions appears to be adding new substantive and procedural requirements with far-reaching implications. While the amending formulas in Part V of the Constitution Act, 1982 can be modified, this must be done with the unanimous consent of Parliament and the provincial legislatures. To the extent that it affects us, such changes would also require aboriginal consent.
We are very concerned that, through Bill C-110, the federal government is abdicating its federal responsibility in favour of aboriginal peoples. It is well established by the Supreme Court of Canada that the Canadian government and Parliament have such a fiduciary responsibility of a constitutional nature.
Passage of Bill C-110 would limit the powers of the Canadian government and Parliament to carry out their fiduciary responsibilities when tabling or considering certain constitutional amendments in favour of aboriginal peoples. Any such restrictions could be extremely serious, especially if a separatist government of Quebec were seeking - as we believe it intends to do - to forcefully include aboriginal peoples and our traditional territories in a sovereign Quebec.
Canadians must be aware of this concern. Through Bill C-110, the federal government may be giving the present separatist government in Quebec the means to impede the federal government from acting in a timely manner through the Constitution to uphold the rights of aboriginal peoples, including the Cree, to remain in Canada. My earlier remarks show why this is of critical importance in the present situation.
In our view, it would be illegal and unacceptable for the government of Canada to try to abdicate its fiduciary and constitutional responsibilities in regard to aboriginal peoples. In particular, the federal government must not hamper in any way its own capacity to table constitutional amendments in favour of aboriginal peoples by subjecting such federal initiatives to regional vetoes among the various provinces.
Separatists in Quebec have repeatedly complained that constraints in the existing amending formula in the Constitution Act, 1982 have the effect of preventing Quebecers from achieving their constitutional objectives in Canada. In other words, they argue that the amending formulas create a kind of constitutional "straightjacket".
The Cree and other aboriginal peoples have expressed a view that the existing amending formulas in Canada's Constitution make it exceedingly difficult for us to achieve adequate amendments.
In this context, it makes little sense to add further layers of restrictions to certain constitutional amendments in the future. In our view, Bill C-110 may have the effect of unfairly impacting on aboriginal peoples who are already the most vulnerable peoples in Canada. If regional vetoes in favour of provinces are to be provided, they should be limited to certain national institutions referred to in section 42 of the Constitution Act, 1982, for example, the House of Commons, the Senate, and the Supreme Court of Canada.
In addition, the role of aboriginal peoples in regional vetoes would also have to receive fair consideration. The principle of aboriginal consent to propose constitutional amendments affecting us continues to be an essential dimension.
Based on the various issues I have just discussed, it is clear that Bill C-110 as presently drafted is potentially prejudicial to the protection and further development of the rights of aboriginal peoples. It also seems to me that Bill C-110 as presently drafted does not appear to be in the interests of Canadians in general.
In addition, the separatist government in Quebec has made it clear that it is not interested in the federal proposals that are being presented. Therefore, it makes little sense for the federal government to rush through with the adoption of such ill-conceived and ill-advised legislation. This is especially important since the provisions of Bill C-110 could backfire on all of Canada in any upcoming secessionist scenario.
However, in the event that Bill C-110 is adopted and given effect against our will, we have prepared a modest amendment for your consideration. The effect of our amendment would be to reduce the possibility that the legislation be construed in a manner that the federal government claims is clearly not intended.
Should the Senate choose to approve Bill C-110, the amendment we are proposing reads as follows:
2. Nothing in the Act shall be construed as derogating from the rights, duties powers or privileges of the Government and Parliament of Canada to propose or authorize an amendment to the Constitution of Canada to
(a) recognize, affirm or protect the Aboriginal peoples under their Aboriginal and treaty rights or other rights and freedoms, or
(b) preserve and protect the national unity and territorial integrity of Canada.
As you are aware, our proposed section 2 has substantial support among aboriginal peoples who have already appeared before the Senate committee. In our presentation today, we have already indicated the nature of our concerns. However, I will highlight some of the key objectives and benefits of our proposed amendment.
The purpose of this non-derogation clause is to make clear that there are certain subject matters relating to constitutional amendments that are not intended to be hampered in any way by additional vetoes under Bill C-110. Such clarity would serve to ensure that people in Quebec and in other regions in Canada will not be misled as to the intention and scope of the legislation. Equally important, the amendment would ensure that the capacity of the federal government and Parliament to put forward constitutional amendments in regard to certain matters cannot be impeded by provincial legislatures.
It is not always possible to foresee precisely what situations may require the federal government or Parliament to propose constitutional amendments in a timely manner. Nevertheless, it is critical to ensure that Bill C-110 does not inadvertently gain a scope that is not intended by the federal government.
Paragraph (a) of our proposed section 2 explicitly safeguards aboriginal treaty and other rights and freedoms of the aboriginal peoples of Canada from being affected by the vetoes in Bill C-110. In our view, it would be unconscionable for so-called "unity" proposals to adversely affect aboriginal peoples and our rights when the federal government insists that this is definitely not the objective or effect. Consequently, nothing is lost by including a non-derogation clause to safeguard the capacity of the federal government and Parliament to act in relation to aboriginal peoples.
Similarly, in relation to paragraph (b) of our proposed amendment, it is clear that the federal government and Parliament must be free to table constitutional amendments relating to national unity and the territorial integrity of Canada. No one can necessarily predict if and when such constitutional amendments may need to be brought forward. However, the liberty of the government to do so must be unequivocally preserved in the interests of all of Canada.
It is also worth noting that the phrase "national unity and territorial integrity" is found in the 1970 UN Declaration on Friendly Relations. The utility of this international operation should not be carelessly undermined by domestic veto legislation, especially when facing real attempts to carry out an illegal and illegitimate secession. Consequently, from both a domestic and international viewpoint, the notion we are highlighting in the non-derogation clause is worthy of serious consideration.
In the view of the Cree, the phrase "territorial integrity of Canada" is not synonymous with the integrity of the territory of the Canadian government. Rather, it encompasses the integrity of all territories in Canada. When read in the context of Canada's Constitution, this notion would therefore include safeguarding the integrity of the territories of the aboriginal peoples concerned.
I will conclude with a brief summary of my remarks. The Grand Council of Crees is not opposed to constructive efforts by the federal government to accommodate the aspirations of Quebecers. However, as we have stated before, we cannot and will not allow this to be done unjustly and at our own expense.
In regard to Bill C-110, it is clear that the Government of Canada has made some hasty and ill-conceived proposals that can seriously prejudice the Cree and other aboriginal peoples. At the same time, it is clear to us, and Canadians need to be aware, that the government's initiatives appear to run counter to the interests of Canadians in the country as a whole. The principal reason for this conclusion is that the government has failed to adequately consider the potential impacts of its proposals in the very real context of the present Quebec secessionist scenario.
Prime Minister Chrétien rightly stated after the Quebec referendum that all people in Canada have a right to political stability. This principle has yet to be implemented. In particular, by continuing to refuse to assert the territorial integrity of Canada and to act legislatively to safeguard aboriginal and Canadian interests, the Government of Canada is inadvertently making it easier for the secessionist government to break up the country and violate Cree rights.
This veto legislation was born as a promise and a concession to Quebec. The approach appears to be that Quebec is vulnerable in Confederation. We ask: Which of the peoples in this land are really vulnerable? Whose rights and interests are most in need of additional protection, especially in the context of political upheaval? It is clear that the approach being taken in this unity initiative and this bill constitutes a denial of the present status and historic role of aboriginal peoples in the constitutional fabric of this land.
Therefore, we urge you to recommend that the federal government reconsider Bill C-110. At the very least, we request that the Senate accept our proposed amendment and use your votes and influence to ensure its inclusion if this bill is to become law. In addition, we urge that you strongly recommend that the full participation of aboriginal peoples be ensured in a timely manner should the federal government propose any further reforms in the context of national unity or other significant objectives.
With that, I thank you very much, Mr. Chairman.
The Chairman: Thank you, Chief Coon Come. We trust that you will be present for the round table discussion, at which time we will delve into your recommendations.
Honourable senators, we will reconvene at 2 p.m.
The committee adjourned until 2 p.m.
Upon resuming at 2:00 p.m.
The Chairman: Honourable senators, to help us focus our study of Bill C-110, we have organized this round-table discussion.
I propose to proceed by individual senators indicating their interest to the Chair in posing a question. We will try to ensure that everyone has a chance to participate as the issues arise. Please be succinct in your questions and in your answers to facilitate a good dialogue.
Senator Beaudoin: My first question concerns the technique of amendment; my second concerns aboriginal self-government, be it implicit or explicit, in section 35.
Let us start first with Bill C-110. If I understand the testimony this morning, aboriginal people want to be involved in the formula of amendment. At least, they wish to have some guarantees. There is now a constitutional right to participate in the constitutional amendment process. I gather that this is not enough and that the aboriginals would like to have some say, perhaps even a veto, in such matters.
Suppose we deal with the right of veto for aboriginal nations. Bill C-110 does not apply strictly because to change the amending formula we need the consent of Ottawa and the 10 provinces. Obviously, Bill C-110 is not concerned with changing the formula of amendment under section 41. That is my first question.
Ms Turpel-Lafond: If I understand your question properly, the question is whether or not section 41 is affected by Bill C-110, in our submission?
Senator Beaudoin: Yes. The government has said it is not affected because everyone has a veto. If we wanted to amend the formula for amendment, every province would have a veto; in which case Bill C-110 would not apply.
Ms Turpel-Lafond: Leaving aside the protection of aboriginal and treaty rights, and taking that question as a pure constitutional question, it is uncertain whether this is an attempt to do through federal legislation what should be done through constitutional amendment.
If the answer to the question is that unanimity is required to change the amending formula, then go ahead and get unanimity and change the amending formula. By recognizing these five provincial and regional vetoes, this piece of legislation introduces unanimity.
My opinion as a constitutional lawyer is that it is hair-splitting to say that it is not a new amending formula.
Senator Beaudoin: I am inclined to agree entirely with you. Indirectly, this bill is attempting to amend the formula of amendment because we have added another legislative formula to a formula which is already constitutional. Do you agree with that?
Ms Turpel-Lafond: I do, from a constitutional law perspective.
From the First Nations' viewpoint, it is my opinion that section-42-type amendments would affect, for instance, self-government. Clearly, they are caught within Bill C-110 and these requirements. In other words, this is a new set of requirements specifically for these sections.
I could see that, if it were amendments to central institutions where unanimity is required, this provision may not have a major impact. Obviously, this legislation has a major impact for us because it ups the threshold. Not only does this bill up the threshold, it creates a floor of expectation that, from now on, whenever the amending formula or changes to the Constitution are discussed, the discussions must be held in light of the fact that everyone will have these vetoes.
Senator Beaudoin: For the purposes of the record, if ever we want to amend the formula of amendment - I think Quebec would like to and I understand that you would also like to amend that formula - we need unanimity. Bill C-110 will not stop that at all. In other words, if we want to amend this formula of amendment, we should think about it for a certain time. It will not be easy. It cannot be done by a bill such as this. It must be done by a constitutional amendment, and we will need unanimity.
My second point, which is crucial for the aboriginal nations, is this: Section 35 protects treaty and aboriginal rights. I do not know what the Royal Commission will say in its report.
Do you feel that your right to aboriginal self-government is protected implicitly by section 35? Would you prefer an express amendment to the Constitution to deal with aboriginal self-government?
Ms Turpel-Lafond: I will answer that from my perspective; I am sure the other people will have responses as well.
In terms of what is included in section 35(1), the Royal Commission has issued a discussion paper called "Partners in Confederation" in which they have said it is likely that such action is provided for in section 35(1). They do not say absolutely; they say it is "likely". That is a discussion paper, though.
I prepared a paper recently with Professor Peter Hogg on the inherent right of self-government, which appears in the recent volume of the Canadian Bar Review. Professor Peter Hogg is a constitutional law professor at Osgoode Hall Law School. We both agree that there are very good reasons to recognize, in section 35, the inherent right of self-government. There are good arguments to do it. However, it is not crystal clear. It is not absolutely clear that it is there. It would be in everyone's long-term interest to have it clearly defined. Just the pure recognition of the right is not enough. How will it be implemented?
One of the difficulties we face is that the right may be recognized but simply overridden by all federal and provincial law. The Constitution is not clear enough on the impact that self-government would have on federal and provincial powers. It is in the best interests of clarity and to avoid litigation, et cetera, to have explicit wording. There are arguments for it to be there, political arguments with legal support; however, it is not absolute.
The problem, as we have encountered it, is this: When it is not clear, then you can have the federal government, for example, unilaterally adopting a policy on self-government and saying, "This is what it means." We cannot have anyone arbitrate in that situation because it is simply a policy. They are interpreting it without the input of the aboriginal peoples of Canada.
The Chairman: Mr. Mercredi, do you want to comment on this point?
Mr. Mercredi: Our position, as expressed to you in other committee meetings, is that we have a pre-existing right which does not need to be defined by anyone. We want that right to be explicitly protected in the Constitution so it cannot be violated by anyone.
We believe that that right is implicit in section 35, but the people of Quebec also believe they are a distinct society. They want protection and guarantees; so do we. That is why our position is still to demand constitutional recognition of the inherent right of our people to govern themselves.
You have a Liberal government that is fooling the Canadian people by giving the impression that they are dealing with the inherent right of our people to govern themselves through policy. Minister Irwin gives the impression, whenever he talks about this issue, that his government is recognizing the Indian people's right to self-government and that they have a policy on the inherent right. Rather, they have appropriated our terminology to "municipalize" Indian government, to subvert our principles so that we become assimilated into the federal structure of government. Irwin's policy is nothing more than the continuation of the 1969 white paper policy of the Liberal government, to get rid of the Indian issue by transferring it to the provinces.
The minister's inherent-right policy is about entrenching federal and provincial powers, not about protecting Indian powers. They tried to pre-define the inherent right by saying that your inherent right is limited to something that is integral to your community or integral to your culture.
They then proceeded to identify three lists of powers. One list, they claim, qualifies the powers which belong to something which is in our culture, something which is in our communities. There are two separate lists which they say fall outside of our culture and communities. Guess what those powers are: trade and commerce, the economy, taxation, international relations. Important powers are not considered to be integral to our society, internal to our communities. This is the Liberal policy on the inherent right.
If under their policy we pass laws which conflict with federal and provincial authority, then federal and provincial paramountcy applies. To the extent that our laws are inconsistent with the laws that you make, our laws do not apply. That is the Liberal view of the inherent right to self-government.
We are still demanding something more than a policy orientation when it comes to Indian people. The issue of national unity cannot be addressed without addressing First Nations and their concerns and rights.
Mr. Coon Come: I have concerns with regard to section 35. Senators, the Prime Minister and even the Premier of Quebec have said that our rights are protected because they are in the Constitution. You senators will not be here forever. You will go on and retire, and I do not want to take that chance.
I can point to every minister who has told us, since I have been representing the Grand Council of Cree, that they recognize that our rights are entrenched in the Constitution, including our right to self-government. The minute I walk into court - and I have approximately six to seven court cases right now - I am faced with factums produced by the federal government stating that our treaty rights are in the Constitution. That is contract law.
The position taken by the politicians is different in the courts. Why should I take a chance on what you tell me here? Why should I take your word for it? Sorry, you will leave. Someone will replace you. Why should I take that chance? If you agree with me, then let us put in a non-derogation clause to make it very clear. I do not want to take that chance. That is why we want a non-derogation clause that affirms and recognizes our treaty rights.
Senator Beaudoin: I come from Quebec. Obviously, I want things enshrined in the Constitution because when it is in the Constitution it is constitutional and Parliament cannot change it. If Parliament is changing it, we may end up in court and find it is unconstitutional - that is, unless it falls within an area of the formula of amendment, section 44.
Perhaps self-government can be achieved through the 7-50 formula. However, one thing is sure: If it is to be part of the amending formula as such, we need unanimity. This is exactly what we are facing in Quebec. We want to ensure that we are entirely protected. The only way to achieve that is by way of constitutional amendment. If we change the constitutional amending formula, we need unanimity. You may try to circumvent that provision, but that is the way it is written.
It is exactly the same for the aboriginal nations. If the formula is to be amended, unanimity is required. If we are talking about self-government, perhaps the Constitution can be changed with the 7-50 amending formula, and then Bill C-110 will apply.
Mr. Coon Come: My concern is that every time the Government of Quebec enters into these negotiations they raise the issue of the territorial integrity of Quebec. It is always a step and a tool. They want to ensure that they can diminish what the federal government can do, in order to achieve their objective to secede from Canada.
We must ensure at some point in time that aboriginal peoples will not be denied the right to determine their future. As it is right now, the federal government can take action to send a message. Right now, you are handing another tool to Quebec. The Prime Minister did it first with the motion on distinct society. Bill C-110 will give them another tool.
Right now, Canada could take action to maintain the highest law of the land. Yet Quebec has no veto at the moment to prevent Canada from doing anything that it wishes, such as protecting the territorial integrity of Canada.
Senator Beaudoin: That is another point.
Senator St. Germain: Mr. Chairman, I have a question on the great feeling of distrust on the part of Grand Chief Mercredi. This morning he said in reference to the Senate that we should get rid of all of them. Perhaps he can clarify that comment. Perhaps I did not hear it properly.
Mr. Mercredi: You did not hear it right.
Senator St. Germain: Perhaps he made the comment in frustration. I share his frustration. When you said this morning that we will pass this bill, I must tell you that if I happen to vote in that direction it is certainly not because I had any preconceived notions when I came in here.
You seem to be lumping us all together. I suffered high blood pressure after the debate on Bill C-68, the gun control legislation. I take issue with your comment. As I am sitting here, I do not want to pass this bill because I think it is bad. It is ill-conceived and ill-planned. It is a knee-jerk reaction. It is tampering with the soul of Canada. Whatever you said about us, I accept it. After that last go around - and I do not know how this one will end - I feel as frustrated as you do.
I should like you to tell me if past governments were this bad in terms of lack of consultation. I am opening the door wide now. If we are to get slammed, we might as well get slammed and lay our cards on the table.
With respect to Bill C-68 every living, breathing one of you came here and said that you were not consulted. The government told us that they sent out letters to all of you. Again, you say that you were not consulted on something that I honestly believe will change dramatically the future of this country insofar as constitutional matters are handled. I am not a constitutional expert; nor do I want to be.
They seem to feed on each other. When I ask these constitutional experts questions - and I will not name any - they tell me that if it is not constitutional then the aboriginal people can go to court. That is what I mean when I say that they feed on each other. There are academics at universities who feed their colleagues who work in the courts, not to mention judges. It does not seem that advance the cause of logic.
I want to ask Chief Mercredi about this consultation business. I should like you to clarify what I accused you of, which, perhaps, was wrong. If I was wrong, then I apologize. However, I should like your comment on the issue of consultation.
I have studied some of the history of where I come from, which is the Red River settlement area. I have also studied Cuthbert Grant. Those people were not consulted then. History seems to be repeating itself. I should like your comments.
Mr. Mercredi: There was no consultation on this bill. I met with the Minister of Indian Affairs on one occasion at which time I raised the issue of what their plans were. His response was that as far as he was aware nothing would happen because the Prime Minister would be out of the country. The next day I learned that he was appointed to a committee on national unity. I have not met with him since.
I have written to the chairman of the committee on national unity, Mr. Massé, asking him to invite the Assembly of First Nations to meet with him. I received a letter from him indicating that I should see Ron Irwin. I replied to him stating that we want to meet with the committee in order to discuss these issues with them. I pointed out that Mr. Irwin does not speak for the First Nations.
Following that, I received another letter in which it was indicated that Mr. Irwin is a member of the committee. Subsequent to that I wrote to all the committee members. Thus far, I have received a response from the majority. The responses are all the same: "Go see Ron Irwin." There was no consultation before the bill was drafted and tabled in the House of Commons.
Ms Kuptana: I wish to answer your question as well as address another issue which was raised earlier with respect to section 35 and its implications.
Under section 35(1) aboriginal peoples have a right to participate in constitutional conferences where proposals are being considered to amend section 91.24 of the Constitution Act, 1867 or Part II of the Constitution Act, 1982.
Section 35 is not the only source setting out aboriginal and treaty rights. As Chief Mercredi mentioned, the federal government also has a fiduciary responsibility to aboriginal peoples. Since the federal government has a fiduciary duty, it must act in a manner which protects our rights and interests. Our rights and interests will clearly be affected by the amending formula or any amendments to it.
As aboriginal peoples, the 1997 conference is not where we want our participation discussed. We should be there by virtue of the fiduciary responsibility that the federal government has to aboriginal peoples.
The federal government has been treating aboriginal peoples in an exclusionary way. Whenever I have brought issues to the attention to the Prime Minister or to the relevant minister with respect to constitutional reform or national unity, I have been simply referred down to the Minister of Indian and Northern Affairs. The Prime Minister has said in correspondence to me, "There is no way your issues will be dealt with. Deal with the Minister of Indian Affairs and Northern Development." We will table that correspondence with the committee today.
The central issue here is that aboriginal peoples have demonstrated that we are able to participate effectively in the interests of our people in constitutional discussions. How will this country be furthered as a country by excluding aboriginal peoples?
Senator St. Germain: I agree with you. The exclusionary aspect and the referral to DIAND are the tools of destruction of our aboriginal peoples.
I have commented that it has felt like we are children of a lesser God when we are dealing with some of these things. I will be here for 17 years, Chief Coon Come.
The question is, why are you not asking us to block this legislation as opposed to amending it? I feel that, by amending it, somehow we will allow a precedent to be set with vetoes coming from everywhere, and it will play to the detriment of all Canadians. I do not sit here representing Quebec or British Columbia, but for Canada, and that includes everyone, along with their inherent rights.
Mr. Sinclair: The lack of consultation and involvement is probably the root of the problem.
As I said this morning, I am not a constitutional expert, but I have been involved in these meetings for a long time. In 1982, I looked at the Constitution as reaffirming our rights rather than giving us any rights. However, those were grounds enough to build on.
In excluding us over the years, and particularly in respect to this new amendment, the government is building up other provinces and other barriers such that our rights will no longer be protected. At what point do your laws begin to override ours? That question can be considered in many cases, particularly the one on our hunting and gathering rights. Provincial and federal laws supersede many of our own rights. As a result, we lose. Many of us are in the courts fighting over fundamental rights. Most Canadians are not required to go to court over such matters. We must be involved in any of these amendments or discussions as full participants. Otherwise, we will be left behind.
As I said this morning, what good is it if you give everyone a veto and then give us a veto? It would go against what I said this morning. How many vetoes will you allow? Will you then give another layer of vetoes to again exclude us and keep on with this one-upmanship, or do we sit down and have meaningful discussions so that our rights are clearly entrenched in the Constitution. How do we fulfil those rights? How do we go about that business?
It seems to me - and I think the national chief expressed it properly - that we are not practising self government here. Government policy is governing us, not ourselves. That is where things must change. We cannot win. Every time power is transferred from the federal government, it is not transferred to us, but to the provinces, and without our consultation. At what point will our nation become so divided up that we cannot even come back to the federal government when we have a problem? They have the responsibility for us, but we are relegated to each separate province across this nation and perhaps even to a separate country.
Mr. Mercredi: I wish to respond to the question concerning why we are asking for amendments. That is not the AFN's position. The Assembly of First Nations' position is that you cannot fix this bill.
When the Meech Lake Accord was being sold to the Canadian population, our legal advisers were telling us that non-derogation clauses are not enough. Once the Meech Lake Accord became law, it would be too late. The same arguments could be made for this bill. A non-derogation clause is not a solution. The issues are not just about aboriginal and treaty rights and our place in the nation, but about reforming Canada and changing it. That is where the vetoes come into operation as well.
Our problem is that we have spent 10 years, maybe more, in trying to get explicit recognition of the inherent right to self-government. We still do not have it, and all we are dealing with is the formula of 7-50. Now you are introducing a new formula that will give vetoes to five regions. That is the issue.
How will non-derogation help us in that context? How useful are non-derogation clauses in the end? It is not just the amending formula that people must be concerned about, but the politics that come with that.
To make it clear, the Assembly of First Nations is not advocating amending the bill. Our position is that you should send it back and tell the Prime Minister that he must do business a different way. He should have learned from Meech Lake experience to be inclusive. The process adopted in the Charlottetown process was the right process. Perhaps the result was rejected, but the process was correct. Something akin to that should be recommended to the Government of Canada. They should start over again.
The fact of the matter is that no one in Quebec is happy with that bill. Not even the federalists in Quebec are happy with that bill. How will it help anyone in terms of national unity? It will not.
Senator Beaudoin: Wait until tomorrow; Claude Ryan is to come and speak on this legislation.
Mr. Mercredi: We have some concerns about the resolution on distinct society that was passed. We cannot address that here. There is a direction by the Prime Minister, through his cabinet and government, to act as if Quebec is a distinct society. Where is the resolution telling the cabinet and the bureaucracy to act as if we have treaty and aboriginal rights? There is no resolution concerning us, and we cannot address that here because it is not part of the bill. This bill is about vetoes only.
I am not concerned about protecting Canada's territorial integrity. That is not my role as a national chief or as an Indian leader. My role is to protect the territorial integrity of the First Nations, their land and their resources. Any contemplation here about a non-derogation clause must reflect our territorial integrity, not just Canada's or the provinces', but the First Nations' too.
Mr. Morin: I want to respond to the first question posed by Senator Beaudoin with respect to whether we feel our rights are currently protected under section 35 and whether we feel the need for further entrenchment and protection.
I agree with the other speakers. First, we think that our rights are protected in section 35. That is our view and interpretation. However, it is not that difficult to find interests in Canadian society who offer a different interpretation, meaning that no existing rights are protected in section 35 to begin with, especially with respect to we Métis people. Our legitimacy as aboriginal people with legitimate rights is constantly put into question. We are always fighting an uphill struggle to have our aboriginal rights recognized.
I want to give you a concrete example of what I am talking about because this is not strictly an academic matter. I am talking about real issues that have an impact on the lives of our people and our communities on a daily basis, yesterday, today and tomorrow.
The Métis Nation of Ontario established a particular policy a few years ago. It took the position that their members had the inherent right to hunt, fish, trap and gather resources. It issued a policy so that the Métis hunt, as it is called in the province of Ontario, was done on a rational basis, bearing in mind the conservation of the species. Our people began hunting on the basis that they have the right to hunt, fish and trap.
Subsequently, some of our people were charged by the province of Ontario. They are currently before the courts. Many of our people are poor. It is difficult for us to fight these issues in the courts because we do not have the resources to do so. Governments know that and they take advantage of our poverty in order to ensure that their point of view comes across in the courts. Through the Métis Nation of Ontario, our people established a Métis legal defence fund to allow these individuals to defend their rights as Métis people in the courts.
The community of Dryden, Ontario, set up a lottery in order to make money for the legal defence fund. Yesterday, in Dryden, the police charged the Métis Nation of Ontario and a number of individuals in that community with fraud. The police say that these individuals did not have the proper licence to conduct this particular lottery. It was a raffle for a ski-doo.
A news release was issued today by the Métis Nation of Ontario outlining their position. The Métis Nation of Ontario asked the Chief of the Dryden Police Service to draw the winning ticket for the snowmobile which it now has in its possession. The Métis Nation had scheduled a draw for this coming Friday, January 26, 1996, but it is now prevented from holding the draw because the tickets, funds and ski-doo were confiscated by the police yesterday.
This is a real-life situation. Our poverty stricken people in the province of Ontario are trying to raise funds for the legal defence fund so we can protect our rights in the courts when governments oppose us and say we have no rights. That is a real example of how governments interpret the Constitution to mean that we have no rights. When we take measures to ensure that we have resources to protect ourselves in the courts, they charge us with fraud and confiscate our lottery tickets.
One of the exceptions to this case occurred just a couple of days ago when a provincial court ruled that a person holding himself out as a non-status Indian had the right to hunt and fish in the province of Ontario. On Monday, a judge ordered the Ministry of Natural Resources to expand its interim enforcement policy to include Métis and non-status Indians and to recognize that they have the right to hunt and fish for food and for commercial purposes.
I wanted to bring that example to light because in a real way it illustrates our point that there must be clear recognition in the Constitution that we have these rights. That is the only way we as aboriginal people will make progress in this country.
In the 1980s, there were four first ministers conferences. There was a commitment in the Constitution Act, 1982. There was the constitutional accord of 1983. I have not explored this issue myself. I am not a constitutional law expert, but if it were ever advanced in the courts, an argument could be made that there is a legal obligation on the part of all governments in Canada to complete the unfinished business of ensuring that our rights are clearly protected in the Constitution. Even if there were no legal argument to be made, certainly on moral grounds, if we are talking about reopening the Constitution and the amending formula, a priority must be given to recent constitutional history and the commitments made in the Constitution of Canada in the 1980s. One of the priority items which must be dealt with in that process is aboriginal rights.
Ms Kuptana: I wish to return to Senator St. Germain's question regarding why we are not opposing this legislation outright.
I made a presentation this morning on behalf of the Inuit suggesting that the committee recommend to the federal government that it reconsider this piece of legislation because of the question of its constitutionality, its threat to national unity and the difficulties it would impose on the amending formula. If that failed to come about, we can oppose all we want, but the reality is that the federal government will go ahead and do whatever it wants to do anyway. We must live with the consequences. In trying to make the best of a bad piece of legislation, this morning we put forward specific amendments so that aboriginal peoples can live with this bill.
From the Inuit point of view, we recommended that if the federal government is going to introduce and enact this piece of legislation, it should avoid anything with respect to constitutional provisions relating to aboriginal rights or aboriginal peoples and provide for a consent requirement.
I hope that answers your question.
Mr. Coon Come: As you know, I am from the province called Quebec. I am a Cree. My people have their own land. No matter what happens, the Cree will not leave. We will stay on our lands and in our territories. The reality is that in Quebec the separatists have made certain claims that they would take the Cree and their territory with or without our consent; that they would transfer and assume the responsibilities of the federal government. They assume that this right would automatically be transferred to them through an independent Quebec.
The separatists claim that they have the right to self- determination and we do not; the separatists claim that they have the right to hold their own referendum and we do not.
They have passed a bill that begins with the diminishing of our rights and status as a people under the present Constitution, which says that the treaty rights of aboriginal peoples is entrenched in the Constitution. However, my people have not been silent. We live day to day with this threat. We have done our own homework. We have consulted our people through our own commission which toured the whole Cree territory. We had our own referendum to determine our future. We have the right to determine with whom we want to associate ourselves. We held a referendum and hired helicopters to go into our communities to reach out to our people out on the hunting grounds and out fishing, because we felt it was important. We took the threat seriously.
Once we had asserted our rights, to defend our position we decided we would call upon the federal government to take a position as to whether they would exercise their constitutional obligation and fiduciary responsibility to the aboriginal people. Would they apply a double standard and recognize the right of Quebec to hold a referendum but deny it to aboriginal peoples; recognize the Quebecers' right to self-determination but deny the right of self-determination to the aboriginal peoples of Canada?
When we come here, yes, I see there is an imbalance. Our original position on this legislation was, let us block it as our first choice. How many bills have been introduced on which aboriginal peoples have appeared to express their point of view, only to walk out knowing full well that those amendments would not be taken into consideration? However, we have not given up. We have come here.
These amendments and this non-derogation clause are in relation to a federal act. They are not amendments to the Constitution. It creates an imbalance with regard to the responsibilities of the federal government and the Constitution. I have come in here with suggestions and a possible amendment, which, I feel, would give us some reassurance that the federal government will not give way to this threat in Quebec, that Canada will not tie its hands with Bill C-110. As it stands, the federal government will not be able to do anything because the vetoes given to the provinces will give the provinces the power to decide. I have a problem with that. The provinces are to be given additional powers which they can use perhaps to limit the powers or block the initiatives of the aboriginal peoples.
As if the provinces do not have enough, the federal government is saying, "Here is some more. Take it. We will give it to you." No one knows the extent of those veto powers and how they can be exercised, but one thing is certain: Giving the provinces the right to exercise a veto will make the provinces stronger, at the expense of our rights.
So I come here knowing the reality in Quebec, because I come from northern Quebec. My next-door neighbour is Lucien Bouchard. That is his riding. Right below me is another separatist riding. These are the realities. They are obsessed. I am sure that Senator Beaudoin would understand that. Senator Watt also comes from Quebec. These are realities. I certainly would not like to see the federal government's hands tied. I would call upon them to exercise their fiduciary responsibilities. Will they uphold the law of the land and maintain the rule of law? Will they exercise the right that they claim they have under their Constitution? I do not want their hands to be tied because now, under the present veto powers, they are restricted.
Senator St. Germain: Thank you. Until I walk in your moccasins, I will never know what you have had to deal with this government.
Senator Watt: If I understand correctly, the non-derogation clause approach that you have put forward is not your preferred choice, knowing that there will be a definite impact on the aboriginal peoples if this bill goes through. However, I think you are saying here that this is a minimum, a way of looking at it that could reduce the impact so that the Government of Canada will continue to have special roles with regard to the aboriginal people in this country. I think you object to the idea of the provincial government being empowered by a veto given by the central government. I certainly share that view with you.
For a number of years, Jim Sinclair and I have been players in this field, going back to 1982. I do not like the idea, but, unfortunately, I think the country is moving in the direction of handcuffing itself. At the same time, it is quite clear in my mind, from the little that I understand about the Constitution and the law, that rather than continuing to build on section 35, this legislation actually diminishes that possibility.
If I understood you correctly, you would rather see this bill put to bed and never have to deal with it again, but if there is to be a meaningful constitutional amendment down the road, it should be dealt with at the constitutional level, not at the legislative level. Am I hearing you correctly? Is this what you are saying? I was not here this morning when you made your presentations and I am trying to catch up as we go along. Perhaps Ovide Mercredi can tell me if I am on the right track.
Mr. Mercredi: My position is that you, as a Liberal senator, should oppose this legislation completely. You should send it back without approval. On behalf of the assembly, I am not recommending anything to try to fix it because my position is that you cannot fix it. It is so bad, it is not worth trying to fix. I am not proposing a non-derogation clause - nothing of that kind. I am asking you, as a senator, to oppose it completely.
Why should you oppose it completely? First, when it comes to the rights of the First Nations in Quebec, if this bill goes through, it will make it virtually impossible to protect land and resource rights. That would apply to everyone. Even the inherent right to self-government could be opposed by P.E.I., with a population of less than 400,000 people, which is presently negotiating with the other premiers a way of exercising the veto itself. I am not saying that they would do that, but the potential is there.
If the Prime Minister's interest was national unity, he has not achieved it. The fact of the matter is that the reason we are in trouble now as a country is because federalism is so inflexible that it is difficult to restructure Canada under the Constitution. That is the reason for the mess we face. The answer is not more vetoes to make it more inflexible. To me, that is the formula for the destruction of the country, period. Even if you are not an aboriginal person - say you are a senator from another part of the country - that alone should compel you to oppose this bill completely.
There are two reasons that you should oppose the legislation. The second reason is that it does not protect our people. You know that. I do not think that calling for a non-derogation clause is the answer. What does "non-derogation" mean? The lawyers will speak for themselves, not for the people.
We say that "non-derogation" means that if you do anything with the Constitution it cannot have an impact on our rights, but everything you do will affect our rights. That is why Mr. Sinclair is saying that the answer is dialogue. The answer is inclusion, as Ms Kuptana has said. If you tinker with this, you only give the federal government an excuse to do nothing on treaty and aboriginal rights for the rest of time. That is the danger with non-derogation. It gives them an excuse to say to us later on, "Look, we are not affecting your rights. We dealt with it through non-derogation." They will have a constitutional platform from which to deal with the demands of Quebec and they will say to us: "You have non-derogation so don't worry about it."
Those are political considerations, not legal. They are real considerations. You were a leader of the Inuit people at one time and you know that there is a big difference between law and politics in the way in which government deals with our people. Even when the law is on our side, the politics will not reflect it.
For us, it is not enough to be cautious. We must be assertive about defending our rights. This is one time when we must say, "No, we do not want this." It is your job and that of Senator Marchand, a First Nations citizen, to help our people to defeat this bill so that it does not become law.
That is the position of the Assembly of First Nations.
Mr. Sinclair: Bill C-110 further strengthens the power of the regions and, we fear, enhances the prospect of continued constitutional stalemate when it comes to further elaborating on aboriginal and treaty rights. The Canadian government also suggested that the inherent right of aboriginal self-government is already in the Constitution, the implication being that the aboriginal constitutional agenda is complete. I have real problems with that.
Also, the federal government's inherent rights/self-government policy has the same afflictions as Bill C-110; that is, it can be reversed by the government of the day. If governments can make this happen, they can also reverse it. I am afraid of governments tampering with amendments and raising the stakes. It is even worse when we are not there to defend ourselves.
That is what we were referring to in the past when we talked about a level playing field. As you will recall, in those constitutional talks we were given assurances that we would be included from then on, that we would be consulted on any changes affecting us.
We have had a difficult time over the years. I am very proud of the young leaders we have today. Their methods, approach and manner of speaking makes me proud. I am sure that you feel the same way. I know that we are putting our futures into the right hands. Senator Marchand has done much work over the years and I am proud of his work as well.
We cannot let things change without our involvement. I hope that you, as senators, will go to bat for us. We will try as hard as possible to advance the rights of our people.
Ms Turpel-Lafond: As was made clear this morning in the presentation from the Federation of Saskatchewan Indian Nations and in the resolution of the Legislative Assembly of the Federation of Saskatchewan Indian Nations, the position on Bill C-110 is twofold. There are broader constitutional grievances which we could bring to this forum and to other fora as well. However, our position on Bill C-110 is very clear. The fact that there was no consultation, no process with aboriginal or First Nations leaders, is, in and of itself, enough for you to determine that this is unsatisfactory. Second, as a result of Bill C-110, the range of amendments that would be possible for aboriginal peoples on aboriginal and treaty rights, which are now 7-50 amendments, would be bumped up to unanimity-type amendments.
Our second position is that the bill breaches the fiduciary responsibility of the federal government. This bill has an adverse impact on aboriginal and treaty rights and the unfinished agenda of constitutional reform. Our position is that you should oppose it based on that alone.
As an alternative, we presented a protection clause. It is the same clause that was advanced by the Inuit and the Cree of Quebec. That clause attempts to preserve, in the 7-50 range, amendments to aboriginal and treaty rights, self-government, et cetera. That is all it does. It preserves the 7-50 formula, which is ironic because we are not happy with the 7-50 formula in that it does not require aboriginal consent. We know that if aboriginal consent was required it would be a unanimity issue in a constitutional amending context. This is not a constitutional amending context. Although it has an impact on the amending formula, this is a federal bill.
We believe that, unlike the Meech Lake Accord where a non-derogation clause would not have helped, this is a federal act. The non-derogation clause shields the 7-50 amending formula for issues affecting aboriginal peoples. It will not prevent the federal government - which is what we are talking about in Bill C-110 - from proposing or authorizing an amendment on aboriginal and treaty rights or other rights and freedoms of the aboriginal peoples; in other words self-government, et cetera. We are preserving a 7-50 formula for this range. I agree with what Senator Beaudoin has said, "provided they are all 7-50." It preserves it in that range.
We do support and prefer the position put forward by the national chief, that there is ample reason to reject the entire bill. It serves the interests of no one, let alone those of first nations or aboriginal peoples.
However, I want to make it clear that this protection clause protects this range for the future. The amending formula would still require 7-50 support, according to section 42, which in and of itself is something we would have a grievance about in another forum, but because you are only looking at it, that is our position.
We are faced with the very difficult choice of "reject or accept" and we cannot go for "accept". We encourage you to reject, but we certainly cannot accept it as it is now, for all of the reasons that we have outlined. We have tried to find some language to protect the 7-50 formula. That is what we have put forward. It does have a function and it can serve that function.
Ms Kuptana: Senator Watt, as Inuit we realize that this government may feel compelled to proceed with this piece of ill-advised legislation. As Inuit, we put forward compromise wording which would at least carve out some room for the federal government to be able to speak in its own Parliament, on its own initiative, on matters of overriding national concern or of national importance. That would leave it room in its own Parliament to deal with a constitutional crisis, should it face one.
Let me use an example: If there were a Yes vote in another referendum on sovereignty, Bill C-110 would weaken the ability of the federal government to respond in an effective manner. The federal government should be able to table amendments in its own Parliament, if a situation of this type were to arise. If it does anything else, then we are in serious trouble.
[Translation]
The Chairman: Mr. McKenzie, do you have any comments to make on what has been said so far?
Mr. Armand McKenzie, representing the Innu Nation: Although an aboriginal lawyer, I must confess that I feel like a stranger in this constitutional area. All of the aboriginal chiefs have said they are not constitutional experts. I, however, am interested in constitutional affairs as a lawyer, but as the representative of the Innu Nation of Quebec I feel particularly concerned by Bill C-110, for the following reasons.
We agree with what has been said by the other aboriginal leaders who have come before you. We cannot settle the legal issue inherent in self-determination, self-government through federal measures or policies such as those brought forward by Minister Irwin.
It is my belief that continuing with this, passing Bill C-110, will complicate still further the settlement of the aboriginal peoples of Quebec's constitutional issues, demands or aspirations.
At the present time, as far as policies are concerned, we are experiencing difficulties with recognition of the inherent right to self-government in Quebec, as well as in Newfoundland and Labrador. In our land claim and self-government negotiations, these two provincial governments make no acknowledge whatsoever of the Innu Nation's pre-existing right to govern itself as a people or a nation.
We are already faced with enormous obstacles. If you senators contribute to the passing of this bill, we shall have even more obstacles to contend with. You will prevent my people from seeing their constitutional aspirations fulfilled.
After examining Bill C-110, I agree with Mr. Sinclair's statement that it gives more power to the provinces, particularly in aboriginal rights issues. The federal government is sloughing off its constitutional obligations onto the provinces.
In the process of our negotiations with Quebec, Canada and Newfoundland on land claims and self-government we have become aware of the increasing powers of the provinces. They can object to steps taken by the federal government, for example measures involving recognition of aboriginal land rights or right to self-government.
What I and all the Innu or Montagnais people of Quebec see in Bill C-110 is basically that everyone is helping himself to our land resources and to our powers.
I feel like a stranger in my own country because of this, because the aboriginal peoples are a fundamental element in this country. We are part of this country. What seems to be being said is that aboriginal rights issues will be settled later, or settled in some other way than with notwithstanding clauses.
The true issues are not, however, being addressed: the relationship between Quebec society, the aboriginal peoples and the rest of Canada. The real issues are not being discussed. All that is being done is to offer some hastily put together solutions to meet some few referendum commitments or promises. This will not constitute a successful path to constitutional peace.
The rights of the aboriginal peoples are of fundamental significance to Canadian society. They were included in the supreme law of this country because they are important in the eyes of Canadian society.
Mr. Chairman, I would like to see you address this matter with the respect and importance it merits, bearing in mind that the Crown has a fiduciary obligation, an obligation which it must respect. It must also take care to respect, guarantee and maintain the rights of the aboriginal peoples.
Senator Beaudoin: I understand the aboriginal peoples' concerns. You are from Quebec, and known to me from the University of Ottawa.
Your demand for protection I can understand, and I have no problems with it. However, you are not opposed to Quebec's having a veto on the amendments that concern it.
Mr. McKenzie: The day after the Meech Lake Accord, Premier Bourassa answered an aboriginal leader as follows:
One does not remedy one injustice with a second injustice.
I would turn that same comment back to you. The aspirations of Quebecers cannot be responded to at the expense of the aspirations of the aboriginal peoples. I understand the Quebecers.
Senator Beaudoin: Both things are possible.
Mr. McKenzie: That is precisely what we must try to do. What the leaders are proposing to you is dialogue, a process of inclusion, not exclusion. What you are doing is excluding the aboriginal peoples, although they are a fundamental component of Canadian society, excluding them just like that, time after time, and settling the issue of Quebec's powers and jurisdictions.
I understand that Quebec needs protection for its language, its culture, its historical rights, its privileges, the privileges of the National Assembly. I understand all that; I am from Quebec. I speak French. I understand them.
There are seven million of them demanding protection. Our need is even greater, because we aboriginal peoples need guarantees to protect our languages, our culture, our traditions, our rights and our resources. These important issues seem to be given scant notice.
Right after being elected, the federal government spoke of its desire to address aboriginal issues. However, it seems to be either thumbing its nose at them completely, or settling them hastily and in a piecemeal fashion with policies and measures like the federal policies on the inherent right to self-government. They call it an inherent right, but it is they who define what an inherent right is, on our behalf.
As Mr. Mercredi has said, "it is subverting aboriginal rights," municipalizing our rights. In my capacity as representative of the Innu Nation of Quebec, I believe you must oppose this.
I would make the same comment to Senator Charlie Watt from Kuujjuaq, my neighbour since I am from Shefferville, and to Senator Marchand. They must make sure that aboriginal rights are guaranteed and they must oppose the passing of this measure.
[English]
Senator Carstairs: There are three areas on which I should like some more information. The first is with respect to the constitutional convention which was addressed in some detail by the delegation from Saskatchewan, but also by the Inuit Tapirisat and to some degree also addressed by Chief Mercredi when he quite correctly said that the process in the case of the Charlottetown Accord was right because it was inclusive.
The interesting dilemma with which we, as a committee, are faced is that one would presume that in order to be inclusive, such a convention would have to include all of the provinces as well as the territories and the aboriginal peoples. However, with the exception of British Columbia, none of the provinces have expressed any interest in appearing before us, nor have they expressed in written form their concern that they were left out of this process. I presume that they think it is a bill of the House of Commons and the Senate, and therefore not a constitutional amendment.
I should like you to tell me how inclusive you think is the constitutional convention that was established at Charlottetown.
Mr. Morin: We made clear in our presentation this morning that the substance of the bill is fundamentally flawed in terms of what it is attempting to do, which is to make a constitutional amendment of some sort through the back door. You cannot change the Constitution through the back door; you must do it through established procedures and processes by way of the supreme law of the land, which is the Constitution.
Not only is the substance of the bill flawed, but the approach taken in this particular case is fundamentally flawed as well. The Prime Minister and the federal government are probably well intentioned in this case, and I do not question that, but this particular approach and the way in which they are undertaking to deal with the unity crisis in Canada is probably ill-advised.
With respect to this bill, we took that approach this morning, but we feel that, in the end, the bill will be passed by the federal government without any changes. Nevertheless, we are attempting to state clearly for the public record where we stand on this issue with respect to this bill, and the whole issue of constitutional renewal in Canada. We also hope to create public awareness for our plight and to offer our points of view in terms of how the issue of the renewal of Canada should be dealt with.
I agree with the presentation by the person from Quebec. We must be careful that the actions of the federal government by way of Bill C-110 do not enslave our own thinking in terms of what we should be doing in this country in response to a crisis - and I see some signs of that already. To some extent, the bill has already stifled open dialogue because we are being distracted and are going off on a tangent on technical aspects of Bill C-110 while forgetting about the real issues in this country, such as the issue of Quebec, and the role of aboriginal peoples, as well as a variety of other issues.
This particular process and this kind of debate is frustrating. We tried to appeal to you this morning, not as senators considering Bill C-110 but as parliamentarians, and to the media as well. There must be a fundamental restructuring and renewal of Canada. We have become so afraid of creating a political problem in Quebec or somewhere else, or causing a crisis in the country that we have seized up, closed up, and failed to provide leadership by addressing the real issues of this country.
It is time for us in Canada to renew the country. There must be fundamental restructuring. The federation and the constitution that we have today do not work and do not meet modern-day realities. The main constitutional doctrine that we have in this country is the Constitution Act, 1867, which was passed almost 130 years ago when Canada was made up of Ontario and Quebec and a couple of provinces in the maritimes. Western Canada was not even part of confederation. At that time, we had approximately 3 million people in Canada; today, we have approximately 30 million people. We are a country from coast to coast. New realities are constantly emerging and the demographic trends in our country are continually changing.
I do not like the term "national unity" because it is a negative, reactionary term used to respond to a perceived threat of secession in this country. We must move away from those kinds of terms and talk about the renewal of our country. We must focus on that, and it must be a proactive and positive exercise.
To get directly to your question, Senator Carstairs, the approach that we must take is a "Charlottetown-plus" approach where all of the interests are addressed in a constitutional renewal process, as we attempted with the Charlottetown Accord. The wisdom of that kind of approach was demonstrated by our experience in the 1980s, where we isolated the aboriginal issue in a constitutional context and that approach failed.
There is no compelling political reason for many politicians in this country to say, "We must get back to the constitutional bargaining table to ensure that there is fairness and justice for aboriginal people." Let us be honest: One of the things that always brings us back to the constitutional bargaining table is a crisis in Quebec, and that is what will do it again, unfortunately. We must say, "Let us shed all of those fears and reactions to what is happening in Quebec, and let us show our people in Quebec and in the rest of the country that we are a federation that is flexible and can change over time, and can accommodate all of the interests in the country."
The citizens in this country must also be involved. They are demonstrating that they feel alienated by the political process and by political actors. The aboriginal issue must be on the table, and the citizens must be involved. The Quebec issues must be on the table.
We are increasingly a multicultural society. If you walk around the streets of Vancouver, you will find that in the past 10 years, Vancouver has become an increasingly multicultural society. That is a new emerging reality which is not reflected in the supreme law of the land at the moment. We must bear that in mind.
The federal government, the Prime Minister and the cabinet are charged with the responsibility by the citizens of Canada through the democratic process to provide leadership. Leaders are there to provide leadership.
I have one final point with respect to this matter. The federal government has taken the position that we cannot deal with the Constitution, that it must be put on the back burner, and that we must deal with jobs, employment, and economic prosperity. That approach is wrong. In the real world, that is not how things work. If we have fundamental problems which are threatening to tear the country apart, such as Quebec and aboriginal peoples, how can we focus on creating jobs and economic prosperity? Political renewal and economic prosperity are linked together with our future as a nation, and we must come to grips with this whole issue of renewing the federation. Once we do that and put those fundamental political problems behind us, then we can get on with the real job of creating employment and economic prosperity.
I want to caution you as parliamentarians that we are trying to provide leadership as aboriginal people, and you as parliamentarians must try to provide that same vision and leadership, and so influence the Prime Minister and the federal government to say, "Let us be proactive and positive; let us renew the federation so that the Constitution of Canada reflects the new realities in our country."
Ms Kuptana: How inclusive was the Charlottetown Accord? I am not sure of the intent of the question. However, if you look at the history of the Charlottetown process, you will see that it worked.
Senator Carstairs: That was not my question. My question was: How inclusive was that process, in terms of whatever area it included?
Ms Kuptana: I am getting to that. You just allowed my colleague here to speak for almost 20 minutes.
The process undertaken at Charlottetown was a consensus-building process. Agreement was achieved on complex legal and constitutional issues by 10 provinces, two territories, four aboriginal leaders and a multitude of lawyers. The federal government put forward proposals months in advance so that we could discuss and debate amongst ourselves what was being put forward. Therefore, the Charlottetown Accord process was very inclusive, contrary to what is currently happening in this country. In that regard we need only look to the gun control bill, as well as to this proposal. Where is the inclusion of aboriginal peoples? It is out of the window.
Mr. Coon Come: For my people, gone are the days when our lands were transferred between governments and between companies without our consent. That happened in 1670 and in 1870, as well as in the 1970s. Four times in our history, we can recall when our lands were transferred and deeded out between governments; agreements from which we were excluded. We do not want to repeat that history.
It was not until the early 1980s that aboriginal peoples were directly involved in such discussions, and only because of the legal requirement that the Prime Minister call first ministers conferences. Mr. Sinclair was involved in those discussions, as were most of us. From the time that we were involved, I feel that a precedent has been set. During the process on the Meech Lake Accord, there was a question as to whether or not we should be involved. Eventually, we were involved in the Charlottetown process. That gave us an opportunity to be involved in dealing with the reality of what is happening in Canada.
To me, a special relationship exists right now. When the House of Commons and the Senate approved the James Bay and Northern Quebec Agreement, they agreed that there would be a special relationship with the Cree and the Inuit, once the treaty was approved. At the same time, we are caught by the notion that there are only two founding peoples in this country. You have dealt with the English, and now you must deal with the French, because they want more powers. The reality is that there is a cultural mosaic here in Canada. There are new elements.
We feel that we can come in and distil some of the issues that are arising in Canada. I refer in particular to the development that is happening in northern communities. It is happening in James Bay, with respect to forestry companies which have megaprojects under way. It is happening in Alberta and Saskatchewan. It is happening in relation to the Innu in Labrador.
We are trying to get involved in order to ensure that there is some stability, and so that aboriginal peoples have the right to a say in what happens in their own backyards. We want a forum in which to deal with the day-to-day issues that will affect us so that we can go on with creating jobs, et cetera. We no longer want to come in at the eleventh hour, waving a flag and saying, "What about us?" We want to be involved.
The way in which we have been treated is ironic. What we are asking is to have a greater say in a country of which we are a part. Nobody is talking about secession, or splitting up this country. We want a say in the role that we play as a founding member of this country. What role can we play? We do not want a repeat of the foundations laid by our ancestors, whether they be native or non-native. The times, circumstances and needs have changed. We can make a new approach in the 1990s and say, "This is where we go from here."
If we must refute some of the foundations upon which this country was built, we will do so, but we will do it collectively, with the involvement of the first peoples of this land. In terms of legislation of this nature, we do not want to be called upon at this stage and asked, "Well, what do you think?" That is not good enough. We want to be involved right from the start.
That is the answer to your question. If the aboriginal peoples are involved, then we have something to contribute to this country. Canadians should be able to walk with their heads held high, saying, "We have treated our aboriginal people fairly. We are dealing with them. They are involved in our institutions. They have a form of self-government. They determine their own futures. They have a right to say what happens in their own backyard."
Senator Carstairs: One of the points that all of you have raised is the belief that aboriginal self-government could be achieved by the 7-10-50 formula, and that Bill C-110 adds an additional layer of difficulty beyond that. I would like to know what impact you think sections 38(2) and (3) of the Constitution Act, 1982 have. Those are the sections which allow provinces to opt out of any constitutional amendment if the legislative powers or the proprietary rights of that province have been impacted. In real terms, does that not mean that in order to have self- government across the country you must have almost unanimous consent, if not absolute unanimous consent?
My last question reflects specifically on the Cree resolution, which is identical to the resolution presented by the Federation of Saskatchewan Indian Nations. I want some further explanation as to what you mean by certain words.
The proposed section 2(a) would recognize, affirm or protect the aboriginal peoples and their aboriginal and treaty rights. I have no difficulty with that. However, I do not know what is meant by the other phrase "or other rights and freedoms." What does that encompass?
Mr. Smith: Mr. Chairman, this morning I introduced myself as Haalikqlis, and I did that for a reason. When we talk about self-government for people of aboriginal ancestry, we are talking about a traditional authority which has lasted from century to century, for generations. The only problem with that is that the non-aboriginal government of today, and of yesteryear, do not and did not recognize that authority. Our big houses, our longhouses, our feasts, our potlatches, our ceremonies and our way of governing ourselves are the things that you must recognize. When we talk about traditional authority, we are talking about pre-contact authority, which still exists. The national chief made reference to it earlier. When we talk about self-government, that concept was not developed in 1492, 1867, 1763 or 1982. It is not a new concept. Every person of aboriginal ancestry recognizes that traditional authority.
Haalikqlis in the Kwakiutl territory means something in our nation. It means I am the only person with that name, and it means I have a responsibility to my chiefs and our people within that territory. I also have a responsibility to other First Nations neighbouring the Kwakiutl territory. That responsibility is recognized in the big house, or the House of Commons, or the common house.
Self-government is not a new concept. When we sit here to talk about self-government, we are talking about people of aboriginal ancestry who have citizenship in their own territory. They have a birthright just as every person born in Canada has a birthright to Canada, and all the rights and benefits afforded to that individual.
I do not know if I have added to the complexity of the discussion and the dialogue, but I am certainly sitting back and thinking, who is speaking for the people? Who is listening to the people who are speaking for the people in the communities?
Mr. Coon Come: When we analyze the wording of the non-derogation amendment clause, one of the things we want to ensure - as Senator Beaudoin knows very well, as a constitutional lawyer - is that we may have other rights and freedoms, whether by way of legislation or through rights that are not yet recognized in possible future land claims agreement, whether they are rights we have under the present Charter of Rights and Freedoms, which some of our people embrace, or whether they are other freedoms. It is clear in my mind and in the Sparrow case that rights are not frozen. Rights are evolved. They are developed over time as governments are willing to share and find ways to co-exist with aboriginal peoples. There is room to build without binding ourselves to past laws or ways of dealing with each other. We can move forward. That is what we mean by other rights and freedoms.
This last question is complex. It relates to provinces opting out in areas where they feel they have sole jurisdiction provided under the Constitution, and that the federal government has no business touching those areas, such as in the area of natural resources.
Let us take an example: We can be technical, but let us be realistic. Let us say something practical that the people back home can understand and we can all understand in layman's terminology as seen from the viewpoint of aboriginal people.
I come from Quebec, as you all know. I see trees being cut right now. I see loads of minerals being extracted from Cree lands, and they are being transported right past our communities. I see transmission lines being built for power. Revenues are generated. Yet, I see the federal government saying that it cannot meet its treaty obligations and that it no longer has the money. We know that. The federal government is in debt, and so are the provinces.
What if the federal government cannot live up to its treaty responsibilities? I think my people are willing to look at different approaches, to be creative and innovative, and to say, "The federal government cannot live up to its obligations, so let's find a way." For example, why could we not benefit from the extraction of those natural resources from our lands? The federal government's pot is empty. It is in debt. It cannot meet its obligations. Yet, aboriginal peoples are crying murder because the government is not living up to its commitments and promises, and rightly so because it has no money. We should be able to find mechanisms so that we, too, benefit from the extraction of natural resources from our lands, even though the provinces want to have a say. I am sure we can work something out. We are reasonable.
My people are not stuck on the idea that our agreement is so sacred that it cannot be touched. My people feel we should evolve. Our agreement is a living document which should change with the times. That is how we survive. You do not see me with my bow and arrow; you see me with a suit and tie. That is the reality - we have survived because we have adapted. Yet, we are told to wait.
We will deal with the English in Canada. However, we will deal with the French first. Trust us. We will take care of you.
Senator Marshall: We had a lousy immigration policy, though, did we not?
Mr. Coon Come: I totally agree. Perhaps that is a department we will create.
Ms Kuptana: The issue raised by Senator Carstairs with respect to the opting out of provinces is an issue we had to deal with during the Charlottetown Accord process. A number of legal complexities arise out of this issue from the Inuit viewpoint. It is somewhat of a legal issue, so I would ask our legal advisor to answer Senator Carstairs' question.
Ms Moss: Three points can be made here. First, the opting out provisions did not represent a barrier to agreement during the Charlottetown Accord negotiations. On the other hand, the fact that there was consensus that an inherent right amendment would require the agreement of seven provinces with 50 per cent of the population was an important part of the negotiating dynamic. When aboriginal people succeeded in achieving the agreement of the first seven provinces, that put a lot of pressure on the remaining three. Certainly, aboriginal peoples would not want to lose the few bits of negotiating power they have at a table, and that is certainly a very important one.
Second, even if a province attempted to use the opting out provision, it would affect aboriginal peoples only in the province concerned. It would not block an amendment for the rest of the country. Presumably, if seven provinces are in agreement with an inherent right amendment, they will do everything possible to see it implemented when they go back home.
Third, to use the opting out provision, a province would have to establish that the amendment in question derogates from the legislative powers or proprietary rights of the province. I am sure you could get into an interesting debate here because obviously the inherent right of self-government is conceived and seems to be accepted by this government as recognizing an existing right and existing powers. In recognizing inherent right and inherent legislative powers, you are not taking away from provinces; you are recognizing something that is there already.
Perhaps that helps you with respect to the question of opting out.
Senator Beaudoin: It does, yes.
Senator Murray: There are so many matters about which one would want to ask questions. I know at least one other colleague wants to ask questions, so I will try to organize myself. Let me ask several fairly specific questions first. I will then turn to a couple of general matters.
This morning, the Inuit Tapirisat and others raised the question of the 1997 conference, and it appears that Prime Minister Chrétien intends to call such a conference, although I am not at all sure he is under a constitutional obligation to do so. The provision in question is number 49 of the 1982 act, which says that:
A constitutional conference... shall be convened... within fifteen years after this Part comes into force to review the provisions of this Part.
I think the first ministers have reviewed the provisions of that part in 1987, in 1990, and again in 1992, so arguably it would be open to him not to call the conference at all. They reviewed the provisions of that part quite extensively. In any event, the political reality is that he has indicated that he will call such a conference.
The Inuit Tapirisat have said they would agree to limit the agenda at that conference to the amending formula. They, of course, were staking their position that they wished the aboriginal peoples to be included at that conference. However, they agreed that they would limit the agenda to the amending formula, and postpone other issues until another round.
Do the other aboriginal organizations agree with that position? Chief Mercredi is shaking his head, no.
Mr. Mercredi: The whole reason for being here is to try to persuade you that there is unfinished constitutional business for First Nations. We are arguing that the bill you are considering will not only dampen our hopes but will close the door to that constitutional business being contemplated by future governments, or completed with us.
The argument is this: Do not shut the door on us. In fact, we want you to break it wide open. We want our agenda addressed right now, in tandem with Quebec's concerns; not after, but in tandem. Break it wide open; that is our position.
Obviously, one of the windows that we see is 1997, when the federal government must hold a conference to deal with what the Constitution requires it to do, 15 years after the fact. It is our responsibility as leaders to make sure that our agenda is addressed. However, as First Nations, we do not want to narrow that conference to the amending formula. That does not help us. The amending formula does not resolve our outstanding constitutional issues. It may give us the chance to talk about the idea of consent and our role in providing consent to future constitutional amendments. However, it does not in any way address the outstanding business which needs to be resolved. Consequently, we would not agree with that position.
Senator Murray: I will come back to that in the context of something you said this morning, Chief Mercredi.
Do the other leaders have a view on the Inuit Tapirisat's position?
Mr. Morin: As we pointed out this morning, not only do we agree that there is unfinished constitutional business which the country should attend to as soon as possible by way of a constitutional renewal process, the law is that a constitutional conference be held by April of next year in order to deal with the amending formula. That is from the point of view of the law.
However, aside from saying that there is unfinished constitutional business, meaning that the aboriginal issues must be dealt with in the Constitution, we in the Métis community think that the political realities in the country today are such that you really have no alternative, politically, but to focus on the issue of Quebec, focus on the issue of aboriginal peoples, and many other pressing issues which should be dealt with in a constitutional context. Therefore, in my view, it is the politics rather than the law that will dictate, in the end, when the conference or conferences should be held and what the agenda items will be. Obviously, it is the position of the Métis National Council that there should be conferences as soon as possible, and that there should be a renewal process as soon as possible, a process that will involve Canadians, where we have all interests on the table, including aboriginal interests, and aboriginal representatives should be at the table to negotiate those items, as we have done in the past.
Mr. Coon Come: Right now, actions speak louder than words. Here is the Prime Minister who wants to deal with the problem of Quebec possibly calling another referendum. Twice he had a chance to deal with and involve aboriginal peoples. The first was the motion that he introduced in the house; it excluded aboriginal peoples. The second chance was on his veto bill; he again excluded aboriginal peoples. We come at the last minute.
Instead of talking about an agenda for the first ministers conference, there is still a question of whether aboriginal peoples will be considered as participants in that 1997 conference. It is very clear to me that we, as First Nations, certainly would want to be involved.
As to the issues to be discussed, I think that is internal, and certainly, as we all know, the purpose of calling that meeting is to deal with the amending formula. That is the first step, providing we can get there. I can certainly take an hour, as can Chief Mercredi, to explain some of the issues that we discussed during the process of the Charlottetown Accord. We certainly have issues with which we would like to deal.
Mr. Sinclair: I agree with Chief Coon Come. We are not even sure if we will be there.
The other issue is Canada's existence. There has to be another constitutional round, otherwise this country will not survive. Do not let it die without a fight to keep it alive. In order to fight, however, we must be at the table.
Another thing is very clear: Canada's existence should not depend on the termination of our rights. That is what I am afraid of. I am afraid of the Quebec issue. I can see it coming now with the vetoes. The Quebec issue will be elevated to the point where our rights will be washed away completely to satisfy not only Quebecers but those on the extreme right, and I am worried about that. It is time this country addressed those issues, and that can only be done in a conference where everybody is involved.
Ms Kuptana: Let me explain further what I was saying this morning at the end of my presentation: As you know, the Charlottetown Accord process was a very lengthy constitutional process dealing with a series of very complex constitutional and legal issues. The point I was making this morning is that, in 1997 when the federal government and the provinces get together to discuss the amending formula in a constitutional conference, aboriginal peoples must be there.
After all, what is the amending formula all about? It determines who can participate in constitutional conferences. Rather than having one long process, as occurred with the Charlottetown Accord, what is stopping the federal government from having a series of first ministers conferences on such issues as the amending formula, Senate reform, decentralization, or aboriginal self-government? However, first of all, aboriginal peoples must be there when the leaders of this country determine any amendments to the amending formula.
As I said, what is to be achieved by excluding aboriginal peoples from the 1997 constitutional conference? You tell me. What part of the Canadian Constitution does not apply to aboriginal peoples, and what part of the Canadian Constitution are we not directly affected by? We are affected by the amending formula. Does that clarify what I was stating this morning?
Senator Murray: I wanted to ask the other leaders for their position on that matter. Mr. Sinclair told us this morning that the current general amending formula must be, as he put it, simplified. He was reflecting on our inability, under the present general amending formula, to achieve an amendment on aboriginal self-government, especially in Quebec's absence, as has been the case on three occasions. I am not sure what you mean by "simplifying the general amending formula."
Mr. Sinclair: The constitutional discussions that have occurred since 1982, the time when I was involved, have made things very difficult for us because Quebec would not make any decisions. They may have supported us morally from time to time, but they would not get involved in the talks because they claimed that they were outside Confederation. We had our own arguments that we were outside Confederation and wanted in. We wanted to be a partner in Confederation.
As I look at this amending formula again - and, again I am speaking as a layman, because I have talked to some lawyers on this subject - I am confused about where it is and what it means. Every time you talk about an amending formula, one part does something and one part does something else. I never know which part overrides our rights. It is beginning to look as though all of it overrides our rights.
Bill C-110 gives a veto to others. What happens, for example, with respect to the land claims in British Columbia if the next premier who is elected has stated clearly during his campaign that he will quash the Nishga claims if he is elected? He can veto those claims and Canada can do nothing about it. Someone else has said, "No, they cannot do that. Canada can still act." That leaves us up in the air, and in a great deal of confusion. We will not understand that unless we sit down and simplify things - not only the formula but also a lot of other things.
Senator Murray: That brings me to what I call the Irwin process. I had not intended to get into this, but it was raised today.
Until now, I have been fairly positive in my attitude toward what Mr. Irwin is trying to do. To me, he looks like a minister who is taking the only course which, as a practical matter, is open to him, absent an amendment on self-government. He is to embark on negotiations. We are talking about negotiated self-government matters that are both legislative and administrative in nature, and cover such matters as leadership selection, group membership, the establishment of governing structures, language, culture, religion, education, land, resource and environmental management on aboriginal lands, and a range of powers in areas such as law enforcement and administration, health and social services, policing, housing, taxation, local transportation, and the operation of aboriginal businesses.
Chief Mercredi has pointed out today that aboriginal governments would not be able to pass laws in relation to defence and external relations and the management of national economy, and laws of overriding federal importance such as the Criminal Code would continue to apply, as would the Charter.
The government is not imposing anything on anyone. It takes two, and in some cases three, to negotiate. I was even bold enough to express the opinion that I thought the prospect of entrenching these agreements in the Constitution under section 35 would be a positive step. It was simplistic, perhaps even naive, to think that in a political sense it might help demystify self-government for a lot of people. Where all parties agree, it would be entrenched, but nothing is being imposed. The downside is that it can divide your people and undermine the national leadership. That is the problem, is it not?
Mr. Mercredi: The proposal from which you are reading was rejected by the chiefs' assembly, partly because of how it was developed. How was it developed? It was done in secret by the Minister of Indian and Northern Affairs, without the involvement of chiefs across the country.
How did I find out, and when did I find out about it? I was having lunch with Ethel Blondin in the parliamentary restaurant. I was talking about youth initiatives. The minister happened to walk into the restaurant with some of his constituency members, whom he was taking to lunch. He invited me to sit down with him afterwards, so I agreed to sit down with him. He sent his official to get his six-paged document, which he wanted me to read because he was taking it to cabinet. He wanted me to give him my opinion on it. I looked at it. It was the federal policy on the inherent right. My advice to him was full disclosure before he went to cabinet. I did not give my opinion on the contents of his paper, but he refused that advice.
I believe that his officials were involved in developing that policy, along with, perhaps, some officials from the Department of Fisheries, from Health Canada or from the Deparment of the Environment. I do not know who exactly, but federal bureaucrats drafted that proposal. If you look at the Red Book, in terms of their commitment to recognize the inherent right, they call for a true partnership between us that implies honesty in terms of our dealings. That whole approach was dishonest. That is one of the reasons why it was rejected.
It was also rejected because it does not reflect our thinking. It still reflects the white man's view of the world on the inherent right. That may be why you thought some of its features were positive. You tend to look at the world through your own eyes. We tried to have full participation in drafting the policy so that it would reflect the view that we see through our eyes, too.
We are not so very different from the many people in the province of Quebec who do not feel that they are being understood. We do not feel we are being understood, either.
In part, we do not even have the constitutional powers that a province has to impose on others our own image of ourselves, as the Quebec government can do. We cannot do that. We are more susceptible and more vulnerable to unilateral decisions by government bureaucrats and ministers. There is a trail of tears there, composed of all kinds of injustices that have been brought to the attention of government from time to time. You have seen that in your time as a cabinet minister, and also as a senator.
That policy reflects a point of view of people who believe that Indians should fit into the federal system of government. We have never consented to the federal system of government. That point of view also reflects the idea that the provinces must be involved in all negotiations.
Senator Murray: Yes, where their interests are affected.
Mr. Mercredi: Where are provincial interests ever not affected? Is that not the great debate consuming Canada right now? The provinces are saying, "We have it. Recognize what we have, but we want more. Let the federal government disappear."
This whole move to decentralization is not our image of self-government either. The government's idea is that the source of our rights is whatever they are prepared to give us. That is not the process we want.
In the Charlottetown Accord, the process was that our distinct order of government would be recognized and constitutionally protected as with any other order of government; not an inferior order of government to that of the provinces or the federal government, but as a distinct order from theirs.
Another feature of the Charlottetown Accord was that we would negotiate powers in good faith, and if there was no agreement at the end of five years resulting from that process, the rights of self-government would be justiciable. They could be legally enforced in the courts. It would be up to the courts to define that term if there was a conflict in terms of the exercise of powers.
Mr. Irwin completely ignores that precedent, and takes us back prior to the Charlottetown Accord. He takes us back to a policy that has existed in his department for years called community-based self-government. The foundation of that policy is wrong; that is why it was rejected. It sounds interesting and positive, and the list seems long. However, the list is not long because it excludes certain things that the Charlottetown Accord did not exclude.
The effort was made by Premier Wells, the last premier to agree to Charlottetown, to diminish the subject-matters for negotiation. His proposal to us, which was rejected summarily, was that we provide a negative list of things we could never do as Indian governments, and that they would recognize the rest in the Constitution. We said that we would not do that, but he provided us with a list. His list was so exhaustive that we found ourselves with nothing to do.
Premier Wells and Ron Irwin have the same attitude toward Indian self-government. Irwin's policy is to say that the federal government will negotiate with us powers such as housing, education and health. Those are things integral to our culture, so why should we negotiate them? He then gives us another list which we must negotiate with the provinces: forestry, mining and so on. He provides still another list of what we can never negotiate, such as trade and commerce.
If we go along with Irwin's policy, our people will never have our own trade mission to any country to promote our products, such as the mission from which the Prime Minister has just returned. I believe that that is wrong. You cannot tell another society that they have no business dealing with their own economy, their land and their resources. That is the mindset that we beat down during the Charlottetown process. Many of the people here were involved in that process, and it took us a long time to get a consensus.
Senator Murray: The Charlottetown Accord failed, however.
Mr. Mercredi: Yes, the Charlottetown Accord indeed failed, and the Liberals came into power and put us back to where we were before the Charlottetown Accord was negotiated.
Senator Murray: We can all give a different explanation for why the Charlottetown Accord failed, and most of them would have some validity. There are two issues which I think sank the Charlottetown Accord. One is the inherent right. Even with the descriptions which were there, which you have just mentioned and which I supported, it is no coincidence that the biggest defeat of that process was in British Columbia, where so many of your people live. That is not to say that your people overwhelmingly voted against it, although there is some evidence that there was a majority against it. However, British Columbians voted against it.
The second issue was the guarantee of 25 per cent of the seats in the House of Commons to Quebec in perpetuity, which is very hard to sell with regard to an institution which is supposed to exist on representation by population.
Although I presume that the answer to my question is yes, I will pose it anyway: Are you opposed, in principle, to entrenching self-government agreements under section 35 of the Constitution until the inherent right is recognized in the Constitution?
Mr. Mercredi: In principle, if the full nature of the right were reflected under the policy, it should be possible to protect the right through agreements under section 35 by having them constitutionally protected as treaties.
With regard to our existing treaties, those made before and after Confederation, such as Treaty 5, which is my treaty, our understanding is that they confirmed our nationhood, our sovereignty and our self-government. The understanding of the Crown, however, is that we surrendered our lands and resources, so we are miles apart in interpretation.
In principle, it should be possible to implement our existing right to self-government through the existing treaties, but there are presently no provisions for that move.
The only policy approach available to us is the one I just described to you, which we rejected. We cannot just accept the policy statement of a bureaucrat that the government will act as if we have the existing right recognized in the Constitution. That is not good enough for us, just as distinct society by emotion will not be good enough in the province of Quebec.
Senator Murray: I do not much like the bill, for reasons which I explained when I spoke on it in the Senate. Those drafts for amendments which have been provided will be considered very seriously. All of our options are open. No one has taken any decisions on what we will do about the bill.
I want to take some time to go into the background of the bill, which you know very well because you have been involved in all these issues for so long. The background of the bill is that the Prime Minister made a commitment to Quebecers, as he describes it, that the federal government would not proceed with constitutional amendments affecting Quebec without Quebec's consent. He did that in the course of a referendum campaign. He did it, conscious of the fact that Quebec had not given its political consent to the 1982 Constitution, and that Quebec was opposed to the amending formula and concerned that amendments would be made affecting its interests without its consent.
He made that commitment. Leave aside the way in which the government is implementing that commitment through Bill C-110. He made the commitment to Quebec that the government would not proceed with constitutional amendments affecting their interests without their consent.
Knowing as you do the history of this federation, recent and not so recent, and knowing what you know about the circumstances, do you think that was a right and proper commitment for the Prime Minister of Canada to have made? You understand the political situation of the country as well as anyone.
Mr. Mercredi: This is a question that should be answered by all the leaders.
My view is that when it comes to rights which have been acknowledged at one time in the past, then they should be protected. This means that the veto which Quebec lost should be restored. The same should apply to the First Nations. Whatever rights we had that were taken away by legislation or the conduct of the Crown through its officials or bureaucrats, should be restored.
I do not think it was a mistake to try to address that issue by saying to the province of Quebec, "You had this constitutional right at one time. It is part of the deal we made in 1867. It should be respected, and we should begin a new relationship from here." However, when it comes to us, do not forget that we were not there in 1867. No one invited us to that table. John A. Macdonald did not even think about us - or perhaps he did, which is why we were not there. The fact remains, we were not there. Had we been there, then obviously there would have been something for us, too. That, too, would have evolved over the last 127 years into something else.
The federal structure that was put in place started with an empty shell. It has evolved into what it is now. As a result of that evolution, provinces have benefitted dramatically in terms of generating wealth, but also in terms of the quality of life of their citizens. Our people have suffered under Confederation. That must be taken into account by the Prime Minister when he makes promises and offers. He must acknowledge that, in the past, our people suffered dramatically under the federal system. In terms of whatever offers he makes, he must be sensitive to our views. He did not do that with this bill. In fact, he was so generous - perhaps because of the Christmas spirit - he gave the veto to three regions which never asked for it. Allan Rock gave it to another region because some people from there complained about not having one.
We do not have your power. The government would not listen to us at any rate, but they have to listen to you. If they do not, the whole of democratic society, its institutions and the integrity of those institutions, comes into question.
This is a chance for the Senate to set the record straight. You can address Quebec, but you must also address First Nations. The two are not necessarily mutually exclusive in terms of results. The Charlottetown Accord process is proof that we can come up with a consensus position with respect to issues on which we were once miles apart. However, this bill is also proof that any unilateral action taken by the government will result in division in the country.
You were involved in constitutional reform. You were an architect of the Meech Lake Accord. We asked for the ability to participate, something which was refused. You know the result. It was ultimately defeated because it lacked respect for the aboriginal people and for their rights.
Here is a Prime Minister passing to you a bill which, in effect, does the same thing. We should learn from history and say to the Prime Minister, "We have made mistakes in our dealings with the First Nations. Why repeat them?"
Senator Murray: There has been the loss of the Meech Lake Accord and the Charlottetown Accord. The fact is that the existence of the federation is hanging by a thread today. The one issue which threatens to break up the federation imminently is Quebec's place in that federation. The fact that we have lost all of those other accords has not brought the prospect of an amendment on aboriginal self-government any closer. It has been to the contrary.
I want the other leaders to have the opportunity to respond to the question I put to you. I have said that I would have been willing to support a bill that did nothing more than respect the Prime Minister's commitment to Quebec. Since Quebec already has the right to opt out of amendments under section 38, as does every province, that would mean that the 7-50 formula could not be used to take Senate or Supreme Court seats away from Quebec. Nor could it be used to create provinces.
I would have been willing to settle for a bill, a resolution, or even a policy statement that implemented the Prime Minister's commitment to Quebec without reopening all these regional formulas, and so forth.
I want to ask the other leaders whether they think the Prime Minister's commitment - never mind Bill C-110 - was the right and proper thing to do.
Mr. Sinclair: I cannot help but address some of the other comments that you made, senator, in leading up to your question. You talked about why both the Meech Lake Accord and the Charlottetown Accord failed, and what we lost. I firmly believe that we did not lose anything. I have always been a fighter for land and resources. I do not believe the existence of our people will be recognized until we can hold our own, share some of those resources and own some of those lands which are rightfully ours. We can go no other place. We are not in a revolution, nor are we going to war, although some of our people are dying for those lands right now.
The people of this country must recognize that land and resources are the key to any economy. The only grounds that we own today are the graveyards and the prisons. People from the right wing argue with me about the fact that prisons are more elaborate and better to live in right now than some of the schools attended by our children. I have to agree with them. Part of your guilt complex in trying to show us that you really care for us is building those kinds of prisons. However, you will not spend that money on education. Like the chief said, you are spending that money on ways and means that you think are necessary to keep us under control. Your failures are as a result of the fact that you have not recognized that we have ownership of land and resources.
I will applaud anyone who makes an effort to keep this country together. The Prime Minister's intentions are probably right. However, you cannot give something to someone at the expense of others. If you are giving vetoes to others, that amounts to more power. Chief Coon Come mentioned that someone has to pay for that power. It is us who will pay. It prevents us from reaching any agreements.
You asked about the entrenchment of land claims that we make being protected by the Constitution. I believe they should be protected. I am a strong believer in that. There are arguments that some make weak deals while others make better deals. As long as our people are happy with the region in which they live and where they are making their claim, and if there is a democratic process and they say the deal is fair, then it should be constitutionalized.
I do not think we should hold anyone back from making progress. That seems to be part of the government's problem: They seem to want to ensure that there are bits and pieces here and there.
You hear about big money going somewhere while someone else in another community is starving. That is not the way to go about self-government. That is someone saying, "I will give $25 million to this community, and they will do great things with it." In the next community, people are hungry. That is not the way to do it.
We must carry our own burden and our own share. In order to do that - I said it this morning and I will say it again - we must look at the GNP of this country, and, based on our population, we should get our share of that. We will see how we spend it. I guarantee you that you will see less prisons. You will not see the gaols you see now because we cannot waste our money on prisons, and we cannot waste our money on welfare institutions.
This rise of the right wing bothers me. Right now, all the governments are on the right, and no one is on the left any longer. The extreme right is telling us that we are all equal and nobody should have everything. After you point a gun to our head, take all our land, take all our resources, you then say everyone is equal. That is how you get it, and how you got rich off us.
We are asking for a fair, level playing field, and that is all we are asking. In order to reach that agreement, we must have dialogue, dialogue, dialogue. The people today who are most militant are the young people who have no jobs and nothing to look forward to in the future, and the elders who have worked so hard over the years and ended up with nothing but a welfare cheque. They are going to the front lines of the demonstrations and the occupations. There is no middle class amongst us to look after those people. We are stuck in a world where we have no way of supporting ourselves.
Mr. Coon Come: I wish to make a comment in reference to the Charlottetown Accord and why it failed. I feel the two initiatives with which we are presently dealing are integrated. The distinct society clause was part of the Charlottetown Accord. That accord failed. Now you are taking that issue and pushing it, despite the fact that the Charlottetown Accord failed. You are taking the distinct society clause and pushing it, but ignoring aboriginal rights.
At the same time, you are taking up another issue, the veto. The veto was rejected in 1971 in the Victoria agreement. That is an initiative that also failed. Still, you are taking that issue and you are pushing it. Both of these issues have failed in the past. There was a traditional Quebec demand for the veto. In 1971, that was rejected, and you are still pushing it, despite the fact that it failed.
You are ignoring aboriginal concerns and issues. You are pushing off the aboriginal rights, as if we do not matter. "Trust us; you are protected under section 35," we are told. "We will take care of you later."
I would comment on the question of the Prime Minister's commitment. The Prime Minister almost lost this country. He came in at the last moment, desperate. He did not have a Plan B. At a moment when he could have lost the country, he made certain promises and commitments which were not his to make, on the backs of aboriginal peoples. He is willing to give away jurisdiction that is not his to give, just to fulfil the promise that he made to the people of Quebec.
Senator Murray: Are you talking about the manpower and training?
Mr. Coon Come: I am talking about the vetoes that you are giving to other provinces under Bill C-110 which are tying the hands of the federal government.
At the same time, he is altering the balance of power. That is not his decision to make. There is no balance for what we are suggesting, a non-derogation clause. You are altering that balance.
The Prime Minister made the commitment on the assumption and in the context that the rule of law would be maintained. The separatists are not willing to use the rule of law. They will only use it once they have seceded from Canada. They are assuming that the context of the rule of law will be upheld. Will Canada, the Parliament, uphold the present rule of law? That is the question that needs to be answered.
Senator Murray: This is not the question I wanted answered, but perhaps the witnesses might reflect on it and reply with a "yes" or a "no".
Do you accept the interpretation of Gordon Robertson that the secession of any province, as matters now stand according to the current constitution, can only be done with the unanimous consent of the Parliament and the 10 provinces? Do you agree with that interpretation?
Chief Mercredi has talked about discussing aboriginal issues and the Quebec problem, as he puts it, in tandem. Both here and when he appeared before the House of Commons committee, he said, "Why are you changing the rules for amending the Constitution prior to concluding the outstanding constitutional business already begun with us?" Is it your position that you will oppose any constitutional resolution or amendments designed to obtain Quebec's consent to the Constitution unless and until the constitutional aspirations of the aboriginal peoples are fulfilled to your satisfaction?
Mr. Mercredi: This was the argument for the Meech Lake Accord; it was the argument put forward at Charlottetown. "What right do you, as First Nations, have to demand to be involved when we have this important business with Quebec?" The last comment that was made by Grand Chief Matthew Coon Come is that you cannot improve the nation and you cannot build unity in this country if you trample upon the rights of others on the road to improving unity.
The current effort of the Government of Canada steps on the First Nations in an effort to retain unity with Quebec. That is why you are getting the reaction you are getting from us today. We thought, and we believed, that in the past few years we had created some conventions on how we should relate to each other. One of them is that we have to be involved as full partners in any structural change to Canada.
The belief on our side is that Quebec does not need to be afraid of our presence because our presence is about human rights and selective rights. Our participation in terms of restructuring Canada would be, in effect, to try to build a better society for all concerned, but particularly for our people because our mandate is to represent their interests. However, we cannot represent ourselves if we are not part of the process.
Our submission has always been that we should have a process that is inclusive. You cannot deal with national unity and the place of Quebec without addressing the rights of the First Nations in the province of Quebec. That is the message. They are also saying that if secession becomes a reality, we have a role to play in deciding what will happen.
Senator Murray: I am not talking about secession, chief.
Mr. Mercredi: I know you are not, but the only option the government is giving us is to talk about secession. Since we are not part of the loop and the discussion, we fear secession. The answer to unity will not be found by dealing only with the concerns of one province at our exclusion.
Look at what happened last summer. Do you think Canadian unity with Quebec will stop some people from picking up a gun? I do not think so. The sooner white politicians appreciate that the level of anger out there is beyond the control of everyone, and that anger is directed towards society in general, only then can they begin to address the issues which we say we must address together.
Let me tell you something: At Gustafsen Lake, when I went inside to talk to our people and counsel non-violence, what did they say to me? They said, "You have failed. You have not been able to produce any changes for Indian people. Your way does not work. This is the only chance for change." They said to me, "Do you want to be a great Indian leader? Pick up a gun and stand with us, because that is the only hope we have."
I said to them, "Look, we have not exhausted all the processes. We must maintain our traditions as a people for non-violence. That is a part of our tradition." Their response was, "All Indian leaders are sell-outs; you included." They said to me, "You are nothing but a waterboy for the white man."
Think about it. I do not know how pervasive that attitude is, but I have travelled a lot across this country. I have seen army fatigues in virtually every community. I am saying to you that there is a real danger here. While you may have a united country with Quebec in place, if you do not address our needs there will not be any peace. It will not be because of me; I will not be around. I will be replaced. Whoever replaces people like myself will not be gentle or kind. They will not believe in the constitutional process. They will believe in direct, violent confrontation. That is the option I am trying to avoid. That is the option that Matthew Coon Come does not want to see in the province of Quebec.
What do we get from the Government of Canada? A slap across the face as if we do not exist. That is the issue. That is what I am saying to you.
What powers do you have as a Senate? What powers do you have to prevent the break-up of this country? Whatever powers you have, use them to help us. Now is the time to act. Now is the time to say to your Prime Minister, "Look, your approach is dead wrong, so let us try something different. Let us build a country where everyone feels welcome, invited and a full partner before it is too late."
I do not know what to expect this summer. I am afraid of this summer. I am afraid for two reasons: When I was at Gustafsen Lake, I saw the willingness of a province to use force against the Indian people, and I did not like it. I saw a federal government that did not want to take any responsibility for what happened at Gustafsen Lake, and I did not like that. My efforts to find a peaceful resolution of the situation at Gustafsen Lake were characterized by the provincial government there as a failure. Because I failed, they said let the police deal with it.
I do not want the police killing my people either, yet they killed one in Ontario. I do not want to see that this summer, but I do not have the answers, either. I cannot convince someone who has already given up on the system to give it one more chance. I cannot. However, perhaps we can dissuade the rest, the majority. Perhaps we can dissuade them by doing something constructive together. It will not be productive for myself, Matthew Coon Come and other Indian leaders and aboriginal leaders to say to you, "What you are doing is wrong." All that does is convey the impression that Indian leaders have failed, and that they cannot convince their counterparts to do something constructive. It gives more ammunition to the alternative course of action.
Senators, I appeal to you. I do not have your power, but I can tell you what I saw; I can tell you what I am afraid of; and I can ask you to help us.
Senator De Bané: First, I would like to say to Chief Coon Come that when he said that Quebec rejected the veto in 1971, his recounting of history is not accurate. The reason the veto was rejected was that it was not enough. Quebec wanted more. It was not rejected because a veto was on the table. It was offered to Quebec forever. It was set out in the Victoria agreement that any province with 25 per cent of the population would have a veto forever.
Senator Murray has given his interpretation on the demise of the Charlottetown Accord. My own interpretation is that in this country, if you want to achieve and attain results, you should try as much as possible to avoid amending the Constitution, number one. Number two, if you have to amend the Constitution, restrict yourself to one item at a time. If you take on too many, you will fail.
That is my conclusion as to what has happened throughout the history of Canada with regard to amending the Constitution. If you restrict yourself to one topic at a time, you might succeed.
However, you have said something, Chief Mercredi, which really was very sad. You said, "The government does not have to listen to us. It has to listen to you, senators, but not to us." I firmly believe that if we want to live in peace, and to live together, the government had better listen to everybody in this country. You were the first inhabitants of this country, and you must be convinced that the government will listen to you and not just through senators.
As to the heart of the issue, you have said that you have no quarrel with giving rights to Quebec, no problem with that; but that it should not be at the price of stepping on the rights of the first peoples of this country.
Chief Mercredi, I submit respectfully that you do not have an accurate interpretation of this bill.
To conclude, I would like to quote to you the interpretation of this legislation as it affects aboriginal peoples, as presented to us by the Minister of Justice:
First, to the degree to which the bill fails to express their aspirations for constitutional change generally, I emphasize that it is not intended for that purpose. They are being addressed in a different way. The government has adopted as a policy on which it is proceeding the assumption that the inherent right to self-government is already a fact and enshrined in the Constitution. We are now at work negotiating its implementation as a practical matter in aboriginal communities across the country.
Second, if the concern is that the effect of the bill is to exclude aboriginal peoples from the amendment process, I emphasize that Bill C-110 not only does not weaken but does not touch at all the significant protections that are already in the Constitution in sections 35 and 35.1 to provide assured protection for the aboriginal perspective.
Section 35(1) requires that Canada's aboriginal peoples be consulted concerning any amendment to section 91.24 or to section 25 or to Part II of the 1982 Constitution Act.
Then the minister added the following:
May I ask the committee to bear in mind as well two other matters. First, Bill C-110 ensures that amendments which would diminish aboriginal rights can themselves not be adopted except with the very regional consensus provided for in Bill C-110.
His conclusion, and I am quoting:
So it furnishes additional protection.
His second and last remark is the following:
...as the nation works towards a more durable enhancement of the amending formula in the months and years ahead, the aboriginal peoples will participate in that process, and nothing in Bill C-110 inhibits the federal government or any others from initiating, promoting, and participating in that process of discussion with the aboriginal peoples.
So regarding the heart of the issue, where you say that you have no problem with giving rights to Quebec, and ask that they not trample on your rights if that is the price of it, I am telling you here that it is the firm belief of the government that while this bill does not answer the aspirations of aboriginal people - that is not its intent - it in no way fetters, infringes or constrains the rights of aboriginal people.
I beg you to accept the idea that we are dealing now with one issue, and hopefully, in the next round, we will deal exclusively with your issues, because, as you have said, it is still a tragedy to be born aboriginal in North America today. That must be dealt with.
To say that we should deal with this issue but that we should also deal with other issues at the same time begs the response that we have tried that before unsuccessfully. It may be the ideal solution, but in this round, we must deal with one issue at a time and, hopefully, the next round will deal exclusively with the issues of your peoples.
Ms Kuptana: I understand that you have been interpreting our aspirations as Inuit and as other aboriginal peoples in this country. I want to state for the record very clearly that national unity is part of the Inuit aspiration. Aboriginal self-government is not our only agenda.
We have stated clearly that the Inuit in Northern Quebec wish to remain in Canada. Clearly, this bill fails to address our concerns.
Earlier today, I stated that this bill will weaken the federal government's ability to respond effectively to a Yes vote. The federal government should at least be able to introduce amendments in its own Parliament, if this situation occurs, without first seeking the approval of a separatist government in Quebec.
Before I continue, Mr. Chairman, I would like to address Senator Murray's question. That is, should the Prime Minister have made the veto commitment to Quebec and should the veto be limited to matters directly affecting Quebec's interests as a province? That challenge, presented by the national unity crisis, involves more than simply providing a constitutional platform to respond to Quebecers. There is another side to this whole equation, another area where I think the federal government must respond and prepare a strategy. It must have a contingency plan to fight any attempt at secession, to pre-empt any effort at a unilateral declaration of independence.
In that regard, even if the federal government feels that it has met its commitment to Quebec, it does not preclude the possibility that a Quebec separatist government may proceed to put sovereignty to another vote.
There are not many people outside of the federal government who believe that Bill C-110 and responses to other Quebec issues, such as the distinct society resolution, will be regarded in Quebec as satisfactory responses.
Senator Murray: No. There would have to be a constitutional resolution of the issues.
Ms Kuptana: You have had presentations from Mr. Tremblay on this very question. I want to point out here that as Inuit, we do not feel that any measures creating multiple vetoes will answer Quebec's constitutional concerns, or anyone else's for that matter.
We heard from the Government of British Columbia and the Government of the Northwest Territories, which feel exactly the same way we do. This is no way to build a country.
Mr. Mercredi: There are no practical agreements being made right now anywhere in the country. I suggest you ask the minister to give you a list of the people negotiating those practical agreements that he told you are taking place right now. If you have listened to what I told you, that policy has been rejected. In fact, that policy is putting in jeopardy the dismantling process in the province of Manitoba, where the chiefs were promised, when they signed the agreement, that it would be business as usual. Without their knowledge, the government was preparing this policy statement that would apply to the negotiations on dismantling, a policy statement that the Assembly of Manitoba Chiefs rejected.
Where is Mr. Rock getting his information? Who is negotiating under that policy which has been rejected by us? To my knowledge, there is no one. Ask him to give you a list.
The other issue he raised with you is this: He said, "We will invite them to the amending formula meeting in 1997." That does not address the issue of the vetoes. We fully expect to be there in 1997, and we will be very surprised if we are not invited to that meeting. We have all said that. However, just being told by the Minister of Justice that we will be there in 1997 does not solve the problem of the bill. The bill is building inflexibility into the constitutional amending processes which exist.
I will not repeat all of our arguments. The Minister of Justice is being creative, but he is very misinformed. If that is one of the arguments that he is making to cause you to think that you should support the bill, then you must get to the truth. Tell him to give you the list. Before you believe him, say, "Show me the list. If there is any chief or community involved there, I want to check with them to see if they agree that they should be placed on that list."
Senator St. Germain: My question is brief because it has pretty well been answered by Ms Kuptana. If as a result of the Prime Minister's promises to Quebecers the vetoes that are necessary for what are viewed as the traditional requirements for Quebec had been presented by way of legislation and if no vetoes had been given to any other province - that is, just the vetoes that apply to Quebec - you sort of indicated that it would not be a problem. Do you have a position on this, Grand Chief Mercredi?
I do not want to put you on the spot. We are trying to deal with a situation where the Prime Minister, in an act of desperation, made a promise and is now trying to deal his way out of it the best way he can. I am concerned about the unity of the country, for the sake of the northern Cree of Quebec and for everyone else. Basically, we are looking for a solution to the problem, rather than throwing sticks in the spokes and creating another situation to give ammunition to the separatists. That is the last thing I want you to do. I ask you this question not to try to entrap you, but in good faith.
Mr. Coon Come: Perhaps we should let the Prime Minister hang himself. He made the commitment. We can then take the time to think it out. It was an ill-conceived reaction to what was happening. He is coming in at the eleventh hour waving a flag and saying, "Make me these irrational commitments." We are caught here and you are trying to defend your Prime Minister.
Senator St. Germain: He is not my Prime Minister, he is our Prime Minister.
Mr. Coon Come: If what Allan Rock is saying is true, namely, that the present bill will not derogate any aboriginal rights presently within the Constitution under section 35 and that it is not their intention to hurt us, then make it clear. Why not include it? That is our non-derogation clause. Let us clarify it so that there is no ambiguity. If it does not hurt us and it is not their intention to do so, then why not put in that non-derogation clause for clarity and leave it at that?
At the same time, the present bill makes it easier for the secessionists in Quebec to break up the country. This bill constrains the federal government from tabling some constitutional initiatives to protect aboriginal rights, for example, those of the Cree and the aboriginal people in the context of Quebec's secession. They are tying their hands.
By continuing to refuse to assert the territorial integrity of Quebec or to adopt legislation that would safeguard aboriginal rights, or Cree rights, or First Nation rights, the Government of Canada is making it easy for those separatists to continue what they are doing. They are tying their own hands.
Here is a First Nation group challenging the federal government to uphold the highest law of the land, even daring to ask that the federal government declare that it will uphold its fiduciary responsibilities in the event that Quebec secedes from Canada. They are exercising their fiduciary constitutional responsibilities in the event Quebec were to leave, which, unfortunately, is their choice. Send that message.
At the moment, you are providing too much room. You are not taking it in the context of what Quebec will do. The federal government is tying their own hands. There is no assurance that the aboriginal peoples who exercise their right to express their wish to choose to remain with Canada will be able to do so. What will Canada do? Canada can do something now before the country is split up. What will they do now to send a message to the aboriginal peoples in Quebec? Whatever you do as a government in that special relationship that you have with aboriginal peoples, that treaty relationship that you have with aboriginal peoples in Quebec, will send a strong message to the aboriginal peoples and to the Inuit right across Canada. They now see in the present motion that aboriginal peoples are excluded. You are giving more ammunition to Quebec, which they will use against you because they are now a people of Quebec. You have given them another veto. They will use it again. They are smiling. You know that.
Senator Watt: Chief Coon Come, we are not sure whether they know that. I think that you are here to try to educate them about what will happen. I am not sure that the government and the politicians know that.
Senator Marchand: What Chief Coon Come is saying is true. He and I come from the same territory. One of the concerns of Inuit and Cree living in that territory is what will happen if the Government of Canada should give the veto to the provincial government. The provincial government will be empowered to prevent the federal government from taking unilateral action in any shape or form related to constitutional amendment. I believe that the purpose of the presentations that were made here today was to minimize the impact of this bill on the aboriginal people of the entire country. Our national government is being placed in a straitjacket. There is no doubt in my mind about that.
After that veto has been given to the provincial government, if the Government of Canada wants to work out arrangements with particular groups such as the Inuit or Cree to take care, once and for all, of the 1898-1912 Extension Act, the Government of Canada will need to get consent from the provincial government.
Second, the umbrella legislation that enacted the James Bay and Northern Quebec Agreement, effectively tied the hands of the two governments as much as was possible at the time. When we were dealing with the modern claims settlement, the Constitution was not the issue. The best we could do was produce the umbrella legislation to tie the hands of the provincial and federal governments.
On one hand, separatists have been saying that our rights are extinguished. However, if they do not honour their commitments as stipulated within the law, does the extinguishment continue to apply? It does not. I believe that the extinguishment applied only to the territory and not to the well-being of the people.
Let me go a step further: With regard to the Inuit and the James Bay and Northern Quebec Agreement, we have a governing structure in place. Although the government of Quebec would like to call it an extension of the provincial government, it is more than that because there are certain ethnic components built into that governing structure. That governing structure has not only administrative responsibility but a certain amount of jurisdiction above the 53rd parallel. That is on all fours with the 1912 Extension Act.
I attended a meeting in the north a few days ago with various interest groups that were established in 1975. Every one of the people who have responsibility to implement those agreements are worried about what the provincial governments will do to us in the future if the government of Canada gives them the veto.
Another concern of mine is with regard to the amending formula which existed before 1982. Under that formula, one or two provinces could make deals with the federal government providing it did not affect the other provinces. What has happened to that amending formula? Does it still exist?
Senator Beaudoin: If Ottawa were in a very difficult situation, it could do nothing. Because of Bill C-110, it has abdicated its power to five regions. The only thing Canada could do is ignore Bill C-110 and present the resolution.
If that goes before the Supreme Court, the Supreme Court will say that the Constitution is paramount, and the resolution adopted by the Parliament of Canada under the Constitution will discard very easily Bill C-110, because it is an ordinary statute which is contradictory to the Constitution. It is very simple.
Senator Watt: Are you saying, senator, that we are going through this exercise for the sake of going through it? Whether directly or indirectly, this legislation will have an impact on the Constitution.
Senator Beaudoin: I said that on the first morning of these hearings, and all the experts agree with that. Show me one expert who has disagreed with that. No expert has said that if there is a conflict between the Constitution of Canada and Bill C-110, Bill C-110 will prevail. Of course it will not.
Mr. Coon Come: Senator Beaudoin, if Bill C-110 has no effect and can be repealed, why enact it?
Senator Beaudoin: Well, it is not my bill.
Senator Watt: Senator Beaudoin is telling us that if we have a great deal of trouble with this bill, we can take it to court and it will not stand.
Senator Beaudoin: Bill C-110 may work for one year, or perhaps for two years, but I believe that it can only be transitory, lasting only until we find the formula for amendment and entrench it in the Constitution.
Senator Watt: What will happen to the aboriginal people during that process?
Senator Beaudoin: Perhaps nothing will happen. That depends upon what kind of amendment is on the table.
Mr. Coon Come: If it is agreed that it will not hurt us and nothing will happen, then let us have the non-derogation clause.
Senator Beaudoin: You must remember that it is a legislative veto. The government of this country wants to be quite sure that in certain cases Quebec or another province will be protected. It cannot be more than that. If it is more than that, it is obviously against the Constitution.
Senator Marchand: Colleagues, it is not often that I am given the last word. I first want to thank all of the presenters from the aboriginal peoples. I purposely did not ask many questions. Sometimes it is good to sit back and listen.
Chief Mercredi and Mr. Sinclair specifically requested that Senator Watt and I do something about this matter. I want to tell you that we hear and that we do fight on your behalf, although we do not always win.
I was not going to talk about this. However, when Chief Mercredi talked about Gustafsen Lake, he got rather emotional. I understood what he meant when he said that he was being rejected by some of our own people. That is what sometimes happens to us as parliamentarians. I know it has happened to me as an elected parliamentarian.
I have been at this game for quite awhile. I have been called a few names myself. You were called a water boy. I have been called a shoe-shine boy, an apple and a sell-out. These names hurt; and they are not helpful. However, that is the nature of the beast. If you cannot stand the heat, then get out of the kitchen. I want to assure you that we have heard you all loud and clear. We are here to do some fighting on your behalf.
The Chairman: Honourable senators, on your behalf, I should like to thank the witnesses who have appeared today.
The committee adjourned.