Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 31 - Evidence, May 30, 2002
OTTAWA, Thursday, May 30, 2002
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 10, respecting the national marine conservation areas of Canada, met this day at 10:09 a.m. to give consideration to the bill.
Senator Nicholas W. Taylor (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have gone through Bill C-10, but there is a problem with the non- derogation clause as far as the Aboriginal group is concerned.
What we have to do today is listen to the Department of Justice officials, who are primarily responsible for the non- derogation clause that has been included.
We also have a letter from the Minister of Justice to the Honourable Willy Adams, in reply to a letter he sent to the minister, co-signed by Senator Sibbeston, Senator Watt, Senator Chalifoux and Senator Gill.
Witnesses, do you have the letter?
Mr. William Pentney, Deputy Head, Aboriginal Affairs Portfolio, Department of Justice: Mr. Chairman, with me here today is Charles Price, senior counsel in the Aboriginal law and strategic initiatives area of our portfolio.
As the chair has indicated, we understand there have been some concerns, and our minister has written to indicate he is certainly aware of, and takes seriously, the concerns about non-derogation clauses and that he is prepared to look into the relationship between the current state of the law and such clauses.
It might be helpful for us to step back from this proposed legislation and speak a little about the history of non- derogation clauses. One of the issues that was raised in the letter, and discussed in respect of other legislation, is that there is no common form of non-derogation clause existing in federal legislation. However, there are a couple of models.
The non-derogation clause in the bill before you has been used in a number of federal statutes, and is currently considered to be the wording that best reflects the intention of the government in regard to these types of clauses. Having said that, we recognize that other wording was used in earlier statutes.
These types of clauses have been included in a number of statutes since the enactment of section 35 of the Constitution Act, 1982. At the same time, section 25 of the Charter of Rights was included in the constitutional reform. The starting point here is that section 35 contains the ultimate, bedrock guarantee of Aboriginal and treaty rights. It is a constitutional guarantee. Senators, nothing that Parliament does can take away from that.
Section 35 contains a guarantee of rights, yet the Supreme Court has ruled that, just as with section 1 of the Charter of Rights, Aboriginal and treaty rights are not absolute. They are subject to a certain number of limitations. This was first clarified by the Supreme Court in the Sparrow case. It is important to understand that section 35 is not part of the Charter of Rights. Section 1 of the Charter of Rights, the reasonable limitations clause, does not apply to section 35.
Therefore, in 1982, all governments, and the people of Canada, said they wanted guarantees of fundamental rights and freedoms; however, all of these rights and freedoms will be subject to the reasonable limits in section 1. The Charter provides for a balancing, and as you know, the Supreme Court regularly describes for us how that balance is to be worked out in a particular piece of legislation, or in respect of particular conduct. Imagine, if you will, that Parliament decides to try and take something away from that and adds a clause to a statute making it easier for the police to search your house. The court would look at that and say Parliament cannot amend the Constitution, as there is a constitutional amending formula there. A clause in a piece of legislation cannot, in and of itself, take away from the Charter balance between the guarantee of rights and the limitation of rights.
Section 35 is not subject to section 1; there is no reasonable limits clause. The text of section 35 is simply a blanket guarantee. I believe the wording is:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
When the Supreme Court first came to interpret section 35 in a case called Sparrow, a British Columbia case, they said:
Aboriginal peoples are living in a modern and complex state. The state sometimes needs to have the capacity to infringe on Aboriginal or treaty rights.
In doing so, the Supreme Court set out a test. I will not take you through it in detail; however, they said there is a balance to be achieved between the guarantee of Aboriginal and treaty rights and the needs of the broader society. They stated that the guarantee in section 35 is subject to certain limits.
Then we come to non-derogation clauses. Against this bedrock of constitutional protection, and a guarantee of Aboriginal and treaty rights subject to reasonable limits, the Parliament of Canada is enacting some legislation that affects the interests of Aboriginal peoples. Aboriginal and treaty rights tend to be sight and fact specific. They relate to a particular group, derive from a particular history, and require a certain type of proof in order to be established. We know that there is a long and complicated process for considering and analyzing both Aboriginal and treaty rights.
The court has ruled that the rights are not absolute, and they can be justified. Non-derogation clauses were enacted in legislation prior to the Supreme Court clarifying in Sparrow how this balance was to occur.
I was not involved in that, but I believe that the legislative record is clear that the government's intention in adopting that earlier model was to remind everyone that these constitutional guarantees existed.
It was not to add to them in any way. It certainly was not to subtract from them, because constitutionally, Parliament cannot do that unilaterally. That requires the use of the amending formula. Thus, these clauses were added. Over time, and in view of Sparrow, a newer model was developed. That newer model is reflected in this proposed legislation.
There has been a continuing evolution of the law. Most recently, the Supreme Court, in the Mitchell case, continued to add to our understanding of what the guarantee of Aboriginal and treaty rights in the Constitution means. In light of that evolution, the non-derogation wording that expresses the intention of the government has also been evolving. The current wording in this bill reflects the model thought best to convey the intention of the government.
I hope that explanation has been helpful to the committee in looking at the history of these clauses and understanding why there has been a change. I would be happy to answer questions.
Senator Spivak: What the court has done is to interpret section 35 of the Constitution; that is their role. I know that.
Can you tell me why it was felt to be necessary, if we have this case law and the Constitution, and section 35 is not subject to the first section of the Charter, to put these non-derogation clauses in legislation? Those are words and they can be subject to other interpretations. Do you know what I mean? Is that true of other provisions in the Constitution, that it is felt necessary to make some statement about them in each piece of legislation?
Mr. Pentney: I do not claim to be an expert on the statutes of Canada; that would be a fool's errand. Based on my knowledge, I do not believe it is common to have clauses restating or reminding us that there is a constitutional guarantee. My understanding of the history of these types of provisions, which is subject to correction, is that they have been added at the request of Aboriginal people, who are seeking to ensure that when the legislation is enacted, their particular place in the constitutional order is not forgotten.
Senator Spivak: They may have changed their minds now.
Let me ask you the essential question: In your opinion, is it not necessary to have these clauses in legislation to ensure that the guarantee in the Constitution and the case law is scrupulously observed?
Mr. Pentney: Senator, the best response that I can give is that there is a policy choice to be made by governments as to what to include in the legislation.
Senator Spivak: It is not necessary. I am asking your legal opinion.
Mr. Pentney: It does not add to the constitutional guarantee, which is there in any event. The constitutional guarantee is available to Aboriginal people to challenge legislation or actions, with or without a non-derogation clause.
Senator Spivak: The Constitution and the judicial precedents are sufficient protection for the rights of the Aboriginal communities? I understand why they have asked for that. That is political. I am asking, is that sufficient protection in the legal sense? Is that your position?
Senator Watt: It would not hurt to have a reminder.
Mr. Pentney: To pick up on Senator Watt's point, it is not a purely legal question. The law is there. The Constitution remains, with or without a non-derogation clause.
Senator Spivak: I am asking you for the legal opinion, not the political opinion.
Mr. Pentney: I understand that. Legally, the constitutional guarantee is there and this is a gloss. It may serve other purposes, but with or without it, the constitutional guarantee is the foundation.
May I turn your question around slightly? An Aboriginal group wanting to assert a right in relation to marine conservation is not going to turn to the non-derogation clause. I think they will turn to the Constitution, although I should not be speaking for them.
Senator Spivak: Your answer to my question is yes. There is sufficient protection in the Constitution and in the judicial precedents to protect Aboriginal rights. That is the question that I think the Aboriginal community wants answered.
The Chairman: It might be similar to having a life preserver by itself, or a life preserver with a ski belt attached to ensure you do not sink.
Senator Spivak: That is not the answer.
The Chairman: It is sufficient to keep you afloat.
Senator Spivak: My question is whether we need something else.
The Chairman: It is not a case of need. The life preserver no doubt can keep you afloat. If you felt better putting the ski belt on, it would help.
Senator Spivak: That could well be, but it is not my question. My question is about the legal and constitutional view.
Senator Sibbeston: I have raised the issue because until 1996, the government used a non-derogation clause taken from the wording of section 35. That was straightforward and simple.
Since 1996, however, the federal government has started meddling with the wording. They have used ``in the application of'' and ``the protection of.'' They have varied the standard non-derogation clause by adding these little words.
The change is slight, and one thinks that it surely cannot make that much difference. However, the department officials obviously are concerned enough to want to vary the wording. It upsets me, and it makes me very suspicious that somehow the government is beginning to meddle in the rights of the native people of our country. In this way, they will slowly take away the rights that Aboriginal people have gained in the Constitution.
I worry. I am very concerned about the variation in the wording. The courts would certainly examine it and wonder why Parliament is suddenly changing it. The Department of Justice officials say that it does not really matter. The Constitution is there. The protection of Aboriginal people is in the Constitution and Parliament cannot, through legislation like this, take away from or add to it. That is the reality.
I do feel it is helpful to have a reminder. It would be helpful for anyone reading or dealing with the legislation. Our country has not had a very good record in dealing with Aboriginal people, although a lot of progress has been made recently. One of the big changes has been the inclusion of the protection of Aboriginal rights in the Constitution.
Over the years, I have felt, particularly in the part of the country in which I live, the Northwest Territories, that native people have made real progress through land claims and their participation in government. If you went to the North, you would be proud as a Canadian to see the society that we are building with the participation of native people. This is partly because of the advancements that have been made and the recognition of Aboriginal rights in our Constitution.
I am concerned that department officials adding wording here and there will somehow diminish or take away from the Aboriginal rights. It is not even necessary. Why not then stick to the wording of the non-derogation clause that the government used until 1996?
Those clauses have surely served our country well. Why begin to meddle with the wording at this stage by adding ``the protection of'' or ``application of.'' I think it is piddling. It is to somehow make things more difficult for native people. In some ways, I see it as an attack on Aboriginal rights in our country.
I am offended, and I am emotional about it. I want things to be done right. I want the non-derogation clause to be as strong and effective as possible. I am really suspicious that the new wording the government has been putting in will diminish Aboriginal rights.
Therefore, I ask you to consider this matter seriously. If at all possible, put back in this proposed legislation the original wording that has stood the test of time, and which I am sure is good.
Senator Watt: I will pick up on what Senator Spivak said and carry on from what Senator Sibbeston stated about his worry about this new wording. The new wording arose only in 1996. I am not talking about the previous wording, because that was satisfactory.
The new wording began to emerge in pieces of legislation in 1996. It appeared very strange to us. We immediately sought a legal opinion and spoke with people from different sources. We were given the impression that the new wording was not satisfactory because it does not correspond with section 25 of the BNA, which is meant to be the seal of section 35, the rights that are not yet clearly defined. As you know, section 35 still needs to be worked on and further defined. That is the way that Aboriginal people look at it.
Therefore, we always want to ensure that section 35 and section 25 are closely related. One is a shield for the other.
For that reason, we do not want to begin giving a message in any way, shape or form to the Supreme Court of Canada that you can actually infringe upon those rights. Even if you are not actually saying that this is what the new wording implies, it will still have a double-edged-sword type of meaning. That is the way we interpret it. That is what we have been told by outside legal people who specialize in the field of Aboriginal rights.
When we met with the Minister of Justice two days ago, he categorically stated that he does not agree with that new wording. That is no longer the problem. He would rather see no non-derogation clause at all.
At that meeting, I said, ``No, I do not agree with that. I think it does not hurt. If section 35 does not bother you, but it is a constitutional recognition, what is wrong with putting that into every piece of legislation as a reminder?'' He is not willing to go that far. This is where we have a kind of draw; we do not fully agree.
Senator Spivak asked about the interpretation of legislation if that section is not included. Let me ask you: What is wrong with putting word for word what is already in section 25 of the British North America Act into every piece of legislation as a reminder? Section 25 is not as well-defined as the Charter of Rights and Freedoms. That was the reason we wanted to have it included every time that Aboriginal people are contemplated or dealt with within a piece of legislation. Do you follow?
Mr. Pentney: I do.
Section 25 operates as against other Charter rights. It was included in the Charter as one of several interpretive principles stating that we are guaranteeing a variety of individual rights and freedoms. In doing so, we will not abrogate or derogate from the interpretation of those rights and freedoms or from Aboriginal or treaty rights. It operates within the context of the Charter to reconcile the guarantee of individual rights and freedoms for all Canadians with the section 35 guarantee of existing Aboriginal and treaty rights, if you like. It is an internal balancing within the Charter, but it operates only in respect of Charter rights.
The bedrock guarantee, as I said earlier, is section 35 of the Constitution. The situation has evolved to reflect the fact that the Supreme Court has said that in some cases, Aboriginal and treaty rights can be infringed. They hold the government to a high standard. I do not wish to mislead the committee in any way. This is not an easy test for government to meet. As under section 1 of the Charter, there are a number of hurdles or thresholds the government must pass in order to justify an infringement. The guarantee of Aboriginal and treaty rights in section 35, the bedrock guarantee, is not absolute. Those rights and freedoms can, in some circumstances, be justifiably infringed.
As I understood the intention of these clauses in this proposed legislation and other pieces of legislation, they serve to act as a reminder, as honourable senators have said, that these rights and freedoms in section 35 exist; that there is a protection there. I will not read the entire clause, but it does say that nothing in this act shall be construed so as to abrogate or derogate from the protection provided for existing Aboriginal and treaty rights.
If we stop there and ask what a court would say about that protection, one would expect them to look at the existing case law and ask what is the existing protection offered now in section 35. They would say that it is a guarantee of rights, but not an absolute guarantee. It is a guarantee of rights subject to infringement, where that test can be met on evidence brought forward by the government seeking to justify it.
The change in the wording is a reflection of the evolution in law and it is viewed as the best reflection of the government's intention.
If I could simply pick up on the point that Senator Sibbeston made earlier, there is a policy choice to be made about whether to include a reminder and how to word it. Absolutely there are choices to be made. We respect the views of the senators. The minister has written to indicate that in light of the concern and the evolving case law, he will look into the relationship. He is certainly not in any way seeking to dismiss the concerns. We are fully aware of their importance. The minister is saying that the relationship between the current state of the law and the non-derogation clauses will be looked into. He has indicated that he would welcome the views of honourable senators on this important issue.
We are not in any way seeking to diminish these concerns. This is a difficult area of the law. It is complex, to say the least, as I think all honourable senators are aware.
The intention is to find wording that reflects accurately the current state of the law and to indicate that this proposed statute, like other statutes where this wording has been chosen, is not intended to abrogate or derogate from that protection.
Senator Watt: Just to respond to the witness on the point that this is a policy decision to be made by the government. I would like to make the argument on this subject that we realize that the government must decide the policy one way or the other. However, we do no want the Government of Canada to throw away their prime responsibility as the negotiator on rights, while at the same time executing what was negotiated.
On one hand, as Aboriginal people, we do not want to run to the courts every time there is an infringement on our rights. That is a costly thing to do. If that is to be the only avenue left to us, with no ability to sit down and negotiate with the government, in a sense, you will be taking something away.
We know that rights under section 35 are not absolute, but we always thought that we would have an opportunity to negotiate if there were an infringement. However, if you go by the ruling from the Supreme Court of Canada, you may decide to come up with a new non-derogation clause that would be a double-edged sword that would take away our ability to sit down and negotiate. I do not think this is what we want. I do not think it is healthy for the country to go through that. That would eliminate an avenue that should be open to us.
We are supposed to have an arm's-length relationship with the court.
The Chairman: Senator Watt, we have more witnesses to question.
Senator Watt: We have been dealing with this question for a long time.
The Chairman: It is not that your knowledge is not valuable. I am just saying that you are not introducing it at the right place in the meeting.
Mr. Pentney: The intention of these clauses is not to force all issues into court. If it would assist the committee, we have someone who could speak to the history of the consultations and discussions with Aboriginal people that went into the development of this proposed legislation. The intention of these clauses is not to foreclose discussion about how, either in the development of legislation or its application, Aboriginal rights might be affected. We offer that.
Senator Watt: I do not want to be seen as interrupting the proceedings, but there is one more important element that should be addressed here. At one time, the rights we are speaking about were absolute. When did you decide that they were no longer? The only way you can decide that is to negotiate them. I felt that needed to be said.
Senator Banks: I will continue with the same line of questioning, but in a different way.
First, I must declare that my questions are coloured by the fact that I am the sponsor of this bill. I have asked four or five times the question about — if I can characterize them this way — the old and the new derogation clauses. It changed in 1996.
I am asking these questions for my own education. Why was it changed? You came as close as anyone today to saying that it was changed because — and I want you to correct me if I have the wrong impression — in the Sparrow case, the Supreme Court determined that there could be an infringement of those rights, that they were not absolute, and that the government's intention, as you put it, is to have a non-derogation clause that conforms to the view of the court. Remember that I am asking a question. The government's view is that the Supreme Court decision in the Sparrow case applies to all the existing rights in all subsequent legislation and therefore the new wording results directly from that. Do I understand that correctly?
Mr. Pentney: As a point of clarification, there is not only Sparrow, but also a series of decisions. I referred to Sparrow as the first case before the Supreme Court, but there has been a subsequent series of decisions, so the clause has evolved as the law and our understanding of the constitutional guarantee have evolved.
Senator Banks: The clause has not evolved. There are only two. There is a cut-off date before which the clause said this and thus and so, and after this date it said something else. That has been consistent. It has never changed. There are only two. The ``evolution'' in 1996, if you want to call it that, is really a change that resulted directly from the government observing that the Supreme Court has said that these rights are not absolute, so that fact will be reflected in subsequent legislation. Is that correct?
Mr. Pentney: I believe so. I cannot speak about all of the earlier legislation, but that is my understanding of the change. As our understanding of the law and of the constitutional guarantee evolved, this changed.
Senator Banks: Again for my instruction, as with other aspects of the Charter, does the inclusion — and I am really asking Senator Spivak's question from a slightly different angle — of a non-derogation clause in any piece of legislation have any effect, except as a sort of memo or flag? Does it add to the rights that exist in the Constitution and in the Charter?
Mr. Pentney: A non-derogation clause could add to them, if it was worded and intended to do so. From a constitutional perspective, it cannot subtract from them.
Senator Banks: That was my next question. It would be adding to them in the context of that legislation; it would not be adding to them constitutionally.
Mr. Pentney: That is right.
Senator Banks: Then the reverse is true. That is, the absence of a non-derogation clause in any piece of legislation does not in any way mean that the application of the Charter is reduced?
Mr. Pentney: The application of section 35 stands as a bedrock. It is always available to Aboriginal people to invoke if they believe their Aboriginal or treaty rights are being infringed.
Senator Banks: That is true notwithstanding what any piece of legislation might say.
Mr. Pentney: Exactly. It is a constitutional guarantee, just as the Charter is there.
Senator Banks: Aside from serving as a flag and saying, ``Remember this'' in a piece of legislation, you said that it might also serve other purposes. Are there any other purposes that you can think of?
Mr. Pentney: As I have said, it could top-up the protection.
To take an example completely out of this realm, the government could have available to it a defence to an action of some sort. It could enact legislation and state, ``Notwithstanding that defence, we are giving that up.'' I believe that the history of these types of clauses has been mainly to serve as a flag. Again, my understanding is that Aboriginal people have asked for that because they very much wish to ensure that their particular rights and freedoms are not being overlooked in these types of laws.
The Chairman: Senator Banks, we are infringing on the time of the next committee. As this issue has turned out to be fairly complicated, there will not be any clause-by-clause consideration today.
I should like to adjourn the meeting and have you people come back. We are meeting at 5:30 p.m. next Tuesday, or later if the Senate sits longer than that. We will try to ensure it does not. We can continue the process. At that time, we will have more time to look at the minister's letter, et cetera.
The committee adjourned