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EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 24, 1995

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[English]

The Chairman: I call the meeting to order.

First, on behalf of the committee, I'd like to thank Justice Hamilton for accepting to be here today and adding this responsibility to his pre-planned trip to Ottawa. It was a saving to the taxpayers, and we thank him for that.

In addition, I understand there's an anniversary today. I don't know what anniversary it is. Maybe you'll tell us about that when you take over the presentation.

We are a newly formed committee. Some members have been around for a long time; others are recent additions to the committee. We felt it would be a good education for you personally to come and present your findings to us. So today you are a professor in addition to being a researcher.

We ask you to make a presentation of around half an hour. You can choose to go longer or shorter, but we would really appreciate time for questions after. We have this room until 12:30.

Justice Hamilton, the floor is yours.

Hon. A.C. Hamilton (Fact-Finder for Minister of Indian Affairs and Northern Development): This is the first time I've ever appeared before a parliamentary committee, and I feel a little nervous about doing that. I expect you to give me a hard time on some of the things I will say, but maybe I've been watching television and proceedings in the House of Commons too much. I don't know if you're always like that.

In any event, it's a real pleasure and an honour for me to appear before the committee, both to respond to questions on this report and to join with you in any discussion you care to undertake.

The anniversary is the fiftieth anniversary of the United Nations. If this committee can resolve matters between aboriginal people and other governments in Canada at the same time, I'm sure that would be a worthy objective, and I might join in the celebration then.

In any event, I trust you have the report I made as a fact-finder to the Minister of Indian Affairs and Northern Development. It was released about the middle of September and is still being slowly distributed throughout the country, I believe.

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The study was occasioned in part by a request from this committee that the minister explore ways of doing away with the extinguishment requirement in the comprehensive land claims policy. I believe it was in the spring of 1994 that this committee asked the minister to explore ways to see if he couldn't get rid of this extinguishment clause. There was also a commitment during the last election not to require blanket extinguishment of aboriginal rights in the settlement of land claims, made by the Liberal Party in their red book, I believe, at that time.

I was asked to do two things as fact-finder for the minister. One was to go throughout Canada, meet with several designated groups of people, aboriginal people, with provincial and territorial governments, with third parties, which really included basically the resource people - and I heard some of you speaking yesterday in the House of Commons about TNAC, so if I use that designation it will be well understood in this setting. I had two meetings with the assembly of TNAC. We met in various places throughout the country; there's a list at the back of the report of all the places we held sittings. I met with the provincial or territorial governments everywhere except in Alberta, where we were advised at that time that a meeting wasn't necessary, that everything was under control.

We met with people from premiers to ministers responsible for aboriginal affairs to deputies or assistant deputies and other advisers in each of the territories. Part of the report talks about positions taken or things said by provincial and territorial governments, by the aboriginal people, by the resource industries, and by members of the general public on this issue of extinguishment. Of course, the document being examined is the comprehensive land claims policy that was established in 1986 by the then Minister of Indian Affairs, the Hon. Bill McKnight.

In a minute I'll go through some of the history of the development of the policy, but for any that may not be aware of the policy, it said that there may be some alternatives to blanket extinguishment of aboriginal rights that is now required in every treaty. Aboriginal people have to surrender their aboriginal rights to receive other rights granted to them by government, so there's an exchange. At the moment, according to the policy, they have to give up their aboriginal rights and then they get whatever rights government and aboriginal people negotiate.

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The aboriginal people across Canada were unanimous - and this was known, I think, before my study started - in their opposition to the whole principle of having to sever their right or sever their connection with the land and the resources that they or their ancestors had occupied for thousands of years at least.

The government policy of 1986 said that acceptable options in a treaty negotiation process are - and this is found at page 12 of the policy document:

This isn't the first time that opposition to signing treaties with that sort of wording required has come up. In the report, starting at page 13, you'll see a discussion of the policy as it has developed over the years. This is to summarize -

The Chairman: Mr. Hamilton, if I may interrupt, just to bring this to your attention, we're not working with the same document.

Mr. Hamilton: I'm not going to refer to that again. That clause is set out in the report anyway; it's set out in the document I prepared. But I was just looking at the policy document itself that I use for discussion purposes at all these meetings across Canada.

The year was 1857, and of course its history goes back much farther than that. It goes back to the days of Columbus, and there were great debates at that time in Europe as to what rights to dispossess indigenous people a country exploring other parts of the world had. The thinking of the day was that you couldn't do it. But the people on the front lines - the soldiers, the conquistadors, and so on - who actually arrived didn't pay much attention to that philosophical, if you wish, or legalistic sort of argument, and as you know, people were dispossessed.

In 1857, prior to Confederation in Canada, an act was passed to encourage the gradual civilization of the Indian tribes. It talked of the gradual removal of legal distinctions, about the acquisition of property, and there would not be that separate identity any more.

In 1969, to take a big leap forward, there was a white paper issued, again suggesting there should be a break with the past, and dependence be replaced by having all aboriginal people become Canadian citizens, generally speaking. There was an uproar of opposition to that position, and the white paper was shelved.

So not much was happening as far as aboriginal rights are concerned until 1973, when the Supreme Court of Canada handed down its decision in the Calder case. They said for the first time - they were talking about the Nishga in British Columbia - the Nishga are the owners of the lands that have been in their possession from time immemorial. Therefore, the burden of establishing that the right has been extinguished rests squarely on the shoulders of government.

The Royal Proclamation of 1763 really set the standard. There the government in England, in directing its governors in North America, said in effect you can't dispossess the aboriginal people; you can't take their land. But if the aboriginal people are willing, it can be sold and then bought by government; it's not to be bought by anybody else. They were trying to stop entrepreneurs from making fast dollars, I guess, on the purchase and sale of land. So the policy was established.

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That royal proclamation is now referred to in our Constitution. So it's still a valid - in my opinion - and alive and effective document.

Just after the Supreme Court made the declaration that aboriginal rights do in fact exist, on August 8, 1973, the then minister, the Hon. Jean Chrétien, issued a policy statement. It didn't deal with a lot of specifics, but it set up the two types of claims you now have in Canada. One is the comprehensive claims for the negotiation of land settlement in areas where there has never been a treaty - and that's what my report talks about - areas where there has never, ever, been a treaty between the aboriginal people and government. It set up the specific claims category as well to deal with maladministration and for failure to fulfil the terms of treaties that do in fact exist.

That policy of 1973 picked up on the same system that had been used in the numbered treaties in the west and some of the treaties in eastern Canada as well; that is, that there would be certain things done by government on the condition that there be an extinguishment of aboriginal rights in title, and that benefits be given in return for the aboriginal people giving up something, which was their interest in the land.

In 1981, the then minister, the Hon. John Munroe, expressed the policy to bring comprehensive claims negotiations to a full and satisfactory conclusion. That policy document was called In All Fairness: A Native Claims Policy.

In 1983 the Penner report, which was an all-party special committee of Parliament on Indian self-government, severely criticized the government policy on extinguishment, and it recommended that the requirement be eliminated.

In 1985, the then government appointed a task force headed by Murray Coolican. That report recommended that the extinguishment of aboriginal rights no longer appear in treaties or in the confirming federal legislation. That report recommended that the aboriginal rights be recognized instead of having to be surrendered.

In 1986 was the policy that's in place today. It did not follow the recommendations of the Coolican report, except that it removed the word ``extinguishment''. The word ``extinguishment'' then got out of the policy and it got out of the federal confirming legislation when the treaties are being approved. But it left in place the words ``the cession and surrender.'' So ``cede'', ``release'', and ``surrender provisions'', requiring aboriginal people to surrender their aboriginal rights, remained.

A few more treaties were signed, but it wasn't very long until it was clearly recognized that nothing much had changed. There's not much difference between the word ``extinguishment'' and the word ``surrender''. So that policy didn't change anything. In particular, the policy at that time did not follow the recommendation in the Coolican report that aboriginal rights be recognized.

Since that time, the royal commission has issued an interim report on extinguishment. It has recommended aboriginal rights be recognized in treaties. Then you go on from there to negotiate the terms. That's what I say, of course, in this report too. You don't need surrender clauses. They're unnecessary. They're contrary to the Canadian Constitution of 1982, which recognized the existence of aboriginal rights. It seems pretty strange that government can give rights with one hand and take them back with the other.

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In any event, there's been very little development in policy, very little change in the basic demand of government to retain total control and have aboriginal people give up their rights. That position goes back 230 years, I think I say in my report.

At this moment, this committee has said it wants the minister to examine how to get rid of - they used the word ``extinguishment'', but I interpret that to mean ``surrender'', because that's the word now in the policy, and so on. My task was to ask whether we could get rid of the surrender clause. I said we could. But there's only one way to do it, and that is just to get rid of it - eliminate the requirement altogether.

During the hearings some people said the word should be changed to ``quit claim''. I asked myself and sometimes them what the difference was between ``quit claim'' and ``surrender'' or ``surrender'' and ``extinguishment''. Just a change of wording isn't going to accomplish anything. It isn't going to fool anybody.

The problem at the moment for all of Canada is that the existence of the surrender clauses is one of the reasons treaties are not being completed. It's slowing the process. I wouldn't say it stopped it completely, but it's slowing the process. Even people in the Yukon, who had signed the umbrella agreement, with whom I met when we were up there, said that if the surrender clause wasn't out of there by the time they came to sign their final agreement, they weren't going to sign. Generally, that's the position.

I met with the Innu in Sheshatshui in Labrador and with the northern Crees and with every aboriginal group who would or could come to a place where we could reasonably go. We only went to about five or six locations in British Columbia. I was asked to complete this report and have it in by May 1, I think it was. So it was very rushed.

Our first meeting, I think, was January 16. So we were working day and night rushing around the country. We couldn't get to every place we would have liked. We couldn't get to many of the first nation territories I would have liked. But we did do that in Labrador, and we went to Oka and had a hearing there with the Mohawk council and their advisers.

I was also asked to examine how, if we did away with the surrender, we were going to provide the certainty that some people apparently wanted. I was very surprised but pleased to find out that all the participants want certainty. They all want the same thing. Aboriginal people want to know that whatever is agreed to in a treaty is going to be binding and is going to be implemented, because sometimes in the past promises have been made in treaties and they never get implemented.

The aboriginal people told me they wanted certainty. TNAC said they wanted certainty. They had to know what their rights were, that they could continue to get their permits and to develop the resources in British Columbia. They needed certainty in treaty documents to make sure that could happen.

The mining exploration people at Voisey Bay were extremely upset when I met with them in St. John's. They said they didn't care who they had to deal with, whether it was the federal government to give them a permit, a provincial government or a first nation government as long as they knew the rules, as long as they knew they had somewhere to go so they could continue with their development, which they said was to the advantage of all Canadians. They promised to employ at that time every Innu and every Inuit person in Labrador in the plant if they got it up and going.

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They were extremely upset with the way everything was bogged down. At that time the blockade was still in place. The courts had been kicked out and the Mounties weren't allowed into some of the communities.

So the industry people there were really demanding of the federal and provincial governments to get their act together, agree on things, sit down at the table and work things out with the aboriginal people. In other words, if they got the treaties in place, then all these unknowns, all the issues that were standing in the way of resource development could be resolved.

I was delighted to find they did go back to the table. But we met the next day with the provincial people. The minister responsible was the premier. He wasn't at the meeting, but a group of his advisers was there. One of their people had been at the meeting the day before. So you could feel a message had been conveyed between the two meetings. In any event, resource people certainly have a big stake in what's going on. They want their existing permits and rights recognized.

There wasn't an aboriginal organization I met with that I can recall that didn't say they'd recognize those rights. If there was a mill in place there now, they'd recognize it had the right to stay. That is part of the negotiation and that's what happened up in the Yukon. There are lots of resources in place that were recognized in the treaty by the aboriginal people of the Yukon.

To move more quickly so you can ask questions, my bottom line, which is found in the alternative, starting at page 100, is that in my opinion there's only one way to solve this whole thing. First, recognize the fact that aboriginal rights do exist and spell it out in the treaty by whatever wording the negotiators work out. I tried to stay away from too specific a wording, because everybody wants to be free to negotiate whatever fits their circumstances at the bargaining table. I can come back to that if you need. I have a few general wordings in the report of what I mean.

Then I say you receive, you achieve the certainty everyone's so concerned about, which is apparently the reason why the federal government has always felt it should extinguish aboriginal rights. Then you have certainty. I try to suggest this is not what's happened. That's wrong. You don't even have certainty in the numbered treaty areas.

We had a presentation from the mayor of Red Lake. He said things were in bad shape. No one was going to put any money into a mine any more because they didn't know what their rights were and so on. So existence of a treaty doesn't guarantee certainty. He said you should draft the treaty so that it, within itself, provides the certainty everybody wants.

I say that can be done. You have international treaties that have enough detail in them so everybody knows what the deal is. You have NAFTA. I know you have disputes there and dispute resolution mechanisms, but at least the treaty, I assume, attempts to spell out what the rights of all the parties are.

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That's part of the point I make, which is that the rights in these treaties should include the rights of the aboriginal people, federal government, provincial government, third parties, and general public. I say you can get of all of the argument about whether this, that or the other thing is an aboriginal right if you just recognize the existence of aboriginal rights up front, and don't try to define them.

The rights of the aboriginal party to the agreement are different than aboriginal rights. Those become actual rights guaranteed by the signatories of the treaty.

I like to use the word ``treaty''. That's what they use in B.C. They call them claims elsewhere, and so on. But I refer to treaties as the final document.

I hate to equate it with a commercial contract, but if any treaty or any agreement is properly drafted, you don't have to worry about what a court is going to do. You don't have to say that a court might not understand what you said. The answer is to spell it out so they do understand.

We'll spell out the rights of all the parties. Define the two types of land. Settlement land is the one over which the first nations will have the greatest degree of authority, governance and so on.

The non-settlement land is where others will have the greater interest. But aboriginal people will have some rights. Those have to be spelled out in the treaty negotiations and documents, as they are now. That part's not new.

To make sure, you need mutual assurances in the treaty document. You see that starting at page 106. I refer to a number of assurances put to me at meetings by aboriginal people, which are the ones I cite, not by the forestry or fisheries people:

``Parties'' isn't just the aboriginal party; this means governments, too:

Then, on page 108, I give suggestions that are a little more specific, such as the:

Then I recommend a dispute resolution mechanism, with compulsory arbitration as the bottom line. Negotiation is the first step. Mediation is the second step. Then there's binding arbitration for any dispute whatsoever, which should be subject to judicial review. This is on page 112.

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The same kind of review applies to labour board decisions and other administrative tribunals. Then there's an amendment process, which wouldn't force anyone to amend the treaty, but would allow both parties to come back to the table to look at new circumstances that are bound to arise in the next fifty years, or whenever, and resolve them.

The alternative is that one doesn't have that sort of dispute resolution. So either you have outright confrontation, because people are upset that the treaty isn't being respected, or you have people going to court, which might resolve the issue, but which would likely take five years, depending on the issue. Who knows? So I argue that this dispute resolution mechanism will be good for all the parties, no matter who they are.

In any event, I'll stop there, Mr. Chairman. I hope I haven't taken too long in that run-through. I can get carried away.

The Chairman: Not at all. It's very interesting.

Now we're open to questions. Within your answers, you may wish to add anything you want, even if it doesn't always relate to the question. We would ask you to answer the question and add whatever you wish, because it is a good education.

If you agree, I won't go by party, opposition, or government. I'll try to be fair to everybody. If you find I'm not fair, just let me know, and I'll change the system.

Mr. DeVillers.

Mr. DeVillers (Simcoe North): Thank you, Mr. Hamilton. This is sort of a lawyer's dream: examining the judge as a witness. This is something unusual.

Mr. Hamilton: I'm a former judge. So I can maybe refuse to answer on certain grounds.

Mr. DeVillers: Then I'll ask the chair to have you declared a hostile witness.

Some hon. members: Oh, oh!

Mr. DeVillers: Thank you very much for your attendance. I'm one of the new members of the committee that the chair referred to, so pardon me if some my questions are naive.

I was just wondering if, in the process of preparing your report, you looked into existing jurisprudence on the whole question of extinguishment and surrender, and whether these requirements had ever been challenged on the basis of duress, in effect. Would you be saying to one of the negotiating parties that they must give up rights before sitting down to negotiate? Has there been any jurisprudence in that area?

Mr. Hamilton: Take the Delgamuukw decision. I quote Mr. Justice Macfarlane in here. That case went through the trial division in British Columbia, then through the court of appeal. Then counsel came to the court and asked for the appeal to the Supreme Court be put on hold with the support of that court. Justice Macfarlane writes about how it's really only through negotiation that you're going to resolve some of the very deep issues that are involved.

Having said that, the judges in both the trial and the appeal court talk about extinguishment and about how the governments in British Columbia did in fact extinguish, in their opinion, aboriginal rights. Those British Columbia judges say that the royal charter doesn't apply in British Columbia, and that things were settled by the colonial government before British Columbia became part of Canada, and so on.

I ask the question: what right did the colonial government, in any event, have to take away the aboriginal title, and so on?

I just say that in response to your question. That whole issue, you might say, is not finally determined, because it hasn't gone to the Supreme Court yet. Whether it will go or not, I don't know. It will depend a lot on the British Columbia treaty negotiation process and so on.

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Mr. DeVillers: In your alternative, you're saying we'll not require that there be extinguishment or surrender, but we include clauses whereby parties will undertake not to exercise any rights other than those set out in the treaties. Is that not almost the same thing on a practical level if those clauses are in place?

Mr. Hamilton: No, the difference as I understand it is.... To start with, it's very difficult to define aboriginal rights. What are they? It's easier to define the right of an aboriginal party to a treaty to certain lands and resources. That's what the treaties do.

There's no need, in my opinion, to confuse the two. There's no need to demand of the aboriginal party that they define their aboriginal rights. I think it would be almost impossible to do that in any event, because some deal with matters of culture, some with history, some with a world view and things like that. How do you define that?

In the Constitution, Canada didn't try to define aboriginal rights. It says they exist. The fact that the rights exist and that treaties were in place is a matter of considerable importance and pride to aboriginal people.

The old treaties are sacred documents, partly because of the connection, as I understand it, that is made between the aboriginal party and the Crown, then represented by the lieutenant-governors and other negotiators for Queen Victoria. The connection was made.

The responsibility of the federal government was established. The fiduciary responsibility or obligation of the Crown was established. There are so many principles like those that aboriginal people, from what I heard, do not want to give up. They're concerned that the treaty document may have the effect of them giving up all of those things if they have to abandon their rights, even if it's only to land and resources, and then start new with a gift from the federal government.

Most aboriginal people don't accept that the Canadian government legitimately owns all the land within the boundaries of Canada. Aboriginal people say ``We still own our traditional land. Having said that, we're prepared to enter into treaties that will spell out the extent of our interest and the future interest we will have in the lands and resources. We're prepared to enter into this in a spirit of cooperation and a spirit of sharing with the Government of Canada and now the provinces.''

That is a big move for aboriginal people, because they don't like to recognize that provincial governments have any say in this at all. They only get their jurisdiction because the federal government in negotiations gave them some of the original federal government authority.

So there's a lot of very deep feelings. The bottom line is if, let's say, the resource people want to have things properly regulated and want to get on with life, then they should enter into treaties or encourage their governments to enter into the treaties. If you get the treaties signed in the rest of Canada, then it resolves all these issues. The issue of sovereignty and the issue of jurisdiction will vanish, in effect. Aboriginal rights will still be there. It won't affect them, though it will affect the day-to-day operation of land, resources and so on.

Mr. DeVillers: Thank you very much.

The Chairman: Before we proceed, I urge members to continue to ask short questions, which you did.

Mr. Hamilton: I will try to make my answers shorter.

The Chairman: It's the opposite. We want to allow you as much time as possible, because your responses are very interesting and informative. So I urge members to shorten their questions so we give you maximum time.

The list I have is Bachand, Bridgman, Harper, Anawak, Finlay and Taylor. That's the order I will follow.

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Mr. Bachand (Saint - Jean): If you don't speak French you will need your translation device.

[Translation]

Mr. Hamilton: I'm sorry, I speak very little French.

Mr. Bachand: First of all, I would like to congratulate you for your excellent report, although I'm not sure that you've managed to reconcile the unreconcilable, if I can put it that way. Let me explain.

There are two major concepts in you report: certainty and extinguishment or giving up aboriginal rights. Now, I fail to understand how there can be certainty if the aboriginals do not give up their rights. These two concepts seem to me unreconcilable and I would like you to try and convince me of the opposite.

On page 114 of your report, you advocate an approach that includes six essential elements. First of all, you want ancestral aboriginal rights recognized in the preamble. The fourth element is:

[English]

It's 114, in English.

[Translation]

At first glance, there seems to a be a certain paradox between these two elements. You recognize aboriginal rights in the preamble. Coming from Quebec, I won't hide the fact that we've had long discussions with the federal government on the ``distinct society''. Some wanted to put the concept of ``distinct society'', in the preamble. We wanted to see it enshrined in the body of the accord itself.

That being the case, I feel that the first element of the approach advocated here weakens the scope of aboriginal rights. The other five elements, however, are much more precise.

Moreover, it seems to me - and I may be wrong, Mr. Justice - that you've emphasized certainty compared to aboriginal rights. And if I push my line of reasoning further, I would say that with the arbitration mechanism that you mentioned, you favour binding arbitration, probably in an attempt to avoid the normal judiciary procedure of the courts even though they've always been particularly liberal vis-à-vis the First Nations. Up until now, it is the courts that have advanced the cause of the First Nations.

Therefore, can you explain how you can reconcile elements 1 and 4 of the approach you are advocating?

[English]

Mr. Hamilton: The reason I spend so much time on certainty is that it is this issue that governments in the past seem to have been so worried about, basically because, as I understand it, government does not want to see the same claim made again. They don't want the first nation as a party to this particular treaty to come back and say, we want more land now than we had before or we want more money than we had before.

Government has felt that the safest way to do that is to extinguish the aboriginal rights. As somebody put it, it's like using a baseball bat to kill a fly. It might be effective if you hit but it's such a strong, intense and unnecessary weapon to use under the circumstances.

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So the first part I repeat again: why would government ask aboriginal people to give up their aboriginal rights after just recognizing them in the Constitution of 1982? It doesn't seem right. It seems to me to be totally contrary to the government's responsibilities towards aboriginal people, which we all know is greater than their responsibility to a lot of other sectors of Canada because of the manner in which the aboriginal people were subjugated to government.

So then the other people who want certainty seem to me to be the resource people. They want to know they can get on with their business. They don't want aboriginal people interfering. In fact, some of them say ``We're all Canadians; you shouldn't give anything to aboriginal people. Just leave everything the way it is. Don't do anything.'' While some say that, the fall-back position clearly is, if we're going to have treaties, then make sure they're binding.

Someone said somewhere, and I forget just where I heard it recently, if someone goes in for a Canadian passport you don't make them give up their Canadian citizenship in order to get a Canadian passport. If you follow that, why do you ask aboriginal people to give up their aboriginal historic rights in order to get a treaty that'll spell things out in detail?

There's a lot of concern from some people that if you do this, what's a court going to do? Maybe a court would upset it. Maybe this, maybe that. Certainly courts are there to resolve some of these disputes. But if you have a document drawn so it's understandable, so it's clear and that all the rights of all the parties are spelled out in it, it shouldn't be necessary to go to a court, or if you do go to a court a court should say this is clear, the parties agreed on these conditions and there they are. Present treaties don't spell out the rights of everybody, including the federal and provincial governments.

I'm saying the treaty, to be an effective instrument, should do that. It should resolve some other disputes, if possible. It should spell out, for example, what rights the aboriginal people have to hunt and fish, say in the non-settlement lands. Why wait until somebody gets arrested and goes to court and goes through the whole court system to find out whether they had the right to do something they did? Treaties can solve and resolve a lot of issues that are out there at the present time.

The bottom line is that a treaty is a contract that's properly drawn and covers the rights and responsibilities of all the parties. That should provide anyone with all the certainty they need. That's my opinion.

The alternative is to leave the extinguishment in place, and with all the criticism there's been over the last 10 to 15 years, or 25 years, I don't know that that's an answer. I wasn't able to come up with any other in-between solution. In regard to these various recognitions in the preamble, I say to do it there so that you don't have to talk about whether hunting is an aboriginal right or not. You could argue that for years. Maybe that's why it took the Yukon 20 years to complete that treaty.

I'm saying something should be done to speed the treaty process. That's not fair to anybody. There are interim measures in place to deal with specific problems that arise. In 20 years there may be nothing left of land and resources if you keep going the way you are now.

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Second, I challenge anyone here to read one of the treaties. You should try it. I can't read them. They're so complicated and convoluted. One of the presenters told me that unless you were involved in the negotiation of the treaty, you can't understand it. I think that's true. People don't know what their rights are under the treaties right now.

I'm suggesting that you get the aboriginal concern out of the way right away by recognizing that this particular first nation has occupied the land in question for thousands of years, or has a traditional connection, whatever you or the negotiator want to say. That's the last you will have to hear about whether something is an aboriginal right or not. Then the parties negotiate on the use of the land and you spell it out.

That's the setting out in detail of the rights of each of the parties. I hope that's a partial answer to your question.

Ms Bridgman (Surrey North): Mr. Hamilton, thank you for this report. It certainly is cause for a lot of thinking.

I'm not a lawyer with that kind of background and I'm also new to this committee, but when I was reading this.... You suggest recognizing aboriginal rights. I looked at the clause about surrendering aboriginal rights. I didn't see this in a legal context. I thought the fact that we acknowledged that we wanted them to surrender their aboriginal rights was a recognition of those rights, and that we were removing the condition upon it before we would.... I understood the negotiations wouldn't take place unless that condition was met, so we're removing that condition. Is that what you're suggesting here - that they go to the table as equal players?

Mr. Hamilton: Yes.

Ms Bridgman: From there I went on to your background paper and the fact that the courts are stating that the identification of aboriginal rights could be done much better through the negotiating process. As well, your report also indicates that it should be specifically set out in each treaty so that all of the players know their rights. So I thought aboriginal rights would be identified by the treaties, that whatever occurred in each treaty would become an aboriginal right, but I'm not getting that impression today.

As well, I don't think of treaty rights as being all players; I think of them as being conditions applicable to the aboriginal group. Are you suggesting that when a treaty is made, there will be treaty rights for each player?

Mr. Hamilton: That's right.

Ms Bridgman: Okay. Your approach to this was based specifically on land issues. I assume this same approach could be applied to self-government or other kinds of issues. By using the context of aboriginal rights in a general or philosophical sense, might a large number of other issues possibly occur? Could this lead to negotiating smaller issues such as education or whatever, or could that be absorbed at the treaty table?

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Mr. Hamilton: I suppose it depends on whether the government agrees to negotiate self-government at the same time as they're negotiating land and resource usage. The government has started to do that. I don't know whether it's in the Yukon or in some of the spill-off agreements up there. They're starting to negotiate self-government rights as part of the one treaty. In Manitoba, for example, the negotiations are quite separate, because the treaties there were signed early in this century or in the previous century.

I make reference here to a comment of one of the TNAC members. He said that in British Columbia what we're talking about is authority and power. He said, ``I don't know how you can just settle the land and resource issues without dealing with the self-government issue''. I didn't get into it in detail because I wasn't asked to. It wasn't part of my mandate to make any comment on self-government, but I did to that extent. It seemed to me, as I was going around, that it became more and more of an issue and maybe more and more something that could be best resolved in the treaty process.

Some first nations would probably want to join self-government discussions and others would prefer to leave it to another day, and I refer to that too. If that happens, the treaty will have to say ``What's agreed to in this treaty will not change by virtue of any subsequent separate self-government treaties''.

I do very much, as you suggest, think the treaty should talk about the rights of party X, which might be an aboriginal party, and the rights of party Y, which may be the federal government, and the rights of party Z, which may be the provincial government. You don't need the treaty then to redefine and get into that very long and difficult discussion as to whether or not a certain thing that's agreed to in the treaty is or was an aboriginal right. The rights of the aboriginal party will be limited by what they agree to for the use of that land.

Mr. Harper (Churchill): Thank you very much. I'm very pleased you're here. I know of your work, as I was in the legislature and part of the Government of Manitoba. I believe the work you did was very valuable work, not only for the province of Manitoba but for the country, on the aboriginal justice issue.

When I was a member of that government and the minister responsible at that time for initiating the aboriginal justice inquiry, I was pleased to have you as one of the commissioners, along with Judge Murray Sinclair. I was also extremely pleased that our government appointed you to look into this whole issue of extinguishment and certainty. I'm very pleased with the report you have presented to us. I just want to put that on record. I'm very grateful.

You raise a number of issues. One of course is treaties. Treaties to me are about establishing relationships, and it's an ongoing process. It has never come to an end and will never come to an end. It's an ongoing process, even though some of those treaties were signed many years ago and certain things were never contemplated.

Certainly our rights and recognizing other people's rights have been the cornerstone of our way of establishing the living arrangements with the governments and the people of this country.

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I'm pretty familiar with a lot of the issues dealing with aboriginal matters: treaties and land claims in the province of Manitoba in connection with the natural resources transfer act. Even that's up in the air. There is the question of whether the federal government has the authority to transfer its obligations to the provinces without really having consulted the aboriginal people in that province with respect to natural resources.

In Manitoba, however, we've had issues dealing with developments - hydro, forestry and mining developments - that are taking place. I wanted to ask you a specific question on how we would resolve some of those issues on an interim basis, e.g., natural resources, and especially the question of co-management? Would you apply the same kind of recommendations you make here to those types of arrangements?

I know that hydro projects have major impacts on our lives, on our culture and our way of life. I feel that the issues of aboriginal people should be paramount. They should not allow their interests to be just delegated to other people. I believe you mentioned that in your report.

I wanted to have your views on that because there are some things that are pending, not only in Manitoba but in other areas, that require projects to proceed. Interim measures have to be taken at this time. At the same time, because these other issues are happening, should we proceed with them and come to an agreement on interim measures? Could I have your suggestions and ideas?

Mr. Hamilton: I just happen to have pulled out a submission we've received on this study from Manitoba Hydro. You will know better than I just how this fits. They talk about the primary goal of such negotiations, the ones in which they were involved with government and first nations:

Then it goes on:

That was a presentation made in the context of the new treaties, but related to something that Manitoba Hydro's president and chief executive officer was saying about that commercial dealing with first nations.

Interim measures are extremely important. They should be negotiated and put in place, if the treaties are going to keep taking as long as they do. But I'm personally a little reluctant to see too many interim measures, for fear that either the first nation or the government, Manitoba Hydro or TNAC might get what they want in the interim agreement and then say, oh well, we don't need to negotiate any more; we really got what we're after here anyway.

So I think the pressure should remain on all the parties to conclude all the agreements, if possible. I don't know what you would think about it, but I wonder if it's not possible for first nations, the federal government, TNAC and others to sit down and see if they can work out some rough guidelines for treaty negotiation, some general clauses that different parties feel they need to protect their rights.

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I know it's dangerous for me to ask that question. Different first nations want to take the time necessary to properly think out a treaty, not to be rushed. But the need for the interim measures and the delay in getting them, the delay in getting the treaty, seem to be so contrary to the interests of first nations that maybe they would consider discussing some of these matters with the other players on a broader basis. I don't say they should do this nationally, but maybe provincially. I don't know.

What do you think? Is that a dream or...?

Mr. Harper: The reason I asked this question is that we're dealing with recommending some things to the provincial government, which seems to have jurisdiction over natural resources and development in mining, forestry and such things. We need to come to an arrangement, in some cases development, in those areas. The rights of the people have to be maintained, not just the aboriginal third party but the general public, business, all those.

But at the same time there seems to be reluctance by provincial governments to recognize aboriginal rights. That jurisdiction and authority should be put in place prior to getting into co-management arrangements.

Mr. Hamilton: I suppose that in any negotiation, the first nation first has to convince the government to sit down at the table. Second, it has to convince the government that they do have historical and aboriginal rights; otherwise, I suppose there'd be no talks proceeding at all.

This has happened with, say, the Micmac and others. Some governments have just rejected this and said ``You don't have any claim. If you ever did, they were done away with in 1725.'' So you have to get over the first hump.

I know I'm evading your question a bit, Mr. Harper, but I don't want you to get me in too much trouble here in areas I'm not too familiar with.

The Chairman: Thank you for your help.

I have two minor issues to deal with. Then we'll have five minutes each for Mr. Anawak andMr. Finlay.

The first issue is a motion from Mr. Bachand that reasonable living expenses be paid to the Hon. A.C. Hamilton who appeared on October 24.

Motion agreed to

The Chairman: Thank you. That's done. I have a brief question from our researcher. I'd like to get information on it.

Ms Jane Allain (Committee Researcher): What's the next step in this process? Has the minister indicated to you if and when cabinet will be reviewing your report and how he will go about implementing your recommendation in the federal land claims policy?

Mr. Hamilton: I'm sure all those matters are outside both my jurisdiction and knowledge, but as long as this policy remains in place, then surrender is still required.

Ms Allain: Thank you.

The Chairman: Mr. Anawak.

Mr. Anawak (Nunatsiaq): Thank you. It's a pleasure to hear you report on your findings and beliefs.

One of my worst days was when I had to vote on ratification of the Nunavut land claims. I voted against the ratification because of the provisions of the extinguishment clause as well as the size of the land to which we were getting outright ownership. So there's the Nunavut land claim, the James Bay, Makivik, NQIA, Beaufort... I'm just looking at the area I'm most familiar with. Most or all of those negotiations....

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Before I get to that, I have a problem with the term ``negotiations'' when the other side is holding all the cards and you're holding the joker. There's nothing you can do about the joker because you don't have.... They are called negotiations, but I never considered those particular land claims negotiations. In the end the government held all of the cards. So I have a problem with the term ``negotiations''.

However, all of those land claims negotiations were ratified. They're there. I realize that you can try to get your land claims organization to say maybe that's not what we should have done, particularly on the extinguishment.

Would it be possible, because of the wording of that particular extinguishing clause in each of the negotiated claims, to revisit it in the future? You said that we're always changing and that even we have to look at the Constitution every few years. Would it be possible to revisit that on some of the ones I just mentioned on the extinguishment provisions?

Mr. Hamilton: The minister made it very clear when I started, and in some of his other declarations, that I was only being asked to comment on new treaties. He wasn't holding out any hope of going back and changing any of the existing ones. That's probably all I can say on that point.

Mr. Anawak: And you'll be able to comment on it some time.

Mr. Hamilton: I wouldn't dare.

Some hon. members: Oh, oh!

Mr. Anawak: I knew that was going to be the case. For a lot of us it seems hopeless to realize that we have - in my case, I have a negotiated land claim in which I gave up all my rights other than those defined in the land claim. What hope is there for us, especially with the...? I don't know if there's any hope. Somewhere along the line I think we will have to do it or be put in the position of having to do it because of what may go on in that particular area.

Mr. Hamilton: All over the country I heard how painful it was for people to vote. It broke up communities and everything. It was very hard to sign a treaty agreeing to give up your aboriginal rights. And of course, the Dene-Métis claim in the Northwest Territories was negotiated for years and broke down. I'm sure there are other reasons, but one of the major ones was the extinguishment clause. Communities weren't prepared to sign it. In my mind, a serious situation exists in Canada.

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Certainly aboriginal people want the treaties to regularize the arrangements and their rights and their use, the extent of their use of traditional lands. The third parties have exactly the same need. They have to get their position regularized.

Maybe there has to be some accommodation on both sides so you can get the treaties done. Try saying it's in the interests of all Canadians to finally have the relationship between aboriginal people and the federal government set to rest, regularized, recognized, covered by treaties. Then you should have settled the vast majority of those issues that have been outstanding for 500 years.

Mr. Finlay (Oxford): Mr. Chairman, I want to tell our witness how much I appreciate his appearance and what he has said. I note from his little curriculum vitae that his primary interest and activity is mediation. It's something I'm very interested in. I applaud you, sir, for what you've done.

You have enlightened me. I share some of the questions my colleague raised when I first read part of your report. I've had an interest in aboriginal affairs for a long time, whether it stemmed from reading Zane Grey originally or Bury my Heart at Wounded Knee, I'm not sure.

I have some pride in Canadians in that we didn't settle the west with a gun and the army. I don't have a great deal of pride when I see the condition presently of many of our aboriginal people. I've had that opportunity.

The big question I couldn't answer was how you could have a treaty and carry on the inherent aboriginal rights. How can you have certainty, which everybody wants, and yet have an inherent right? You have helped me to understand that.

Probably on the government side, on the side of the newcomers to this land who are not aboriginals and have a lot of difficulty understanding that land is not owned by individuals in the aboriginal view of things, we like everything cut and dried and we liked everything timed. That isn't the way the aboriginal looks at life or at the world or at this country or at his future. We simply have to develop some respect and trust and, as I said yesterday in the House, patience in order to come to grips with this.

I wonder whether I would be right or wrong in suggesting some of the touchstones of Anglo-Saxon law and rights - maybe the Magna Carta would be a good example - have influenced our laws and our jurisprudence for centuries. Yet it will never end. It will continue to be redefined and to be dealt with by the courts. Surely the Constitution has shown us that.

I think your assessment is brilliant. We simply have these rights, and they have these rights, and we recognize them and we deal as much as possible with the pragmatic implications of that.

The Chairman: We have less than two minutes. Carry on.

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Mr. Finlay: I wonder whether I have my mind around it finally as to what the inherent right means as opposed to these terms of extinguishment and certainty. I don't see much certainty in our legal system. I don't know why we have to insist upon it, because times are going to change. Everything is going to change over time.

The Chairman: Justice Hamilton, I will invite you to blend a response with closing remarks.

Mr. Hamilton: If all the interested people sit around the table together in good faith, they can work this out. If they get legalistic about it - what would happen if we do this or get afraid of our shadow? - then nothing will happen.

What I propose is a very small step from the very slight progress that has been made in government policy over the last 25 years. It's so close. All you could do is get rid of the requirement that one of the parties give up everything and then start from scratch. Giving up their aboriginal rights is such a significant part of the aboriginal party's psyche and very being. That's a major thing for government to answer. It's so simple just to get rid of it. You'll still have the same degree of certainty, in my opinion, as treaties now provide on the lands and rights.

Of course they can be vastly improved. But how much better to have all the people around the same table talking to one another and working out the details than one of the approaches by government, which is ``Take it or leave it, here's the treaty, here's the amount of money we'll pay. But we don't like the extinguishment clause. Take it or leave it. That's it; take it or leave it.''

On page 98 I say there are things government can do to discharge its proper fiduciary duty to aboriginal people: Do not demand a surrender of aboriginal rights, which you've just recognized in the Constitution. Establish a more even playing field in the bargaining. Have the rights of all the parties set out in the treaty, not just rights of aboriginal people. Aboriginal people want to know what the rights of the other parties are too. Do it. That is the way to go and that is the way to develop a more lasting relationship.

You'll notice I call this a new partnership. I hate to use that word, because it becomes a catchword. But on the frontispiece - and I'll end with this - there's a quote from an elder at the Walpole Island First Nation Council of Three Fires: ``Father, when the white people first came among us, they were received by us with friendship. We joined hands and they were lashed together strongly. This we were told by our fathers and we hope you still remember it''.

I tried to summarize the approach I think is appropriate by government and by all Canadians to the aboriginal people with a spirit of goodwill. Sitting around the table, I like to think - and I don't think I'm overly optimistic - these issues about treaty-making can be well resolved.

Thank you.

The Chairman: Mr. Justice, I want to thank you. The members have each taken the opportunity to express their appreciation. I know you've put your heart into this. Reading that short paragraph at the end put everything in perspective. It belongs to us to put our hearts into it and to do what's good for everybody. Thank you very much.

Mr. Hamilton: Thank you very much, Mr. Chairman, and members.

The Chairman: The meeting is adjourned.

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