[Recorded by Electronic Apparatus]
Wednesday, December 6, 1995
.1515 
[English]
The Chairman: We'll start our meeting for this afternoon on Bill C-110, an act respecting constitutional amendments. From the Inuit Tapirisat of Canada we have Rosemarie Kuptana, who is the president. We also have Wendy Moss, an adviser, and Mary Sillett, the vice-president.
Ms Kuptana, if you would just proceed with your presentation, once you've completed it we'll go to questions and answers. Please go ahead.
Ms Rosemarie Kuptana (President, Inuit Tapirisat of Canada): Thank you, Mr. Chairman.
The Inuit Tapirisat is very pleased to appear on Bill C-110, an act respecting constitutional amendments. For the information of committee members, we do have in circulation one French and one English version of a letter I submitted to the Prime Minister with respect to this bill.
Secondly, we have this presentation, which I'm about to present in English only. If there are any committee members who are interested in having an English text, you can just raise your hand and Wenda Watteyne from my office will provide you with a copy.
National unity and any discussion of changes to the amending formula are of fundamental importance to the rights of the Inuit as an aboriginal people of Canada. Our rights under the Constitution can be affected by constitutional amendment, and therefore can be affected by any proposed changes to the amending formula.
Our hopes for constitutional change are dependent on the amending formula, and therefore will be affected by any proposed changes to the amending formula. In particular, our long-held objective to entrench an explicit recognition of our inherent right to self-government will be affected by any change to the amending formula.
We're very appreciative, Mr. Chairman, of the invitation to appear before this committee on Bill C-110, an act respecting constitutional amendments. However, we find the haste with which the committee is being instructed to proceed in its study of this bill rather unjust and inappropriate. The committee has been very accommodating within the limits allowed it, but I think the ridiculously short time allowed witnesses to prepare and to travel here suggests a vision of the country that assumes that people interested in such matters are within a day's travel of Ottawa and can simply drop everything and prepare a submission on very short notice.
How can the government promote national unity when it has a secretive closed process for the development of such proposals and when the schedule it allows this committee does not take into account the challenge of travelling to Ottawa for people in the north and elsewhere, people who reside out of central Canada?
Inuit believe that aboriginal peoples' rights and status under the Constitution of Canada are an integral part of any national unity question. I think this has been established many times in our recent constitutional history. The exclusion of aboriginal peoples from a substantive role in the Meech Lake accord was one of the most important factors that led to its failure.
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On the other hand, the Charlottetown accord provided full inclusion of aboriginal peoples, and in that process we played a very constructive role on every issue from self-government to Senate reform to the division of powers and the distinct society issue. More recently, our rights and status as distinct and equal people have been an integral part of the Quebec sovereignty debate, and they will continue to be so.
One observer has said that the Quebec secession issue is like the proverbial elephant in the tent; it touches everything. This is equally applicable to aboriginal peoples in regard to any matters touching the Canadian Constitution. The situation of aboriginal peoples in any national unity discussion, whether it be the amending formula or a referendum debate, simply cannot be avoided, however much people would like that to be otherwise. The federal government clearly wishes otherwise in this case.
In preparing Bill C-110, the federal government has failed to consult Inuit. It has failed to consult us on our rights and our views of how our situation in and out of Quebec fits within any overall national unity strategy. We have been ignored in the decision-making process that led to this bill and in the preparation of the overall unity package. It is very alarming to us to see that exclusionary practice of the past being repeated once again. We had thought that the old colonial mentality of shunting aboriginal peoples to the side and ignoring our views during nation-building exercises were gone.
Last week The Globe and Mail reported on a leaked federal memo that explicitly recommended our exclusion from national unity and constitutional discussions, as well as recommending the means to achieve that exclusion. It was based on a cynical and wildly inaccurate view that our silence or acquiescence on national and constitutional issues could be bought by making financial commitments at the local level on unrelated files. In its worst light, this strategy can also be viewed as a form of blackmail.
Progress on matters outside the Constitution or national unity will only come in return for silence of our constitutional rights, and that is a very disturbing situation for even one government department to be writing about or even recommending that a minister buy our silence on.
I can assure committee members today, and through you the Government of Canada, that this is a strategy that's doomed to failure. Aboriginal peoples cannot be bought and our rights cannot be traded away. If this memo represents the depth and skill of analysis applied to aboriginal issues and their relationship to Quebec's constitutional and sovereignty issues, then this country really is in trouble. There is simply no excuse for this kind of shallow and cynical thinking. It reveals an ignorance and a contempt of aboriginal politics and of aboriginal peoples in general.
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Whatever the official status of that memo, there are clear signs that a strategy very much like this is being followed. The leaked memo proposed doing whatever was necessary to exclude aboriginal peoples from any forthcoming Quebec round of constitutional discussions that may occur in 1997.
Government spokesmen such as Senator Fairbairn have recently indicated that the federal government has decided for us that we do not need to be at the 1997 constitutional conference, a conference that could constitutionalize the legislative proposal contained in Bill C-110.
This is an example of the federal government again presuming to decide what affects us and what is in our best interests, and in the absence of any consultation on the matter. The federal government is trying to sell us a bill of goods by saying its policy on the inherent right of self-government is all we need.
That was one of my biggest fears when the inherent right policy was being developed. In consultations with the Minister of Indian and Northern Affairs, I indicated to him that I did not wish to see this particular policy on the inherent right of self-government being developed so that we could be excluded from the constitutional processes in the future.
Right now the federal government says it will act on the basis that the inherent right of self-government is already contained and protected under the terms of section 35 of the Constitution Act, 1982. However, saying so doesn't necessarily make it so.
We need an explicit constitutional amendment on this fundamental question. The common law of aboriginal peoples is still locked in a time warp where aboriginal peoples' rights are defined based only on a picture of what other people think we have been and not on what we can also become and what we choose to be. This is evident in recent decisions such as Delgamuukw and Pajamewan and Jones.
We have always known we could not rely wholly on the courts to recognize our equal rights as peoples. This is because the roots of the common law of aboriginal rights lie in an era fundamentally based on assumptions about our inequality as peoples. The essence of our relationship with Canada ultimately will be expressed through the resolution of the self-government issue, and the self-government issue has not been resolved and cannot be resolved by a federal policy statement.
Constitutional reform in the area of self-government must take place to entrench the principle of aboriginal peoples as peoples with an equal right to determine our collective future within Canada. That's a point we have made throughout many constitutional reform processes, including Charlottetown.
At the political level, the attempt being made to shunt aboriginal peoples aside is itself an example of why the inherent right of self-government, and the significance of that right as one of the three orders of government, needs to be entrenched explicitly in the Canadian Constitution. In other words, we need to have our rights recognized as a people in the highest law of the country.
It is indeed ironic that the words ``inherent right of self-government'' and ``section 35 right'' are being used so glibly by this government as an excuse for excluding aboriginal peoples from the constitutional process.
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So far in this post-referendum period, the federal government's approach to national unity does not actually involve canvassing opinions outside a very select group of federal civil servants and advisers in the Prime Minister's Office. This is not a recipe for national unity.
Furthermore, it seems that a specific premise of this strategy being followed by the federal government is that aboriginal peoples are basically a nuisance and our rights a bothersome irritant to be swept under the rug as quickly as possible. We are being told to get out of the way as quickly as possible so the federal government can get on with its secretive, ill-advised, ill-considered, hurried agenda of responding to that all-important question of Quebec's future.
Aboriginal issues are as complex and as wide-ranging as those of Quebec, and they are intimately connected. In its latest state of panic over Quebec's place in Canada, the federal government is demonstrating neither openness nor creativity in the national unity question. Instead the federal government has fallen back on the old pattern of exclusion, the old way of pretending and hoping that by ignoring aboriginal peoples and our rights, our issues will somehow simply dry up and blow away.
In terms of the specifics of Bill C-110, we are particularly concerned about this legislation's proposal that a regional veto be granted to western and eastern provinces and that a provincial veto be granted to each of Ontario and Quebec. In our view, this is an unconstitutional attempt to amend the amending formula provided 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 requisite number of provinces required for various changes to the Constitution in this process.
Bill C-110 violates the requirement 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 paragraph 38(1)(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 paragraph 38(1)(a).
Second, the binding legislative procedure proposed for the federal Parliament in the exercise of its power under paragraph 38(1)(a) effectively amends the formula for provincial consent set out in paragraph 38(1)(b). Bill C-110 is an unconstitutional attempt to amend part V without having to meet the requirements of paragraph 41(e). Paragraph 41(e) requires the unanimous consent of all provinces and of the federal Parliament for any amendment to section 38 or any other provision of Part V.
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Furthermore, whether Bill C-110 is constitutional or not, it will fundamentally affect the rights and interests of aboriginal people and the northern territories in a very negative way.
Inuit, therefore, should have been consulted prior to the introduction of the bill and with respect to the future. We cannot be excluded from any constitutional conference aimed at entrenching this proposal through the necessary amending formula.
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% of the population and approval by the House of Commons and the Senate.
This veto proposal would obviously change the formula through an extra-constitutional mechanism, making constitutional amendments on aboriginal matters and rights very difficult, if not impossible, to achieve in the future.
We note that the current amending formula is already regarded by many of those who are involved in constitutional law as being too rigid. This proposal simply aggravates the very problem that has prevented progress on constitutional reform sought by Quebec by aboriginal people and other provinces and regions of the country.
From the constitutional gridlock we have experienced in the past, we will be moving to a state of constitutional deadlock under this proposed legislation. Bill C-110 also represents a shift from a neutral amending formula to one that incorporates and encourages regionalism. This is not a proposal that's conducive to constitutional renewal or national unity in the long term.
ITC is also firmly opposed to the application of provincial or regional vetoes to the creation of new provinces. We wish to point out to this committee, and to Canadians generally, that Inuit have tolerantly witnessed the establishment of an entire state, and with it, the evolution of territories and new provinces in our traditional homelands. We have consistently attempted in every way to be partners in this nation-building process.
We did not drive people from our homelands. We have not demonstrated or been xenophobic. In fact, we have welcomed the Charter of Rights and Freedoms.
Yet when the day comes for Nunavut to evolve from a territory to a province, our dreams will be subject to the vagaries of regionalism and provincialism in every sense of the word. Mr. Chairman, in my humble opinion, this is not nation-building.
The leaked federal memo on the post-referendum strategy suggests that aboriginal peoples be offered an aboriginal round in return for staying out of the way in the so-called Quebec round. Not only is this proposal repugnant in principle, it is of no use to us even if we had an ironclad guarantee for a later constitutional conference that was devoted to aboriginal peoples and issues. This is because our ability to pursue any constitutional amendments will be severely hampered, and, for all practical purposes, made impossible by regional and provincial vetoes that are being proposed in this bill.
.1540
It is even more alarming that the government is proposing to constitutionalize this arrangement at a constitutional conference from which the government currently plans to exclude Inuit and other aboriginal peoples.
Mr. Chairman, this is not about nation-building. It certainly isn't nation-building.
I must point out also that in ITC's initial reaction to the Prime Minister's proposal to recognize Quebec as a distinct society, we did not object to the idea of a parliamentary resolution, as suggested by the Prime Minister in his press release, because we saw no impact on our rights from a parliamentary resolution. However, should the government propose to include such a recognition in the Constitution, we would have to assess the impact of any proposed amendment depending on where it was placed in the Constitution and its precise terms.
We expect we will have serious concerns about the proposed reforms of unemployment insurance because of the proposed restrictions on the scope of federal powers in the area of training, as one example.
The Prime Minister's press release of November 27, 1995, states that the constitutional amendment process is of interest to all parts of the country. This statement is true, but for the reasons we have explained, the proposal fails to address the interests of aboriginal people and those in the northern territories of Canada.
The solution to the complexity and diversity of constitutional interests at stake in this current national unity process does not lie in exclusionary tactics. In pretending that aboriginal peoples can be dealt with later or somehow bought off with promises of later constitutional conferences, this strategy is reminiscent of the separatist strategy in the last Quebec referendum. The separatists basically said we should not worry. They asked us to trust them. After they got what they wanted and took unilateral action fundamentally affecting our rights and interests and in opposition to our right to choose our own future, they would deal with us.
Mr. Chairman, in my opinion, the federal government is behaving the same way. In doing so, it is returning to a colonial mentality that we thought it had abandoned.
As a people, equal to any others in this country, Inuit are entitled to participate in any discussion fundamentally affecting our place and our rights in this country. It seems that we are back to the days of 1987, of standing outside the door waiting to be let in. As Zebedee Nungak would say, we've made it as far as the executive washroom, but no further.
However, as in 1987, we do not believe the Canadian public will support such a fundamentally exclusive process, nor do we think Canadians will be impressed with the ill-considered and ill-advised haste with which the government is attempting to dispatch this bill.
Mr. Chairman, we close our presentation with two recommendations.
First, this committee should recommend to the government that it reconsider this proposal in its entirety for the reasons we stated above regarding constitutionality and the threat to national unity inherent in increasing the rigidity of the amending formula.
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If that is not achievable, alternatively, the committee should recommend that if the government decides to proceed with Bill C-110, it should be amended to exclude 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 provisions 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 provisions relating to aboriginal people or aboriginal peoples' rights.
Thank you, Mr. Chairman.
The Chairman: Thank you very much.
You may have noticed we've lost a few members. That's not because they don't want to be here. They had to go to a vote, and that's what the flashing light and bells are. They'll be back as soon as the vote is done. They have access to everything because everything is taped and transcribed.
We'll start the first round of questions. M. de Savoye.
[Translation]
M. de Savoye (Portneuf): I listened carefully to your comments, and I assume you are now hearing what I have to say thanks to our simultaneous interpretation. I read your brief, and, naturally, some of your points touched some sensitive cords within me.
However, I would like to turn immediately to your two recommendations. Since I don't think the first one will be acted upon by the government, and believe me when I say that I regret it to some extent, I will move to your second recommendation and ask you two questions about it.
First, does this recommendation mean that you want a veto for your nation? Second, if bill C-110 is passed, do you plan to challenge its constitutionality before the courts? I'd like to hear what you have to say in response to these two questions.
[English]
Would it be helpful for me to repeat it in English?
Ms Wendy Moss (Adviser, Inuit Tapirisat of Canada): No, it's all right. My name is Wendy Moss and I'll answer your question.
Certainly, the second part of recommendation two suggests an aboriginal veto. Another way of putting it is a requirement for aboriginal consent. Inuit specifically are described as an aboriginal people of Canada under the Constitution. So it is an aboriginal veto in one sense, with respect only to matters affecting aboriginal rights' provisions.
On the question of whether ITC has decided to launch a constitutional challenge, that decision has not been taken.
Mr. de Savoye: Thank you.
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[Translation]
I heard you say that your nation was entitled to make decisions regarding its future, and that, within this context, you wanted to be an integral part of all constitutional discussions. However, there is no guarantee, within the Canadian Confederation and the existing amending formula, that you could define the issues in which you are most interested.
What kind of amending mechanism would you like to see introduced into the Constitution to better protect the interests of your nation or to allow you to intervene more effectively to defend those interests?
[English]
Ms Kuptana: In the Charlottetown process this point was not discussed to any great degree. One of the positions at that time - and that position still holds today - is that we would like to see the existing amending formula stay in place with an aboriginal consent provision so that if there are those matters that affect us, we can have a say.
Mr. de Savoye: So essentially we're back to the veto on aboriginal matters that concern your nation.
Ms Kuptana: That's right.
Mr. de Savoye: Thank you, Mr. Chairman.
The Chairman: Thank you, Mr. de Savoye.
Mr. Ramsay, you have 10 minutes.
Mr. Ramsay (Crowfoot): Thank you for this presentation. It reminds me a little of the two we received last night from Chief Ovide Mercredi and Grand Chief Coon-Come.
You say you were not consulted. Do you think you should have been consulted?
Ms Kuptana: As one of the aboriginal peoples in this country, and having a recognition in section 35 of the Constitution Act, 1982 as one of the aboriginal people, and because the amending formula as proposed in Bill C-110 would affect us in the ways I made in my presentation, yes, we should have been consulted.
Mr. Ramsay: Do you feel there's a legal base requiring that consultation?
Ms Kuptana: There has been much political and legal progress with respect to our rights in this country. We have been one of the three peoples recognized in the Canadian Constitution. So based upon that recognition and our past participation in the constitutional reform processes, and because this bill would have an adverse negative impact on our rights, we should have been consulted.
Mr. Ramsay: Then do you feel the lack of consultation has violated your constitutional rights?
Ms Moss: We're hoping at this stage, because this committee process itself is an opportunity for the government to consider alternatives and to hear the views of Inuit, they will hear them and do something about it. So ultimately the decision lies with the federal government.
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I don't think we've had an opportunity to consider how strong or not the case may be to say the fiduciary duty has been breached in this case. As we've pointed out in the brief, there's certainly a strong argument to be made that aboriginal rights are affected by this amending process. Consequently, aboriginal people should be consulted. The Supreme Court of Canada has made decisions to the effect that legislative activity in particular is something the federal government should be consulting aboriginal peoples on when it can affect their rights.
Mr. Ramsay: Do you feel your presence here today fulfils any government requirement for consultation to bring in this kind of bill?
Ms Moss: It would only fulfil that requirement if in fact the government then acted accordingly. One of the requirements the federal government has in consulting with aboriginal people is to consider options that would lead to the least restrictive impact on aboriginal rights.
Mr. Ramsay: What hope do you bring to this committee that they will accept either one or other of your recommendations? What hope do you have?
Ms Moss: I think that's probably more of a political assessment in terms of the opinion of Inuit in conjunction with the rest of the country and their feelings about this bill and the process by which it's being brought about.
Mr. Ramsay: If you feel you have a constitutional right to be consulted and that constitutional right has not so far been fulfilled and that this may fill that constitutional requirement, then you must have a hope this bill will be amended as a result of your presentation here today.
Ms Kuptana: Mr. Ramsay, perhaps I could intervene at this time. One of my good friends, who is in the Senate, Senator Charlie Watt, stated last week that the proposals being presented, even though they are of legislative initiative, will have a constitutional impact on Inuit and other aboriginal peoples.
Now, Inuit and other aboriginal peoples have played a very significant role in the national unity question. You only have to refer back to Charlottetown, to the two Quebec referenda. Inuit are one of the founding peoples in this country.
Based upon that and on the significant role the Inuit and other aboriginal peoples have played in nation-building in this country, surely this would be enough basis for Inuit and other aboriginal peoples to be involved in the national unity debate. We have built this country. We have demonstrated we are able to play and negotiate on very complex issues, everything from self-government to Senate reform to the division of powers and, I might add, the amending formula.
I'm wondering why this government in 1995, at the beginning of the year that celebrates the International Decade of the World's Indigenous Peoples, would go back, slide back, to old ways of thinking where Inuit and other aboriginal peoples become the objects of power rather than as people who are equal, with equal and collective rights as other Canadian citizens.
Mr. Ramsay: When did you receive a copy of Bill C-110?
.1600
Ms Moss: On December 5.
Mr. Ramsay: That was yesterday.
Ms Moss: Yes.
Mr. Ramsay: At what time?
Ms Moss: At 12:35 p.m.
Mr. Ramsay: Who did you receive it from?
Ms Moss: I'm trying to remember. It looks like the committees directorate itself, the committees directorate of the House of Commons.
Mr. Ramsay: So you weren't aware of the contents of this bill until you received it.
Ms Moss: That's correct.
Mr. Ramsay: So you had to prepare your brief from the time you received it. How long does it take you to get from your residence to Ottawa?
Ms Moss: Mine personally?
Mr. Ramsay: All of you.
Ms Moss: We all pretty much live in Ottawa.
Mr. Ramsay: So how much time did you have to prepare?
Ms Moss: We pretty much worked straight through from the time we made the appointment with the clerk, which would have been mid-afternoon yesterday.
Mr. Ramsay: If this bill is passed unamended, would you consider this to violate the aboriginal constitutional rights?
Ms Moss: I think definitely we would argue that.
Mr. Ramsay: Don't you think you should have been consulted first?
Ms Moss: Definitely. Mr. Ramsay, I think that was made quite clear in our presentation to the committee.
Mr. Ramsay: How does it make you feel when you see a bill like this, which that you consider to be a violation of your constitutional rights, come forward without consultation?
Ms Moss: Mr. Ramsay, I'm not quite sure of your point.
Mr. Ramsay: Are you happy with it?
Ms Moss: It's quite clear in our presentation exactly how Inuit and other aboriginal people feel. That is, this process denies our fundamental human rights to be involved in large constitutional issues that affect all aboriginal peoples in this country. I think it's quite clear, Mr. Ramsay, what we are stating.
Mr. Ramsay: That's fine if you don't want to be more explicit. I thought perhaps you might want to be. The history of the bill is very short. It was passed at second reading on Monday night. We met with the minister before this committee on Monday night. We were advised we'd have to go into clause-by-clause amendments by midnight today regardless of the number of witnesses we had wishing to appear before the committee.
Although I have opposition and concerns about that, I don't have any rights to stop it. None of my rights are being violated during the process because the government has a mandate to do that. Although I expressed mild concern about the rush on this -
Ms Torsney (Burlington): You voted for it.
Mr. Ramsay: I didn't vote for it. I agreed that if the government wishes to express its mandate in that way, there's very little we on this side can do about it.
The Chairman: You're a minute over.
Mr. Ramsay: I'll come back to this when I have time.
Ms Moss: Mr. Ramsay, I just want to state that Inuit and other aboriginal peoples have been involved in many political, legal and other constitutional processes. In those forums and negotiations we have conducted ourselves in a statesman-like manner on very serious issues and we will continue to present our case in such a manner.
The Chairman: Ms Torsney, you have ten minutes.
Ms Torsney: Thank you.
I have two comments. One is that I'm really pleased to see that the Reform Party finally supports aboriginal peoples having rights in this country.
The second one is that the minister's speech in the House on second reading was in fact on November 30. That was last Wednesday and there were copies of the bill available at that time. But that's neither here nor there.
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You mention in your second suggestion a proposal for an amendment that I believe would be rather similar to the Charlottetown amendment. In the copy I have, in section 45.1, there would be a specific amendment where aboriginal peoples of Canada are directly referred to and a specific mechanism that would be in there.
The footnote on this one in the Charlottetown accord says specifically that a mechanism for obtaining aboriginal consent would be worked out prior to tabling of a constitutional resolution in Parliament. If your second suggestion went through, what do you see that mechanism being? How would aboriginal peoples decide whether they were for or against an amendment and give their consent on any issues as identified in this section?
Ms Kuptana: Thank you. I don't know what your name is.
Ms Torsney: Paddy Torsney.
Ms Kuptana: Okay. With respect to consultation and Bill C-110 being available since last Wednesday -
Ms Torsney: That was directed more at -
Ms Kuptana: I know you didn't want me to refer to it, but I want to state for the record that it's not up to Inuit or other aboriginal peoples to consult the federal government on issues that fundamentally affect our rights as a people. The onus is on the federal government to consult Inuit and other aboriginal peoples on fundamental questions such as the national unity of this country, as was demonstrated in the last Quebec referendum.
With respect to what kind of mechanism, I'm not a lawyer so maybe Wendy would have a better suggestion on how that mechanism could best be suited to Inuit.
Ms Moss: I believe you were referring to the discussions in the Charlottetown accord. As noted earlier, those discussions were not completed in terms of the mechanism. It would obviously be a matter that would have to be discussed between the various aboriginal peoples and the governments concerned.
We could point out that in the litigation that did grow out of the Charlottetown accord process, the four national aboriginal organizations were confirmed by the Supreme Court of Canada as bona fide representatives of the aboriginal peoples of Canada. So there has been an existing mechanism in process with four national aboriginal organizations at the table that have been indicating their consent to political accords, for example.
I would imagine there would be other processes possible, such as ratification procedures that have been used to ratify the consent of aboriginal peoples to land claims agreements and self-government agreements. That's a procedure that has been used over and over again to deal with constitutional rights in other contexts.
Ms Torsney: To your earlier point reflecting on my point, I suppose I was not making.... You're absolutely right; there is an opportunity for consultation prior to legislation being brought in.
However, the bill has been available if people were interested, and in fact I think the Inuit people did far more for the unity of this country than certainly the Reform Party did in the last referendum campaign. That has been acknowledged by many of us. I hope you know that I appreciate that, for my part as well.
I was trying to clarify the second part of the suggestion on the aboriginal consent requirement. You've given me some ideas or possible solutions, but I wondered if you had any preference at this time.
People have talked to us in the last couple of days about whether a referendum is the choice or a plebiscite or whatever else. I know that consensus is usually fairly important in the Inuit community and I wondered what mechanisms would be more appropriate to you or what would be your choice and how we could steer people to look at those options.
Ms Kuptana: I'm glad you asked that question because it only hits home back to the point I made. What is wrong with this whole process is that it does not allow for Inuit, who live very far distances from each other, to get together to determine exactly what kind of mechanism they would like to see vis-à-vis the amending formula. That's what's wrong with a very rushed process.
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If we had had time before we came to this House of Commons committee, normally what I would have done is gotten the Inuit leadership together from Labrador, northern Quebec, Nunavut, central Arctic and the Inuvialuit region, or the western Arctic, to debate this whole issue amongst ourselves. But as it was, we had to go back to some of the old positions with respect to the aboriginal veto and the aboriginal consent. I know there have been many developments in this country with respect to constitutional reform issues, but this rushed process doesn't allow for that.
Ms Mary Sillett (Vice-President, Inuit Tapirisat of Canada): I wanted to add that in the recent past there has been the referendum on Quebec and in Nunavut, which is in northern Quebec, and now there's a proposed plebiscite to discuss the capital of Nunavut. So there are lots of referenda, lots of plebiscites. From my reading, people feel it's really important to get consensus, but sometimes that process takes a lot of money, time and energy. I sense a sort of fatigue in our communities on being consulted at that level to this extent on every single issue. But I suspect some issues are more important than others.
To follow up on what Rosemarie said, in terms of the kinds of consultation that we'd undertake, we'd definitely have to have a first preliminary meeting with all the regions because we recognized that on their part there's a lot of work involved. We can't commit them to doing work they haven't consented to.
Ms Torsney: Would the mechanism have to be decided upon, in your mind, prior to proclamation of the law, or if there was an amendment, could the mechanism be left to a later time? I have no idea of the answer, and I'm really asking for your guidance on this. I'm not sure why it was left this way in the Charlottetown discussions...why it had to be decided upon beforehand.
Ms Kuptana: In the Charlottetown constitutional reform discussions we simply ran out of time. With respect to your first question, Inuit fundamentally oppose Bill C-110.
Ms Torsney: Even with an amendment?
Ms Kuptana: Even with an amendment. You see, if it allowed for consultation, that would have given us time to determine what kind of mechanism we would like to see. But as it stands, we're fundamentally opposed to it because it doesn't allow us to determine our vision.
Ms Torsney: So your second item, then, is not an option?
Ms Kuptana: I think it was quite clear in our presentation. We stated our first preference, that this bill be put back to the drawing board, that this whole bill be reconsidered. But if the federal government is going to go ahead and bulldoze through Parliament and go through a legislative mechanism anyway to institute this, then what we're saying is that we would like to see some kind of aboriginal veto or aboriginal consent to deal with our issue.
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Let me be very clear in case you misunderstood me. We are opposed to Bill C-110 because of the negative impact that it will have in the future for Inuit and other aboriginal peoples to have our rights explicitly recognized in the Canadian Constitution.
The Chairman: We had our time in with you, Ms Kuptana, so thank you for your assistance today and especially for the brief.
Mr. Ramsay: Are we done now?
The Chairman: I think we have to be because our next group is waiting, unless the committee wants to go another round. But I think we have to respect the other people who are already delayed.
Ms Kuptana, the committee appreciates the frankness with which you present matters by, shall we say, not beating around the bush when you present your arguments. Thank you very much for appearing here today.
Ms Kuptana: Thank you.
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The Chairman: We'll start the meeting again.
We're pleased that you've been patient in waiting for us to complete the presentations just before you.
We have with us right now Zebedee Nungak, Michael McGoldrick and Sam Silverstone.
Mr. Nungak, we have a brief from you, and I believe you wish to make a presentation to us before we go to questions and answers. Please proceed.
Mr. Zebedee Nungak (President, Makivik Corporation):
[Witness speaks in his native language]
I can never resist administering some linguistic shock therapy at these sorts of forums. I'm very proud of the fact that we have a very distinct language, which is one of the few in this country that is alive and well. If in my delivery in English I mangle the grammar and syntax, it's because I don't think in English, and I often mess up the sentence structure.
Although we were given very short notice, along with everybody else who has appeared in front of you, I would like to thank the committee for providing us with the opportunity to make this presentation today. The invitation reflects some awareness that aboriginal peoples will be very much affected by the issues surrounding Bill C-110.
For those of you who may not be familiar with us, Makivik Corporation represents the Inuit of Nunavik, a region - or, as I like to call it, a territory - that encompasses the top third of the land mass of the province of Quebec.
I used to bring a map to these forums to show exactly where it is, but at one of the conferences leading to the Charlottetown accord I showed that map, and I was so soundly denounced by nationalist elements for showing where we are distinct and where everybody else is distinct that I had to live as Salman Rushdie for a few months after having shown that map. So I just refer to it verbally these days. It is the Arctic portion of Quebec, granted by a stroke of the pen in 1912 by the federal government to the Province of Quebec. It is in that territory that we live.
Makivik acts as the Inuit signatory to the James Bay and Northern Quebec Agreement and is one of the regional organizations that sits on the board of directors of our national body, Inuit Tapirisat of Canada, the president of which was previously in front of you.
In the days leading to the recent Quebec referendum, Makivik organized its own referendum specifically for the Inuit of Nunavik. The outcome was an overwhelming 95% of Inuit voting to reject Quebec sovereignty and to stay in Canada. The results were hardly surprising. They were similar to the outcome of the Inuit referendum Makivik held prior to the Quebec referendum of 1980. We have a sound track record of proclaiming where we stand.
.1625
My name is Zebedee Nungak, and I am currently the president of Makivik. Twenty years ago I was one of the people who signed the James Bay and Northern Quebec Agreement, Canada's first modern-day land claims agreement. It later became Canada's first constitutionally protected land claims agreement.
In the early 1980s I was one of the aboriginal leaders who fought to ensure our rights would be given some recognition in the Canadian Constitution when it was being patriated from England. Our efforts resulted in the now famous and often quoted section 35 being inserted into the Constitution Act, 1982.
A few years later I served as one of the co-chairpersons of the Inuit Committee on National Issues, the then national organization representing Inuit on constitutional matters.
I have sat at more than one constitutional conference with the Prime Minister, the provincial premiers and fellow aboriginal leaders, as we tried to hammer out amendments that would enable aboriginal peoples to take their rightful place in Confederation. On several occasions we came very close to getting the agreement of seven provinces plus Parliament, but ultimately in the end we failed to elaborate our rights in the Canadian Constitution, including our right of self-government.
It is interesting to note that throughout this period we were involved in close to a dozen ministerial meetings and four separate first ministers conferences in an effort to add to our rights already contained in section 35. By virtue of their participation in these meetings, it is clear that the provinces and the federal government saw section 35 as a starting point for the entrenchment of our rights in the Constitution.
In fact, it was originally a Liberal government that suggested section 35 be included in the patriation package, with the idea that we could later elaborate on our rights at first ministers conferences. It is ironic that today we hear people saying aboriginal peoples have all the rights they need in section 35.
My involvement in constitutional issues didn't end with the demise of the aboriginal constitutional reform process of the 1980s. I was one of the many Inuit leaders who worked closely with Rosemarie Kuptana as Inuit Tapirisat of Canada played an important and sometimes decisive role in the formulation of the Charlottetown accord.
But I must add that I am also one of a multitude of aboriginal leaders who fought to correct the shortcomings of the Meech Lake accord.
It is regrettable that the federal government of the day chose to shut us out of the Meech Lake accord and the process leading up to it. Indeed, it is unfortunate that the government was willing to let the accord die rather than open it up for change. In saying this, I recall statements such as ``It's a seamless web'', ``It's a done deal'', and ``It's a fait accompli''. These are the authors of that particular document describing it to the exclusion of the aboriginal people. If they had opted to improve the accord, it is likely that none of us would be here today. We would be too busy living happily ever after.
The committee will note that I said we fought to correct the shortcomings of the Meech Lake accord, not necessarily to kill it. We find ourselves in much the same situation today. We understand the need to take action to promote national unity and move away from the status quo. We can sympathize with the desires of Quebeckers to take their rightful place in Confederation, to be recognized as a distinct society and to have a veto over constitutional matters affecting their future.
The results of the recent Quebec referendum demonstrate there is a need to act on these issues if the country we currently know as Canada is to survive. But make no mistake about it; Quebec's constitutional concerns cannot be resolved at the exclusion of or at the expense of the aboriginal peoples. The one thing we fear more than living in a sovereign, separate Quebec is living in a distinct society Quebec, because right away we are ``out-distincted'' by the overwhelming majority, who happen to be francophone.
.1630
We must be full participants in any efforts to renew the Canadian federation and not be treated like unwanted orphans or have to act like we're some sort of permanent political ``zit'' on the face of Canada and have to conduct ourselves as if we have to prop up our ugly little head at forums such as these to ensure that our rights are not diminished.
As much as Quebeckers may have legitimate grievances with the status quo, their dissatisfaction with the Constitution pales in comparison with those of the aboriginal people. Our history in Canada has been one where our culture has been under constant threat, our languages have struggled to survive, and our ability to decide our own future has been greatly curtailed.
I challenge anyone to find anything in the Constitution or Canadian law that even comes close to providing us with the decision-making powers that Quebeckers enjoy with their national assembly. In this context, it is easy to see that if Quebec requires recognition as a distinct society, the need is even greater for aboriginal peoples. If Quebec requires a constitutional veto over matters affecting their future, the need is even greater for aboriginal peoples. If Quebec requires changes that allow them to take their rightful place in Confederation, the need is even greater for aboriginal peoples.
The message is clear. It is simply impossible to justify any actions to address Quebec's concerns while ignoring those of the aboriginal people. I have searched where I fit in the new design that we have had in front of us for a few days, and I don't see myself anywhere, and this concerns me very much.
Since this is the first official forum we have in which to comment on the Prime Minister's unity measures, I will state our strong objection to any effort to exclude aboriginal peoples from an exercise to redesign the constitutional structure of the country. The authors of this particular bill may deny it, but we see it as no less than an effort to redesign the constitutional structure of the country.
One way or the other, we have been players in every effort to redefine Canada since the patriation of the Constitution in 1982 and prior to 1982. Regardless of government policy, I can assure you that this is not a role we are about to relinquish. We will not stay silent in another room while Canada redesigns itself, and as Chief Matthew Coon-Come so aptly put it yesterday, there is nothing in it for those of us who have threatened to stay in Canada, while at the same time there's every effort being made to bend to those who threaten to get out of Canada. We don't see much justice in this, and by the earlier description of my people having voted 95% to stay in Canada, Canada is going to have us one way or the other, whether they love us enough or not to accommodate our aspirations. So they might as well get right to it and not exclude us.
We are here today to present our views on Bill C-110. Before proceeding any further, I first have to question the appropriateness of any bill that is designed to circumvent section 41 of the Constitution Act, 1982. This approach certainly raises many questions. For example, what would courts do with a constitutional amendment authorized in accordance with the procedures set out in section 38 of the Constitution Act, 1982 and in a manner inconsistent with Bill C-110?
.1635
I've seen you asking questions of witnesses. This is, as a witness, one question I have to ask of you.
We also have to ask ourselves about the relationship between Bill C-110 and the upcoming 1997 first ministers conference to review the current amending formulas. It could be argued that the bill violates the intent of section 49 of the Constitution Act, 1982.
Bill C-110 appears to be an attempt to predetermine the outcome of that conference, and in effect it eliminates the federal government as a credible participant in any review of the amending formulas. This runs contrary to the spirit of section 49, which requires the federal government and the provinces to conduct a review of the amending formulas in part V of the Constitution.
Of immediate concern to aboriginal peoples is that Bill C-110 could be interpreted as infringing on our rights, as provided under section 35.1 of the Constitution Act. This section describes the process for consulting aboriginal peoples on proposed amendments to section 35 and certain other provisions of the Constitution. It is obvious that this consultation process is set out in the context of the amending formulas provided for in the Constitution and not the formula provided for in Bill C-110. The interplay between requirements of the Constitution's general amending formula and that provided in Bill C-110 could well have an adverse effect on the commitment to consult aboriginal peoples as provided in section 35.1.
Whatever the case, the proposed legislation would prevent the federal government from playing a leadership role in initiating amendments on behalf of the aboriginal peoples under the Constitution's general amending formula. The bill makes it clear that the federal government would be limited to reacting to section 38 amendments that have been initiated and approved by the necessary provinces. This poses a serious problem since provinces are unlikely to take the lead role in aboriginal amendments in light of the federal government's fiduciary obligation to aboriginal peoples and its jurisdiction for aboriginal matters under section 91.24 of the Constitution Act, 1867.
Moreover, Bill C-110 will make it much more difficult, if not impossible, for us to obtain agreement among the necessary provinces to entrench our self-government and other rights in the Canadian Constitution. I recall arguments we used to have in that process of section 35 being an empty box or a full box. Our point of view was that it was a full box; the governments of the day that we faced across the table characterized it as an empty box with nothing in it that's not overtly and explicitly stated.
As indicated earlier, section 35 was originally conceived as a starting point for what would be the integration of many of our rights in the Constitution. I also explained that despite the many rounds of ministerial meetings and constitutional conferences - Rosemarie quoted me earlier as saying we had reached the executive washroom, and right now I feel like we're literally left out in the tundra - the requirements of the general amending formula proved to be an insurmountable obstacle in obtaining agreement to enshrine our self-government rights in the Constitution.
By superimposing the requirements of Bill C-110 over the existing general amending formula, the federal government may well be putting agreement for aboriginal constitutional amendments beyond our reach. From this perspective, federal efforts to enhance Quebec's position within Confederation will come at the expense of the aboriginal peoples. Hence, I come here to plead this case in front of you.
.1640
There can be no denying that the additional amending formula outlined in Bill C-110 will make it much more difficult, if not impossible, for aboriginal peoples to obtain the amendments that will allow us to secure our rightful place in Canada. This is simply unacceptable.
The most efficient means of dealing with the problems in Bill C-110 that pertain to aboriginal peoples is to modify it so that the proposed legislation will not apply to any amendment in relation to the aboriginal peoples or their rights. Makivik urges this committee to recommend that Bill C-110 be amended by adding the words ``in respect to the aboriginal peoples of Canada or their rights'' immediately after the amendment in line 7 of the first page of the proposed legislation.
Thank you. I hope I've been clear.
The Chairman: Thank you.
Mr. Ramsay: Thank you for being here today and for your presentation.
Last night Chief Mercredi made a statement that I thought was profound because it was so factual and full of truth. He said an autocrat will not unite Canada, and that's what I see happening here. I see a bill being passed without consultation by those who are referenced in the Constitution, and that means the provinces and the aboriginal people.
Given what has occurred and the testimony we've heard so far from the aboriginal people, including you yourself, I think there has been a violation of your constitutional rights. I think the government is going forward with this and I think they're saying, as they've said in other legislation that the aboriginal people claim violates their constitutional rights, ``take us to court if you think we've violated your constitutional rights''.
I can't support this bill and I'll be voting against it unless there are significant amendments to it. I don't see how this bill can be amended in a manner satisfactory to all those it touches.
I don't disagree with what you're saying in your brief. I think it's unfortunate that you weren't able to present these thoughts and concerns at the time this was being prepared.
Why is it that we're not bringing in the parties prior to the creation of legislation that impinges upon them? Why is it that your concerns are not reflected in this bill? Why is it that the aboriginal peoples who appeared before this committee on Bill C-68 and indicated that their constitutional rights, particularly in the agreements contained within the James Bay Cree agreement and the Yukon agreement, which specifically set out the requirement for consultation.... Why is it that we can't include the aboriginal people before these pieces of legislation are passed?
The constitutional rights of Canadians can be violated by legislation that's put forward, and there's not a thing that we as parliamentarians can do to stop it. I moved an amendment during the hearing on Bill C-68 that the committee stop its work until those articles had been engaged. That was ruled out of order. I stood in the House of Commons and asked for an emergency debate on that particular issue, and that was ruled out of order.
We as parliamentarians have absolutely no power to protect the constitutional rights of Canadians when evidence appears that those constitutional rights have been violated. Professor Hogg and Ian Binnie appeared before the Senate committee on Bill-68 and clearly stated that the constitutional rights and process had been violated under Bill C-68. We couldn't stop it and it's now law.
.1645
It's very frustrating. Sometimes I wonder how the aboriginal people can appear before this committee over and over again, expressing the concerns that they've expressed, and not have it create the kind of frustration and despair that I sometimes feel when I see these things happening.
If we're going to grant rights to people by force of law, surely it's incumbent upon us to abide by those laws after they have been created. If we have granted the aboriginal people constitutional rights, what will be the consequences if we do not abide by and recognize those rights?
I go back to presentations last night by Chief Mercredi and Grand Chief Coon-Come, where the pleas are coming, the advice is coming and the needs are being expressed, but it always seems that it's after the fact. When he referred to the fact that an autocrat will not unite our country.... You cannot unite a country by dividing the people by force of law. That's what I see happening here, and I don't know what we can do about it.
We have amendments recommended here, and we'll see what the government side does about it. If anyone wants to stick around for the clause-by-clause, we will be going right into it. This bill is designated to go back to the House as quickly as possible, because they want it passed before we adjourn for Christmas.
All I can say is that I will not support this bill. I understand exactly what you're saying, and I understood last night what the aboriginal people were saying. Sooner or later the Government of Canada must recognize the laws they've entered into with the aboriginal people. If we don't, then what will be the consequences of continually frustrating the aboriginal people after granting and recognizing in our Constitution the rights that have been recognized?
Mr. Chairman, I don't have any questions. I've exhausted my questions on this issue with other witnesses. If they would like to comment on some of the things I have said, I would invite them to put that on the record.
I don't know what else I can say except that I support what you're saying. I wish you had been consulted prior to the creation of this bill so that your rights would be recognized in it. I don't think there is anyone in the House of Commons who would not recognize that and support it, because it's in the Constitution now and we must abide by it and recognize it.
Mr. Nungak: I understand that he's not asking a question, but I'd like to make a few short comments on some of the points that he raised.
Our main purpose here is to ask you to push for amendments to this bill. If the government won't listen, we can't force it to. It wouldn't listen to our concerns on Bill C-68. We pleaded our case to the best of our ability on Bill C-68, but to absolutely no avail.
We're veterans of processes like this. We come here, speak English, and plead our case in front of you, but to absolutely no effect at the end of the day. We don't enjoy the exercise when what we say doesn't make a damn bit of difference.
I have to impress upon the Government of Canada, a few weeks after the referendum where my people demonstrated their backbone, their commitment to this country, their courage in making a stand that we feel in the expression of Bill C-110 is being totally ignored.... Whether this is intentional or not, I don't know. I'm not the government.
.1650
I'm here to remind the government that previously we have been eager participants in the building of this country. We are not burdens on Canadian society. We are fully committed to helping build this country, but the political and constitutional make-up of it is deficient in that it is founded on this idea of two founding peoples. I don't see myself there, just as I don't see myself in this ``four regions have a veto'' framework. Where are the aboriginal people in that equation? We don't see ourselves there.
You're right, continually being frustrated in these ways will have a negative effect. I can't tell you how these negative effects will manifest themselves, but you should note there is a limit even to the legendary patience of the Eskimo. The government should take note of that and adjust its approaches accordingly. I can't be more clear than that. If what I have to say does not make a damn bit of difference, who am I to force the Government of Canada to listen not only to me but to this whole segment of the Canadian population that happens not to be French, not to be English, but to be aboriginal?
The Chairman: Thank you.
Mr. Regan.
Mr. Regan (Halifax West): Mr. Chairman, I want to begin my comments by saying that it's gratifying to see that our Reform Party colleague has shown a great interest in the concerns and rights of aboriginal people, and I look forward to his support in any future land claims settlements. I don't think his party has supported any so far, but I hope we can look for that in the future.
Mr. Ramsay: Let's see your support for this bill.
Mr. Regan: My question is this. What do you feel have been the chief obstacles to constitutional change in the past, to successful constitutional negotiations? Do you feel that having all of the issues on the table at one time complicates the issue and makes it harder to achieve an agreement, or is that the only way to go?
Mr. Nungak: Had I ever been in the pilot's seat in that process, I would have all the answers in the world for you. I was there as one segment in a constitutional tangle of 17 dancers.
Mr. Regan: You're ahead of me. I wasn't there, so tell me about it.
Mr. Nungak: The main obstacle was the reluctance of governments to be engaged in an exercise of sitting across a table from aboriginal leadership and making a genuine effort to accommodate our aspirations. We did a commendable job of making clear to the provinces and to the Government of Canada what we wanted and why we wanted them - the entrenchment of our right to self-government, and the proper placement of aboriginal people in the constitutional and political framework of Canada, with the governments not being reluctant uncles but willing recognizers of our place and enriching the country in the process.
.1655
One of the biggest obstacles was our inability to break an ingrained attitude that was very unsympathetic to aboriginal rights. I once described that whole exercise as trying to do constructive damage to the status quo. We're trying to rearrange the face of Canada in a way that will include our place in it.
It may have been the times, but it was also the premiers' and governments' unfamiliarity with the issues surrounding aboriginal people, as well as a certain fear of the unknown. The most hard-headed ones used to describe it as a leap into the dark, a leap of faith where nobody knows how everybody's going to land, and therefore it's not worth taking that risk.
I realize we don't have much time, and I don't want to take more time. I'm just trying to give you my perception of what went on.
Mr. Regan: But in the Charlottetown accord the premiers in fact did agree to recognize the inherent right to self-government. Do what do you attribute the fact that the Charlottetown accord failed? Are you saying it failed because it included the inherent right to self-government? What do you feel was the main obstacle and why did people not support it?
Mr. Nungak: I don't know how my giving an opinion on that will help us amend Bill C-110.
Mr. Regan: The other question I asked you was whether it worked well in the past to have a constitutional process where you try to solve everyone's problem at the same time.
Mr. Nungak: Charlottetown was a problem of sheer overload. The process and what could have been accomplished suffered because the sheer weight of all the things that had been hammered out just didn't pass by the electorate, but I can't say we should never do that again. I thought the government would have learned from Meech, from Charlottetown and from the non-success of the aboriginal-first ministers conferences, but here I am in your committee room, pleading [Technical Difficulty - Editor] Aboriginal-first ministers conferences haven't been remembered by this government in this particular bill.
Mr. Regan: If, as you acknowledge, it has been difficult to achieve success when you are dealing with all of the issues at once - and as you say, in Charlottetown it seemed to weigh down the whole process - do you think that if we deal with some of the issues separately, you might have better success in the future?
Mr. Nungak: It's possible, but where we are as aboriginal people in the sequence is very important to me. If you're going to ask me to sit silently in the next room while you do Quebec or some other aspect, and when it is my turn I find that whatever I could have accomplished has been made impossible by what went on and what got fixed, don't expect me to be happy about that. I think the aboriginal element is important and needs to be given first priority. If you're going to do things in sequence or separately to compartmentalize the exercise, do it if you will, but make sure the aboriginal issues and the aboriginal rights are number one, because they're 127 years overdue, for one thing.
.1700
From the efforts we have expended over time, there are certain pieces we can pick up. We're not starting from absolute scratch if only the government will commit itself to a process that will attempt to address the aboriginal issues.
Do you want to say something?
Mr. Sam Silverstone (Legal Counsel, Makivik Corporation): I'd like to try to answer your question. You're asking what would work. I think what would work is if the federal government lived up to its fiduciary responsibility for aboriginal people and did not propose legislation which in our view violates both the spirit and letter of the Constitution.
Mr. Regan: Are you saying that would work to achieve constitutional change, a whole change, or what are you saying?
Mr. Silverstone: You do it within the Constitution. You don't try to do it outside the Constitution. You don't try to make amendments to the Constitution by a piece of legislation. You stay within the parameters of the document you already negotiated with the aboriginal people. I think that's a good first step.
Mr. Regan: Are you giving us a process? Can you show us a process that's going to work to achieve constitutional change?
Mr. Silverstone: Yes. You've set out a process in the Constitution. You're supposed to have a constitutional conference in 1997 to discuss the formula in part V. Section 35.1 states that if there are ever going to be any amendments to part II you have to consult the aboriginal people.
Those provisions were fought for. Those provisions were put into the Constitution. At the first opportunity we turn our backs and what do we have? The federal government is attempting to pass a piece of legislation that contradicts its own Constitution. I think it's pretty pathetic.
Mr. Regan: You're not giving me an answer about how we can overcome the major obstacles, the major problems, we've had in the past to achieving constitutional agreement and change.
Mr. Nungak: I don't think that's what we're here to do.
Mr. Regan: We have to deal with this problem.
Mr. Nungak: Of course, if you want to give me a contract to help you design a process for you, I'd be happy to do that. It's something that has to be given a lot of thought. I don't think it would serve any purpose to satisfy your curiosity for me to attempt to answer that question in the little time we have here considering a specific bill.
The Chairman: Thank you.
Mr. Ramsay, did you have any further questions or not?
[Translation]
Ms Venne.
Ms Venne (Saint-Hubert): I think we should be prepared to move on to the clause-by-clause study. We were supposed to do that at 5 p.m., I believe.
[English]
The Chairman: We were delayed a bit in starting. We started at 3:15 p.m. and we will proceed with this until 5:15 p.m. if there are further questions. If there aren't, then we'll proceed with the other business. Mr. Ramsay, did you have anything further?
Mr. Ramsay: Nothing other than to advise you we will be recommending the amendment you suggested to us to the committee today when we go into clause-by-clause in a few minutes.
Mr. Nungak: I can only express good luck to you. I hope you start having successes in your efforts to get amendments passed.
Mr. Ramsay: Thank you.
The Chairman: Are there any other questions from the government side? There are none. Thank you very much for being before us today and for the brief you have presented.
.1705
.1709
The Chairman: We'll commence the clause-by-clause consideration of Bill C-110.
Mr. Harper.
Mr. Harper (Calgary West): I have a point of information. I want to draw the attention of the committee to the fact that I did receive a letter today from the intergovernmental relations minister of Saskatchewan, who indicated he would like to have appeared before the committee on this bill and felt that it would have been appropriate, but that it was not possible given the short lead time and the short hearings of the committee. From the clerk and from the chair, I'm curious as to whether the witnesses who didn't come were unwilling to come, or unable to come.
.1710
The Clerk of the Committee: Mr. Harper, we can say that some did say it was too short a notice, and some others - and that included most of the governments - said they would not accept the invitation.
Mr. Harper: Thank you. I wanted to get a clarification.
The Chairman: Mr. Harper, do you have a letter from the Government of Saskatchewan?
Mr. Harper: Yes, I do.
The Chairman: I'm interested, because as chair they never tried to contact me, nor to send me a copy of the letter. I wonder if you could make a copy of that letter available to me.
Mr. Harper: I have no reason to believe it's confidential, so we certainly could do that.
The Chairman: Could you make it available to the clerk to forward to me and to other members of the committee who may wish to have that letter?
Mr. Harper: Yes.
I should say that I had written to the minister pursuant to the list I submitted to the clerk, so it might explain why he wrote to me.
The Chairman: I see. Thank you very much.
We'll proceed to the clause-by-clause consideration of Bill C-110.
On clause 1 - Consent to constitutional amendments
The Chairman: From the Reform Party we have two amendments, which I have before me at this time, and I believe there will be a third one coming as well. They have been distributed.
Mr. Harper: On an unrelated matter. The third amendment is unrelated.
The Chairman: I believe we should deal with the first amendment, and that is an amendment I have that I'll make reference to as to Bill C-110, clause 1, page 1 - I'm not sure if yours have been numbered.
The amendment is that Bill C-110, in clause 1, be amended by replacing line 13 on page 1 with the following.... Then it says -
Mr. Ramsay: On a point of order, because the other amendment recommended by the last group that was here commences on line 7, would it be in order to deal with that first? Could we come back to it, after we go by it? Would that be proper?
The Chairman: To come back to it? We can come back to it.
Mr. Ramsay: Then there's no problem.
The Chairman: Okay, so if everyone has the same amendment as I have before me, do we have a mover of this amendment?
Mr. Harper: I'll move this amendment, Mr. Chairman.
The Chairman: Moved by Mr. Harper. Is there any comment by the officials from the department or not?
Ms Mary Dawson (Assistant Deputy Minister, Department of Justice): No, I think this is a policy matter, so I don't have any legal comment on it.
The Chairman: Mr. Harper.
Mr. Harper: If I could speak to it briefly, to clarify for members of the committee as to the intent of this amendment, there has been some debate here about what exactly the intention of the bill is and what is mean by ``province''. This is meant to make it absolutely clear that the intention is to consult the people of Canada nationally, in a referendum.
The Chairman: Okay, we have Mr. MacLellan.
Mr. MacLellan (Cape Breton - The Sydneys): If I read this correctly, it would counteract what the minister wanted in the bill, and that is the flexibility.
Also, it does add a financial component by the cost of referenda in the various provinces, and if we were to require these referenda in the provinces, certainly the provinces would say, fine, then you can pay the costs of them. I don't think that has been a consideration by the federal government.
The Chairman: Mr. Harper, would this amendment...even if there was a technical amendment that was non-controversial, would it require the referendum as well?
.1715
Mr. Harper: The intention would be that any resolution that would require the Government of Canada to pursue prior approval, according to the formula outlined in the bill, would also require a referendum as part of that formula. That's the intention. Obviously it would not be required if the bill itself does not require this reference to the provinces in the first place.
The Chairman: We have the Reform amendment 1 before us. If there is no further discussion, all those in favour of the amendment?
Amendment negatived [See Minutes of Proceedings]
The Chairman: We have amendment 2, which I believe goes to the definition of ``referendum'', Mr. Harper.
Mr. MacLellan: We don't have a copy of that.
Mr. Harper: Mr. Chairman, before it's handed out, obviously amendment 2 is conditional upon the passage of amendment 1. The second amendment was required to define ``referendum''. Since we've defeated the idea of consulting the people, we won't need to define it.
The Chairman: It's consequential. Therefore, it's withdrawn, or not presented. Thank you.
You have another amendment, Mr. Harper.
Mr. Harper: Mr. Ramsay will move that amendment, Mr. Chairman.
Mr. Ramsay: Yes, Mr. Chairman. Of course, this is the amendment that was recommended in the brief last presented to the committee. I think everyone has that within the brief handed out by the clerk.
On line 7 it is recommended that Bill C-110 be amended by adding the words:
- in respect to the Aboriginal Peoples of Canada or their rights, or an amendment
- This would follow immediately after the word ``amendment'' in line 7 of the first page of the
proposed legislation.
[Translation]
Ms Venne: I do not have an amendment, Mr. Chairman. I would like to know what we're talking about here.
[English]
Mr. MacLellan: To include an amendment that merely states:
- in respect to the Aboriginal Peoples of Canada or their rights, or an amendment
- is very general. I don't think we're even being respectful to the aboriginal people by wanting to
include something that could be as general as that. I think it's not something we could consider.
Mr. MacLellan: It could be. It could always be considered at report stage, or through another amendment. It's up to the mover, of course.
The Chairman: Madame Venne.
[Translation]
Ms Venne: I would just like to add, whether with respect to this specific amendment or another one, that the veto granted in this bill is so watered down that I fail to see the point in extending it or giving it to anyone else. Since it is so watered down, it neither gives anything nor add anything. Consequently, I think we should vote now on the bill itself.
[English]
The Chairman: Any other comments? Mr. Ramsay.
Mr. Ramsay: I'd like a recorded vote.
The Chairman: Okay.
Were there any other comments? Ms Dawson.
Ms Dawson: I could give you a couple of comments on the legal content of this if it would be of any help. Just note that some of this would be found in the exclusion under subsection 38(3), but having just been handed it, I would want to do a careful analysis of it.
The Chairman: I see. Are there any other comments with respect to this amendment?
Ms Torsney: Could you repeat that, please?
Ms Dawson: What I said was that some of the items listed here, such as section 25 and probably part II, might well be covered by the subsection 38(3) exemption in any event. The trouble with the way this is laid out is that there are probably parts of it that wouldn't be covered by it. In any event, it would need a careful analysis all the way through in order to understand what would or would not have been covered by the bill as drafted now.
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Ms Torsney: I wanted a point of clarification as well. In the second part, it specifically talks about the aboriginal consent requirement for any amendment to part II. Would that have to be worked out before this could be approved as well?
Ms Dawson: Yes, I think we'd have to look carefully at just how that consent would be manifested. At least with the provinces you know that there are ways. With respect to aboriginal consent, I know from our experience in the discussions at the Charlottetown round that this was not an easy issue to determine how it would be established. So my suspicion is that the second half of that proposal would be quite difficult to formulate.
Ms Torsney: But if this was to go ahead, would we, in concept, have to have this ironed out before we could proceed to third reading, or could it be done at the royal assent section? Could it be done after passing -
Ms Dawson: It would have to be ironed out, I assume, at report stage.
Ms Torsney: Before third reading.
The Chairman: And, of course, subsequently with an amendment to the bill itself.
Are there any other comments with respect to this? Mr. Ramsay.
Mr. Ramsay: I would just add that this is an amendment submitted by the aboriginal group that appeared last before us with their legal counsel. I would suppose that their legal counsel considered and helped draft this amendment. I would like that on the record.
The Chairman: Thank you.
Mr. Harper.
Mr. Harper: I would like also to make a comment, Mr. Chairman. It doesn't appear to me that the issue of how exactly the aboriginal people would or would not consent is raised by this amendment in any way.
In fact, the intention of this amendment is merely to ensure that Bill C-110 doesn't apply to such amendments. In other words, we are not imposing a formulation or a process for approval by a minister of the Crown that doesn't involve the aboriginal people when, in fact, their rights may be at issue. I think, in that sense, it's not asking them to approve it; it's merely asking that we not create a formula that excludes them when their rights are at issue.
The Chairman: Are there any other comments with respect to this or anything else? Ms Dawson.
Ms Dawson: It might be worth just pointing out that there is some protection to the aboriginal peoples in section 35.1 of the Constitution Act. The constitution, as opposed to a mere statute, requires that before there is any amendment made to section 91.24, part II, or section 25 the aboriginal peoples do have to be consulted. Indeed, there has to be a constitutional conference called. So there's quite a serious level of protection to the aboriginal peoples already existing in the Constitution under section 35.1.
The Chairman: Thank you.
Mr. Ramsay.
Mr. Ramsay: One short comment. We have heard very clearly from the aboriginal groups that have appeared before us today and yesterday that they do not feel their rights are protected by section 35 adequately enough in view of Bill C-110. That is my only comment, Mr. Chairman.
The Chairman: Thank you.
With respect to the third amendment of the Reform Party, all those in favour of the amendment?
Mr. Ramsay: I'd like a recorded vote, Mr. Chairman.
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Amendment negatived: nays 9; yeas 2
The Chairman: I have no other amendments before me.
Mr. MacLellan: There's another one.
The Chairman: One was consequential and was not proceeded with.
Mr. MacLellan: Okay.
Clause 1 agreed to on division
The Chairman: Shall the title carry?
Some hon. members: Agreed.
An hon. member: On division.
The Chairman: Shall the bill carry?
Some hon. members: Agreed.
An hon. member: On division.
The Chairman: Shall the chairman report the bill to the House as the twelfth report of the committee?
Some hon. members: Agreed.
An hon. member: On division.
The Chairman: That's everything. Thank you very much.
We meet again tomorrow at 10:15 a.m. in this room.
This meeting is adjourned.