Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 21 - Evidence
OTTAWA, Wednesday, October 1, 2003
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-6, to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other acts, met this day at 6:22 p.m. to give consideration to the bill.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this evening we will continue our examination of Bill C-6 and any impact that the Supreme Court decision in R. v. Powley may have on it.
I wish to again remind honourable senators of the terms of the motion adopted by the Senate: That the bill as amended be not now read a third time but that it be referred back to the Standing Senate Committee on Aboriginal Peoples for the purpose of studying the impact on Bill C-6 of the recent Supreme Court decision recognizing the Metis people as a distinct Aboriginal nation.
It is that question, and that question alone, with which we have been seized. Before we hear from our witness, I would like to address something that occurred at yesterday's meeting.
After hearing testimony from two witnesses, the Honourable Senator Carney moved a motion that the bill be reported back to the Senate without further amendment. As a member of this committee, she has every right to move such a motion. However, during the debate on that motion, a motion to adjourn was adopted, effectively ending the debate. While any member of the committee may choose to move such a motion again, we have scheduled additional witnesses to appear on this issue and so I would recommend that we reserve judgment until we have concluded hearing from all witnesses as of next Tuesday morning.
I will now invite our next witness, Professor Chartrand, to begin his presentation.
Professor Larry Chartrand, Faculty of Law, University of Ottawa: Honourable senators, I will make a presentation on the impact of the Powley decision on Bill C-6. I was here yesterday so I know that honourable senators are well briefed on the Powley decision. I will not go into the findings of the court in Powley but I will speak to the impact that the decision has had on this bill.
On the surface, of course, Powley does not have a direct impact. Another witness also mentioned that. Powley dealt with Aboriginal rights while Bill C-6 deals with specific claims and expressly excludes consideration of Aboriginal rights.
In my opinion, the Powley decision has a significant indirect impact on Bill C-6 and, indeed, on any initiative that the federal government wants to pursue in respect of policy or legislation that makes important distinctions between Indian and Metis communities.
It is fair to say that the Powley decision is probably one of the most important decisions in Canadian law since the trial of Louis Riel; and it is that important for the Metis people.
The Powley case is instrumental because the decision recognizes that Metis peoples are distinct Aboriginal communities deserving of equal respect and that they have legal and constitutional rights that are not less than those of Indian people.
In a rare, unanimous decision — evidence of the most positive endorsement possible — the Supreme Court of Canada stated in no uncertain terms, in paragraph 38 of the decision, that the Metis peoples possess ``full status as distinctive rights-bearing peoples whose own integral practices are entitled to constitutional protection under section 35(1).''
Moreover, the court said that their own communities define their status and rights and any theory that suggests that they have to trace their rights and entitlements through their Indian ancestors was expressly rejected. Aboriginal rights stand on their own as integral to the Constitution.
This kind of straight-up, clear endorsement of the status of Metis peoples will have significant impact on policy and legislative initiatives. First, the unqualified characterization of the Metis as one of the three rights-bearing Aboriginal peoples in Canada will, of course, impose a high level of scrutiny on government to justify differential treatment in legislation and policy between the three types of Aboriginal peoples.
In this sense, Powley will have a great impact on equality rights jurisprudence. That will, in turn, have an impact on initiatives such as Bill C-6 and any other initiative that creates distinctions amongst Aboriginal peoples.
Government is now less able to excuse its failure to include the Metis in federal programs and policies by pointing to the murky legal and constitutional status of the Metis and the uncertainty of their rights. Of course, they have always historically pointed to that uncertainty and the murky status of Metis peoples.
The waters are no longer murky. They are crystal clear, thanks to the Powley decision. The government can no longer ignore the reality of the Metis. The ability of government to exclude the Metis from government programs and services from which Indian and Inuit peoples benefit is now seriously weakened by such a clear and positive endorsement of Metis status and rights.
I will give honourable senators one example: The federal fishing regulations that prevent Metis communities from accessing fishing resources at the same level and to the same degree as Indian bands may very well now be unjustified interference in the legitimate Aboriginal rights of Metis communities.
In a parallel way, the exclusion of Metis from accessing the services of the Indian claims commission under the proposed bill is also subject to this increased concern. In particular, 26(1)(a)(i) of the bill allows First Nations, defined in the bill as ``Indian band communities,'' to refer claims that involve a breach of legal obligations, including fiduciary obligations arising from an agreement relating to land or other assets. That is one important basis for a band to obtain relief under the proposed legislation.
These obligations that are subject to redress by the Crown flow not from Indian status as it is defined under 91(24), but from their status as Aboriginal peoples and autonomous, independent governments. There is nothing inherently ``Indian'' in the obligations set out by the provisions. The Metis were, and continue to be, capable of negotiating treaties just like their Indian relatives' counterparts. They continue to have Aboriginal rights worth negotiating and that is clearly established by the Powley case.
I will give you an example of where a Metis claim would fit within the definition of paragraph 26(1)(a)(i). The Metis negotiated the Manitoba Act with Canada for the entrance of Manitoba into Confederation. Some judges have characterized that as a treaty between the Metis and Canada.
That is one example of where the claim would meet the criteria set out in clause 26 but for the fact that the claimant group is Metis and not Indian. Access is denied simply because the claimant group is Metis, even though the group would meet the criteria set out in 26(1) in all other respects. I do not know if honourable senators can find a clearer case of discriminatory conduct with respect to an exclusion provision.
Furthermore, such exclusion is also inconsistent with the Senate's own report, adopted in the full Senate in 2000, called ``Forging New Relationships.'' In particular, the Senate recommended the creation of new legislation to provide a broad framework to guide Canada in the negotiation and implementation of relationships by way of treaties and other agreements with Aboriginal peoples. At page 25 of that report, and it is important to actually quote here:
The committee suggests that new legislation might provide for...the recognition of the Government of Canada's commitment to engage in various processes to establish and implement its relationship with all Aboriginal peoples in Canada. This might include treaty and agreement implementation and renewal, the negotiation of new treaties and agreements, as well as processes to implement the inherent right of self-government...The legislation would need to make clear that such processes would be available to all Aboriginal peoples in Canada on an equitable basis, and that such processes may need to be structured flexibly to accommodate the different needs, aspirations and preferences of Aboriginal peoples.
The emphasis on ``all'' was in the original report.
Although the body recommended by the Senate in its report on self-government is broader in scope than the mandate of the Indian Claims Commission, and forward looking in terms of positive future relationships — and, of course, the Indian claims legislation is narrowly focused and somewhat backward looking in terms of reparation of past wrongs — the principle is still the same; that being that all Aboriginal people should be included in such mechanisms. If they are designed to assess past wrongs, which the Metis have suffered just as much as Indian communities, then there should be no distinction. Fairness and equity demand no less. Excluding the Metis from benefiting from the services of the ICC is arguably irrational and discriminatory, and it always has been. It is just that Powley has made it much more apparent.
Those are my submissions. I would recommend that the bill be amended to include Metis communities so that the inequality will be remedied before it becomes law, rather than wait for a Metis community to challenge it as discriminatory.
I would welcome any questions.
Senator Beaudoin: It is true that the Powley case, which is very important — I agree with you — does not directly affect the bill, but the fact is that the Metis have a newly recognized status now. The system that we are discussing tonight is not exactly the same as in the Powley case. I agree with that.
The fact is, and I think some senators have often raised the point, that there is a fiduciary duty that we are obliged to express. We must protect the Aboriginal people. We must be generous to them. If there is a doubt, it should be decided in their favour. We should interpret the law in such a way if we have a fiduciary duty, and we do.
I would like to know what you suggest. Are you in favour of an amendment to express that more clearly in the statute? It is everywhere in our laws. It is everywhere in the decisions of the Supreme Court — the fiduciary duty is always there. It is constitutional. We have no right to forget about it. What is your suggestion?
Mr. Chartrand: There are a couple of options. The first is to amend the Indian Claims Commission to allow Metis communities to bring forth specific claims. I am not saying we should widen the Indian Claims Commission mandate beyond specific claims to include Aboriginal rights or title, necessarily. That is something to think about, and an institution like that would be more consistent with the recommendations of the Senate in its 2000 report.
What I am saying is that we could amend it to include Metis communities — so, amend the definition of ``First Nations'' to expressly include Metis communities — and, of course, think about the risk in doing that. The other option is to go ahead with the proposed legislation as it is and wait for a Metis community to challenge it as unconstitutional because it discriminates between two similarly situated peoples.
Honourable senators will see from 26(1)(a) that there is nothing unique to Indian people in it. There were wrongs that took place against the Metis that are specific-claim-type wrongs. There are examples out there other than the Manitoba Act. You will have to weigh the two options.
The spirit of Powley and the recognition of the distinct and equal status of the Metis peoples should weigh in favour of amendment. That is the approach that Parliament should take in all these types of initiatives.
Senator Beaudoin: This is why we should take the initiative. Why leave that to the Aboriginal people? It costs them a significant amount of money. It costs a significant amount of time.
If we can make an amendment that would give more effect, as a result of the Powley case, to our fiduciary duty, why do we not do it?
I always say that the courts have too much power. They have too much power because we are not doing our duty. This is a case where perhaps we should take the initiative. What is the risk? I do not see any.
Mr. Chartrand: There really is minimal risk. For one thing, there are not many Metis specific claims out there. There are probably a few, and some of them would probably be excluded for other reasons. However, there is a principle at stake here. The message must be sent that it is no longer appropriate in this millennium to make arbitrary distinctions based on government-imposed definitions of who Aboriginal peoples are. The Constitution should be the supreme power, not the Indian Act. The Metis are one of three equal peoples in this country and should be recognized as such in initiatives like this.
Senator Beaudoin: The Powley case is a constitutional case, do not forget. It is part of the Constitution. It is as if it is enshrined in the Constitution.
Mr. Chartrand: Exactly.
Senator St. Germain: Do you want this amendment at the beginning of the bill? It states:
An Act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other Acts.
Would you want to include the words ``and Metis specific claims''?
Mr. Chartrand: That would make sense, but I have not determined the best place.
Senator St. Germain: Is there any particular situation that you have in mind with regard to the impact on Metis rights, other than the one that you described in the Manitoba Act or through Justice Sullivan's decision in the Dumont case? I am not trying to trap you.
Mr. Chartrand: There are a couple of claimants in Ontario that signed treaties as Metis communities, not as Indian communities. There is also the issue of the air weapons range in Saskatchewan and Alberta, where the Indian communities were compensated for their loss of hunting land. The Metis were compensated also, but at a considerably lower level proportionally. You could describe that as a specific claim. I would have to look at it more carefully to see if it does fit. That could be another example.
I cannot say that there would not be others; that would require some historical research.
Senator Austin: Professor Chartrand, thank you for your submission, which raises intriguing questions and ideas. The Powley case is a definite advance in the interests of the Metis people and it certainly builds on section 35. I have two questions that are familiar to lawyers. The first is a question of law and the other is a question of policy. I believe that the arguments in your paper relate to policy. There is no legal argument, save the one that you make. If I understand you correctly, a fiduciary duty to the Metis may have been raised because Bill C-6, in legislating only for Indian claims, discriminates against those it does not include. As you know, that is a generic argument that can be made by any community about any legislation at any time. Legislation can apply to different communities in different ways at different times. Therefore, I would say to you that, as a matter of law, it would be hard to maintain that that is, in any form, discrimination against a community. This is a bill in favour of a certain community, and by its nature, it is not intended to discriminate.
On the question of policy, the case is most interesting. What we lack here is the position of the recognized Metis organizations and the position of the Aboriginal community, which is directly affected by Bill C-6. Yet the bill is designed to further a process of dealing with the claims of a specific community in Canada. We could set up a labour court and others would say that we were discriminating, or a matrimonial court and they would say that we were not including their interests, either.
Could we agree that the discussion of Bill C-6 and Metis rights is one of what ought to be in the law rather than one of it is in the law? If we could agree to that, I think this committee will show, as you heard at our last meeting, a willingness to make recommendations to the government with respect to a rapid and urgent examination of Metis rights, particularly based on Powley. That would require, and I wish you would comment, a serious and sustained dialogue — a careful examination — and a building of consensus within the Metis community as to what they want to achieve in terms of the expression of inchoate rights. You may be arguing this, but I do not think we should argue that everything should stop until the problem of Metis entitlement that you have raised has been solved.
Mr. Chartrand: That is a good question. I certainly agree that there are strong policy arguments based on fundamental principles of fairness and equity. I did not have the time to do a thorough legal analysis in terms of equality of rights jurisprudence and how it would affect this bill.
I do know, from some of the leading cases such as Lovelace, that there would be a good legal argument that this bill would be found unconstitutional. The Lovelace case was about the gambling agreement in which only status Indian bands received the proceeds while the Metis and non-status communities did not. The Metis communities lost that case and one of the most important reasons was that the original arrangement was like a private party agreement, in that it did not have the status of a national program. When you compare that with this case, you realize that this is more like a national program because it is not unlike resolving issues on a national level; and the characterization is different.
Just off the top of my head, in terms of the way in which that case applies, there may still be good legal reasons why this proposed legislation would be found discriminatory.
Senator Austin: Allow me to respond to that point. The nature of Bill C-6 is to set up a negotiating process — to legislate the institutions that would be involved in a negotiating process. It does not change anyone's rights. It does not impact on the rights of any Aboriginal community. It simply says that you have the choice of the courts, and so do the Metis. Nothing is stopped, but here is an optional process at your discretion. You could ask to be part of a negotiating process in which some things happen but no rights are created, and therefore there can be no discrimination on the subject of rights.
Mr. Chartrand: — except for the right of equality.
Senator Austin: All communities argue for the right of equality. For example, I am excluded from this process if I have a legal right; I cannot join this community. The Inuit are excluded from this process because they have other arrangements. The Metis may or may not want, after a close examination, to have their own legislation. Why would you want to get in a queue with 650 other claimants when you could have your own legislation? It is a matter of policy for the Metis community. That is the point I am making.
Mr. Chartrand: That would be great if there was an alternative that addressed Metis issues specifically. Right now, the only alternative is the courts. The Metis communities are historically disadvantaged financially. Going to court is almost like not having access to justice at all because of the magnitude of the costs involved.
Senator Austin: I will end with this, Madam Chair. The distinction, in my mind, is between the arguments you are making on policy — what ought to be — and the argument you are making on law. It appears we disagree, because I can see no fiduciary responsibility, no constitutional responsibility on the part of the Crown to add the Metis to this particular bill. The government has chosen to enact legislation with respect to a specific community. It does that all the time. That does not raise a legal argument that some other community is entitled to be included. It raises a policy argument that some other community is so entitled. I accept that.
Senator St. Germain: I have a supplementary question for clarification of what Senator Austin is saying. You say it discriminates against those it does not include, and you use yourself as an example, Senator Austin. The point is that the Powley decision clearly moves the Metis, in terms of certain benefits that are entrenched in our Constitution, as Senator Watt just pointed out, into the same position as First Nations. I do not believe you are comparing apples with apples when you refer to the fact that your people are not included in this. This decision clearly changes the entire perspective on and dealings with Metis people. I would not say it is an unfair assessment, but I think it has more legal clout than you are projecting. Maybe I am defending a position from self-interest.
Senator Austin: I know you want it to have more legal clout. What I am comparing is, for example —
Senator Gill: Madam Chair.
Senator Austin: The question was directed to me.
Senator St. Germain: For clarification.
Senator Gill: It is a hearing.
Senator Austin: He asked me for a clarification. I believe I am entitled to respond when I am directly addressed, unless your position is that you do not want to hear my answer.
The Chairman: Order.
Senator Gill: Are you speaking all the time?
The Chairman: Senator Austin may respond to the question, and then Professor Chartrand will respond.
Senator Austin: The point I am trying to make is that because rights are defined for one group, it does not follow in law that all other groups are entitled to the same rights. For example, we have arrangements with the Inuit of a very different character from those with status Indians. We have different arrangements for different status Indians, depending on whether they are in the provinces or north of 60. There is no right to claim, for one group to another, that they have more rights or fewer rights. The Nisga'a have been given rights by Parliament. That does not give every other Aboriginal community a claim to the same rights. They were achieved by negotiation.
I do not understand the argument, but I am happy to try to clear up Senator St. Germain's confusion.
Mr. Chartrand: I will try to add more confusion. One of the things that a court will look at in terms of whether or not legislation is discriminatory is what benefit it provides. This proposed legislation does provide a concrete benefit to Indian band communities. They do not have to go to the courts. They have an alternative process that the bill itself says is expressly required to take into account cultural differences. That is a benefit. Under clause 15, which deals with equality, similarly situated people who feel that they are excluded from a benefit for reasons that are discriminatory can pursue a claim.
You would have to look at whether or not it is actually discriminatory, whether or not there are good reasons for the distinction. I pointed out a few examples of where Metis communities would fit within the criteria in 26(1) for bringing forth a claim, yet they are excluded now simply because they are Metis. That shows some evidence, on the surface, of discrimination in the bill in denying a benefit to a similarly situated people who have had contact with the Crown in the same way as Indian people, in terms of recognizing their autonomy and status as Aboriginal peoples and their ability, therefore, to enter into treaties and agreements with the Crown as collective to collective.
The similarities between Metis and Indian people exist, yet Metis are denied a benefit that Indian people have. That is one of the clear considerations that the court has used to show valid discrimination. The other is, of course, can you say that the dignity of the Metis is negatively affected by the exclusion? Is the dignity of the individual Metis community negatively affected? Does it make the Metis seem less worthy as individuals and as communities? The court must ask and answer that question. Will the Metis be seen as less worthy and lesser human beings by virtue of being excluded? One argument is yes, they are, because it reinforces an historical pattern of exclusion. That has always been to the prejudice of the Metis communities. Why do you think the Metis pursued Powley so vigorously, even with the lack of resources?
Senator Andreychuk: Professor Chartrand, if I understood you correctly, you were not making your presentation on policy, you were making a legal point on discrimination. Am I correct in my understanding of what you were saying, that the Constitution recognizes Aboriginal people and then includes three subsets to that, Inuit, First Nations and the Metis? There may have been some processes for the Inuit that they may or may not be satisfied with — I will not go into that — but at least they were before the courts. That process was known and they could evaluate it and their dignity, as you say, could be assessed, et cetera.
You are saying that historically, the Metis were not factored in and have been systematically excluded. Bill C-6 talks about First Nations, but then comes the Powley case that definitively states that Metis people have some of the same rights as the First Nations. Therefore, Bill C-6 may be affected by that. More importantly, Metis people may be affected by that decision because there is currently no clear policy to address the specifics of what is in Bill C-6 in terms of a similar process for the Metis.
If we halted Bill C-6 and introduced a Metis policy, your argument, in my opinion, might be lessened; but it is a compelling argument because there is no similar process for the Metis that I am aware of that mirrors the situation of First Nations. Is that what you are getting at?
Mr. Chartrand: Yes.
Senator Andreychuk: Second, you were pointing out that this process could very easily be seen as discriminatory because the substance of the bill fits within the ambit of what Metis people may, in certain cases, require. However, the government and Parliament, which have a responsibility to treat people within that category of Aboriginals equally, will not be doing so. Is that what you were saying?
Mr. Chartrand: Yes.
Senator Andreychuk: It is not a question of whether I or Senator Austin or someone else has the benefit of this, but that the Constitution recognized the equality of the three Aboriginal groups, and yet one will get access to this process and the Metis will not.
Mr. Chartrand: Yes, exactly.
Senator Austin: The Constitution recognizes them as Aboriginal communities with Aboriginal rights. It does not say they are equal communities.
Senator Andreychuk: I do not want to get into a debate with you. However, since you asked the question I will answer it.
The Chairman: Please address the Chair if you are going to speak.
Senator Austin: I apologize for interrupting. Lawyers like to argue — always.
Senator Andreychuk: We never argue. We debate.
The Chairman: We have a witness.
Senator Andreychuk: My point is not that they are equal in that sense, but that the fiduciary responsibility is to all three. That is where the equality comes in. If you do something for one, you should do something for the other, unless there is some reason to discriminate, and you say that in this case you do not see, at first blush, any reason to discriminate between the two groups?
Mr. Chartrand: No, not at first blush.
Senator Andreychuk: I used a legal term: ``at first blush.''
Senator Carney: My question to the witness is supplementary to some of the issues raised by Senator Austin, Senator Andreychuk and others, and it follows from the fact that the Constitution identifies the three groups: Inuit, Indian and Metis.
You are recommending that this committee amend Bill C-6 by including Metis communities. Are you also suggesting that it be amended to include Inuit? Why would you not suggest that? If your argument is that they should be treated equally, why are you not arguing that Inuit should be added?
Mr. Chartrand: I did not have a chance to think about the position of the Inuit when I was preparing for the presentation, and I am more familiar with Metis rights because that is my area of expertise and study. I do not want to say anything one way or the other about the Inuit and their position on this because I have not studied it sufficiently.
I am fairly confident in terms of my perspective on the Metis issue, keeping in mind that it is an academic legal opinion. I do not represent the Metis National Council or any of the Metis organizations. They may, for all intents and purposes, and for political reasons, have a different perspective. This is simply a look at the law in the area of Aboriginal rights jurisprudence, equality rights jurisprudence and what the impact might be.
Senator Carney: I am pointing out that the argument that you make, about the exclusion of the Metis from benefiting from the services of the ICC being discriminatory, could also apply to the exclusion of the Inuit, some of whom have appeared before us in another context saying that they want their own institutions and not to be lumped in with First Nations.
Why would you suggest that the Metis would want to be included with First Nations when some of us are suggesting that they should have their own process?
Mr. Chartrand: If the issue arose, a Metis community could probably bring a claim and argue that it is discriminatory on those grounds. There is a problem from a legal perspective, but also from a more practical perspective, in that there is already an established bureaucracy, support and resources in the Indian Claims Commission. What motive would the government have for creating a separate bureaucracy for the Metis and then for the Inuit, when the distinction being made here is not based on differences in culture? They are autonomous Aboriginal peoples who had the right and ability to negotiate agreements, and there is no difference between the three groups in that respect. Granted, an institution like this should be cognizant of the cultural differences between the three groups. That is important, but in terms of the relationship between the Crown and the Aboriginal peoples, on that level, there is no distinction.
Senator Carney: It is unclear to me from your comments why you are recommending the committee amend Bill C-6 to include Metis communities so that inequality will be remedied before the bill becomes law, if in fact, as you say, you are not speaking for the Metis community and you do not know whether your argument applies to the third Aboriginal group. I do not really understand how you can reach this stand-alone conclusion, but I will not pursue it further.
You are free to comment, but I do not know why you take one position and not the other when you are speaking about equality.
[Translation]
Senator Gill: My question ties in with the ones you raised concerning First Nations or Meis rights. It is quite simple. Had there been no provision recognizing specific rights for First Nations, would a formula such as this one have been applied?
I have other questions for you as well. By all accounts, Bill C-6 was not meant as a vehicle for discussing, endorsing or recognizing rights. At least that was my understanding of Senator Austin's comments. If rights are not affected, then the Metis have no reason to complain, because their rights are not compromised.
However, if at some point a formula like this one does apply to First Nations — and assuming that rights are not affected — and does not apply to you, then an inequity does exist. First Nations would benefit, but not the Metis. You are saying that that would constitute discrimination, regardless of whether rights are involved or not. Correct?
[English]
Mr. Chartrand: Yes, exactly, even if you say there are no rights involved per se, there is a level of discrimination here.
One obvious example of where that comes into play is that this proposed legislation dispenses with limitation periods. If you go through the Indian Claims Commission, you do not have to worry about limitation periods.
However, if the Metis have a similar claim, they have to go to the courts, which will apply limitation periods. They must because that is the law.
That is a specific example of differential treatment in the proposed legislation.
[Translation]
Senator Gill: I have another question for you, Mr. Chartrand, in a similar vein.
The fact of the matter is that a decision was handed down in Powley after Bill C-6 had been introduced. Did you have an opportunity to familiarize yourself with Bill C-6, either before or after the decision was handed down?
Have you looked at the bill? I had a question for you concerning the proposed legislation.
[English]
Mr. Chartrand: To some degree, yes. I did have a look at it before the Powley decision. I know there have been a few changes, but I am fairly comfortable with it. I read it over a couple of days ago. I might be able to help you out; I do not know.
[Translation]
Senator Gill: You do realize that a cap has been imposed. The minister is not required to respond to specific demands within a certain time frame. He can choose to respond to them, or not. Would you be satisfied with this type of formula?
[English]
Mr. Chartrand: You have to assume that ministers are responsible people and will not arbitrarily delay matters. I have not looked at that in particular, but it strikes me as something that would be of concern.
The limit is a strange thing, and how they calculate the amount of money is quite bizarre. I have not really figured that one out, other than that the later in a fiscal year you bring your claim, the more disadvantaged you are in terms of the amount of money you have. That in itself is building in major problems down the line.
Senator Beaudoin: I am impressed by the argument concerning discrimination and equality. What is certainly equal, in my opinion, is the fiduciary duty. It applies to every group and it should be applied equally, in my opinion.
I agree that the Metis have to establish that they exist. They have the onus of showing evidence and they have to be allied to a community. Therefore, I agree that they are not in the same category as the First Nations and the Inuit in that sense. However, the degree of fiduciary duty applies equally to all groups.
I see here that after six years it is too late. That is not very fair legislation. I do not know who is saying that. We have statutory limitations. If you want to establish your right, you do not have more than a certain number of years in which to do it. Under the civil code we call it ``prescription,'' and you have the same thing in the common law system, but again it is a question of equality.
Once the onus of evidence has been complied with and there is a group of Metis, then they have the same voice as the other groups. This is why the Powley decision is so important. This is not the case with some other groups of Aboriginal people. Section 35 applies equally to all those groups, and those are collective rights. They are not individual rights but collective rights. It is as a group that they have those rights.
It is our duty here in the legislative branch of the state to help them. It is our duty, because it will cost a fortune and it will take a long time and be very difficult for Aboriginals to succeed in this. We should do something for them.
If you have an amendment that may help, I will not hesitate to accept it. They have been here for 10,000 years. That is a long time. The Metis have been here for only 500 years, which is yesterday in terms of history.
In that sense, I agree with Senator Austin that it is not pure equality, but that is because they have a different origin. We do not discriminate. We take the facts as they are. However, to reach the goal we must apply our fiduciary duty equally. This is an important point and your amendment may be a good one.
The Chairman: I should like to make one correction to Senator Beaudoin's statement. The Metis are not in the same category as the First Nations because they are not considered by the government of the day to be covered by section 91(24) of the BNA Act. Metis leaders have been fighting and negotiating since 1982 to ensure that they be included, but they are not.
Senator Beaudoin: They are in the process of becoming included. Once they have established their community, they fall under section 91(24). If that is not applied, go to court right away. You will win.
The Chairman: The Metis leadership is in court to establish that right now and have been since 1982. Therefore, it is very important that we consider that, too.
Senator Beaudoin: They will win.
The Chairman: I hope so. The case began 16 years ago and is still in court.
Senator Beaudoin: There is something wrong.
The Chairman: With regard to the Inuit, four or five groups have completed comprehensive land claim agreements that do create institutions. The only group that has not yet finalized a comprehensive agreement is the Labrador Inuit Association.
That is the explanation for the Inuit, and the Metis also. The case has been in court for 16 years.
Senator St. Germain: For clarification, Professor Chartrand, is it not the possibility of conflicts in claims that may arise as a result of the latest recognition of Metis rights under section 35(1) that would really justify the inclusion of the Metis people in the preamble of this particular bill? Would this not be the driving force? Specific claims generally relate to land settlements, where there could theoretically be conflict between Metis settlements and First Nations settlements. I do not know whether First Nations would have priority. If everyone is treated equally, I do not know how that would happen. However, in the event of a conflict, if Metis were mentioned in this proposed legislation, they could not be excluded or ignored; their position would have to be taken into consideration by whatever tribunal or process would seek settlement with a First Nation.
Mr. Chartrand: Yes, I would expect that to be the case. In fact, there are many situations of conflicting overlap between First Nations. That is the most common situation in terms of specific claims.
Senator Austin: I would like to clarify one thing with Professor Chartrand.
You made a remark a few moments ago that caught my attention. I am not sure I understood the point you were making, but it was something to the effect that although there is, in your mind, a Metis entitlement here of a constitutional kind, you would still not want to withhold this proposed legislation and deny its benefits to the communities that have over 600 claims that need to be processed. Am I putting words in your mouth? If I am, restate your point, please.
Mr. Chartrand: I do not want to deny the benefits of the proposed legislation to First Nations. There has always been a need for an independent tribunal with real teeth and not just recommendations. There are some good things about it, but I do know that First Nations have some issues with it as well, such as the funding cap and the compensation.
Senator Austin: They do, yes.
Mr. Chartrand: If those things can be ironed out, I certainly would not want to deny the benefit to First Nations. It would just mean sending another message that the Metis are not worthy of inclusion.
Senator Austin: Senator Carney made the proposal yesterday that this committee recommend that the government begin a process with the Metis communities to deal with their agreements with the Crown. While it would not be totally satisfactory to you, I take it that it is a step in the right direction?
Mr. Chartrand: Yes. If this committee recommended an amendment, to make it work, it would then want to study the whole issue. It would force them to take it seriously.
Senator Austin: I do not understand your answer. Let me put the question to you again. I liked much of the answer, but there is one part I would like clarified. I am only asking it so you can make your position clear.
Are you are saying that this bill should not proceed unless we amend it to include the Metis in its benefits, whatever they might be?
Mr. Chartrand: Yes, that is what I am saying.
Senator Austin: I have my answer. Thank you.
Senator Chaput: I can say that all of us here want equality and fairness. Everyone here agrees with that. We have Bill C-6, which the senators have amended. It has been brought to the Senate. We all know it is far from being everything that the Aboriginal people wanted. However, as some Aboriginal people have told me, it is a beginning and we are willing to go on working with the government to make it even better, as with other issues that will be coming next year.
Today, we are talking about adding another component to the bill, which some of your people have told us is not perfect, is far from being what you want, and is not as clear as you want it to be. You want to add another component.
I am not a lawyer, but it does not make sense to me. Why could we not just go on with what we have now and at the same time — we believe in fairness and equality — start some kind of process with the Metis people to find out what they want and work on that, and eventually the two or the three might work together? In the meantime, can we not just finish one thing, start another one and eventually maybe bring things together? I do not know. What do you think?
Mr. Chartrand: It puts a lot of faith in progress.
Senator Chaput: I always did. I still do.
Mr. Chartrand: You cannot argue with that. It would be great. I would love to see that kind of process established with the Metis to truly address their needs. Maybe it is important to get the political perspective from the Metis National Council and other representative organizations. I do not know if they will be witnesses here in the future, but I would recommend that, with the caveat that I do not think we should go against the Metis political representatives on the issue. It is ultimately something that has to be negotiated. That is more reflective of a nation-to-nation arrangement in the first place.
Senator Chaput: It is not clear to me, Professor Chartrand, whether you are speaking for the Metis today.
Mr. Chartrand: No. I am speaking in terms of a legal analysis of the impact of Powley on Bill C-6 that could lead to a finding of discrimination for their exclusion under the bill.
Senator Chaput: Have you consulted with Metis people?
Mr. Chartrand: No. I did not have the time.
Senator Chaput: Fair enough.
[Translation]
Senator Gill: Madam Chairman, I have to say that that is a tantalizing question, one that is often put to aboriginal groups. The response we get is always the same: if only we had the kind of faith that moves mountains! Sadly, that is not the case.
Countless times in the past, treaties have been disregarded and promises have been broken. I could give you several concrete, recent examples of this, but I will refrain from doing so.
We hear a great many things, both good and bad, here on Parliament Hill, Mr. Chartrand. We often hear from certain aboriginal groups and from the Metis that if this issue cannot be resolved in this forum, it will be settled in court.
Earlier, you said that if no tangible progress is made on including the Metis in certain bills currently under discussion, then the Metis will take their case to the courts.
People are always saying that the raison d'être of government institutions like the Senate is to adopt law that frame in a fair and equitable manner the rights of all citizens. Otherwise, those who feel that their rights have been violated will seek justice through the court system.
Our legislation must be drafted in such a way that citizens have no need to turn to the courts to have their rights upheld. Would you prefer to see laws in place that satisfy the needs of the Metis instead of always having to turn to the courts to seek justice? What are your views on this subject?
[English]
Mr. Chartrand: A law-making body where issues can be discussed is the preferable place to deal with these issues. A court setting is an antagonistic set-up to begin with; it is conflictual. You do not know what the outcome will be, but in Parliament you consider negotiations, discussion and debate, and ultimately come to a consensus, or at least the majority votes on it, and it is a better forum. By all means, deal with it here. For one thing, it is less costly than the courts. I would certainly support that.
[Translation]
Senator Gill: Many people in the Senate and elsewhere back your demands. Furthermore, they believe that properly drafted legislation would benefit all citizens, minority groups as well as First Nations. In your opinion, do court proceeding improve or poison relations between different groups? Such proceedings represent a serious problem.
As the government, it is our duty to improve relations between the groups concerned. However, those who are caught up in this issue know very well that far from improving, relations are in fact deteriorating. First Nations, Metis and Inuit are already embroiled in many court cases. Would you care to comment?
[English]
Mr. Chartrand: In terms of the fact that the Powley case will probably open up the possibility for me to pursue their claims, which have up to now been somewhat in abeyance. There are all kinds of potential claims in the making out there. If there is a mechanism that can reduce that conflict, that is, if institutions can be created to respect the rights of the Metis, then that definitely is the way to go.
Senator St. Germain: I have a comment that relates to this but it could be under ``other business.'' It relates to you in the chair, as a Metis, and myself with an interest as a Metis as well. I would like to suggest, in the presence of Professor Chartrand, who specializes in this area, that as a Senate committee, we should seriously consider an evaluation of the Powley decision and how it will impact all the Aboriginal peoples of this country. That is driven by the fact of the Supreme Court decision. We would not be going through this particular process if it were not for that. There will be a litany of areas to consider. That is where the Senate can play an integral role. We have people like Senator Austin, who will most likely end up being the Leader of the Government in the Senate. We would be glad to have him on board.
[Translation]
As mentioned, cases like the one in Saint-Eustache, Manitoba and elsewhere should have been settled by now.
[English]
That is something that this committee should consider in the future. It would be good to be able to do it with our chair present. In spite of your young age, I understand that they want you to retire. I place that before this committee for serious consideration and, possibly, action.
The Chairman: We have been talking about that for a while.
Senator Beaudoin: That is a very good idea. We may do that under an inquiry or in committee.
The Chairman: I realize that they are discussing the inclusion of the Metis. The first Metis rights case was the trial in 1849 of Guillaume Sayer in Rupert's Land, which is present-day Manitoba. In 1850, the Metis of Sault Ste. Marie fought for inclusion in the Robinson-Huron Treaty. In 1869, Louis Riel founded the provisional government to negotiate the terms of Manitoba's entry into Canada. The list goes on.
Did you know that it was the Metis who began the free trade of our furs? We were part of the free trade negotiations in 1849. The list goes on. It seems to be our lot that we have had to go to the courts in every case. I want to thank Professor Chartrand. Metis issues are at the forefront in the Senate.
We have a letter from the Metis council. They are not prepared to meet with us.
Senator Gill: They asked for more time.
The Chairman: Yes. I really like Senator St. Germain's idea that we begin an inquiry. The Metis National Council will be very prominent in that inquiry. Thank you very much for appearing tonight and bringing all of these issues forward.
The committee adjourned.