Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 23 - Evidence
OTTAWA, Tuesday, October 7, 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 9:04 a.m. to give consideration to the bill.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Welcome, Mr. Hutchins, to this hearing on Bill C-6. This morning, we will conclude our re- examination of Bill C-6 and any impact the Supreme Court of Canada decision in R. v. Powley may have on the bill.
I would again remind senators of the terms of the sub-amendment, which was adopted in the Senate on September 25, 2003, to the motion in amendment. The sub-amendment reads, in part:
...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 alone that we have been seized with. I will now invite our final witness, Mr. Peter Hutchins, to begin his presentation.
Mr. Peter W. Hutchins, Attorney-at-law, Hutchins, Soroka & Dionne: Thank you, honourable senators, for this opportunity to address the committee.
I have a few disclosures to make. I am here at the invitation of the committee, an invitation I greatly appreciate. I am not here as a representative of a client — and that is a strange feeling. I will attempt to give you my views on the effect of the Powley decision and Bill C-6 in general. As you are aware, I am doing this on rather short notice, given that I was contacted only late last week. I was actually asked to appear then, but I just could not manage it. I am here today and will do the best I can under the circumstances. I have not prepared a written brief for you, although, should you think it would be useful, I may be able to help out after this meeting. My plan of action is to give you some general comments on the subject matter, and then to invite your questions. That would seem to be the best way to proceed.
I suppose the other disclosure I should make, as you will read in my résumé, is that I have spent a good deal of my career acting on behalf of Aboriginal peoples. I come to any situation or any question dealing with Aboriginal issues with that perspective — and I make no apologies for it.
I should be clear that, to the best of my recollection, I have not acted for Metis people, nor is it my area of specialization. I do, however, continue to monitor with great interest the jurisprudence of the Supreme Court of Canada. I have had the pleasure of appearing before the court on a number of occasions. I remarked recently to Justice Binnie, when we met at the CBA conference, that some days in the court are easier than others are.
I am delighted to see that this committee, and Parliament in general, is looking to the Supreme Court for direction. People working in charter issues refer to the discussion between the courts and Parliament, a discussion that, to a certain extent, is absolutely necessary. We certainly have to acknowledge the hard work of the trial courts and the appeal courts. The Supreme Court of Canada does, on occasion, give direction and we all have to heed. The Powley decision is an interesting example of that.
I wish to say a few words concerning my impression of Bill C-6. I will not get into the details, unless it is your wish that I do so. I did not see my role as plodding through the proposed legislation and critiquing it. I am sure you have heard much on that subject, so I will stick with the bigger picture, relate it to the specific comments of the Supreme Court in Powley and to the general direction of the court over the last decade.
I truly think that Bill C-6 is a further attempt to circumscribe federal jurisdiction and federal responsibility for Aboriginal peoples. I may as well make that clear from the outset. The subject has interested me as a practitioner and as someone who has studied this area of law for over 30 years. It has been most interesting to look at the actions of the federal government in respect of its constitutional responsibility for Aboriginal peoples — Aboriginal rights, Aboriginal communities. Quite frankly, in my opinion, there has been one agenda since 1867, which is to terminate — to get out from under — the special responsibility for federal Indians. I will speak to who they are in a moment.
We recognized that agenda immediately following the signing of the numbered treaties on the Prairies and in the constant changes in the Indian Act. The Indian Act is an attempt to circumscribe the class of persons who are Indians, and it is interesting that Bill C-6 makes reference to the Indian Act when it attempts to define ``First Nations'' for the purposes of preparing and submitting claims. In my view, since 1867 there has been an attempt to terminate special status for Aboriginal peoples, and that attempt continues.
One of the high-water marks of that particular agenda was the 1969 white paper on Indian policy, which was roundly defeated. However, if you read the government literature in 1969, it was clear that there was an explicit attempt and intention to eliminate section 91.24 from the Constitution. This was all done, supposedly, in the name of liberating Aboriginal peoples and in the name of civil rights, equality, and all that. However, this has been the agenda, and it continues with Bill C-7, the proposed First Nations Governance Act, as I am sure honourable senators have seen.
One particularly troublesome area right now, which does relate in a way to claims and certainly relates to treaties, is the policy of the federal government, applauded by provinces, in the modern treaty process to insist that section 91.24 lands will not be part of the package. In other words, we will proceed into a new relationship between First Nations and the Crown without section 91.24 lands. That is a big question in itself; but clearly, in my mind, it is almost the latest manifestation of this attempt to, if not amend the Constitution, render section 91.24 moot, for all intents and purposes. This is a worrisome development in the modern treaty process.
With respect to Bill C-6, generally, I do see it as the further attempt to domesticate the Crown-Aboriginal relationship. I see it as an attempt to circumscribe Crown-Aboriginal relations, to define them unilaterally — this is the Crown, Parliament, defining that relationship — and I see it as an attempt to remove the courts from the dispute resolution mechanism. Over the years, there have been complaints about the courts — not the courts themselves, but the process, the length of the process.
Litigation is expensive and lengthy, and I am certainly not here to tell you that litigation it is not. However, I have lately been engaged, when I speak, in encouraging people not to stand back and criticize the courts and the process — again it is not the courts, it is the process in which judges find themselves. I have been encouraging people, rather than being critical about litigation and giving up on it, to assist the courts, to better help them do the job they are properly suited to do and which we, as a society, long ago decided was appropriate. It does not matter whether we are talking about the superior courts of the provinces or the Federal Court of Canada, which is doing a great deal of very good work in this area. There is a place for the courts. I am worried by any suggestion in this legislation or elsewhere that the courts should be shuffled aside or that the dispute resolution mechanism that we have — litigation — should be replaced.
That does not mean there cannot be parallel processes. For years and years, we have been talking about claims commissions and claims processes — that is fine. What worries me about Bill C-6 — and this is getting into the detail, to a certain extent — is that there is a requirement, as I understand it, that proceedings not be in place, but certainly if there are proceedings, that they have to be adjourned before this process kicks in.
I interpret the courts as saying — and this has been going on for some time and we have certainly heard it from the Supreme Court on many occasions, Delgamuukw notably and very interestingly in Powley — that negotiation and litigation are parallel and complementary processes. They do not compete; it is not one or the other. The courts are there to assist the negotiation process. They are there to explain and to direct us on rights and obligations, and on conduct; they have to be available. As a litigator, and as someone who has acted for Aboriginal peoples in negotiation and litigation, one of the things that is important for me, and I think important for the process, is the ability of the parties — and I am not just talking about the Aboriginal side of the equation, Aboriginal or Crown — to be able to go to the courts and seek direction. That means that perhaps the legal proceedings are not adjourned but that the proceedings continue while the parties continue also to try to negotiate or settle — but that the courts are immediately available. To say that you cannot bring a proceeding, or you have to adjourn a proceeding, while you are negotiating under this process means that that recourse back to a judge, back to the courts, is not perhaps immediately available. Without getting into the detail, one of the troublesome things I see here is another attempt to push the courts aside.
For the Crown, it is perhaps a preferable situation to have a process that one controls somewhat better than the courts, where one names the tribunal members or legislates the process, the restrictions, the limitations — all this that we find in Bill C-6. The courts, of course, are independent and sometimes can be troublesome to both parties. Frankly, I have had difficult days in court, so I know that one can get directions one likes and wants and one can get directions that one does not particularly like. However, that is the process and that is the way it works; and that is why we have an independent judiciary that stands back and pronounces on these matters.
I see Bill C-6 in that continuum of continuing to keep Aboriginal peoples and Aboriginal claims and the relationship in boxes, and I see a continual attempt to make those boxes smaller and smaller. Constitutionally or historically, I do not think that approach is justified.
What does Powley do? Again, speaking very generally, I think Powley asserts the role of the courts. This is the Supreme Court again saying: ``We have something to say about this matter.'' Although I have not seen all the arguments before the courts, I anticipate and expect that the Crown made many arguments about why Metis people, or this particular Metis people, were not contemplated by section 35, did not meet the various tests that the courts had put forward.
Powley reminds us that the courts are there and can be of great assistance, even in what seems to be rather obvious questions, such as whether the Metis are an Aboriginal people of Canada. I thought that was settled in 1982 — it was settled then, of course: Metis are Aboriginal people, along with the ``Indians'' and Inuit under section 35. However, what happened immediately following 1982 — and it is a bit distressing that it continues in 2003 — was a debate about what we really did when we enacted section 35.
The Crown, for its own good reasons, has taken the position consistently that not very much happened in 1982, if anything, that, in fact, the first cases we argued post-1982 — of course, the whole argument was section 35 simply froze the situation as of 1982, so people who had rights or rights that could be exercised in 1982 were okay. People who had seen their rights affected, abrogated, not necessarily extinguished but frustrated, unable to be exercised, were just out of luck because that was what had been recognized and affirmed in section 35.
There was a debate immediately as to whether we take a minimalist reading and approach to section 35 or we take an approach that the Supreme Court of Canada developed and has developed and continues to develop, perhaps expressed best by the court in the opening of Sparrow when the court referred to the promise of section 35. If memory serves, I think the Supreme Court of Canada in Powley came back to that idea of the promise of section 35. Section 35 was a promise. It was, as the court said in Sparrow, not an attempt to continue business as usual but quite frankly a radical change in the Canadian way of dealing with this relationship.
Powley also suggests that treaty making is a way to address Metis rights and the place of Metis people in Canada, and I find that rather interesting. You have to look carefully for that, but there are two instances. In one, the court refers to the possibility that Metis people, individuals, were party to historical treaties and that this does not deprive them of their claims or entitlement to Metis rights now. The court ends its reasons in Powley by again coming back, as it did in Delgamuukw and many other cases, to suggest that the best solution here is negotiation, aided or assisted by the courts. There is this leitmotif that continues that, yes, the best way to settle our problems is through negotiation, but anyone who has been in a negotiation process with the federal government or the provinces knows that you have to have someone out there to nudge the process forward. The B.C. treaty process is simply dying from its own weight. It is going nowhere. People are being talked to death. People are being bankrupted because the discussions go on and on and on. I have been involved in those, so I know something of what I speak.
I compare it consistently with our experience in 1975 with the James Bay agreement. Senator Watt knows exactly what I am talking about. The first, and I think still most important, if I can say it, modern treaty in the history of this country was negotiated in two years, one year for an AIP and in the second year we had the treaty in place. The Nisga'a struggled on for 14 years outside the B.C. treaty process. The B.C. treaty process has been going on for a more than a decade, and there are still no results, so something is wrong there. Negotiation can be very useful, and there is a lot to be said for it; however, unfortunately, the way the processes have developed in this country, it has become terribly onerous for First Nations. It can be much more expensive and much more time consuming than litigation, frankly. At least in litigation, there is a resolution at the end. Someone makes a decision. In these endless negotiations, sometimes no one ever makes a decision. I do want to refer back to the James Bay agreement as an example of what can be done when people act in good faith and there is a political will to settle.
The other interesting thing about James Bay, and I will not go on about it, is that it is a treaty that has been amended formally and substantially I believe 16 times now. It is a treaty that has shown itself to be very dynamic and flexible over the years. Another problem with negotiations that I sense is that people are very apprehensive to make that final decision because they think they are signing on to something that is poured in concrete, that will never change, and that is not healthy. If it is a product of negotiations, then it should be a dynamic instrument that the parties feel very comfortable coming back to, working at growing and building together.
Powley, I think, does send us a message that the treaty process and treaties are appropriate and applicable in this context of the Metis people, and, therefore, in my view, it reinforces federal responsibility for Metis people. There has not yet been clear decision on whether ``Indians'' in section 91.24 of the Constitution Act, 1867, actually includes Metis. We know that they are Aboriginal peoples for the purposes of section 35. There is still a question about section 91.24, or some people may have a question. The Blais case, a judgment that came out at the same time as Powley, might give one cause for thought about how the courts would deal with this. That was a case, as senators probably know, of whether Metis people are included in the reference to Indians in the natural resources transfer agreements, and the answer was no. That analysis was based on the historical context at the time and who the authorities and people and the Hudson's Bay Company thought they were referring to as Indians in that context. So, they are not Indians for the natural resources transfer agreements.
We also have the 1939 Re Eskimos case, where the same exercise took place with respect to Inuit, and the Supreme Court of Canada concluded that Inuit are Indians for the purpose of section 91.24. We had section 91.24 referring to Indians and land reserved for the Indians. We now know they refer to Indians, whoever they are, and Inuit; we do not know whether they apply to Metis.
I say in the light of Powley that the court has given us some direction, and there may be a little tension there between Blais and Powley on this matter, because I think the court has said in Powley, ``Look, the Constitution is a dynamic instrument.'' Lord Sankey, in the Edwards case, said that the Constitution is a living tree and that we have to continue to nourish it. We have to continue to allow it to grow with us. I think Powley reminds us of that fact, because one of the struggles with respect to the question of Metis Aboriginal rights is how you reconcile that with the tests that the court has been establishing in the last decade or five years, in particular in cases such as Van der Peet and Delgamuukw.
First Nations are being faced with these tests, and I have a great deal to say about the tests. I think they are far too onerous. First Nations peoples are faced with the test of establishing that the activities they are pleading in court were essentially essential and integral to their distinctive cultures at the time of contact. Contact is the test for Aboriginal rights under Van der Peet, and the assertion of sovereignty is the test for Aboriginal title.
How do you fit the Metis into that? I think the court did a very interesting thing. The court revived a test that we found in international law in terms of establishment of sovereignty and that I had always thought was relevant in the early days in this context, and that is the test of effective control. It is not when the first European meets the first Aboriginal, 1603, when Champlain stumbles upon the Mohawk, and it is not a function of grandiose claims or assertions of sovereignty. It is something real and on the ground — an assertion of effective control.
The court in Powley said we will apply the Van der Peet test, but modify it and adapt it. Well, that is interesting. If that is the case, then I think we are going to have to look at section 91.24 and the analysis of section 91.24 as to who is contemplated and adapt it as well.
Powley has perhaps given us a chance to be more creative in interpreting section 91.24 than perhaps was the Re Eskimos case. Blais is a bit of a blip, perhaps, on the screen. However, the court was very clear, as it always is in these instances, to say, ``We are looking at one instance — we are looking at the natural resources transfer agreement; we are not pronouncing on other matters.''
There is a message there. If we can adapt the Van der Peet test of what was going on at contact and be able to say in regard to the Metis people that it is not contact, it is when the Crown effectively establishes control which I think is a sensible test, then I think we can think creatively about section 91.24.
I think the message from the court is that the Metis people are not only Aboriginal people within the meaning of section 35 of the Constitution Act, 1982, but there is special federal responsibility duty towards them by virtue of section 91.24.
There are other reasons for that, by the way — which comes back to why I am talking about this. I am talking about this because if I look at Bill C-6, as I look at other instruments originating in Indian Affairs, and I say in the case of Bill C-6, where are the Inuit, where are the Metis in this process if we were legislating a process to make it easier for people to bring forward or have their grievances dealt with in the federal Crown, then why would we not be including the other two Aboriginal peoples of Canada?
I am ashamed to say I have not been monitoring these proceedings. I do not know what you have heard from the federal officials about Powley or about why the other Aboriginal peoples are not included in Bill C-6. I am sure there is an argument about it not being under our jurisdiction, that they are not section 91.24 Indians. I am here to tell you that I think there is an argument the other way on that. I believe the Supreme Court of Canada is urging and directing us in that way.
The Supreme Court, by the way, in terms of section 91.24, long before section 35, but even after 35, has always said that there are reasons for federal responsibility for constitutional Indians. I am sure the members of this committee all know that. However, it goes back to British Imperial policy, to the original nation-to-nation relationship, the Royal Proclamation. Certainly prior to 1867, the British Imperial policy was that you keep Aboriginal affairs and Aboriginal matters removed from the colonial governments.
That was translated in 1867 into the division of powers sections 91, 92. That is what section 91.24 is there to do — it is there to protect Aboriginal peoples through the division of powers. We have a federal state. Part of the great role of federalism is to protect its citizens and its people through this division of powers. Again, what is the justification for only having two out of the three Aboriginal peoples enjoying that protection?
There is a historical rationale for federal duties towards Aboriginal peoples, which applies just as equally now to Metis people in light of Powley. The Supreme Court said that we have to look at it more creatively. St. Catherine's Milling and Lumber Co. v. The Queen, the early cases, were clear that what the Constitution of Canada does not dictate is a patchwork approach to Aboriginal affairs across the country. There must be an adherence. That is achieved through the central government, the federal government dealing with these matters, not each province deciding how to deal with it.
R. v. Côté, a mid-1990s Supreme Court Canada case, and Adams applied that same reasoning to section 35. Quebec has argued before the court in Côté and Adams that section 35 is different in Quebec, that it applies differently. They cite their civil law tradition; they say they have a different history. The Supreme Court has said, no, it is part of the Constitution of Canada and Aboriginal rights cannot be treated in a patchwork fashion across the country.
Then you have the courts, the Province of Ontario v. Dominion of Canada in the early years of the 20th century and R. v. Howard, a recent case which I am not in the habit of citing favourably, but in this event, it is important, because in these cases, it stands for the proposition that treaty making is a federal matter. Ultimately, the division of the Crown that makes the treaties is the federal Crown, not the provinces. This has been muddied and, for political reasons, has been changed somewhat, especially in B.C. where we have a tripartite process. I am not discouraging the participation of all interested parties; the fact is, constitutionally, treaty making is a federal power.
This brings me through to Powley, to Bill C-6, to say that if treaty making is a federal matter and should involve all three Aboriginal peoples under section 35, fixing the treaty relationship and dealing with grievances that flow out of the treaty relationship is also a federal matter and also involves all three Aboriginal peoples.
These are some general views. I hope you have my sense of how I feel about Bill C-6 and what I think Powley may have done to help us.
I will give you two references to Powley on the treaty issue, in case you want to look at that. Paragraph 35 of the judgment talks about the historical part of this. The court says:
We emphasize that the individual decision by a Métis person's ancestors to take treaty benefits does not necessarily extinguish that person's claim to Métis rights.
That is the historical thing.
Then in the contemporary and prospective part of this, at paragraph 50 the court says:
In the longer term, a combination of negotiation and judicial settlement will more clearly define the contours of the Métis right to hunt, a right that we recognize as part of the special aboriginal relationship to the land.
Towards the end of the judgment, you have the court signalling that negotiations and litigation continue to be important for the Metis people. That is a problem for Bill C-6. First, they are not in the negotiation process, at least with respect to specific claims; and second, the courts do not seem to have much to do with it in accordance with Bill C- 6.
I would be pleased to answer any questions you might have.
The Chairman: This committee is obligated to review the effect of Powley on Bill C-6. Will Powley affect Bill C-6 as it stands now?
Mr. Hutchins: As it is drafted, it is hard to see. When you read the bill as drafted, it is clear that it is intended not to include anyone but so-called First Nations, who are defined as a function of the Indian Act.
As drafted, it is exclusive. I do not think anything automatic will happen because of Powley. As I tried to indicate, Powley signals to Parliament that something should be changed in Bill C-6. Many things should be changed in Bill C-6, but one of them is which peoples have access to a so-called more liberal easy process.
Senator Tkachuk: To follow up on that clarification and your comments about the Powley decision, the fact is that we have had so little time to think through that decision. It is not just a question of the decision being made, but how quickly we are moving forward without having some time to think about it. Usually, things clarify themselves after a while, and perhaps the bill could be amended.
We also have the interesting question of the new Prime Minister in waiting, Mr. Martin, who has said that he is reluctant to sign on to Bill C-7 and Bill C-6. Later on, he backed away; we do not know what his intentions are. We have the lack of clarity in the Supreme Court. We are not clear what the government wants to do because of — I will not say ``two-headed monster'' — this two-headed problem that we have here.
Do you think it would be a good idea to hold Bill C-6 in abeyance for a while, to let time educate us about the prospective new prime minister's intentions and, of course, the Powley decision's intentions? Do you think that might be a helpful way to deal with Bill C-6?
Mr. Hutchins: While not diving into the politics of the matter, my short answer to you is yes. I do believe Bill C-6 is flawed. The opening for Parliament to say, ``Wait a minute, let us think about this,'' is the recent announcements by the Supreme Court in Powley. When we talk about legislation relating to grievances between Aboriginal peoples, however defined, and the Crown, flowing primarily from the treaty process but also from other processes, such as fiduciary duty, I do not see how Parliament can blithely continue to legislate in these matters without taking direction from the Supreme Court of Canada.
We must look at the time frames here. You have just received the Powley decision, which, in my opinion — and I have not had a lot of time to reflect on it — clearly changes the legal landscape once again. That is an expression the court used in Adams and in Côté with respect to section 35. Section 35 altered the legal landscape in Canada. This landscape is changing very quickly. It is a mistake for Parliament to enter into legislation that has been identified as flawed and now does not recognize two of the three Aboriginal peoples. That is a big problem. I do not know if you have heard from representatives of the Inuit peoples, but they have a grievance here. The timing of this is a good reason for Parliament to say, ``Let us think about this a little harder.''
Once this proposed legislation is on the books and a process is in place, it will be very difficult to alter. Legislation is amenable, but in my experience, legislation, particularly on the Aboriginal side, is difficult to amend. We have huge trouble amending the Indian Act. I believe the Cree-Naskapi Commission has been before you trying for years to amend this. This is a statute that flows from a treaty and was the result of a treaty. The statute was negotiated line by line between the federal officials and the Crees. The Crees cannot get a change to the Cree-Naskapi Act.
Imagine what will happen when someone six months from now looks at Bill C-6 as passed to see if it can be fixed. That will not happen.
Senator Tkachuk: I do not support the Powley decision on hunting rights. Nonetheless, the court has said something important, which may lead to other things. Bill C-6 focuses only on what we define as Indians, and Powley opens up a hornet's nest. Because Indians and Metis live in mutual territory, they now have competing interests. If decisions are made with regard to Indians, there may be Metis who will say, ``Just a minute here, that is a decision that affects us,'' whether it relates to a piece of land, a hunting area or whatever it is, and they will be suing each other. In other words, the Metis may sue the federal government because of a decision it makes, because the Metis are excluded from the other two. I am not sure about the Inuit, because I do not know much about Inuit history or claims and I do not live among them.
Bill C-6 will create this problem unless it is sorted out before we go forward. I am asking you to comment as a lawyer — which I am not — but as an observer, which I am.
Mr. Hutchins: Senator, you raise an interesting issue, which goes to the heart of what is happening in Bill C-6 — that is, the issue of overlapping interests, about which I was chatting to Senator Watt. I do not like to use the expression ``competing interests.'' I do not think they are competing. Historically, people live together. People have differences. People settle their differences by various means. However, the reality of the use of land and resources in this country, historically, by Aboriginal peoples was that there was sharing and overlap. Frankly, we live in a federal state, with how many levels of government now?
Senator Tkachuk: There are too many.
Mr. Hutchins: However, we muddle along. We certainly should be aware that different levels of government coexist and function, with a certain amount of tension. One of the largest problems in the modern treaty process is the issue of overlaps and how the federal government deals with them. The way the federal government deals with overlaps, whether with the Nisga'a or others — and the list is long — has been, unfortunately, to pick one people and say, ``We will deal with them, conclude a treaty, and pop in a non-derogation provision to protect everyone else.'' The reality is that that is smoke and mirrors. Those non-derogation provisions mean absolutely nothing. First, if the neighbouring Aboriginal or the peoples with overlapping rights have section 35 treaty rights or Aboriginal rights, they do not need non-derogation language to say their rights are not being extinguished. What does happen is that two classes of Aboriginal peoples are set up, operating in the same territory, one with a treaty recognized by the state and one without a treaty, not recognized, and struggling to be able to exercise rights. It sets up this competition.
You are absolutely right. The effect of Bill C-6, between First Nations peoples and Metis is, again, to set up a classification or hierarchy of rights and peoples, some of whom are recognized and blessed by the federal government and some of whom are not. That is another problem and reason to stand back on Bill C-6 and think about what we are doing in respect of the impact not only for constitutional legal reasons but also for reasons of the impact on people — how they exercise their rights, how they live together, and how to encourage them to cooperate, rather than encourage them to argue and battle amongst themselves.
Senator Sibbeston: Mr. Hutchins, what is your experience in dealing with Metis people? I understand that you are involved with the James Bay issues. Metis people have somewhat of a different history in our country. Where I come from, in the Northwest Territories, Metis people were independent and they generally sought to get away from any control or constraint of the federal government. Their history is quite different in the Northwest Territories, where the Metis people received script that did not entitle them to land but rather to a one-time payment of $240 per person.
How would you envisage the rights of Metis people in a bill such as C-6, where no treaties are involved? Documents dealing with script are merely one-page documents in which people sign away their Indian titles. That was the way it was phrased in the 1920s, 1930s and 1940s, when the Crown went north to deal with the Metis and offer script.
You said that this bill does not include Metis but that it should include them. How would you envisage dealing with that? Would you change the definitions? How do you think we should approach this issue?
Mr. Hutchins: Honourable senators, as I stated at the outset, I have not acted for the Metis over my many years in practice. I did not come here as an expert on Metis-specific issues, and I have no pretensions of doing so. However, I do see it in the larger picture — in the continuum of Aboriginal/Crown relations. There is a certain interest in looking at the common elements between these Aboriginal peoples rather than the distinctions between them.
Usually when I appear to speak to a bill with clients or without clients, we try to come forward with concrete suggestions as to what can be done about it. I have not had time to examine this closely and prepare respectable suggestions in respect of the Metis. I too was wondering what I could do and whether there is a clause or two that could be changed. It is not easy. Obviously, the definition of ``First Nations'' must be changed. This bill clearly relates to First Nations as defined, which refers back to the Indian Act. That is one of the problems.
Parliament is proposing to entitle specific people, whom it has previously defined in a 130-year-old statute, and empower them to a process, but no one else is included. There would have to be a major overhaul not only in terms of definitions but also of appropriateness. Clause 26(1) of the bill is a key element because it defines the admissible claims. When we talk about specific claims, we are talking about a claim that is filed under clause 26, and this raises two issues. Obviously, there is an obligation to the Metis, whether they took script or did not take script. There is a fiduciary obligation. If they are section 35 Aboriginal peoples under the Indian Act, then there is clearly a fiduciary obligation. However, the enumeration begins to narrow the definition that arises from the agreement of the First Nation and the Crown or from a treaty. You could certainly broaden that out to an agreement between any one of the three Aboriginal peoples. Clause 26(1)(a) states:
(ii) under any legislation — pertaining to Indians or lands reserved for the Indians — of Canada or of a colony...
I had a little talk about what Indians are and about what lands reserved for Indians are. I was asked whether the Powley case has had any immediate effect and, I suppose, the more I look at it, the more I think that there are some interesting openings. Does Powley actually direct us that the term ``Indians or lands reserved for the Indians'' could embrace Metis now? Reading further, the lands are clearly related to the reserve land of treaties.
Clause 26 is important for all concerned and contains another limitation in time. It states:
(2) A first nation may not file a claim that
(a) is based on events that occurred within the 15 years immediately preceding the filing of the claim.
Why ever not? If a breach of fiduciary duty took place last week, I do not understand why there would not be a grievance and why someone would not have a place to turn to. Perhaps someone has come before you to explain that provision. There is a suggestion that the contemporary period and relationship is excluded from this process. Clause 26(2) continues:
(b) is based on a land claims agreement entered into after December 31, 1973...
That is an interesting date because it includes any amendments to legislation, for example, land claims agreements. I see this as an attempt to suggest that the modern, so-called ``contemporary treaty process'' and the contemporary relationship between the Crown and Aboriginal peoples are different in some way or are to be distinguished from the ``historical'' relationship.
The Supreme Court of Canada is suggesting that historic treaties are to be interpreted differently from modern treaties, in which people knew exactly what they were doing and able counsel assisted them. Anyone who has been involved in treaty negotiations with the Crown, or Crowns, knows perfectly well that there is nothing level about the playing field. There is no equality of resources or opportunity. It continues to be an extremely great struggle to pry treaty concessions out of the Crown.
I do not understand why we are excluding the modern period in this process. To get back to your question, senator, the Supreme Court of Canada has only just begun to pronounce on where the Metis fit constitutionally. The Metis have known for many years, and I thought we knew, certainly from 1982 on, that they were Aboriginal peoples.
However, if we are now beginning to explore that, this will all be developed in the modern period. The Metis will only be made aware of the possibilities of remedies or recourses as this process unfolds. Meanwhile, Parliament is saying that nothing that has happened in the last 15 or 20 years can be put into this process. There is something wrong with that. That, clearly, has to be considered from the point of view of the Metis people.
Senator Chaput: Madam Chair, I would move:
That Bill C-6 be reported to the Senate without further amendment, but with the recommendation that the federal interlocutor for Metis and non-status Indian bring forward a proposal to deal in legislative terms with the Powley decision as soon as possible.
The Chairman: Thank you. Before we deal with the motion. Are there any more questions?
Senator Tkachuk: Would Senator Chaput agree to stand the motion in order that Senator Gill may speak?
The Chairman: Is it agreed that the motion stand until after further questions are put to the witness?
Some Hon. Senators: Agreed.
[Translation]
Senator Gill: I congratulate you on your statement. It is not very different from the statements of other witnesses who appeared before us. Most of those Aboriginal and non-Aboriginal witnesses wanted this bill removed or suggested major amendments to the Bill. In our last meetings, the discussion had been entirely focussed on the Metis people, as a result of the Powley decision.
Let me explain the background. We were discussing Bill C-6 which deals with the specific claims of Aboriginal peoples. An amendment was proposed in the House to have this Bill referred to the Legal and Constitutional Affairs Committee. After these discussions, we agreed that this bill would be referred to the Standing Senate Committee on Aboriginal Peoples. Meanwhile, the Supreme Court ruled on the Powley case. We have now narrowed the discussion to that case. You understand that this political game forces us to discuss only one topic of a much wider issue. The people I talked to are not naive and neither am I.
Your presentation is very insightful. We have known each other for a long time. We both have grey hair but it does not mean that we are old, only that we have a lot of experience. You have spoken about the James Bay and the Naskapi Agreement where there was a lot of overlap and frustration. This is something I know because the Innu people, my nation, were involved in these negotiations to some extent. There was some bickering. But our bickering is even worse because there hasn't been any agreement since 1975.
You mentioned the institutions which allow us to have fun and waste time to prevent us from going to the courts. My nation has not gone to the courts yet, since 1975. This is for the senator's information. They have succeeded in distracting us for 28 years. This institution is trying to domesticate us to prevent us from dealing with the real issues.
Why should we always postpone? Why not set our foot down now and tell the people in charge in the federal government that the time has come to do what has to be done and discuss with the First Nations? Why don't we do it? It's not today! When? Tomorrow? A year from now? Six years from now? I would like to attend the signing ceremony of an agreement before I die. I was very young when the claims started. I would like to try and convince my colleagues of the urgency of signing these agreements before I die.
That Bill will probably be rubberstamped. I am against it. The time has come to step down and reach decent agreements with the First Nations. The Chief of First Nations sent us a very clear letter. The previous National Chiefs of First Nations were against the bill but we couldn't talk to him. The new Chief, Phil Fontaine, to whom everyone can talk, says the same thing as the previous Chief Matthew Coon Come.
Please, we are offering a helping hand. We are going to talk and we will manage to reach an agreement. All the Aboriginal leaders in the country are saying the same thing and you are saying the same thing, Mr. Hutchins, because you have a lot of experience. I'm not sure we are going to be heard.
If we miss the boat this time, do you think that we should go to the courts? Are we always going to go to court? They say that we have 600 claims, maybe more. I have been a commissioner for five years and we have studied 40 claims at most. The cases got bogged down in the process. There was no independence. The Department of Indian Affairs would not answer. Do you believe that the process will again stall our efforts and that we will have to go to court? We are going to try to stop that process because this will be an institution which will keep people busy for a while. There are specific claims and global claims. In your opinion, are we going to be able to settle a few of those before we die?
Mr. Hutchins: There are several types of claims including global claims which are not covered by the act. But specific claims are covered by the act.
I was asked to speak more specifically to the possible impact of the Powley decision on Bill C-6. I have a lot to say on the wording of the bill. Even before Powley, I was somewhat reluctant. I do not think it is an ideal process.
There are many problems with the process. I have no doubt that witnesses have identified every imaginable and possible problem with this bill which sets up a system which is not really useful. The total amount of $5 million is trivial when you look at the claims. How many specific claims are really relevant to that process?
There is a lot of activity outside this bill which will go on, before the courts or within negotiation processes. Even if parallel negotiations are going on, the basic issue is to know how to negotiate with Aboriginal peoples today.
I compared the situation with what happened 30 years ago at the time of the James Bay conflict. I can understand the Innus' and other nations' concerns. It is interesting to note that the parties at the negotiating table wanted to settle the claims 30 years ago. But there was no framework, no rules, restrictions or limits.
People just wanted to settle the issue. For Hydro-Québec, it was the James Bay project. For Mr. Bourrassa, the project had to be implemented. The Crees and the Inuit wanted to have their rights recognized and to have a say in the process. It is true that the Crees and the Inuit were lucky to get the injunction made by a courageous Justice Malouf. It was thanks to this injunction that governments eventually reached a settlement. That example shows that the courts can encourage the parties to negotiate.
Are we going to go to the courts? I think so. Representations will continue with or without the act, since it will not be of much use. If the government consults with First Nations and makes representations to try to establish a fair and equitable process, it should be done in the correct fashion to avoid a useless process. In this perspective, it is a pity that we spend so much time studying a bill which won't change anything.
Senator Gill: In fact, you say that you have studied the issue for 30 years. The James Bay case was brought before Mr. Justice Malouf. He certainly studied the question in-depth and did a lot of research. I think that with the injunction to the Premier of Quebec and the James Bay injunction, Mr. Justice Malouf spent a lot of time on the issue. The decision was favourable.
Mr. Justice Malouf said clearly that First Nations have rights and that an agreement must be reached. The injunction imposed by the judge forced the officials to settle the claims. Do you think that today we have the formula to settle these rights? We will end up before the courts. You say that Bill C-6 has many weaknesses and that we will get nowhere.
In my opinion, the House of Commons and the Senate do not spend enough time on the Aboriginal issue. It is not a lot of time as compared with the experts who have studied the question in-depth. How come judges always render such favourable decisions? How come the government is always fighting? What do you think of the dichotomy between the courts and the parliamentarians drafting the legislation?
Mr. Hutchins: You are commenting on the role of Parliament and I do not want to give an opinion on this. As I said at the outset, there must be a dialogue between the courts and Parliament. The courts have a role to play because this is a legal issue involving the Crown's obligations.
Where is the best place to settle the claims between the Crown, the government and the Aboriginal peoples? Is it before a court or an entity created by Parliament, in the way planned by Parliament? Is it rather before the Superior Courts, before the Federal Court? We should first concentrate our efforts on facilitating access to the courts and making the process more flexible.
I may be venturing on a slippery slope but I think that if they really want to cooperate in the claims settlement, the Crown and the provincial governments should behave appropriately before the courts. Presently, cases are handled in the courts in such a way that it is total war and this is not appropriate.
[English]
I do not think, as I said, that it is appropriate to enact legislation that suggests that the courts are put to the side in this very important process of settling, deciding, and pronouncing on the ongoing relationship between the Crown, Aboriginal peoples and First Nations. The courts have a role. I mentioned it. Even in Powley, the court repeated that once again. There has to be a dialogue between Parliament and the courts, and there has to be a free flow, an ability for First Nations and the Crown to move between the two.
There is nothing wrong or shameful about initiating a lawsuit. We have courts, and we are blessed in this country with a competent and independent judiciary. The courts have a purpose, as do the judges. There is nothing shameful in litigation.
The problem in litigation in this area is that it has become impossible for Aboriginal litigants to engage in it, and that is not the fault of the courts. I am being controversial here but, frankly, to a certain extent, that is because of the difficulties put forward by the Crown. The Crown litigates to the death cases on Aboriginal rights.
Why does this litigation cost so much and take so long that it wears people out? It is a bit like Dickens' description in Bleak House of the Courts of Chancery where litigation goes on for decades. Being engaged in litigation is not time consuming, it is the manner in which that litigation is pursued.
As I said to Senator Gill, perhaps one solution is, rather than spend a lot of energy and time on a bill that I do not think will make a lot of difference, because it contemplates perhaps5 or 10 per cent of the possible grievances against the Crown, why not make an effort to assist the litigation process? Why not ask: How can we assist the courts in doing their job, assist litigants, the Crown and Aboriginal peoples in pursuing their claims before the courts? Why not examine the system that we have had in place for 130 years and find a way of providing an equal opportunity for non- government litigants to be heard?
This exercise is, in a way, a smokescreen. It diverts attention from the major problems and the major issues.
[Translation]
Senator Gill is right when he says that there are global and specific claims which are not included in the $5 million. There are still land claim issues to be settled.
[English]
It is all about money. It is all about financial compensation. That is not what Aboriginal peoples want in terms of their grievances with the Crown, and that is a major problem. I could go on and describe the technical problems.
My main message in reply to Senator Gill is that this bill is flawed for First Nations peoples, Inuit and the Metis people. There is no question that it is flawed. The fact that I have come here to talk about the Metis and Powley should not be taken as an indication that I think it is just fine for the other First Nations, other Aboriginal peoples, because it is not.
The claims and grievances against the Crown will continue outside of this legislation, so what are we doing, and why are we devoting such an effort to it? We should be looking at the bigger picture, which is helping the institution, the dispute resolution mechanism we have in place and have had since Confederation. We should help it to do its job and help Aboriginal peoples have access to the courts and have an equal opportunity to be heard before the courts.
Senator Gill: I would like to thank the people from the First Nations, the Mohawk, the Cree people and others for their interest.
The Chairman: In your opinion, does Bill C-6 affect section 91.24 of the Constitution?
Mr. Hutchins: No, I do not think Bill C-6 affects section 91.24. It is enacted, presumably, at least in part, under the authority of section 91.24. I think the main question is: What does section 91.24 say and mean now, after Powley? I am saying that I believe that there is a very good legal argument to say it means more than perhaps you have heard it means from federal officials, because of Powley.
It was 1939 before we figured out that Inuit were included in section 91.24. I have raised the issue of Blais, which could be taken as a signal that there is a problem. In Powley, the courts have said that we must continue to treat the Constitution as a living tree, to be creative, and to respect not only the promise of section 35 but the promise of section 91.24.
Some of us remember the days before 1982. There was life before section 35 in 1982. As part of this constitutional argument, I think we forget the importance of the division of powers. My concern is that we have all diverted our attention to Aboriginal rights and what section 35 means, but we are forgetting about which Crown is responsible, why it is responsible, and the fact that it has been historically responsible for hundreds of years. To our great peril, we are forgetting that.
Powley should bring us back to what section 35. The language is clear. We did not need the Supreme Court of Canada to say, ``When section 35 referred to `Metis' it meant `Metis'.'' However, interesting messages are coming from the court, one of which is: ``Let's get creative and remember the promise of sections 35 and 91.24.
The Chairman: I would thank you for your insightful and interesting presentation. I would also thank all the observers who have taken such a great interest in this bill, which is very important to the future of Aboriginal nations and their claims.
The Chairman: We will now resume consideration of Senator Chaput's motion.
Senator Chaput: Madam Chair, earlier I moved that Bill C-6 be reported to the Senate without further amendment but with the recommendation that the federal interlocutor for Metis and non-status Indians bring forward a proposal to deal in legislative terms with the Powley decision as soon as possible.
The Chairman: Is there any discussion on the motion?
Senator Stratton: If I may, Senator Chaput, what does that mean?
Senator Chaput: It means that we need more information from the interlocutor on Metis and non-status Indians before we can pass Bill C-6 as amended.
Senator Tkachuk: Are you saying that we should not pass the bill?
The Chairman: No.
Senator Tkachuk: Let her speak for herself. She has made the motion.
The Chairman: Yes, Senator Tkachuk. I will take your advice into consideration.
Senator Chaput: I certainly need more information in regards to the Metis and non-status Indians before voting on this bill. The decision of the Senate is another matter. We will all vote according to our consciences. Does that answer your question, senator?
The Chairman: Senator Chaput just answered your question.
Senator Stratton: Senator Chaput, our opinion is that it is far too early to assess the impact of the recent Powley decision on Bill C-6. We believe that there should be a greater length of time to allow that impact to be measured across the board by the provinces, by the Aboriginal peoples and by the government.
The evidence is clear. The evidence from various witnesses is consistent. They do not really know, because they have not had time to measure it at all.
We believe that the bill should be suspended.
Senator Chaput: I made it quite clear at one of our previous meetings that the way Bill C-6 has been amended, we could not mix the two together. It did not make sense. On the one hand, we had the amended Bill C-6, which we know is far from being perfect and that it could be much better, but it is a beginning; and on the other hand, I still need to know more about the Metis and non-status Indians. I cannot explain it in a clearer way unless I speak in French.
Senator Stratton: I wanted to ensure that Senator Chaput understood our position and the effect that Powley will have on Bill C-6. We believe it should be put aside for six months, so that we will then have a better measure of the impact.
Senator Chaput: If I understand the honourable senator, he is saying that Bill C-6 as amended should not pass. I am not sure if I agree with that, but that is fine.
The Chairman: Is there any other discussion?
Senator Stratton: Are we are going to report the bill having regard to Senator Chaput's motion, so that the minority position will be quite clearly reported in the overall report itself, including the fact that the minority agree that the bill be suspended for a period of six months to allow the fullness of time in order to more appropriately measure the impact of the Powley decision on Bill C-6?
The Chairman: The motion being debated at the moment is that Bill C-6 be reported to the Senate without further amendment, but with a recommendation that the federal interlocutor on Metis and non-status Indians bring forward a proposal to deal in legislative terms with the Powley decision as soon as possible.
Are you proposing to amend that motion?
Senator Stratton: I want to ensure that the minority position is clearly stated in the report to the Senate.
Senator Gill: I would join in this motion as well. It is not only the opposition who support it.
Senator Tkachuk: I want to understand what the mover means. The motion is that we report the bill back and that we ask the federal interlocutor to bring forward legislation, amendments or their views. I am not sure exactly. She also, in her discussion, said that she does not want this bill to be voted on until that happens. I want to be clear as to what she means. We may be on the same side without knowing it.
Senator Chaput: I want the two issues to be treated differently, as separate matters. On the one hand, we have Bill C- 6, as amended, and it will go back to the Senate. I do not recommend further amendments to this bill at the present time. On the other hand, I need more information from the federal interlocutor on Metis and non-status Indians. I put the two together in the motion, but I am not tying one with the other. I am not saying that the bill should be held until we get all of the other information. I am saying the bill, as amended, should be reported back, but I want more information in regard to non-status Indians and Metis.
The Chairman: Is there any further discussion?
Senator Stratton: Before we vote on this motion of Senator Chaput, my understanding of what she has said is that we should report the bill back without amendment. That is one part. A second part is that the federal interlocutor become involved to examine and report. However, the honourable senator does not say that the bill should not be reported back and then passed back to the house. That is my reading of what the honourable senator has said.
My reading of what Senator Chaput has said is to let the bill pass in the Senate. I want it recorded as a part of the minority report, if necessary, in our report back to the Senate that the minority agree that the bill be suspended for a period of six months to allow the fullness of time in order to more appropriately measure the impact of the Powley decision on Bill C-6.
The Chairman: Thank you, Senator Stratton. That will definitely be included in the observations. When the bill is reported to the Senate, that should be reported as well when the speech is made.
Senator Stratton: The majority will rule that this be reported back, including the motion about the federal interlocutor. I do not jump off cliffs if I do not have to. I want this in the report as a minority position, so that we can then debate it in the chamber. It needs to be more fully debated in the chamber. We have debated it here. The government has a clear position on this. We believe the majority of the committee members wants to do this. There is a sufficient number of us on the minority side; I think there are four or five of us. I would not necessarily want a recorded vote, but it is clear that members other than opposition members want this minority recommendation included. Some on the government side share this opinion.
The Chairman: Is everyone in agreement with that?
Hon. Senators: Agreed.
The Chairman: I have just received some advice. It is the practice of the Senate that, when a bill is reported without amendment, recommendations are attached as observations. In that way the opinions of all members could be reflected.
Senator Stratton: Senator Tkachuk has pointed out that there has not been unanimous acceptance of the report, so it should be noted that it was agreed to on division. If other senators here want a recorded vote of the acceptance of that report, I will leave it up to them.
Senator Gill, do you want a recorded vote?
[Translation]
Senator Gill: Technically, what is the difference between a vote —
[English]
— on division, voting on that. Personally, I would prefer a vote. I know the score.
Senator Stratton: Ask for a recorded vote.
Senator Tkachuk: I would agree with that.
The Chairman: We will have a recorded vote.
Mr. Adam Thompson, Clerk of the Committee: Senator Chaput?
Senator Chaput: Agree.
Mr. Thompson: Senator Gill?
Senator Gill: Disagree.
Mr. Thompson: Senator Hubley?
Senator Hubley: Agree.
Mr. Thompson: Senator Léger?
Senator Léger: Agree.
Mr. Thompson: Senator Pearson?
Senator Phalen: Agree.
Mr. Thompson: Senator Phalen?
Senator Pearson: Agree.
Mr. Thompson: Senator Sibbeston?
Senator Sibbeston: Abstain.
Mr. Thompson: Senator Stratton?
Senator Stratton: Disagree.
Mr. Thompson: Senator Tkachuk?
Senator Tkachuk: Disagree.
Mr. Thompson: The yeas — six. The nays — three. Abstentions — one.
The Chairman: The motion is carried.
Senator Stratton, when we report the bill to the Senate do you want us to include a record of exactly what has happened today?
Senator Stratton: I should like the minority observations to be put forward.
The Chairman: Thank you.
Is it agreed that we prepare the observations?
Hon. Senators: Agreed.
The committee adjourned.