Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 17 - Evidence - February 14, 2017
OTTAWA, Tuesday, February 14, 2017
The Standing Senate Committee on Aboriginal Peoples met this day at 9:03 a.m. to study the new relationship between Canada and First Nations, Inuit and Métis peoples.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples, either here in the room or listening via the web.
I would like to acknowledge, for the sake of reconciliation, that we are meeting on the traditional lands of the Algonquin peoples.
My name is Lillian Dyck. I'm from Saskatchewan and I have the honour and privilege of chairing this committee. I now invite my fellow senators to introduce themselves, starting on my right with the deputy chair.
Senator Patterson: Good morning. Dennis Patterson, senator for Nunavut.
Senator Raine: Good morning. Senator Nancy Greene Raine from B.C.
Senator Beyak: Senator Lynn Beyak, from Ontario. Welcome.
Senator Enverga: Tobias Enverga, senator from Ontario.
Senator Boniface: Gwen Boniface, senator for Ontario.
Senator Pate: Kim Pate, Ontario.
[Translation]
Senator Mégie: Marie-Françoise Mégie, from Quebec.
[English]
Senator Watt: Charlie Watt, Quebec.
The Chair: Today we will continue our study on what a new relationship between the federal government and First Nations, Inuit and Metis peoples of Canada could look like. We continue looking at the history of what has been studied and discussed on this topic.
Today, we welcome Larry Chartrand, Professor at the University of Ottawa, who is an expert on the history of the Metis people in Canada. Professor Chartrand, you have the floor, to be followed by questions from the senators. We will go for approximately an hour and then we will take a little break before we will reconvene for a second round.
Larry Chartrand, Professor, Faculty of Law, Common Law Section, University of Ottawa, as an individual: Thank you very much. I would like to acknowledge the sovereign territory of the Algonquin peoples on this land as well.
I really appreciate the opportunity to come and speak to you about looking at the history of the Metis peoples, in particular in terms of moving forward towards reconciliation. I think it's an important initiative, and it's one that I appreciate the Senate undertaking.
I want to begin by taking you back into history a little bit around the upper Great Lakes — the Lake Superior and Lake Huron area — around the 1850s. This is before Canada became a dominion, but Upper Canada was interested in pushing into the interior to develop the region and it became necessary to negotiate with the indigenous peoples of the area. Commissioner Robinson was appointed to meet with certain Anishinabe chiefs and their question about the recognition of the Metis of the region during that process.
By then, Metis communities, or half-breeds, as they were often called back then, were well-established. They possessed distinct characteristics from their First Nations relatives of the area largely due to the economic roles they played in the fur trade, which contributed to distinct cultural, social and political characteristics. They were seen as distinct from, and identified as distinct from, their First Nations relatives in the area.
When asked to participate in the treaty process, Commissioner Robinson had to respond. By 1850, though, colonial authorities had adopted a policy of Metis collective non-recognition. Notwithstanding their distinct political existence as a community, colonial authorities at the time were not prepared to negotiate with them as such. In the view of colonial authorities, there were only two choices. You could be Indian or you could be White. There was no in- between.
By the 1850s, the policy of civilizing Indians was a dominant policy. The objective was to assimilate Indians, viewed as savages at the time, to full civilization, to move them to civilization.
It was completely inconsistent, then, with this policy to recognize a community that was only halfway civilized. Conceptually, you have to think, to acknowledge the Metis as a distinct group would arguably be akin to acknowledging the failure of colonial policy designed to assimilate and civilize the Indians. Such a definite middle ground of identity and belonging would be incomprehensible and inconsistent with colonial objectives of "progress.'' From Canada's perspective, there could be no middle ground between savage and civilized.
According to 19th century racial thought, the dilution of Indian blood through intermarriage was supposed to yield an ever-descending quantity of Indianness, so the idea of Metis demands for separate recognition and independent treaties ran completely counter to that goal.
Much of what I'm covering is in a paper that's about to be published in a book called Metis Treaties in Canada: Past Realities and Present Promise. I provided a copy to the clerk, Mark Palmer, for your background, if you like.
Going back to this time, that policy of non-recognition was not always possible for Metis communities, as events surrounding the Pemmican Wars of 1812 and 1815 reveal. So even though colonial authorities had this policy of non- recognition, that policy could not always be fully implemented because the Metis would have the position and the force to resist that kind of approach to their collective identity, that kind of denial.
For example, in 1812, Lord Selkirk attempted to establish a colony in the Red River area. The Metis of the region resisted such encroachment to their territory. They saw such a settlement as interference with their fur trade way of life and an unacceptable intrusion into their own governance independence. When Lord Selkirk tried to establish that colony, it was heavily resisted. In fact, hostilities emerged, and force and fighting took place in the area.
Those hostilities eventually were ceased with the signing of a treaty between the Metis and both British and Hudson's Bay authorities in 1815. This is regarded as the first distinct Metis treaty, and in that sense, that Metis collective in the region could not be ignored. They were simply too powerful to ignore, despite colonial policy to the contrary.
But that early experience with the Metis in 1815 was forgotten. It wasn't until 1869, when Canada became a new dominion and it wished to expand its territory to the Pacific Ocean, when it decided to purchase Rupert's Land from the Hudson's Bay Company in furtherance of that goal, that they met Metis resistance once again. The idea of setting up a Canadian government in the northwest met significant Metis resistance at the time, and we know all about the history of the Metis resistance in Red River in 1870.
Again, it was due to the power of the Metis presence in the region that it was not possible to deny the Metis as a collective, as a distinct political authority. In fact, Canada accepted to negotiate, and a treaty embodying the Manitoba Act was ratified by the Legislative Assembly of Assiniboia, which was part of the Manitoba provisional government at the time. By then, it had quite an active lawmaking experience by the time the Manitoba Act agreement was tabled in the Assiniboia legislature.
At that time, after being assured that joining the Canadian federation as an independent province was in the best interests of the Metis, the assembly ratified the agreement and accepted to become an independent province in the Confederation. That's another example of the Metis being recognized as a collective, but again, it was only because the Metis had the force to make Canada recognize them as a political independent collective.
The problem with the Manitoba Act and the way it was implemented is that it was implemented through a process that allocated individual scrip to Metis. As you recall, under the Manitoba Act, section 31, 1.4 million acres of land were to be set aside for the benefit of the Metis. That was an essential part for the Metis government at the time to agree to join Canada. They needed to see that land protection for the benefit of the Metis. However, the way it was administered was through this individual scrip certificate process, and that essentially resulted in a very convenient way for the Canadian government to continue to deny Metis collective authorities going forward and further north, west and south of the Red River area, of the Manitoba area.
That Metis scrip of allocating individual lots to Metis allowed Canada to settle Metis claims further west without having to recognize the collective independent authorities that existed on the prairies, such as the Trottier Metis buffalo hunting brigades and other Metis buffalo hunting brigades. Professor Brenda Macdougall probably talked about the social-political nature of the Metis society in the prairies at the time, so I won't go over that.
Despite numerous petitions to the contrary by Metis communities in the Saskatchewan territory and other areas of the prairies, Metis were given only the option of joining a treaty either by joining a First Nation band or to take scrip, which essentially acted as a fast track to assimilation.
In the Batoche area, of course, when the Metis government's petitions fell on deaf ears in Ottawa, the Metis once again rose up to defend their territory, which ultimately resulted in the war of 1885.
Accepting scrip beyond the Red River in the new province of Manitoba resulted in essentially accepting the extinguishment of the Indian title of the Metis, not by treaty or agreement but by unilaterally being forced to accept scrip. So for Canada, the issues of scrip throughout the northwest were seen as absolving them of any further responsibility. The scrip process extinguished their rights, and they automatically then became White. The policy only had a brief interlude of interruption. You were either Indian or you were White. The scrip process didn't really do much to change that.
However, that scrip process was implemented outside of the Manitoba region unilaterally under the Dominion Lands Act. Now, the Royal Commission on Aboriginal Peoples in 1996 and other scholars have noted that that legislation was probably unconstitutional in the sense that it violated the Royal Proclamation of 1763, which was incorporated into the Rupert's Land order of 1870, which authorized Canada to pursue acquiring territory in the West. The royal proclamation, as you know, requires Canada to negotiate if they want to deal with the interests of the indigenous peoples in developing the territory. That wasn't done vis-à-vis the Metis. The legislation unilaterally extinguished Metis title, and there was no option to negotiate or allow for the communities further west of the Red River area.
Consequently, there remain outstanding Metis title claims to much of the northwest. There is actually one statement of claim that has already been filed asserting title over much of northwest Saskatchewan, and that's the Morin claim. It's based on the argument, of course, that the attempt to unilaterally extinguish Metis title in the region was unconstitutional, and therefore, there remain outstanding Metis Aboriginal title claims to much of the West, so those need to be pursued.
Because Canada was under the mistaken belief that Metis claims were fully dealt with through scrip, they never thought it necessary to include Metis in the specific or comprehensive claims processes. Indeed, until the recent Daniels case, Canada thought that the Metis were not a federal responsibility ever since. Of course, the Daniels case has challenged that perception, but that doesn't address the fact that there, nonetheless, are outstanding Metis claims to title in the West and that, in order to ensure that Metis justice is achieved, there needs to be alternative processes for which the Metis can participate in resolving these claims.
As you know, Metis were and are prevented from participating in the specific claims processes and comprehensive claims processes because of that mistaken understanding of Metis history and outstanding claims.
My last comment, then, is to acknowledge the work of Thomas Isaac, whose report recommends that the Metis be able to participate either in the specific claims process or the comprehensive claims process or in a similar distinct Metis approach to resolving these claims. Nonetheless, there has to be an alternative to the courts. Metis claims are not being processed because, as we all know, the cost and resources needed to do that are simply prohibitive. We just can't do it. It's just not possible.
Those are my brief comments. I know it's kind of a history of the Metis in a very condensed version, but I'd be happy to answer any questions that the committee might have.
The Chair: Thank you, Professor Chartrand. You did a very good job of summarizing the history for us. We will open the floor for questions, starting with our deputy chair, Senator Patterson.
Senator Patterson: Thank you, Professor Chartrand. Welcome back to the committee again.
I appreciated your thumbnail sketch of history vis-à-vis the Metis. You have taken us to the point where we have outstanding Metis claims in the West. You mentioned the Morin claim. You made a strong case — and I'm not questioning it — that these claims are based on a misinterpretation of Metis history and a failure to honour the royal proclamation.
I guess my first question would be quite specific. This misinterpretation of history, this unconstitutional approach of scrip and the Dominion Lands Act — and you mentioned the Daniels case — have the courts recognized this principle that you've described to us? Have they agreed with the interpretation of history that you've so clearly given us this morning?
Mr. Chartrand: Actually, the history of the unconstitutionality of the Dominion Lands Act in unilaterally extinguishing Metis Indian title outside the province of Manitoba hasn't been directly challenged yet in a court. The Morin case would probably be the first case to go on to trial. It's still at the Statement of Claim stage. It hasn't even been to trial yet. That would be the first case where this issue would probably be dealt with judicially.
Much of the Metis success in terms of Aboriginal rights claims have been on assertions of Aboriginal rights to hunt and fish, which can exist independently of title. Those have had some success, but because they can exist independent of title, the courts haven't had to deal with the unconstitutionality of the Dominion Lands Act issue. That is still an outstanding question, one that is very significant in terms of how we want to approach the settling of these claims.
Senator Patterson: Thank you. This is also I think quite a specific question. You talked about the need for a process for the Metis to have their land rights recognized, if I'm summarizing correctly, and you said either the specific claims process or the comprehensive claims process or another process, but the costs are prohibitive.
My understanding of the comprehensive claims process is that Aboriginal claimants can be funded through loans. Do you have a view as to whether that would be a satisfactory way of dealing with the problem of Metis not having the resources to pursue their rights? Would that avenue work?
Mr. Chartrand: It certainly would be more beneficial than not having access to loans and resources to pursue these claims. The comprehensive process allows for that, and so Metis claims could benefit from going through that process, if they are able to be included in it. To date, the federal government has denied responsibility but for the Daniels case, so we have to wait to see if they will respond to the Daniels case to allow Metis to participate equitably in the comprehensive claims process.
If Metis can, then I think we can see some progress towards resolving some of these outstanding claims, because right now Metis communities generally just aren't in a position to afford to pay for litigation without support.
Senator Patterson: We're studying the new relationship between Canada and Aboriginal people. You've talked about land almost exclusively this morning. You mentioned the important issue of hunting and fishing, of course. Do you think that settling the land issue is a fundamental part of the new relationship that Canada should seek with Metis people? Is that the core issue that needs to be addressed?
Mr. Chartrand: I may have given the impression that I'm emphasizing the outstanding issue of Metis claims to land. Really, that's kind of shorthand for understanding Metis claims to sovereignty as a whole or to land and governance authority, because the denial of recognizing Metis collectives politically was a denial on all those fronts, not just a denial to territorial control over land but also denial to their independence as governing authorities.
I kind of want to make that point just so that the committee is aware that I'm not just focusing on land; I'm focusing on that greater understanding of Metis peoples in terms of their self-determination. That's kind of what I'd like to focus on.
Any kind of reconciliation, to be meaningful, has to go beyond just settling a land claim. It has to go beyond that. That's why the idea of a separate process distinct for the Metis seems attractive, because you might be able to get beyond that, and right now the comprehensive claims process is a bit limiting in that respect.
Senator Enverga: Thank you for the presentation. I was listening to your presentation about, of course, Metis being called half-breeds. It was either White or Indian. However, my question is with regard to their heritage before becoming Metis. Did they come from First Nations or any Aboriginal communities? Where did they get married? Which part of any community are they married to, those white guys?
Mr. Chartrand: That's a pretty complex question. It takes years to appreciate it. The short answer is that because of the fur trade and the French voyageurs that penetrated the interior, in order to establish trade relations, marriage was seen as a vehicle because it was a way of building a relationship between the traders and the First Nations. Once that happened, they could negotiate, and they become an integral part of the family.
The children of those marriages — and there were a lot of them — became the Metis peoples today. They weren't socialized within the mother's community because often the fur traders were at the Hudson's Bay post or inland in other areas, and they weren't associated in European society. They were associated out on the land. That created a very distinct kind of ethnogenesis, which wound up flourishing, particularly in the western plains, because greater settlement never took place there until well into the 1870s. So the nation was able to flourish independently with its own distinct language, culture, political systems and legal tradition from, some say, as early as the late 1700s, when the first self-identifying mixed-blood community asserted an independent identity.
Senator Enverga: I'm curious about what happened to the original native communities. Were they part of the Metis too, or were they suddenly left out somewhere else?
Mr. Chartrand: The relationship between Metis communities and First Nation communities — the Saulteaux, Assiniboine, the Cree, and particularly in the Prairies — was very close. In fact, in terms of a semi-nomadic people, you have to keep in mind that sometimes they would travel on hunting expeditions together. You would have a Cree and Metis band working together. Some scholars call these experiences or social organizations multicultural. You have Metis, Cree, Saulteaux and Assiniboine all working together, and, in fact, some scholars have defined it in more formal terms as a pact, as kind of a confederacy, in a way.
So there wasn't exclusivity in terms of occupying the territory. There was an overlapping understanding and a shared understanding of territory, but with very distinct international understandings of their relationship to one another. They were independent, but they worked together. That seems to be what the scholarship is saying in the most recent research. I think that's probably the most accurate way of looking at it.
Senator Enverga: I know they became Metis, but then there's another community out there where half of their bodies and souls belong. Has there been any time when the Metis wanted to go back to their roots? Was there any time like that? What causes the resistance? Is there any resistance from going back to their roots, to their original First Nations?
Mr. Chartrand: That's kind of thinking of Metis in terms of a one-dimensional entity. Metis also were of European descent, and that was a significant part of their roots too. The culture is very much a reflection of Metis, European and indigenous institutions being combined. In some cases, the Metis, in terms of governance, reflected more their European heritage; at other times, with respect to private law matters, they adopted more indigenous, Assiniboine and Ojibway legal traditions to resolve disputes. So it was very mixed but independent and standing alone unto itself.
If you're Metis, you're Metis. There is no other. There's no indigenous heritage. There's no European heritage. If you're Metis, that is your heritage. You were born Metis, your grandfather is Metis, your great-grandfather is Metis, your great-great-grandfather is Metis, and you don't go any further than that. It's a new nation, and it started that way.
Senator Enverga: What happens if a Metis person says, "I would like to go back to become part of this certain group?'' Has it ever happened?
Mr. Chartrand: Lots of times. I have First Nation relatives in Cold Lake. It's a close relationship. There was a lot of transfer between Metis communities and First Nation communities, and back and forth, historically. The identity boundaries were very porous. There was a lot of transfer, but the core distinctions were always there, and they negotiated with one another on nation-to-nation terms in that sense and worked collectively together in many cases because of that close relationship.
Senator Sinclair: I apologize for being late. I was at another Senate committee event that I had to attend. But as soon as I heard you were here, I had to come over and ask you this question, because I know you have the answer to it. It's a question I asked of one of the other presenters last week. It connects in with what I'm hearing has been part of your presentation today and also, with a quick look at your presentation, it appears to be the focus of several comments you've made in the past, which I want to begin to address. It is the question of land holdings versus land governance rights.
Last week, in a presentation that we received, I raised the question of why don't we begin to think about indigenous title as not necessarily being about ownership of the land so much as it has to do with the right to govern the land. The example I drew at that time was that the City of Toronto currently comprises 7,000 square kilometres of land and yet owns very little of it.
My question to you is this: When this committee begins to deliberate on how the relationship should go forward in the future, recognizing the nature of the court decisions that have come through in the last several years concerning Metis and the recognition of their rights as indigenous people, should this committee begin to start thinking about the issue of Metis land rights in the context of governance versus ownership?
Mr. Chartrand: Thanks very much, Senator Sinclair. Yes, absolutely. In fact, that's how I see the relationship to land, as one that embodies an authority to govern over it. That authority to govern over land is what existed during contact with European settlers. The fact that we are speaking the title language is really an imposed legal understanding of how you relate to land. It's a common law understanding, and it's one that denies the nationhood status of the people, because you don't have to recognize nationhood status to recognize title to the land.
In fact, that's why the comment in Tsilhqot'in was made by the Supreme Court of Canada that there was never any terra nullius in North America. They're speaking of the fact that Aboriginal peoples have this common law, colonially defined right to occupy territory. But that is a far cry from the original understanding of the relationship to land, which was a relationship of governance of the land.
Internal to the indigenous peoples' authority was a legal tradition that determined how that land would be allocated amongst its own members. First Nations had a very distinct way of understanding how they were going to allocate land. Metis have a very distinct way of how they're going to allocate land internally, which is something that the Manitoba Metis Federation case ignored. They did not recognize the fact that Metis governed their territory as a collective, but within that, internal to it, they did recognize individual title, which was part of their European heritage understanding. A French seigneurial system of land holding was part of the Metis culture. So they did have individual ownership, but they also had collective ownerships outside of the seigneurial individual land holding plots.
When the issue was presented before the Manitoba Metis Federation Supreme Court of Canada case, the court only saw the individual land holdings. They didn't see the broader picture, so they said Metis didn't have Aboriginal title. They only saw Metis as having individual title.
I am totally sympathetic, and reconciliation means we have to go beyond the title understanding or limited common law understanding of an indigenous person's relationship to their land and go to the authority governance understanding of their relationship to land. If we're really going to reconcile, that's where we have to go. We have to get rid of that common law title crap.
Senator Sinclair: Given that ongoing legal question you have identified, last week the Government of Canada announced that the Court Challenges Program was being refunded and it was going to start anew again. I found it interesting in the announcement to read that claims related to indigenous legal issues are not going to be part of the Court Challenges Program. Does that cause you any concern?
Mr. Chartrand: Yes. In fact, I was very disappointed about that. As a member of the Indigenous Bar Association, I am one of the members of the Court Challenges Program committee. When we had our meeting in regard to setting it up again, I advocated strongly — indeed, a lot of the members of that committee did as well — that an understanding of equality from a nationhood point of view should be part of the Court Challenges Program. You're talking about issues of equality in that broader sense, not individual equality but collective equality. It makes sense to include those types of claims under the mandate of the Court Challenges Program. That was our position.
When I saw the announcement, I was not very happy, to say the least. I was kind of upset about it, because that just denied another option. As you know, these cases are extremely expensive. Yes, I was very disappointed about that. I hope the Court Challenges program personnel are looking.
Senator Sinclair: I have other questions for the second round.
The Chair: I would like to ask a supplementary to that as well. If the current government has said that they don't want to proceed by settling Aboriginal issues via the courts, and if the Court Challenges Program is not going to fund Aboriginal claims on land, what options do you see that Metis, First Nations or Inuit groups can take if they can't go via the courts? If a lot of times it seems the decisions are made either by policy or via what could be seen as unconstitutional legislation, what other options are available? How do you see a reconciliation of outstanding claims?
Mr. Chartrand: I liked the recommendations in the Truth and Reconciliation Commission. They're broad looking. It endorsed the United Nations Declaration on the Rights of Indigenous Peoples. The idea of a new proclamation to set a new process on equality terms is significant.
In reconciliation, everything is on the table, short of threatening the sovereignty, territorial integrity of Canada. But everything else is on the table and has to be on the table if we want reconciliation. Some sort of process that examines or pursues treaties that are outstanding in light of that would be important to implement.
Historically, Queen Anne had actually done that at one time, going way back. Even though she had a very short reign, she did establish a committee to deal with disputes regarding indigenous claims and the British, and on that board was equal representation between indigenous peoples and the British.
Since then, we've never had anything like that. We don't have that kind of set-up. We have the courts, which are unilaterally imposed institutions. We don't have a commission that has that kind of equal representation to deal with these outstanding issues. I think something like that, at a broad level, would be beneficial.
Senator McPhedran: Madam Chair, you asked part of my question, which is great, because it lets me go on.
Welcome, Professor Chartrand. It's a pleasure to see you here. As you may know, I'm one of the new independents from Manitoba, so they're comments that you've made are particularly relevant, and I know you've made significant contributions while you were in Manitoba. I'm sure you still are, obviously with your comments, affecting many of the ways that issues are dealt with in Manitoba.
I want to build on the previous three questions, partly because I'm among the millions of Canadians deeply disappointed that this government has backed away from its promise for electoral reform. I'm wondering if you have thought about the notion of bringing in electoral reform, looking at, for example, certain models of proportional representation — New Zealand comes to mind, but there are other jurisdictions — and if you might share with us your thoughts and/or recommendations on that.
Mr. Chartrand: Yes, I have thought about it, particularly when I taught an Aboriginal politics course at the University of Winnipeg. In fact, one of the areas we discussed was that kind of electoral reform and how indigenous peoples could be represented more effectively in mainstream governance.
I think the New Zealand model is something really worth considering as a potential model for Canada, where you have an indigenous constituency and seats set aside in Parliament for elections to those seats by the indigenous community themselves. That doesn't mean that they are only required to elect the indigenous seats; they can also opt out and vote in the regular process. But it does give, I think, a guaranteed voice of indigenous peoples within Parliament kind of in a way that allows the recognition of indigenous peoples being a third order of government to have that voice. Right now, we don't have an indigenous Parliament or an indigenous Senate as a third body of government in Canada. That would be an option that might be manageable and implementable.
It's been a while since I've thought about the issue, so that's pretty much all I can say on it.
Senator McPhedran: Thank you so much. I hope you'll continue to think about it. There are those of us who believe deeply in electoral reform and its capacity to create a more inclusive democracy, more representational democracy. Let's continue to work together on this.
Senator Watt: Good morning. This outstanding matter that you have highlighted has been around for quite some time. We've known each other for a number of years. I do believe your people have also gotten some additional recognition from the Supreme Court of Canada, which is recent now. I guess it's related to Harry Daniels.
The fact is that you have constitutional recognition, which is still in existence — the same thing applies to the First Nations and the Inuit — and up to now, other than the ruling that came down, there was not really the initiative, from what I understand, on the government side, or a willingness to sit at the table to hammer out the differences and try to arrive at a comprehensive claim. Is that still the case today?
Mr. Chartrand: I think there's some positive possible movement to address that. As you know, there have been memorandums of understanding entered into between Canada and the Manitoba Metis Federation, the Métis Nation of Ontario and the Métis Nation of Alberta. These memorandums of understanding are exploratory in the sense of thinking about a process for resolving these claims. There seems to be some serious movement toward thinking about how Metis claims can be resolved through these exploratory tables. My understanding is that a report will come out of them, geared for September of this year, so it's hard to anticipate what's going to come out of them. I really worry, though, that there's pressure to maintain the status quo.
One of my major concerns with the Isaac report is that it did not reference the United Nations declaration — rather, it referenced it but dismissed it. It didn't find it of relevance, and I thought that was a serious issue with the report. We need to pursue a United Nations declaration agenda rather than the dominant status quo of Aboriginal rights doctrine, which is much more limiting than the rights under the declaration. That's my worry, and there's nothing in these MOUs that reference the declaration either. I hope that is something that the parties will consider going forward and don't feel they're locked into getting the minimum, based on Aboriginal negotiations to date, which seems to be — I better not get into Metis politics issues too much.
Senator Sinclair: I appreciate that.
Senator Watt: So what is your recommendation, knowing the fact that there is uncertainty for the Metis? If I understood correctly the last ruling from the Supreme Court of Canada, they have given some recognition to what you can access as a program in a similar nature as First Nations. Even in that area where nothing is really moving ahead, if that is the case, what would be your recommendation to this committee to enlighten society, if you want to say, or the government?
Mr. Chartrand: The recognition of Metis within section 35 of the Constitution, on the insistence of Harry Daniels as well, was very significant because it meant that Metis as a people were recognized in the Canadian Constitution, which was contrary to Canada's policy of denying Metis collectivities ever since. That was a big step.
Then, of course, the courts recognized in Powley that the Metis could exercise Aboriginal rights as a distinct people. In that case, they recognized the Metis of the Sault Ste. Marie area as possessing the Aboriginal right to hunt. There have been a few successful cases in the Prairies relying on Powley, such as the Goodon case and the Laviolette case. They've recognized Metis regional communities to exercise resource rights.
That's good, but that doesn't address some of the other outstanding issues, the relationship to land and the governance authority. Those are still outstanding issues that can't be dealt with through the court mechanism, not without great difficulty and expense.
So my recommendation is to have a process like the comprehensive claims process, which is expansive in terms of its mandate, to deal with not only Metis rights to resources and land but also Metis rights to governance authority. There is a strong history of Metis exercising governance authority.
The relationship between Canada and the Metis ever since then has been very poor. That is why Louis Riel went to war in 1885, and it's been downhill, more or less, ever since. That kind of broad approach is preferable.
Senator Raine: Thank you very much. I really appreciate your information, especially on the historical side. As you know, we did a study on Metis identity a few years ago, and certainly it's a very complicated issue.
I would like to ask for a little bit more information, if you have it. In the early days, when Metis people had communities, if you like, on the prairies, how did their governance actually work? Was it based on a settlement where they had a permanent location? In a semi-nomadic community, what was their governance?
Mr. Chartrand: Thank you for the question. I have been doing a fair bit of research in that area, following a lot of the work of Brenda McDougall, Nicole St-Onge and Robert Innes, and from earlier work with Metis elders in particular. During the Metis elders conference, that issue was also addressed.
The governance is dynamic, mobile and it's multi-dimensional. It starts with the family, goes to the community and then to the larger nation. The authority is functional. It originates at the family level, with a significant amount of independence there.
It can go to the community level, and when I say community, I don't mean a site-specific, village-type static location. I mean a mobile community, in many senses, that travelled across the prairies, never necessarily staying in one place for too long, but having institutions of governance that supported that community. Those regional, moving communities would also work with the larger nation as a whole when necessary, through governance processes, particularly when the nation as a whole was threatened.
These communities and their members would work together at the nation level. That happened in 1869. It happened in 1885. In a sense, it's kind of mirroring much of how the Metis have organized themselves politically today, at the provincial affiliate level, but also at the local level, down to the family and up all the way to the Metis National Council level. So it's multi-dimensional, but it's grounded in family and social networks with other families.
That's kind of how we need to understand Metis communities. Saying that the rights belong to a site-specific village is not appropriate. It's much more nuanced than that, and unfortunately courts have gotten locked into that village site-specific test and have kind of ignored the inherent nature of Metis governance traditions. We need to be critical of how the courts have taken the test so far in that sense.
Senator Raine: In thinking of land and going back also historically to the period when settlers were coming in and taking up land in what was considered, probably, by the Metis as their territory, they brought with them the land ownership understanding from Europe. I think we can all appreciate that when you decide to build a farm and put your work and labour into one specific piece of land, you then consider ownership of it in a different way, and that way was recognized by the colonial government of the day. So there was an evolution towards a fee simple land title ownership.
Did the Metis people of the day have an opportunity, if they wanted to, to stake out homesteads, as the settlers did? I'm not talking about scrip. I'm talking about just if they wanted to become a farmer. Looking back, it seems obvious that they didn't, but was there an opportunity to do that?
Mr. Chartrand: A lot of the work of Paul Chartrand looks at the original Metis customs of land ownership and how they evolved. Metis are very much mixed culturally in that sense, because they valued the concept of individual ownership of land along the narrower river lot system that they preferred over the English system, which was more square.
The Metis had very narrow river lots that went back two miles, but the rest of the land on the back was shared collective community lands. The narrow river lots were independently and individually owned, and that was an internal land management understanding of the Metis community.
So they recognized both kinds of ownership: an individual ownership and a collective ownership, all managed under the umbrella of the Metis nation governance at large.
Through custom, but also in the legislature of the Assiniboine government prior to joining confederation, the Assiniboine legislature enacted a law — or proposed a law; I don't think it actually got implemented — to convert the individual river lot ownership under Metis custom to fee simple. They were actually on their way to doing that, but then they became part of Canada under the Manitoba Act.
Senator Raine: What happened, then, to the opportunity for conversion to fee simple under the Confederation?
Mr. Chartrand: Under Confederation, there were two provisions in the Manitoba Act. One was for those who already had their plots, and they could convert them into fee simple. The administration of that conversion process was problematic, though, and there's a bit of a long history of some of the problems with that conversion process, and it was one of the reasons the Manitoba Metis Federation case went forward in the first place.
And then the other lands were the 1.4 million acres of land that were set aside were for children to acquire interests in land in the future. But we know that did not manifest itself because of the mismanagement of the scrip process by federal authorities, and so that resulted in the Manitoba Metis Federation case.
Senator Raine: During this period, I am curious to know what happened further west, when Metis people migrated to the west. Was there opportunity to stake hold land as they went west, or was that restricted just to the Red River Valley?
Mr. Chartrand: No. As the transition from a fur trade and buffalo hunting economy to a more agricultural one took place, Metis hunting brigades, for example, started settling into more permanent communities. So you have St. Lawrence, Batoche, you have Willow Bunch, you have all these Metis communities that are starting to become more permanent settlements, and the Metis within those settlements would acquire land, either under Metis custom or perhaps through the scrip process that was imposed on them.
There are also opportunities for Metis to just take up land under homestead, as that became implemented under homestead provisions. In fact, my grandfather took up a homestead in Pierceland, Saskatchewan, when he was a kid, and he moved up from Willow Bunch in the 1930s. But he was a trapper, and he trapped in what became the Primrose Lake Air Weapons Range and lost his trapline, and then of course he lost his land because he couldn't pay the taxes on it.
Senator Raine: That was on the Prairies still?
Mr. Chartrand: Yes.
Senator Raine: So what happened into British Columbia?
Mr. Chartrand: I'm not too sure about British Columbia. Scrip never went there, so Metis holdings were probably based on custom, the custom of the area. Whether they became recognized under colonial authority or not is a whole complicated process.
Senator Raine: Yes. And of course the fact that there aren't any treaties for much of British Columbia is a whole other issue.
What I think we're interested in, in our committee, is looking forward. You said something that I wouldn't mind if you could expand on, basically that the Commonwealth land entitlement should be thrown out. Our whole country post-contact has put in place a land title system that is respected by law and it's there, so now we're trying to figure out how to do that. But when you say everything should be on the table, including private fee simple title, could you expand on that? That's going to make it very hard to move forward.
Mr. Chartrand: Yes, I know. I think the issue is that the fee simple regime was imposed in the Prairies, and I'm thinking of the Prairies in particular, and the Metis scrip kind of fell within that system.
Had the Metis had an opportunity to negotiate treaties instead of being subjected to unilateral extinguishment and a scrip process, the territory to which they had authority over could have been governed by Metis traditional understandings of land and their relationship to land and how individuals could hold land. That didn't happen.
I don't know if we could say all of a sudden, okay, this Metis community in this region has an outstanding claim, so all the fee simple that now exists there is no longer legitimate or valid. Of course we need to work through the implications of that history that is satisfactory to both sides.
Sometimes compensation is paid in lieu of territorial authority; sometimes compensation is made in terms of allocating lands outside of private fee simple areas for resolving claims. It's a matter of negotiation.
We can't turn the clock back and say colonization didn't happen, and there are people who are occupying private interests in the Prairies, but we can do other things that may still respect those private holdings but also adequately compensate the Metis and recognize their increased governance and authority within a situation that they may have some plots of land but a lot of it is still under provincial or Canadian authority and law.
Senator Enverga: I would like to follow up on my questions about the Metis as a whole.
First of all, you mentioned earlier that there was a time when the Metis people really went back to the roots of their parents, either the Aboriginal people or maybe the European settlers. The only reason there's Metis is because there's a mixed breed, according to your note here. Is there any chance that people from other First Nations who married the Europeans at the same time — there's a lot of them, I presume — have ever thought about going to the Metis tribe? Is there a way to accept them on your end? That will be a historical perspective. Has it happened before?
Mr. Chartrand: Yes. There is a history of that in the sense that Metis communities have been around for a long time, while, at the same time, the Indian Act began to restrict who was legally recognized as Indian. If a First Nation woman married a non-First Nation person, they lost their status and their children lost their status. That often resulted in alienation from their First Nation communities. Often, many of them would then join, belong to or become part of a Metis community.
Essentially, they're non-status but they become part of a Metis community. Because Metis communities and First Nations are often living close to one another, there's marriage in and out. There is a lot of transfer towards Metis because of that history of disenfranchisement from the Indian Act, and vice versa sometimes as a result of Bill C-31 back the other way.
That happens. It's just part of Metis inclusiveness in terms of membership, recognizing relations as part of who they are and accepting new members that way. It happens, but that was kind of colonially imposed, in a sense, because of the way the Indian Act was implemented.
Senator Enverga: The reason I'm asking is this: Would you consider the treaties being made with the Metis better than the ones made with the First Nations because of their different ancestry in some way?
Mr. Chartrand: No, I wouldn't think of Metis treaties with the Crown as better than First Nation treaties. I would just say that they should be equal in the sense of an equitable process that's fair to both Metis and First Nations. The actual substantive outcome is dependent on the negotiations of the parties. The treaties vary in terms of the outcomes based on those negotiations, but the process should be equitable. The Metis should be able to sit at the table and negotiate a treaty, which for a long time was excluded, unless forced to do so.
Senator Enverga: Have you made any comparisons?
Mr. Chartrand: Because of the policy of denial of Metis collectivities, there aren't many historical treaties with Metis. There are a couple of examples. There is Treaty 3, the Metis adhesion to Treaty 3, for example, in the Northwest Angle. That treaty with the Metis community is regarded as an anomaly by the Canadian government, but it is indicative of the fact that that community was able to assert itself as an independent community from its First Nations relatives. They negotiated an adhesion to Treaty 3 on the same terms as Treaty 3, so you have a Metis treaty there.
You have modern Metis treaties in the Northwest Territories. The Sahtu Dene and Metis Comprehensive Land Claim Agreement is a treaty with the Metis. It's a modern treaty. It's also a treaty with the Sahtu Dene. But it's a combined treaty. Both the Sahtu Dene and the Metis agreed to the same treaty.
There are also negotiations ongoing right now in the Northwest Territories with the Metis of the South Slave region, and they have gotten into an agreement in principle stage. It's a treaty just with the Metis in the Northwest Territories.
There are models, and those ones are very similar to existing treaties with First Nations in terms of both historical and modern.
However, Canada denied the opportunity to enter in treaties south of the sixtieth parallel, south of the Northwest Territories, because of that history of denial and they thought the scrip process extinguished any responsibility thereafter.
Senator Enverga: When you consider one treaty as an anomaly, would you consider it better or too good to be true? Why is it an anomaly? You can explain a little bit, please.
Mr. Chartrand: Because the federal government's policy was not to enter into treaties with Metis, despite many petitions to the contrary by Metis people in Canada. The policy was strongly maintained. It was only under unique circumstances where the Metis would not accept anything but a treaty, in Red River in 1869 and in Rainy River the Treaty 3 adhesion was in 1875. The circumstances of that are kind of unique. The Metis said, "Well, we would like a treaty.'' The official responsible for the area agreed, and they entered into a treaty. But when Ottawa got word of that, they were quite upset and frustrated the implementation of that treaty ever since. So there are outstanding specific claim treaty obligations in that one, but they can't go to the Specific Claims Tribunal because they're Metis.
Senator Sinclair: This is a fascinating area of discussion, and I hope we can continue it with you on another occasion as well because I have a lot of questions I'd like you to address on the record, professor.
Let me begin with this one. About half an hour ago, the Superior Court of Ontario ruled that Canada was legally liable to the Sixties Scoop kids. This is just for Ontario. I imagine a number of them are Metis kids, and I imagine that means that Canada now has to compensate them for loss of identity, culture and language.
Maybe you can help Canada by helping us understand: How do you think Canada should approach that question of loss of identity for Metis kids?
Mr. Chartrand: That's a good question. I think loss of identity in that context is not all that different from loss of identity in the residential schools context in some ways or in other ways that people have been separated from their culture.
When women lost their status and the right to live on reserves, they also lost that connection to culture. Lovelace was the case that responded to that. That went to the International Human Rights Tribunal to resolve. I don't know what the order was. I think the finding was that Canada was wrong in doing that, and that led to Bill C-31.
In terms of the Metis community and those who were alienated from their communities because of the Sixties Scoop, I would argue that Canada has an obligation to reunite, to the extent they wish to. I don't think we can force people to reunite if they don't want to, but I think support should be there to reunite with their culture, and that could just be done by programs and services that could facilitate that reuniting. Other than that, I'd have to think more about the issue.
Senator Sinclair: Which is why we might invite you back after you've thought about it and come up with the perfect solution.
Let me ask you to either think about or respond to this question as well, because it's related to that. It has to do with the UN Declaration on the Rights of Indigenous Peoples.
First of all, this committee, in looking at the issue of the future of the relationship between indigenous people and Canada, will probably have to consider what to do with the UN declaration, what to say about it and whether or not to recommend to Canada that Canada do something formal about adopting it or provisions of it. Do you have any thoughts that you might be able to put on the record insofar as the Metis side of the discussion is concerned?
Mr. Chartrand: I think the UN declaration reflects the interests of the Metis just as much as they reflect the interests of First Nations and Inuit. In my opinion, I would be very favourable to the adoption of the declaration in a more formal sense in Canadian law. Amending the Constitution is one option. I don't think we should dismiss that as an option.
The other option is to formally adopt the principles in legislation, which would then maybe, over time, allow the courts to embrace them as well in their interpretation of section 35 and therefore move the doctrine of Aboriginal rights further towards the principles in the declaration. I think if Canada took that initiative, it would send a strong message that they're serious about reconciliation, and then it would be a matter of implementing the provisions in the declaration consistent with how Canada adopts it.
Other countries, like the Philippines, for example, have adopted the UN declaration word for word. In fact, in some provisions in the Philippines, they even go further than the minimal human rights standards that the declaration identifies. I think that's important to keep in mind. Those are just minimal standards, and the doctrine of Aboriginal rights under common law and interpreted by the courts fall below that standard, so judicial principles right now actually don't meet the standard of minimum human rights. I think the Philippines is a great model in terms of doing that. They don't have the resources to implement it, mind you, but they have the law there now. That is just one example.
Senator Watt: Again, thank you, Larry. With regard to where the Metis stand in terms of their constitutional position, that is quite clear, and it was clear right from the beginning. Do you worry at times that when the subject of the Metis is being used as sort of a football, back and forth over the years for many years, actually, that maybe one day there's a possibility that the system might try to alter the importance and interpretation of constitutional rights? Do you worry that and the importance of it? The way it is stated now in the Constitution, it recognizes you as a nation? Do you worry that at times, when they're dealing with subject matters, they might try to alter the importance of them? Because you mentioned the fact that there might be a way to deal with the matter through an amendment, but that could go one way or the other. I would like your opinion on that.
Mr. Chartrand: The constitutional amendment approach would be risky. The momentum is slow, but it seems to be a momentum of a relationship and understanding of Aboriginal peoples that is better than the prior generation. It seems to be positively improving.
There is still that concern that indigenous peoples are categorized as minorities and not nations, and that influences how policy is understood and how their rights are understood. I think if we're able to do a constitutional amendment that stated explicitly the nationhood status of indigenous peoples and the fact that they're not minorities so their interests can't be diminished by asserting that other interests of the public overweigh them, which is the process under Charter rights in terms of recognizing minority rights to religion, for example. The state can always override those rights in the broader interest of the public, but not nation rights. Nations are treated equally. You can't override another nation's rights. You need to negotiate. That's why the informed consent obligation in the UN is so important. If you want to establish a relationship, you have to negotiate. You can't impose it.
That's the problem with the current interpretation of section 91.24 of the Constitution. Perhaps Joshua Nichols, one of the earlier witnesses, may have gone into this, but in my opinion it's been mistakenly interpreted as a power over indigenous peoples and not a power with indigenous peoples, which was the original colonial understanding in terms of negotiations with the British and indigenous peoples, and reflected in the royal proclamation. Somehow that got twisted to the point where 91.24 is seen as a plenary power over a people, when in fact it was really only meant to be a power to negotiate.
As between the provinces and the federal government, it makes more sense for the federal government to negotiate. I was very disappointed with the Daniels case when the plaintiffs didn't challenge that interpretation. That really got me upset. I've always been critical of the Daniels case because of that. But it makes sense for the federal government to be the party for those negotiations. In that sense, I think the Daniels decision was correct.
I kind of got off on a tangent there, didn't I? Sorry, Senator Watt.
Senator Watt: Thank you, Larry.
Senator Boniface: Thank you very much for the presentation and your perspective.
I want to go back to a reference you made to New Zealand, because we heard from other witnesses that New Zealand has an interesting model that is advanced in some ways. I wonder if you could give us a brief sense of what aspects of it you think might be meaningful for us, going forward.
Mr. Chartrand: One of the aspects of it is the fact that you could set aside seats that are proportional to the population so there will always be at least a proportional representation of seats in Parliament that are indigenous. That is probably the minimum, and then that allows some guarantee that representation in Parliament will be proportional. Otherwise, there are only a few ridings in Canada where there are enough indigenous peoples that that can make a difference, because of the way indigenous peoples are spread out, and they don't have the same numbers as in New Zealand.
In terms of further reconciliation, it would be good to go a bit further than that, though, recognizing that there has been a historical lack of indigenous voice in Parliament. Allocating additional seats beyond proportionality may be a way of addressing that historical lack of voice and another example of furthering reconciliation.
Keep in mind, of course, that that's just in relation to the fact that indigenous peoples are also Canadian, sometimes by choice but sometimes not by choice. Not in my case. We were forced to become Canadian, and I've always resented that, actually. In fact, I was looking up the other day under Immigration Canada that you can renounce your Canadian citizenship. I'm prepared to do that now. How can you value the rule of law when you know that the country is illegitimate in the first place, and how can you be a Canadian who values the rule of law? They're not compatible. So you might see my application to renounce Canadian citizenship.
Senator Sinclair: Good luck getting into the U.S.
Mr. Chartrand: My wife says I'm stupid to think about doing that, because she says people would pay dearly to become a Canadian. I recognize that, but it would be more symbolic on my part than anything.
Senator Raine: Thank you again. You talk about citizenship, and we have a lot of different ways of categorizing people, whether it's a band member or a member of a Metis community, registered as a Metis person with their own groups. There are a lot of different ways of considering if you belong, how you belong and why I would belong. A lot of times it gets down to entitlements and just what you feel yourself.
But when you look at a country like Canada, which goes from coast to coast to coast and is overlaid over many kinds of indigenous people in the North and all across the country, with the settler communities coming in, dividing up into government jurisdictions with all kinds of different jurisdictional issues, somewhere along the way there has to be what is called Canadian sovereignty. So I wonder if you could define "Canadian.''
I know maybe what you just said reflects that you don't think it was founded legitimately in terms of our Constitution. However, it is what it is today, and sovereignty is a term that's used a lot but perhaps we understand things differently. Could you explain sovereignty from a Metis point of view?
Mr. Chartrand: I don't know if the Metis view of sovereignty is much different from a First Nation point of view. The idea that the Crown could merely assert sovereignty, of course, has always been challenged, whether you're Metis or non-Metis. Under principles of international law, in terms of territorial acquisition, you can't just merely assert your sovereignty when there are already existing sovereign peoples on that territory. You need to engage in processes of negotiation to work out a way to share that sovereignty, if that's the desire of the peoples. I think that would be the same way that Metis would look at it, as well.
A useful way of looking at the issue is the distinction between de jure sovereignty, legal legitimate sovereignty, and de facto sovereignty. The fact that Canada, through its force and might and influx of the population, has overwhelmed the indigenous peoples is a form of de facto sovereignty. It's not de jure and it's not legal; it's not legitimate. But it is, nonetheless, there.
I think we want to change that perception of Canada. Who wants to understand Canada as a country that basically forces itself on another people without their consent? We want to, I think, embrace a Canada that is a consensual, building version of Canada. That's why treaties are so important. Whether you're Metis, Inuit or First Nation, it doesn't make a difference. You need that consensual relationship. Otherwise Canada's sovereignty will always be tainted. It will never be fully legitimate.
Senator Raine: How do we do that?
Mr. Chartrand: The treaty process is the way to do it, along with some movement by the courts too, because they've interpreted treaties in a very limiting, domestic contract kind of way. They don't understand them, and they haven't traditionally understood them as nation-to-nation constitutional documents. That's one way of understanding the treaties: they have a constitutional import. They're just as much part of the Constitution as the British North America Act, or the Constitution Act of 1982. They are integral to the relationship of building of country. If they're regarded in that sense, that would go a long way to reconciliation.
Senator Raine: If you have a sovereign nation, for example, Canada, you can also have other nations inside the sovereign nation, with their own governance, relating to their affairs. And if there are disputes with the sovereign government, how does that get handled?
Mr. Chartrand: I think a fair way would be through some prearranged agreement as to how you're going to resolve disputes between your two peoples.
Now, the numbered treaties didn't address that issue, although they did address the issue of what happens if the laws are broken, and there are certain provisions in the numbered treaties that deal with that. A lot of those historical treaties don't have that explicitly, but if you talk to the elders, the understanding was that the law that would govern disputes would be intercultural law, the development of an intercultural law. It wouldn't be exclusively common law or exclusively Cree law. It would be over time the development of an intercultural law that would resolve all those disputes.
In the modern-day treaties, they have arbitration panels that are designed to resolve disputes. They're explicitly built into the modern treaties. But there isn't an explicit understanding that Dene law, for example, should be alongside the common law in the interpretation of disputes. I know the Saulteaux Dene arbitration panel believes that, because I was a member of the panel for some time. Canada didn't believe that, though. They said only Canadian law applies, not Dene law. Needless to say, I don't sit on the panel anymore.
Senator Raine: There's work to be done. Thank you very much.
Mr. Chartrand: There's work to be done.
Senator Watt: Along the same line, as you know, under the modern treaty settlement, there's not one mechanism existing to deal with the dispute between the people, the landholders and the agreement holders, nor between the Government of Canada and the provinces. In other words, a system does not exist with regard to dealing with the dispute issues.
Knowing that fact, if we do make a recommendation as a committee that we require a dispute resolution mechanism between whichever nation you are dealing with, whether it is the Metis, First Nations or Inuit, there would have to be a sufficient mechanism — with teeth. To my knowledge, right now that doesn't exist.
I wonder how we advance that and make it absolutely clear that if there's going to be a settlement between the two groups, for example, the government and the First Nations or the Inuit or the Metis, you definitely require a mechanism in place. That would have to be incorporated into a new way of dealing with the third level of order concept. Would you agree with that sort of formula being looked at by the committee?
Mr. Chartrand: I would agree with that. During the modern land claim self-government agreement processes, some of them do have built-in dispute resolution processes. They need some work. They need to recognize that there's more than just the common-law legal tradition. There's the Dene or Cree legal tradition that should influence the decision making. Those are usually appealable to the regular court system in terms of enforcement, if necessary. There we get into the problems that the court system is not reflective of the indigenous legal tradition as well.
That's why Quebec insisted on, at the time of the Confederation, three judges being appointed to the Quebec Supreme Court of Canada, so their legal traditions and cultures can be part of the decision-making process when there are disputes arising in Quebec. The same principle applies to indigenous peoples' issues as well. I agree; we need to have that kind of level of approach to resolving those kinds of issues.
The Chair: Senator Sinclair, did you have a supplementary?
Senator Sinclair: Yes. It follows on the question that Senator Watt was pursuing with you, and Senator Raine as well raised the question of how to resolve jurisdictional conflicts between nations when one has an overriding public authority.
I was thinking, as I was listening to Senator Raine's question, about the issues of jurisdictional conflict between Rome, which is a nation, and the state of Italy, which is also a nation. They must have a mechanism by which they resolve their jurisdictional conflicts. We also have jurisdictional conflicts in Canada all the time between provinces and the federal government that are resolved through one way or the other. Sometimes just the passage of time, and people dying is one way of resolving conflicts.
Ever since Johnson v. McIntosh and Worcester v. Georgia in the United States in 1812 to 1830, when the United States Supreme Court addressed the issue of sovereign, dependent nations and recognized that as a status for American Indian tribes, are you aware of how the issue of conflicts between tribes and the federal government have been resolved and conflicts between tribes and state governments have been resolved in the United States?
Mr. Chartrand: Yes. It hasn't always been ideal from the tribal perspective. Initially, they had fairly well-recognized sovereignty over civil and criminal jurisdiction, for example, but that was whittled away by Congress over time, and that whittling away stopped at some point in the 1960s, I think. They still have retained significant inherent sovereignty over civil and criminal matters, and the states have to respect that.
If the Navajo Nation falls within New Mexico, New Mexico has to respect the sovereignty of the Navajo Nation, and vice versa. At one point, though, if someone from New Mexico went into the Navajo Nation and committed a crime, the Navajo Nation couldn't try or prosecute that person because it was said that state law could only do that, and then the states would ignore the issue. That was corrected under the Obama administration, to some extent, so that carries over to someone who is New Mexican and commits a crime in Navajo territory. The Navajo courts can take care of it now, to some extent.
There are some nuances to the issue, but it's a traditional division of powers analysis. If you recognize indigenous peoples as possessing the authority, you apply that division of powers analysis. So principles like pith and substance, paramountcy and inter-jurisdictional immunity help resolve any jurisdictional conflict.
The same thing could apply with respect to indigenous governments as well. It hasn't been done, though. It's been interpreted through the section 35 framework to date.
Senator Patterson: I have a challenging question, probably, and I'm not sure if Professor Chartrand has the time to answer it, but I will put my question on the record.
Of course we're hoping, as a committee, to help Canada to meet the lofty goal of building a new relationship with Aboriginal peoples. We're humbly hoping that we can assist in meeting that challenge as a committee.
Canada has made some notable statements about reconciliation. I think one of them is the whole adoption of the UN Declaration on the Rights of Indigenous People. In May 2016, the Minister of Indigenous Affairs announced that Canada is now a full supporter without qualification of the UN declaration. This was welcomed in many quarters.
Then last fall, the Minister of Justice gave a more nuanced view of the way that the UN declaration could be incorporated into the Canadian legal system, saying that it can't be incorporated word for word. She went on to say in her address to First Nation leaders and cabinet ministers in B.C. that the hard and sometimes painful truth is that many of our current realities do not align with the standards of the UN declaration, and as such they must be systematically and coherently dismantled. She talked about doing so in consultation with Aboriginal peoples.
There is a view that the Indian Act is one of those current realities that do not align with the high standards of the UN declaration. You said today, if I understood you right, that the Canadian Human Rights Act does not reach the standards of the UN declaration. Maybe I didn't understand you right, but I'll keep going.
This morning, you spoke about the importance of informed consent and talked a lot about the treaties. Inuit Tapiriit of Canada recently published a paper on UNDRIP suggesting that some of the major Inuit land claim settlements were negotiated under duress: under the threat of impending resource development.
This is my big question that may be difficult to answer in a short time. Could you help us understand your view of how the UN declaration should be applied in Canada in the spirit of reconciliation? Does Canada's adoption of the UN declaration go so far as to require the re-negotiation of treaties, old and even modern?
Mr. Chartrand: The short answer is it may, because we know from historical treaty history that the understandings between colonial authorities and First Nation authorities wasn't always the same, particularly the cede and surrender provisions and the idea that Canada could unilaterally assert sovereignty. Those kinds of understandings don't mesh with the indigenous understandings of the nature of the agreement. Maybe UNDRIP might be seen as a means to reinvigorate the need to come to a mutual understanding of historical treaties. It may also require some reassessment of the modern land claims agreements in light of some of the more fundamental principles of UNDRIP.
As was mentioned before, reconciliation is a process more than it is a finite objective. It will take time, but as long as we can measure progress based on the standards of the UNDRIP, I think we now have something we can work towards, and I think we can measure progress based on those principles. We didn't always have that before.
Senator Patterson: So reconciliation is a process. You would know, of course, that the Prime Minister was in Nunavut last week signing an agreement to establish a Crown-Inuit partnership committee. Is that a good example, do you think, of a process that should and could be established with other Aboriginal peoples in Canada to address these issues as you've described?
Mr. Chartrand: Yes, I think working things out and talking out issues is always better than litigation and other avenues of trying to resolve disputes. I know there's been outstanding litigation in the Inuit context, and sitting down at the table and resolving that is better than going to courts, so yes, it's a good idea.
Senator Patterson: Thank you.
The Chair: Before we adjourn, there's one question that has been going through my mind as well, and I hope that I can articulate it clearly.
One of the things you said that really struck me when you were talking about section 91.24 of the Constitution Act was the interpretation. That is, Canadian law has been interpreting it as "power over'' as opposed to "power with.'' "Power with'' would recognize the sovereignty of the individual First Nations and the Metis people of Canada.
The other thing that you talked about was the idea of land with regard to the Manitoba Metis Federation, saying that the Metis also had the concept of individual title versus collective title. When you think of Canada, often we focus on the whole idea of individual title because we're thinking of it as individual Canadians with a right to a certain piece of land where you have bought your home. But Canada also, don't you think, has individual title and collective title because the land that doesn't belong to individuals belongs to Canada?
Actually, the two models of land ownership are basically the same. Maybe we were focusing way too much on the concept of individual title versus the concept of where Canada sort of laid claim to everything else and is sort of, therefore, controlling it. Is there a way of getting out of that individual focus where, as individuals, Canadians want to protect the title that they have, and yet we're forgetting that most of Canada probably isn't owned by individuals? I don't know what the percentage is, but I would say probably the vast majority is actually under Canadian or provincial or territorial ownership.
I hope that makes sense.
Mr. Chartrand: Yes, it makes sense to me. It's a good comparison, I think, in terms of understanding that the Metis' internal understanding of the relationship to land involves both collective and individual ownership. In a sense, there's a lot more in common with Metis and Canadian-British understandings of land than we might have first thought. It's just a question of who has the authority to manage those land regimes and how do you share that authority. That is really the issue.
The Chair: With that, we will conclude this session of the Standing Senate Committee on Aboriginal Peoples. On behalf of the committee, I would like to thank Professor Larry Chartrand for his testimony this morning. Thank you very much.
(The committee adjourned.)