Non-Derogation Cruelty to Animals Specific Claims
Non-Derogation Clauses -- June 9, 2003
Hon. Nick G. Sibbeston: Honourable senators, the matter of non-derogation clauses in federal legislation has been raised in this chamber many times in the last few years. The issue arose because of unilateral changes made to these clauses by the government, beginning in 1998. Until then, in the vast majority of federal statutes dealing with non-derogation rights as provided for in the Constitution Act, 1982, section 35, the wording was based on section 25 of the Charter. The wording in several pieces of federal legislation was clearly as follows:
...nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada...
This wording, from 1982 to approximately 1998, appeared in a number of pieces of federal legislation, beginning with the Firearms Act, the Sechelt Indian Band Self-Government Act, the Canada Petroleum Resources Act, the Canada Wildlife Act, the Canada-Newfoundland Atlantic Accord Implementation Act, and the Canada-Nova Scotia Offshore Petroleum Resources Act, 1994.
The wording of non-derogation clauses is particularly important because of their role as an interpretive guide to the courts. Even small changes in wording necessarily cause uncertainty. The courts must evaluate each change in wording and try to surmise what Parliament intended.
Although variations in wording began appearing in 1998, it was with the Nunavut Waters and Nunavut Surface Rights Tribunal Act, in 2001, that the issue really came to the full attention of the Senate. In that act, Canada proposed wording that differed from the clear wording used in earlier legislation. This new wording stated:
For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for —
The next section highlights the change.
— existing aboriginal or treaty rights of the aboriginal peoples of Canada...
Government lawyers argued before us in the hearings in the Energy Committee when we dealt with this matter that using wording from the Constitution Act, 1982, might have afforded greater protection to section 35 rights than that contained in the Constitution itself. The absurdity of this argument is self-evident. They also argued that the new wording appeared in the Mackenzie Valley Resource Management Act in 1998 and had been used ever since. In 1998, however, the Canada Marine Act used wording that was different again, stating:
...nothing in this Act shall be construed so as to abrogate or derogate from the application of section 35...to existing aboriginal or treaty rights...
In 1999, the Social Union Framework Agreement, signed by the Government of Canada and all the provinces and territories, except Quebec, reverted back to wording very similar to that contained in the Charter.
The proliferation of these differing non-derogation clauses creates uncertainty as to their legal effect. Where constitutional rights are at issue, we strongly feel the Department of Justice should not be using legislation as a testing ground for its evolving and often unilateral interpretation of section 35 rights. Aboriginal people rightly view the inclusion of section 35 in the Constitution as a high-water mark in Canada's acknowledgement of their solemn duty to fulfil treaty rights of Aboriginal peoples. The uncertainty created by the constant shifting of the government's position has caused considerable and legitimate apprehension on the part of Aboriginal peoples, who fear that clauses, which were used to protect their rights, may instead be used to limit them or, at worst, open floodgates as to the intrusion of these rights.
The original intent of non-derogation clauses was to set out that it was Parliament's intent to respect Aboriginal rights and not to infringe upon them. Subsequently, the Supreme Court, in the Sparrow decision in 1990 and others subsequently, such as Van der Peet in the mid-1990s, established that Parliament could infringe on Aboriginal rights in certain circumstances and established clear tests for when and how this could be done. In the wake of these decisions, the new wording developed by the Department of Justice appears to be designed to allow legislation to be read as if it were Parliament's intent to infringe upon them, whether or not this was explicitly the case. We went from clearly wanting to uphold Aboriginal rights to wanting to provide room for legislation to infringe on those rights.
With respect to the Nunavut Waters and Nunavut Surface Rights Tribunal Act, the Senate amended it by deleting the non- derogation clause contained within it. This was preferable to letting the bill pass with the new wording. It is important to remember that this act was a special case. The purpose of the act was to implement part of the Nunavut land claim. The Inuit believed that having a weakened non-derogation clause actually was worse than having none at all.
They were, of course, comforted by the fact that the legislation contained inconsistency clauses, making it invalid where it conflicted with their land claim settlement. They asked that the non-derogation clause be removed, and the Senate, I am proud to say, provided them with that remedy.
This was, as I described, a special case. The general remedy for Aboriginal people is not the removal of non-derogation clauses but the return to the pre-1998 wording.
Nonetheless, as Aboriginal senators continued to press the government to address this issue — in our discussions of the National Marine Conservation Areas Act and the Species at Risk Act — this was precisely the solution the Minister of Justice initially proposed. In a letter to the Chair of the Standing Senate Committee on Energy, the Environment and Natural Resources, he proposed removing non-derogation clauses from all existing legislation and not having such clauses in the future. It was never the position of Aboriginal senators that deleting non-derogation clauses was an option. Fortunately, Aboriginal senators and the minister's own cabinet colleagues persuaded the Minister of Justice that this approach of deleting all non-derogation clauses in federal legislation was neither appropriate nor feasible.
In April of this year, we were able to meet with the minister to discuss how we might proceed and deal with this important matter.
At the time, the idea of having a Senate committee to examine the issue was raised. However, we agreed that, before we went that route, it would be worthwhile to have further discussions to determine if we could come up with a solution ourselves that might be acceptable to both the government and Aboriginal peoples. We did meet several times and made some progress. Aboriginal senators did make a specific proposal that would have inserted a positive statement about upholding Aboriginal treaty rights in the Interpretation Act.
In proposing a solution, we recognized that there are two separate but connected issues at stake. The first is the desire on the part of the government, senators and Aboriginal peoples to uphold the integrity of Aboriginal and treaty rights and not to abrogate or derogate from them. The second is that the capacity of Parliament to pass legislation consistent with the Constitution should not be enhanced or diminished. We, therefore, proposed the following wording for the Interpretation Act amendment:
(1) Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.
(2) For greater certainty, nothing in subsection (1) enhances or diminishes the capacity of Parliament to make laws consistent with section 35 of the Constitution Act, 1982.
This was the proposal we placed before the minister's officials.
Existing clauses in enacted legislation could be left alone, as this amendment would supersede them. Of course, there would be no requirement for including a non-derogation clause in future bills.
This proposal had the advantage of dealing with the issue once and for all and of applying to all federal legislation. We would no longer have to look at every piece of legislation and question whether there ought to be a non-derogation clause. The provision in the Interpretation Act would apply to all federal legislation.
However, we could not reach an agreement. We held two meetings and eventually the government leader introduced the motion to have the matter referred to committee. I generally support this approach and look forward to sharing my views with the committee, discussing some of the ideas we have developed in the past few years. In addition to the proposal concerning the Interpretation Act, we suggested the option of a stand-alone Aboriginal bill of rights.
This was a comprehensive four- or five- page document that would set out the rights of Aboriginal people. Either option could be combined with the inclusion of an Aboriginal rights audit in the Department of Justice Act. This act now includes a requirement for a Charter of Rights audit on all legislation. Why not have an Aboriginal rights audit where the Minister of Justice could report to Parliament and the Senate on matters affecting Aboriginal rights?
My own hope is that the committee will recommend a return to the original non-derogation wording based directly on section 25 contained in some once-and-for-all form. The wording was perfectly acceptable and worked well for many years, from 1982 to 1998. There may be other alternatives that the committee will discover, that will hopefully achieve the same.
As for the complex issue of Aboriginal rights, I urge senators to focus on the issue of non-derogation rights, a statement in legislation that says that Parliament is not to derogate or abrogate from the rights of Aboriginal people. As to what those rights are, I think the courts that have been defining them, for the most part. We need to focus on the matter of providing a good non- derogation clause.
Cruelty to Animals Act -- June 10, 2003]
Hon. Nick G. Sibbeston: Honourable senators, I appreciate that the motion is a technical one to refer the issue to committee and have it report in a number of days. It will give me a chance to say a few words about the Criminal Code and also the government's response that we have before us.
Criminal law is made to apply equally to everyone in our country, and laws are made usually from a southern and urban setting. I have always found interesting, coming from a rural area in the North and with my experience dealing with Aboriginal people, how difficult it is to deal with laws that are made in the South. As a lawyer, practising criminal law in particular, I found it really challenging because the consequences for offences in the Criminal Code are usually quite serious.
I have found that, in the North, people frequently commit offences under the influence of alcohol. We try to use the Criminal Code to deal with those situations, when really it is a social situation. People, for the most part, are not criminals. They get intoxicated and do things.
Consequently, the effect of southern laws is that we do have a lot of people in jail, particularly Aboriginal people, who are not really criminals in the same sense as they are in the south. They are people who have social problems. The phenomenon is Aboriginal people moving from the bush to little communities and to larger centres. When people have been living in the bush or out on the tundra up in the Arctic, it is a big life change to go from that way of life to a more organized town life. Various social problems arise. Criminal laws are often used to apply and deal with situations like that, and that has not worked very well.
I see the amendment that has been made here as an attempt to recognize the unique situation of Aboriginal people, particularly when it comes to hunting. I am so disappointed with the minister's reaction to a clause that seems reasonable and clear to me. He disagrees with the amendment "because it is unclear and creates confusion about whether the intent is to create a different test for liability of aboriginal persons..." It is not confusing. It is very clear. The intention is to have a provision in the Criminal Code that applies specifically to Aboriginal people. There is nothing unclear about that. I am disappointed that the minister would say it is unclear and would create confusion.
The other aspect is that he says "there is no clarity as to what `traditional practices' are..." As usual, let the courts decide. The fact that it may not be clear to a minister sitting in the other House does not mean that it could not ultimately be dealt with by the courts in a local situation, and the court could define it. I am disappointed.
I hope that the matter gets dealt with and is sent back to the House of Commons in its present form. I would agree with my colleagues that it is a serious matter. For the very first time, we are trying to do something in the Criminal Code which would apply to a rural setting in our country, which is so different from the south here, and we are stopped and criticized, and said to be confusing, and so forth. I hope we will have sufficient time to deal with this matter and that we will take whatever time is required to deal with it. For that reason, I hope that the Senate will give it sufficient time and good consideration. We are on the right course, and we must stick to our guns.
Specific Claims Resolution Act --October 9, 2003
Excerpts from Senate Debates October 9, 2003
Hon. Nick G. Sibbeston: Honourable senators, I wish to say a few words on Bill C-6. Some senators have expressed concerns about the passage of Bill C-6 as though it will be a detrimental bill to the Aboriginal people of our country, something that will make their lives worse instead of better. Remarks have been couched in terms that suggest the bill is the worst thing that could possibly happen to Aboriginal people and that it is a real set back for them. I wish to correct that view. Bill C-6 will improve Aboriginal people's lives in the country. I wish to explain why I feel this way.
I have not come to this decision lightly. I am sensitive to the actions of the other Aboriginal senators who are trying to delay this proposed legislation and who are probably hoping that the matter will be delayed to a time when there will be a new leader and a new government in place that might be able to improve it. However, I am of the view that the bill should proceed. The provisions in the bill that will establish a commission and a tribunal are positive steps and should be pursued.
If honourable senators were to review the proceedings of our committee and read through the presentations made, they would see that my interventions and questions were quite pronounced. I probed government officials and the Minister of Indian Affairs and his staff. I asked very pointed questions and raised many issues of concern about the bill.
I am also sensitive to the stance of the AFN, their representatives and the Aboriginal peoples who came before our committee to make their views known on Bill C-6. I am sensitive to their aspirations. As a result of the work done in committee, we were able to improve the bill in certain measures.
We have heard much of the history of the development of this bill and I do not intend to repeat it. However, we should recall that this matter all started with a joint task force. When the task force concluded its work after two years, there was an expectation that the government would simply adopt the task force recommendations; however, it did not. Even the government admits that it differs significantly in at least two areas: the appointment process and the financial cap of the tribunal process. The AFN identified other areas.
Some committee members, including myself, questioned why the bill differed from the joint task force report. We asked why the bill did not reflect exactly what the task force recommended given all the work that had been done. The minister and his staff responded.
Four issues stood out as most significant when we were dealing with the bill: first, the independence of the commission and tribunal; second, the appointment process and consultation generally; third, the delay in the decision-making process because there was real concern that there be a means whereby decisions could ultimately be made and that the minister not delay decision making; and, fourth, the financial cap of the tribunal.
The committee made amendments to the bill in three of these areas and made observations in two of the others. I wish to address two of these issues.
I turn first to the subject of the appointments and the financial cap. The joint task force recommended that the minister and the AFN make appointments and re-appointments to the commission and the tribunal jointly. Bill C-6 proposed an Order in Council appointment on the minister's recommendation alone. Joint appointments to these types of positions are almost unprecedented. That has to do with the democratic system of government in Canada and that the government has responsibility. Cabinets are formed and they make the decisions for the government. That is the reason the bill appeared in the form it did, where the minister and cabinet have the ultimate authority and decision-making power in terms of who is appointed to tribunals and commissions.
There are a few examples, but almost always of the sort where a board and a minister jointly recommend who the board's chair will be. It has been done, but not generally for these types of bodies and, certainly, not for tribunals. Moreover, if the government and the AFN could not agree on appointments, there was no mechanism to break the deadlock.
However, the committee did see that completely shutting out First Nations in this process would not be fair. Therefore, several amendments were made. The minister is now required to seek nominations from claimants on appointments and must seek representation from all the First Nations in our country on the review of the centre that will occur in three to five years hence.
The minister is committed to making this whole process of dealing with specific claims work. I am aware that he is personally committed to see the commission and tribunal established and for them to be as effective as possible.
The issue of the financial cap has generated much debate. It has been implied that any large claim will now be excluded from settlement. I want to say this as clearly as possible: There is no cap or limitation on the size of a claim that can be brought to the commission. There is no cap or limit on the size of a settlement that can be negotiated. In the past few years, settlements have been reached for claims of $1 million, $5 million, $20 million and even $100 million. When the budget of the department has been exceeded, the minister has sought and has obtained supplementary funding to cover these settlements. To date, the government in its dealings with specific claims of unfulfilled treaties and such has spent in the area of $1.4 billion and has dealt with 225 claims; hence, I have no doubt that the process will be improved, will be faster and will be more effective.
We have attempted to ascertain how many claims there are in the country. Estimates are that Canada will eventually have to deal with Aboriginal claims worth $4 billion to $5 billion. Approximately 600 claims must go forward through this process or, if not through this process, through the court process.
The government is faced with the responsibility of dealing with this issue. A formula in the bill outlines, in a general sense, the amount of money that will be made available on behalf of the government to settle these claims. All governments have a responsibility in terms of the amount of money that they spend. I have been the head of a government, and I am aware of the responsibilities of governments and cabinets. They simply cannot have a situation where they could be faced with claims that amount to billions of dollars and perhaps not have the money to deal with them. Therefore, the provisions in the bill, as far as I can see, are drafted so that the federal government can have a measure of control over the money that will be made available for claims. The notion that there is a limitless amount of money that the government can put forward for claims is not realistic. The provisions in the bill are the government's attempt to have some control over the money that cabinet will have available for settling these claims.
Committee members were concerned about the $7 million cap, and it was raised to $10 million. I have no doubt that in future years, when this bill is reviewed, there will be a further increase in the cap.
The tribunal is meant to be the process of last resort. It is used under two circumstances. If the minister rejects the claim as invalid, a claimant can seek a ruling on the validity. If the tribunal agreed it is valid, the claim would be negotiated.
The tribunal can also be used if negotiations fail and no agreement on compensation can be reached. Therefore, the tribunal is there as a last resort. Aboriginal people can go to it. Unfortunately, if they go to it, they must waive their rights to amounts over $10 million, but that is a start, and I have no doubt that through the years this cap will be raised to higher amounts.
The government argued that it had to be cautious and had to carry out its duty to be fiscally responsible. Therefore, it wanted a limit on how big a settlement could be imposed by the tribunal and how many settlements the tribunal could impose each year. This is not unreasonable, as I said. I think government has to have some fiscal control over this area.
The committee was concerned about the requirement to waive claims above the cap to obtain a ruling on validity, which is an issue we raised with the government. With respect to the tribunal not being able to make decisions on merit as well as claims, the government sees the situation as putting a system in place. No one is perfectly sure how it all will work, and it wants to see how the system works before it makes more improvements. I have no doubt that, in time, more improvements and amendments will be made.
Honourable senators, this bill is not perfect. It certainly does not give Aboriginal people everything they want, but in my view, it is a step forward. Through my many years in government, I have pushed for changes in government, and it always seems we never get wholesale changes. Change comes incrementally, step- by-step, through hard work and persistence. That is the way government works, and I hope that the specific claims centre can be one of those.
I am hoping honourable senators will see Bill C-6 as an important step in dealing with unresolved claims in our country, and that it can be seen as a first step. I will be here five, 10 and 15 years from now and I will have a chance to review this matter. It is not a matter that will simply become law and be forgotten. There is a provision in the bill for the minister to consult with First Nations in three to five years, so I look forward to the minister reporting to us in a number of years, at which time I will question him about what improvements and progress have been made. We all can take the responsibility of ensuring that this bill and the system that it will put in place will have a good start and, eventually, a good life and that it will deal with the aspirations and claims of Aboriginal peoples.
Honourable Senators, I stand here today encouraging you to pass this bill. It is not perfect, but I encourage you to see it as a first positive step in the struggle of Aboriginal people in our country to have justice.