Canada Oil and Gas Act
Commons Debates, October 21, 1981

  Hon. Serge Joyal (Minister of State): Mr. Speaker, I was listening very carefully to my colleague, the hon. member for Nunatsiaq (Mr. lttinuar), especially since during the past year, as co-chairman of the Joint Committee of the Senate and the House of Commons on the Constitution, I was able to draw on his knowledge and experience of Canada's aboriginal peoples. His statements are always noted for their honesty and conviction, and the concerns he has expressed this afternoon cannot be dismissed lightly.
  Monday evening I was listening while one of our hon. colleagues was asking a question and I believe an answer is in order in which he accused us, up to a point, of using Clause 34 of the constitutional resolution to confirm the rights of Canada's aboriginal peoples, and then turning around in Bill C-48 and ignoring completely any progressive measures we had taken previously in this respect.

 I would like to read again Clause 34. I realize it represents the sum of concerted efforts by the hon. member for Nunatsiaq and several other members, especially my colleague, the hon. member for Notre-Dame-de-Grace-Lachine East (Mr. Allmand) and also, it must be said, of my colleague, the hon. member for Provencher (Mr. Epp), all of whom emphasized the objectives Canada should pursue in this respect during the discussions we had on the subject last winter. Clause 34 of the constitutional resoluton provides, and I quote:
  The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
I feel this is extremely important. This is the basis for any action Parliament must take with respect to Canada's aboriginal peoples.
  After listening to the comments made Monday evening, I happened to glance through the proceedings of the committee, and I was pleased to see that at least eight amendments had been made at the committee stage, probably thanks to representations by the hon. member for Nunatsiaq, the result being in most cases to confirm existing rights, in other words, to recognize the rights of Canada's aboriginal peoples. In fact, Mr. Speaker, and I would like to point this out, a clause was added to the bill. I am referring to Clause 5(2) and (3) which in fact specifically acknowledges that nothing in the bill changes any provisions previously agreed upon with Canada's aboriginal peoples. I have here Subclause (7) of the same clause, and I quote:
  Nothing in this act abrogates or derogates from any aboriginal title, right or claim that pertained to the aboriginal peoples of Canada prior to the coming into force of this act.
  This means that all matters which are being negotiated, all claims already pending and any rights that could be used as the basis for future claims are not affected by this bill. That is basically what is meant by Clause 5(7), an amendment that, I wish to emphasize, was made at the committee stage.
  What will happen to subsequent claims? I believe that is a special concern of my colleague for Nunatsiaq. What will happen to claims that may be submitted once the bill has been passed or the constitutional resolution has been adopted? The hon. member mentioned that we wanted to withdraw from claims negotiations any lands that might contain oil or gas resources at the production stage. I wish to point out he quite rightly mentioned claims that were settled through an agreement with COPE and he did so in great detail that eight blocks of land have been accepted through COPE, seven blocks of 600 square miles each and one block of 800 square miles. It is true that within these blocks there are no claims with respect to gas or oil resources at the production stage. However, my colleague should know that the Dene and the Metis have, in this connection, submitted claims with respect to a well which is about to enter the production stage and is known as Norman Wells, a name that is so well known I shall not bother to translate it into French. Therefore, it is incorrect to state that at this stage the government has refused to consider any possibility of negotiations that might concern wells or resources at the production stage or about to come into production.
  When discussing the matter of claims to the lands in question, we must not forget the mechanism provided under Bill C-48 for future negotiations. Under the bill the governor in council may exclude from Crown lands any lands that may have been the subject of negotiations between the aboriginal peoples and the Canadian government. The Minister of Indian Affairs and Northern Development (Mr. Munro) is given the power to exclude from Crown territorial lands any lands that may have been the object of a settlement between the aboriginal peoples and the Crown. Should wells be in operation in these lands compensation would be paid as in the case of any other resource recognized as being in production on such land. Nothing in the bill excludes from negotiations any wells that might be in production at the time of settlement. Moreover, the Constitutional resolution provides an extremely sound legal basis for negotiations and for compensation payments, in view of permits which may have been granted in the meantime or are granted once the bill is passed, until a fair system of compensation has been arrived at.
  In my opinion, the amendments made at the committee stage - there are eight, I repeat - provide the mechanisms required to compensate each and every on of the native people of Canada who might have valid claims, judicially acknowledged by the courts, or again acknowledged in common agreement by the representatives of the federal Crown, and to ensure that the necessary financial or suitable compensations be the object of an agreement between the parties.
  I believe that my colleague from Nunatsiaq rests his case on past experience to say, and rightfully so, that he has every reason to believe that they cannot rely on the good faith of the parties. He is right when he states that the best protection available to any minority is judicial protection, that is to say the protection of the rights enshrined in a law, whether it be that of the constitutional bill or Subclause 5(7) which may guarantee the fundamental rights of minority groups. In the context of native peoples in Canada, we can be glad that that will be the basis of all negotiations and all settlements with which we will have to come to grips in the near future.
  In my opinion, that fundamentally changes the relationship which may have existed before between those peoples and the federal Crown. From the moment when the rights of the native peoples are directly enshrined in the constitutional statute, it can be seen that the federal negotiators will definitely not have the same room to maneuver. On the contrary, those peoples will have at their disposal the entire judicial arsenal to convince the authorities that the claims they may file are based on aboriginal rights guaranteed as much by treaties, customs or conventions as by the wording of the act itself. And what is most fundamental, in my opinion, is that, and again I quote this part of Clause 34:
The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
The rights confirmed by treaty are not the only ones to be mentioned. Mention is made of all the other rights stemming from customs, practices or else tacit acknowledgement. Therefore, nothing in this bill, especially under Subclause (7), restricts the claims which the aboriginal peoples of Canada have against the federal Crown with respect to those lands where, as of now, certain licences or certain permits may be, issued. On the contrary, the bill gives to the minister responsible the discretion of forcing the companies and the business people that will henceforth develop those resources to take into account the cultural reality which is peculiar to those territories. The amendment related for instance to Subclause 10(2) and to Subclause 10(4) refers specifically to the participation of the aboriginal peoples, and I quote Subclause 10(2) (d), for it seems basic to me:
  -equity participation by government and Canadians, including any aboriginal peoples of Canada who may be affected by the exploration agreement.
    There was no mention in the previous legislation of the explicit participation of the aboriginal peoples of Canada in the equity of companies dealing with exploration of these resources. The bill now recognizes explicitly the absolute right of aboriginal peoples to equity in these companies. No provision of any previous legislation recognized this as explicitly. At the same time, Clause 10(4) deals with what are commonly known as affirmative action programs. Once again, nothing in any previous legislation provided for the possibility of including the aboriginal peoples for high technology and high responsibility employment. Once again, the minister responsible will be able to take action to ensure equitable participation, not only in equity, but also in the daily operation and management of these companies. It seems to me that enormous progress has been made.
Many groups have made representations to the minister, including the hon. member of the Christian hierarchy. As I pointed out earlier, these representations have resulted in specific amendments being made to the bill. I can assure the hon. member for Nunatsiaq that if I believed personally that this bill would jeopardize the explicit recognition of aboriginal rights to these lands and the resources they contain, if I had the least doubt that Subclause 7 of Clause 5 would reduce the rights of the native people to claim ownership of these resources, I would certainly not rise this afternoon to tell him that, as concerns what he and I are fighting for, that is to guarantee that the native peoples will from now on have an official share in Canadian resources. We are attempting today by a new initiative to reduce the possibility for them to have their claims settled by the courts since Clause 7 clearly shows that all our efforts since last fall are confirmed by this bill. It seems to me that the major progress accomplished in this bill is that from now on in any legislation which can affect the claims of aboriginal peoples, it will have to be recognized explicitly that no provision must affect or reduce in any way the rights of aboriginal peoples to claim their share of our resources. I repeat that Subclause 10(4) recognizes explicitly the full equity participation of aboriginal peoples.
  Obviously, Mr. Speaker, we shall be faced with difficult situations in the years to come. When the parties involved negotiate settlements based on historically discriminatory situations and when we deal with peoples who have been able to develop their resources and put them to good use without jeopardizing them, it is quite obvious that there has to be some resentment and that we have to leave the past behind. However, I believe that the best way to meet this objective is to act on the basis of clear and explicit recognition of the rights of the aboriginal peoples, and I still believe that the best way to solve this problem is to pass as soon as possible the constitutional resolution, and especially Clause 34, which confirms the absolute right of the aboriginal people of Canada to everything that has been traditionally recognized by treaties and native rights.
  
  Mr. Joyal: Mr. Speaker, I appreciate the question put by the hon. member, because it is ultimately at the root of the issue of native rights. It is fair to suggest that when we attempt to define native rights, we are faced with a major difficulty. This is why the wording of Section 34 is so vague. It is both vague and all encompassing.
  Had we included in Clause 34 an enumeration of either a restrictive or indicative nature of the kind of rights that could be included or the kind of things those rights might have contained, we would have been faced with insuperable difficulties. Clearly, the provinces, as he rightly suggests, are most reluctant to enter into a discussion process where the contents of those rights would be specified. The hon. member for Provencher, who took part along with us in all those discussions, was the first to suggest that. Within the framework of the constitutional conference envisaged in Section 36, the hon. Member realized this, and I quote Section 36(2):
-respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada.
  Committee members unanimously recognized that had we gone into that process at this stage, we would never have seen the end of it, for the very good reason that those rights change. They take greater dimensions along the years. Current native land claims at this time are much more extensive than ten or 20 years ago. And it is better to have an over-all protection in principle stating the rights as a whole rather than to try, by way of an enumeratfon, even if it is indicative, to restrict the object of those rights. However, if I may answer more directly the question, native rights include both rights to the land and rights to the resources. When earlier settlements were reached with the COPE group, the hon. member for Nunatsiaq rightly suggested that the matter of resources already being explored were excluded.
   But matters have changed since. I even mentioned to him that concerning the claims of the Dene and Metis, we were ready to consider, within the framework of over-all negotiations, the assessment and inclusion of resources already or close to being developed. Therefore, there is nothing in the matter of native claims that precludes claims on these lands or resources, whether surface or subsurface. The matter in my view must be examined in the over-all context of Section 34. In other words, what is involved here is the over-all rights, and those rights include social rights, property rights and other rights connected with the occupancy of the land.
 
   Mr. Joyal: Mr. Speaker, although he is also quite young the hon. member knows how to be cutting. It is true that at the committee stage we altered Section 34 which had a rather negative approach to take a more affirmative approach, which is to say, there are some absolute rights and they must be respected and enforced. However, there is a basic difference between the constitutional resolution and an act of Parliament. And the hon. member knows quite well that when we want to exempt a previous statute from the application of legislation, the negative approach is taken.
   In spite of all previous comments, this bill suggests, and the hon. member who is a lawyer is well aware of that exclusive clause, that Clause 57 does not exclude but recognizes the full application of the Constitution Act since it states that this legislation does not interfere with the titles, rights or claims of the native people of Canada, which they held before the coming into force of the legislation.
   Consequently, what is stated under Clause 34 as being the absolute right of native people is not at all excluded from or denied in paragraph (7). Clause 7 says that if you thought that Bill C-48 encroached on the rights of the native people as recognized in previous legislation, that is Clause 34 of the Constitution Act, you are mistaken, because that legislation is fully enforced. This is the thrust of Clause 7 but in simple and everyday terms. Therefore, what the hon. member suggests is that Clause 7 of that legislation should recognize the full application of Clause 34 of the Constitution Act. It is in short what he would suggest as an amendment or as an assertion of natives' rights. But the hon. member is aware also that at this stage, at least the debate on this aspect of Section 34 has been delayed and that there is no way we could refer directly to Section 34. But I find his idea extremely interesting, because when the time comes for us to deal with various bills, once Section 34 of the new Constitution has been adopted, we will be able to refer to Section 34 of the Canadian Constitution. The hon. member is right. At this stage, however, we cannot yet refer to it, as Section 34 has not yet been passed. And I fully agree with his objective. That is essentially the approach we had taken last winter during the committee meetings on the Constitution.

  Mr. Joyal: Mr. Speaker, I am glad the hon. member for Nunatsiaq asked this question which, in fact, is in two parts. The first one concerns naturally the equity issue: What reasonable, acceptable and responsible share in the ownership of these resources should the aboriginal people hold? And the second one, which is a corollary: How are we going to determine what is fair and what is not? That is essentially the object of his question.
  I indicated a while ago that, once Clause 34 of the constitutional act has been adopted, we will have to start new negotiations based on the new legislation. Therefore, all the claims which the aboriginal people may have on federal Crown lands will have to be based essentially on ancestral rights or treaties, and no longer on wide discussions concerning their legal basis. When the time comes to determine what is fair, we will have to decide within the global context of the claims which every group will want to bring to the negotiation table, what the Inuit propose, what the Dene and the Metis propose, what obviously COPE has already started to negotiate and what the CYI has proposed or intends to propose for debate. The share of equity to be attributed to each of the aboriginal peoples, with regard to the lands concerned will be based essentially on the rights recognized in Clause 34. If the conclusion is reached, through arbitration or judicial process, that their share of equity is to exceed that of the majority, the matter will be settled essentially through arbitration or judicial process. There will no longer be any paternalistic stand to be taken saying: the symbolic participation of our aboriginals must be saved, they must have some equity. The claims of the native people then will be based exclusively on their rights. Why? Because for the first time those rights will be recognized in our statutes. Therein will lie the difference in future negotiations. I can tell my hon. colleague that the negotiations in which we took part in the past easily took on a paternalistic "hue, but will no longer do so because the rights of Canadians will be enshrined as those of an adult people full master of its destiny and fully able to determine through arbitration, judicial process or free negotiation what the respective share of each will be in the equity and development of those resources. That, to my mind, is the essential difference; this should reassure the hon. member with regard to the meaning of the word "equity" or "participation" will be given in the administration, the management of those resources.
Mr. Joyal: Mr. Speaker, I thank you for affording me the opportunity to answer these questions because, as the hon. member mentioned, these are problems we will have to address in any future legislation dealing with or affecting the rights of native peoples, and I do not think it useless for my colleagues to become aware' of the situation as are those hon. members who raised these issues.
  The problem which my hon. colleague brings up is a very real one. What will happen with future claims which we cannot provide for just now or what happens with present claims which some native groups or peoples cannot make at this time. This is a very important issue since their rights are affected with regard to resource ownership and management as well as their very lives and environment as the hon. member mentioned. What must be recognized at this stage is that Clause 34 acknowledges and affirms their rights, and if it is shown in the settlement of claims over these lands that these people had strict ownership rights with regard to these resources, they are entitled to a generous compensation either of a financial nature, of which there are many examples, or through lands that could be made available to them in similar conditions. We cannot, at this point, provide for everything and some groups may indeed be in dire circumstances, but the important thing is that their rights are protected. They are protected because the ownership rights of these people over these resources are recognized.
  When we say in Clause 34 that aboriginal rights are hereby confirmed, the basic right remains, regardless of whether these rights are confirmed now or will be in the future. There will be some form of compensation and it will be possible in the settlement of the claim to offer these people the same protection and access to the resources they would have had if they had made their claim in due time. Yet the hon. member must admit that it is impossible to provide for everything. Many of the native peoples who appeared before the committee could not define aboriginal rights. It is an evolutionary notion. Its contents increase rather than decrease. Its meaning and its implications increase in keeping with our knowledge of history, treaties and past practices. Therefore the implications of this recognition or rights will not lessen, they will extend, and will only place more responsibility on representatives of the Crown and on all corporations which may become involved in those areas. That is why I want to reassure the hon. member that this aspect and these implications are protected because the rights of those people will be upheld, and all claims that may be laid will be based on full and total ownership of these lands and resources.