Canada (Indian Peoples) (Hansard, 22 January 1982)

§ Sir Bernard Braine (Essex, South-East)
With your permission, Mr. Speaker, I beg to present a humble petition signed by a substantial number of duly appointed Indian chiefs throughout the length and breadth of Canada. These most loyal subjects of the Crown are petitioning this House, in accordance with its ancient traditions, for the redress of grievances which the House is competent to remedy.
Their material allegation are these. Rights granted to their peoples by solemn treaties into which they entered with the Crown have been encroached upon or extinguished casually and without their consent. So also has their aboriginal title to land.
Since our Parliament handed responsibility for Indians and Indian reserves to the Federal Government of Canada by the British North America Act 1867, the Canadian Parliament and Government have time and again been in severe breach of a higher trust which arose from the pledges given by the Crown. There has been blatant discrimination against Indian peoples: in their education and in the preservation of their unique culture; in their poverty and widespread unemployment; in the derisory share of Government funds which they receive. The breach of faith extends also the extinguishment of Indian title to land without compensation. The Canadian courts have been rendered powerless by statutes of the Canadian Parliament to protect these people.
All these material allegations are supported by statements of the Canadian Government or by judgments given by distinguished Canadian judges.
The petition is being presented today in the light of a Bill which is before this House at the request and with the consent of Canada which, if enacted, will once and for all end the United Kingdom Parliament's residual jurisdiction over the affairs of that country. The Canadian resolution which gives rise to this Bill is the result of negotiations between the Federal authorities and provinces within Canada which have taken place over the past 15 months and which without adequate protection for Indian peoples would provide the mechanism for the reduction or extinguishment of Indian and aboriginal rights and interests. At no time during these protracted negotiations have the petitioners been consulted in any real sense, nor has their consent been obtained to the resolution upon which this Bill is founded and which holds the key to the future constitutional position of the Indian peoples of Canada.
Your petitioners therefore appeal to the well established practice of this House to defend the rights of the Indian and other aboriginal peoples and to provide for the protection of their basic human rights—while there is still time.
In view of the importance of the petition and in particular the prayer, I respectfully ask that these be read by the Clerk.

§ Mr. Speaker
Before I call the Clerk, I must say that my predecessor ruled that when hon. Members are asking that the Clerk should read a long petition to the House it is not customary for them to explain it as well.

The Clerk of the House
read the petition, which was as follows: To the Honourable the Commons of the United Kingdom of Great Britain and Northern Ireland assembled: The humble petition of the Indian Chiefs and Councils of the Indian Tribes and Bands of Canada sheweth as follows:

1. Both before and since 1867 many of the Indian people in Canada had been persuaded into one-sided treaties with the Crown in Canada in consideration of unfulfilled promises and guarantees of protection and derisory compensation. Rights and freedoms, aboriginal, treaty and other conferred rights have been qualified, encroached upon or extinguished without their consent and land claims remain unsettled.

2. Federal responsibility in Canada for Indian affairs is derived from section 91(24) of the British North America Act 1867. It was clearly granted to the Federal authorities by the United Kingdom Parliament to be exercised in a manner consistent with the relationship of trust evidenced by the specific guarantees of protections and promises made and contained in the treaties. In the words of the Canadian Minister of Indian Affairs, now the Minister of Justice, in 1970 "we want to end the blatantly discriminatory provisions of the Indian Act as soon as possible".

3. The British North America Act 1867 itself, later British North America Acts (including the Act of 1930 which statutorily confirmed certain agreements between the Provinces and the Federal Government) and the Statute of Westminster 1931, many provisions of which vitally affected Indian interests and treaties made with Indians, were enacted without the consent of, nor even consultation with, Indian representatives or leaders. Under the said Act of 1867 a series of Indian and related Acts has been enacted in the Canadian Parliament, despite the treaties and without Indian consent or adequate consultation with them. By the admission of Canadian Government Ministers there has been serious discrimination against Indians in Canada. Even in relation to the patriation Bill, now proposed, Indians have been accorded mere observer status although the proposals would vitally affect their interests, after patriation, with or without the subsequent enactment of a new Indian Bill. It is the proposed patriation Bill which holds the key to the future constitutional position of the Indian people of Canada. There has been ample opportunity since the beginning of 1981 for effective safeguards for them to be proposed by the Canadian Government but so far the opportunity has been lost. The position of the Indian people would, of course, be made immeasurably worse if, without their consent and adequate consultation, the patriation proposals of April 1981 affecting them were made worse following agreement between the Canadian Government and Provinces of Canada.

4. The Federal authorities have failed, in the submission of your petitioners, in the discharge of their responsibility of trust towards the Indian people of Canada. For example, Mr. Justice Mahoney in the case of Hamlet of Baker Lake v Minister of Indian Affairs in 1979 impartially commented upon the manner in which the Parliament of Canada enacted the Territorial Lands Act in 1950. He stated with reference to the question of aboriginal rights: "it is, I think, fair to remark the irony implicit in the idea that such a basic right, particularly vested in certain people, then helpless to look after their own interests, over whom Parliament had exclusive legislative competence, was, in 1950 so casually extinguished", and he went on to say "in enacting the Territorial Lands Act, Parliament did not expressly direct its attention to the extinguishment of Aboriginal Title".

Other examples include:

(a) The lack of progress towards the enlargement of, and the actual erosion of, basic Indian Rights under the Indian and related Acts passed by the Parliament of Canada since 1867. For example, the Federal vote having been given to many Indians in 1867 (only to be taken away from them by the Canadian Parliament in 1885), it was then only accorded to them as recently as 1960.

(b) The length and breadth of Federal and ministerial control and discrimination exercised against Indians under the Indian and related Acts, most recently criticized in the case of Sandra Lovelace in the Committee on Human Rights of the United Nations.

(c) The discrimination against Indian education, language, culture and custom.

(d) The poverty of Indians evidenced by the Canadian Government's own Ministry of Indian Affairs publication "Indian conditions"—a survey published in 1980 which shows (inter alia) the 68 per cent. unemployment rate of 528 Indians, that they have a life expectancy 20 years lower than that of the average Canadian, and that over the past 10 to 20 years Federal expenditure for Indians increased by a mere 14 per cent. in real terms compared to 129 per cent. in other Federal social programs.

(e) The transparent failure to pay any real compensation for the acquisition of Indian interests in or in relation to land or resources, or to settle outstanding land claims in relation thereto as admitted in the Canadian Government's same publication of 1980 that "the existence of unsettled Land Claims, unsatisfied Treaty obligations and grievances concerning improper past Administration have been recognized by Government".

5. If the proposals in a patriation Bill, which will govern the future constitutional position and rights of all the people of Canada, were to contain effective safeguards for the Indian people (which at present they do not) then if a request for such safeguards came from or was agreed to by Canada, it would not only be an act of faith in the future of Canada but would also diminish the sense of grievance by the Indian people for past acts of discrimination against them.

6. The proposed legislation would be final and differ from most other enactments granting or confirming independence in that it will be contained within the compass of a Bill itself. In many other instances where the United Kingdom has granted or confirmed independence, specific requirements safeguarding basic human, customary and/or proprietary rights have been included in prerogative orders in Council arising out of a constitutional conference. All interests, including minority interests, have been represented at such a conference preceding the presentation of a Bill to, and the laying of the Order in Council before, Parliament. There has been no such conference and the provisions at present put forward and claimed by the Canadian Government to provide safeguards for the Indian people fall far short of what has been regarded as proper in other cases where minority rights are affected. Particularly if there were a request from Canada itself for amendment of any proposed Bill before or during its passage, the protection for the Indian people could be effectively provided by the United Kingdom Parliament. The dichotomy in the distribution of legislative powers between the Federal and Provincial authorities in the Canadian constitution and the economic and legal consequences of this upon Indian people in Canada enhances the need for impartial and balanced protection for them by the United Kingdom Parliament, no less than the Provinces. This protection would be in line with the moral, legal and political imperatives arising from the treaties and pledges made by or on behalf of the Crown over the past 150 years or more.

7. Having regard to:

(a) The parliamentary conventions which exist for the purpose of securing fair play and the rights of minorities, particularly since Indian people have no direct Indian representation either in the Canadian Parliament or in the United Kingdom Parliament, and they have not been consulted in any real sense over these proposals.

(b) The practice now well established (for good reason) in the United Kingdom, when granting or confirming independence to other countries, of making provision at that time for the protection of basic rights and of minority interests in the appropriate legislation as, for example, when the white minority in Zimbabwe was accorded protection upon independence in 1979 and when the Banabans in 1979 were given specific protection in respect of proprietary and other basic rights.

(c) The inadequate protection proposed to be accorded to the Indian people of Canada under the current patriation proposals including the Charter of Rights such as the provisions under the heading "Equality Rights" and entitled "Affirmative Action Programs" which would empower the passing law discriminating in respect of Indian people.

(d) The intention of the Canadian government, after patriation, to enact a wide-ranging Indian Bill now under consideration by them and which is opposed by Indian people.

(e) The spirit and intent of, and legal requirements of, the treaties and pledges entered into between The Crown and Indian people of Canada and the effect which a Bill to Patriate the Canadian constitution would have upon their future and their basic rights.
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(f) The fact that the proposed Bill would, it is apprehended contain provisions and terminology vitally affecting Indian interests upon which the courts in Canada cannot be expected to adjudicate without clear guidance in legislation.

(g) The fact that the Supreme Court of Canada has already ruled that in certain circumstances a request for enactment of patriation proposals would be unconstitutional.

(h) Your petitioner's submission that the proposals as they affect Indian people are also unconstitutional in that they infringe the treaties made between those people and the Crown and are in breach of faith.

Your petitioners therefore humbly pray that:

1. A motion or resolution be passed in your Honourable House, if thought fit, requesting the Canadian Government and Parliament to propose and request amendments to any patriation proposals effectively to cater for the matters referred to in paragraph 2 (a) to (k) below.

2. In order fairly and fully to be in line with parliamentary conventions and the ancient practice of the House which protects the rights of minorities, provision may be made either for rejection of the proposed Bill in the absence of full consideration of that case or, particularly if requested by the Canadian Government and Parliament, for the Bill itself to be amended so that by the provision of entrenched constitutional and administrative machinery under such Bill:

(a) The Indian people of Canada may give their approval to provisions therein which vitally affect their interests, treaties, rights and freedoms.

(b) The Indian people of Canada shall be enabled fully and effectively to participate in, and to be fully and fairly represented in any postpatriation procedures and machinery for constitutional amendment or change in Canada during and after the interim period proposed.

(c) It be made explicit that no changes in the Canadian constitution after patriation, during or after the interim period and whether or not under or by virtue of the amending formula, shall abrogate or derogate from aboriginal rights, freedoms or treaties.

(d) All treaties and pledges by the Crown with and to Indian people are fully observed.

(e) New legal and equitable procedures be provided for the assessment and settlement of terms for payment of fair compensation for the acquisition of Indian interests in and in relation to land, reserves and resources.

(f) Indian rights to and control over resources are fully protected and guaranteed whether they are resources in or on land or offshore.

(g) Indian language, education, culture and customs are protected.

(h) There is proper recognition of local autonomy for Indians.

(i) Such protective provisions for Indians as are contained in existing primary and subordinate legislation and Orders in Council are protected in accordance with the spirit and intent of the enactments in question and Treaties by express reaffirmation or by provisions of equal standing.

(j) Such entrenchment be made applicable to any subsequent revision of the constitution after patriation made by the parliament of Canada.

(k) Clear guidance and criteria to the Canadian courts be given in any such Bill as to the meaning to be given to clauses 530 dealing with aboriginal and Indian rights, treaties and freedoms and their relationship to other clauses, and that clear definitions be provided for the words "Indian", "Inuit" and "Metis" and as to the manner in which such provisions should be interpreted, bearing in mind that thereafter the treaties, it would seem, would be construed as overlaid by the statutory provisions of the patriation Bill.

(l) Full effect be given to decisions of the Judicial or other committee of the Privy Council on questions which may be referred to them in respect of the Indian people of Canada.

3. In default of the Canadian Government and Parliament proposing and requesting amendments to cater for the matters referred to in paragraph 2 (a) to (k) above, a motion or resolution be passed in your Honourable House at the appropriate time, before enactment of any patriation Bill, particularly if requested by the Canadian Government and Parliament:

(a) For an order referring questions as to interpretation of Indian treaties, rights and titles to land and resources and other matters referred to in paragraph 2 above to the Judicial Committee of the Privy Council for an advisory opinion under section 4 of the Judicial Committee Act 1833 and/or

(b) For an order referring questions arising under or by virtue of the treaties and enactments affecting the Indian people of Canada to a committee of the Privy Council (other than the Judicial Committee) for consideration and recommendations to Her Majesty in Council and

(c) That provision be made in any patriation Bill to give effect to the proposals of the said Judicial Committee and/or other committee which provision shall be entrenched in the Canadian constitution before the enactment of such Bill; and, if no such motion or resolution is passed

(d) Provision be made in the Bill for the creation of an independent commission on Indian rights with full power of deliberation and recommendation whose proposals, subject to Indian consent, shall be entrenched in the Canadian constitution.

And as in duty bound your petitioners will ever pray.