HL Deb 25 July 1979 vol 401 cc1998-2008

6.12 p.m.

Earl GREY rose to ask Her Majesty's Government why there was no official reception for the delegation of the National Indian Brotherhood of Canada. The noble Earl said: My Lords, I rise to ask the Question standing in my name on the Order Paper. In doing so I am aware of the difficulties involved for both the Canadian Government and the British Government. The National Indian Brotherhood of Canada represents approximately 280,000 Indians from 560 bands. The organisation was formed partly in order to protect hereditary rights, and, as a national unified body, to have a greater voice in achieving constitutional aims.

The Indians maintain that treaties made between Great Britain and themselves have not been honoured. In fact, the Royal Proclamation of 1763 stated that: No lands in this Continent owned and occupied by the Indians could be seized or claimed by immigrant peoples unless they had full agreement and consent of the aboriginal people ". The Brotherhood claims that the Proclamation has been violated. A treaty, to an Indian, is sacred, the signings were solemn occasions and, when the wordings incorporated stated that these treaties would last, as long as the sun rises, the grasses grow, and the rivers flow ", to them, it meant just that.

The Indian nation claims that, as these treaties were signed in the name of the Crown, it still holds the Crown in the highest esteem and this represents the highest honour. It is with that view in mind that a decision was made last year to send a delegation to this country to press their claims to the British Government. That was done with the help of Survival International, an organisation noted and respected for its stand on human rights throughout the world.

Those of us who met, spoke to and listened to the Indians, who came from every part of Canada, were deeply impressed and moved by their sincerity and the way in which they presented their cause. They arrived here on 1st July for one week in the hope of seeing the Queen and the Prime Minister, but unfortunately this was not achieved. The visit was not a failure. Publicity was given. Members of both Houses were asked to meet them, and did. Mr. Bruce George, the Member of Parliament, has taken a positive and active interest.

A complaint also made by the Indians is that they have petitioned the Canadian Government unsuccessfully for recognition as a legitimate participant in the constitutional discussions which are taking place. Chief Noel Starblanket, President of the National Indian Brotherhood, in his statement on 2nd July this year said: We have tried time and time again to take our rightful place at the constitutional tables. All we have been granted at these deliberations is observer status. ". The Indians of Canada have appealed to Parliament because final legislative control over the constitution of Canada rests with Parliament. The claim for this goes back to the Royal Proclamation of 1763. While the Government of Canada assumed financial responsibility, the power and the ability to establish treaty relations with the Indian nations have continued to be with the Crown.

In 1876 the British North America Act was enacted, establishing the present constitutional structure for Canada. In that Act the power to negotiate treaties in the name of the Crown was passed to the Governor General of Canada. That provision, and the Royal Proclamation of 1763, have not been replaced.

The Canadian Federal Government have recently proposed to make changes and patriate the British North American Act of 1867 concerning the status and position of the Indians. In its petition to the British Government, the delegation stated its reasons for not wanting the British North American Act to be patriated, as it is felt that there is a grave danger that the special rights and status of the original owners of the lands may be further eroded. The Indians are concerned that, if this Act is patriated, decisions made regarding their status and welfare will be made without their full participation and control. While it remains in this country, an obligation is placed upon the British Government.

The Canadian Government feel that the problem is an internal one, and should he handled by themselves and the Indians. One must have sympathy with this attitude. It is not an easy matter to resolve, but we have a situation where the original inhabitants of Canada—their forefathers—signed binding treaties and agreements with the designated represenatives of the Crown, and historical and legal importance of this is emphasised by the Indian nation. The Indians are not asking the British or the Canadian Government to allow them to secede from Canada and form a new independent State, as has been hoped for by French influences. There is a problem that needs solving and the British Government are involved. I am not advocating confrontation between the two Governments. Nothing of value would be achieved by that—only harm—and nobody would be satisfied. That would not be advisable or prudent. I would rather the Canadian Government reached a satisfactory arrangement with the Indians. But, if the British Government, who have a legal obligation to be involved, can help in any way, I believe that a better understanding can be reached.

Ever since Canada was discovered, the Indians have been trying to adjust to new ways of life. It has been a struggle in many ways and hard to adapt when their customs and means of survival have been taken from them. It was not until 1960—less than 20 years ago—that they were given the right to vote. Also it was only at this time that the Department of Indian and Northern Affairs began to cede to the Indian bands the responsibility for using the administrative funds that had been set aside for them.

A major conflict for the Indian revolves round his ability to adapt to modern society. His values sometimes hinder this ability. The unemployment rate is extremely high at 53 per cent. I recognise that the Canadian Government have made moves in certain areas to help and encourage the Indian nation. For the year 1977–78, 595 million dollars have been spent on Indian and Eskimo affairs. I believe that awareness of the Indian problem is growing in Canada today.

I am asking the Question because I think that the British Government should have met and discussed their problems at first hand with the Indians, and should have listened to their reasons for being here. I look forward with interest to hearing what the noble Lord, Lord Trefgarne, has to say.

6.19 p.m.


My Lords, I wish to support the noble Earl in this important matter and in this very full House. While I am certain that we all take great pleasure from watching members of our Royal Family being made honorary chiefs of various Canadian tribes, with their highly colourful headdresses and traditions, we must bear in mind that this is not a tourist " peepshow ", but a serious part of their history and heritage of which they are rightly proud.

They are members of the Commonwealth. I believe that we must not lose sight of our responsibilities. These Canadian Indians have fought long for their rights and, as members of the Commonwealth, should be treated in a fair and equal manner, which at present does not seem to be the situation. I believe that this is a matter which should be looked into as soon as possible. I consider that we should treat all our citizens of the Commonwealth equally, and therefore the Canadian Indians should not be an exception. Minorities count just as much as majorities.

6.21 p.m.


My Lords, I had not intended to say anything on this Unstarred Question, but having listened to the noble Earl, Lord Grey, introduce this Question, and to the noble Lord, Lord De Freyne, suggesting that it might have tourist features, I believe that it is almost implicit that I should rise and add some remarks to this short debate. I shall read with very great interest in Hansard tomorrow what the noble Earl has said. He has posed a matter which we should all consider and examine. I certainly believe that the point made by the noble Lord, Lord De Freyne, that there should be reciprocal arrangements, as he put it, for the tourist features of Indian chief-making in Canada, should be considered. I shall listen with great interest to the reply of the noble Lord, Lord Trefgarne.

6.22 p.m.


My Lords, I think that your Lordships will appreciate as much as I do the Unstarred Question of the noble Earl, Lord Grey, which gives me an opportunity to explain the Government's attitude to the recent visit to London by the National Indian Brotherhood of Canada. It is true that during the visit the delegation was not received by any Minister. On the other hand, although we had known for some weeks that the Brotherhood was planning to send a delegation to London, and subsequently heard that they were hoping, while here, to meet my right honourable friend the Prime Minister and my noble friend the Foreign and Commonwealth Secretary, the Government received no approach from the Brotherhood or anyone representing them, requesting such a meeting, until very shortly before their arrival in this country on 1st July.

By the time that such requests were made I am afraid that it was too late to fit them in to any Minister's programme. A small group was, however, received as a courtesy and at a senior official level, by a deputy to the Permanent Under-Secretary in the Foreign and Commonwealth Office. At that meeting representatives of the National Indian Brotherhood, accompanied by their legal advisers, were able to explain their concern about their position and to leave documents giving more details of their case. So it is not true to say that they were not received by the Government.

I believe that what I have said shows that the Indian delegation were received by the United Kingdom Government in the best possible manner in the circumstances. Even if, however, they had been received at a more exalted level, the fact of the matter is that it could have made no difference. The United Kingdom Government are simply in no constitutional position to intervene in matters of this sort. The central point is that although the Indians rightly look to the Queen as their Sovereign in any matter affecting them, it is the Canadian Government and not the Government of the United Kingdom which must advise the Queen. The position is, however, rather more complicated than that, and perhaps this is a good moment for me to elaborate.

Canada is an independent sovereign nation within the Commonwealth. Executive power is vested in the Queen acting through the Governor-General and on the advice of Her Canadian Ministers. The Canadian constitution is principally contained in the British North America Act of 1867, as subsequently amended, This Act established a federal system of Government in Canada and set out the powers of the Federal Parliament and the Provincial legislatures. While each Province was given jurisdiction to amend its own constitution, the British North America Act, the constitution of the Federation, can in certain important respects be amended only by Act of the United Kingdom Parliament. Over the years since 1867, the constitution has been amended 14 times by the United Kingdom Parliament. On each occasion this has been at the request of the Canadians. No Act of the United Kingdom Parliament affecting Canada has been passed unless Canada has requested and consented to its enactment. Indeed, Section 4 of the Statute of Westminster of 1931 provides that no law made by the Parliament of the United Kingdom shall extend to any Dominion otherwise than at the request and with the consent of that Dominion. This reflects the agreements reached at the Imperial Conference of 1930. Although no clearly-defined procedure for amendment was laid down in the British North America Act, the practice has grown up over the years that Canadian requests for amendment are submitted by means of a formal Address to the Crown from both Canadian Houses of Parliament.

The former Canadian Prime Minister expressed publicly the desire of the Canadians that the power of amendment of the constitution should be a matter of Canadian competence and should no longer be exercisable by the United Kingdom Parliament—that is, that the constitution should be "patriated" to Canada.

In a series of Federal-Provincial conferences, the Canadians have sought to reach agreement on an amending formula which would become part of the law of Canada and transfer to the Canadian Parliament exclusive power to amend the British North America Act. So far the Provinces have failed to reach unanimous agreement with the Federal Government. But this is, of course, a matter for the Canadians themselves to resolve.

The United Kingdom Government's position is that if a request to effect such a change were to be received from the Parliament of Canada it would be in accordance with precedent for the Government to introduce in Parliament, and for Parliament to enact, appropriate legislation in compliance with the request. No such request has yet been received, and with the change of Government in Canada it seems unlikely that such a request will appear in the very near future. The new Prime Minister of Canada, Mr. Clark, has however said that he proposes to continue to work towards constitutional change, but he has emphasised that he was not working to any particular timescale.

As I understand it, the National Indian Brotherhood is anxious to play a fuller part in the consideration of constitutional revision between the Federal and Provincial authorities. This is a matter for the Canadians themselves, and is not a matter in which the United Kingdom Government can intervene, or would wish to do so. As a result of Canada's full and sovereign independence, attained if not in 1867 with the British North America Act, then as a result of the Statute of Westminster of 1931, any residual powers or duties of the United Kingdom passed to the Canadian Government. The Statute of Westminster reserves to the United Kingdom Parliament a purely technical role in relation to the British North America Act.

I must, therefore, emphasise again to the House that the United Kingdom Parliament's power over the Canadian Constitution is strictly limited. If Parliament were, in spite of constitutional precedent, to decline to act on a request from the Canadian Government, we would lay outselves open to charges of interference in Canadian domestic politics. Even to query whether there was internal support in Canada for a request to patriate the constitution would be tantamount to questioning the authority of the Canadian Parliament or Government to make it. Further, for the United Kingdom Parliament to purport to legislate otherwise than at the request and with the consent of the Canadian Government would conflict with the agreements reached with the Dominions at the Imperial Conference of 1930 and the Statute of Westminster of 1931, to which I have already referred. The Federal Government is the sole representative of Canada in international relations. We cannot be the arbiters of the correct balance of the case presented to us: this must be the sole responsibility of the Canadian Government.

My Lords, we do not underestimate the depth and sincerity of feeling in this matter—but the constitutional position is clear, even if complex. I hope your Lordships will agree that we have adopted the proper course.

6.29 p.m.


My Lords, I am sure that the noble Earl, Lord Grey, will allow me to intervene in the form of putting one or two questions for confirmation to the Minister. May I say at the outset that Her Majesty's Opposition entirely agree with the state- ment of the position that we have just heard. It is an important matter, partly because it is part of the agreement which we have, stemming largely from the 1931 agreement with the former Colonies and Dominions—self-governing and, indeed, independent countries within the Common-wealth. It also applies to the question of minority status and rights, which nowadays seems to appear in almost every country in one degree or another, or in one form or another, ourselves not excluded. Therefore, what the noble Lord has said is central to the continuing and firm policy of this country in relation to the internal administration and policy of equal and independent sovereign members of the Commonwealth, and indeed in relation to independent countries everywhere and not only in the Commonwealth.

The fact, however, that Canada, like so many Commonwealth countries, has the same monarchial Head of State as we have—a fact of gracious life that we rejoice in—occasionally raises questions of right of access, of petition. In case I did not quite hear what the noble Lord said, my first question is that although the Queen of the United Kingdom is the Queen of Canada nevertheless, first, she is bound by the advice that her Ministers in Canada proffer to her about everything which it is suggested to her she should do, and, secondly, she is represented in Canada by a Governor-General who is vice-regal in his status and his functions. If there is a question—this is the point of confirmation I wanted the noble Lord to assist me with—of access and petition, it is not here that it would lie but in Ottawa, to the vice-regal personage who, in fact, represents the Queen in Canada. I hope I have that right. I wonder whether our good friends, the National Indian Brotherhood, have quite understood that. As Canadians, if there is a right of petition, they have their very own at home.

The 1867 Act which created the confederation, among other things specifically transferred totally from the United Kingdom Government to the new Federal Government in Ottawa every vestige of responsibility over this and every other minority—indeed the majority as well—of the citizens in the new Dominion. Indeed, the word " dominion " was not invented but introduced to Canada for the first time in relation to territories of this kind because somebody quoted the Bible. I will not say it was an innovation, but perhaps a practice that latter day politicians and statesmen might seek to revive: and he shall have dominion from sea to sea ". There you have it: the Pacific and the Atlantic; the Dominion of Canada; the transfer of these responsibilities entirely from this country to the new Federal Government. There it stands. They have revised it of course in 1951, 1955, and 1972. It is not for us to question or indeed discuss that.

That brings me to my final point. I think it should be said that the Canadian Government and people have given ample evidence of their deep sympathy for the Indians in Canada and of their practical concern for their welfare. They have made available to them very extensive territories indeed in the form of reservations within which the Indian communities enjoy quite special privileges not extended to other Canadian citizens. One does not want to go into this. They have also been financially generous to them by grants; and I am sure the noble Lord and I, and the rest of us, would like our Canadian brothers—the whole Canadian people is a brotherhood with us—to know that we appreciate from our side what they have done, and are doing, for our Indian friends. I think a word of commendation for a sister country in the Commonwealth for the way in which it deals with a minority within its borders is very much in order nowadays. I am grateful to the noble Lord for his statement, and I am sure that he need only nod to say that he confirms the two or three questions I have put to him.


My Lords, just before I sit down, perhaps I may confirm one rather important point which the noble Lord mentioned. Certainly the 1867 Act transferred to the Government of Canada, with their sovereign I should say, all the principal effects of government in Canada, including most importantly the administration of the treaties to which the noble Earl referred. That was the British North America Act 1867.

The noble Lord referred to the position of the Governor-General in Canada, who represents the Queen in Ottawa, as he said. It is open to the Indians to approach the Governor-General there, who will no doubt act as the Queen would act, in accordance with the advice of Canadian Ministers. I think those are the two principal points. The noble Lord also described what the Canadian Government had done for the Indian community in Canada. It is not for me to comment on what the Canadian Government do for other Canadians, but I take note of what the noble Lord says.

Forward to