CONTENTS
Monday 29 July 1991
Ontario Native Affairs Secretariat
Chiefs of Ontario
Adjournment
SELECT COMMITTEE ON ONTARIO IN CONFEDERATION
Chair: Silipo, Tony (Dovercourt NDP)
Vice-Chair: Bisson, Gilles (Cochrane South NDP)
Curling, Alvin (Scarborough North L)
Eves, Ernie L. (Parry Sound PC)
Gigantes, Evelyn (Ottawa Centre NDP)
Harnick, Charles (Willowdale PC)
Harrington, Margaret H. (Niagara Falls NDP)
Malkowski, Gary (York East NDP)
Mathyssen, Irene (Middlesex NDP)
Offer, Steven (Mississauga North L)
O'Neill, Yvonne (Ottawa-Rideau L)
Winninger, David (London South NDP)
Substitutions:
Frankford, Robert (Scarborough East NDP) for Mr Malkowski
Miclash, Frank (Kenora L) for Mr Offer
Wessenger, Paul (Simcoe Centre NDP) for Ms Harrington
Clerk: Brown, Harold
Staff:
Drummond, Alison, Research Officer, Legislative Research Service
Kaye, Philip, Research Officer, Legislative Research Service
The committee met at 1412 in room 151.
The Chair: If I can call the meeting to order, welcome, members of the committee, to the resumption of the meetings of the select committee on Ontario in Confederation. I would also like to welcome the people who may be following us over the parliamentary network and mention that in resuming our hearings we begin today on a series of discussions, which will take us over the next four weeks, with various experts as well as people from various constituencies and interest groups, the purpose being for us to pick up where we left off in our interim report and to delve into some of those issues in some detail.
We have tried to set up discussions in a way that we hope will be useful to us as a committee, and obviously also to the general public, and which will help us to work towards shaping a final report, which as members know we are now aiming to develop towards the end of November.
As part of that work, which we will be able to get into some more discussion on at a later time, in addition to our hearings and some travel that we will be doing to other parts of the country to speak to other members of similar committees that exist in other provinces, there will also be the convening of a conference which we have scheduled for the month of October. As I say, we will be developing and putting out some more details on that as the planning continues.
I think it is important to note that today and tomorrow particularly, and in part on Wednesday as well, we will be dealing with issues affecting native people. We are happy to have two presenters with us this afternoon, beginning with Mark Krasnick from the Ontario Native Affairs Secretariat, whom I would call to come forward. We will be spending some time with Mr Krasnick, and later on this afternoon we will be having before the committee the Chiefs of Ontario.
Before asking Mr Krasnick to make his presentation, I would just note for the members of the committee that there are a couple of memos from our research staff, one giving us an update on constitutional reviews in terms of an update on some of the work that has been going on across the country, and second, a memo dealing more specifically with the issue of native self-government, I believe. That is provided there, "Recent Developments in Aboriginal Land and Self-government Issues." That is for the members' information and use.
ONTARIO NATIVE AFFAIRS SECRETARIAT
The Chair: Without further ado, Mr Krasnick, welcome to the committee.
Mr Krasnick: I would like to begin by thanking the committee for the opportunity to appear before you today. I have put together some thoughts which I hope will give you a bit of a context and will address the specific question of a constitutional amendment that will recognize the inherent right to self-government. As you undertake public hearings and public consultations, I thought it might be useful if I could share some of the questions that should be addressed at this stage if we are to see a constitutional amendment on the inherent right to self-government incorporated into a new national document.
I want to talk about two things: First of all some context and then the specific issues before you.
In terms of context, I thought what I would do is try to draw some parallels between the exercise we are going through today and the exercise Canada went through in 1867 and show how the discussion of self-government for indigenous people is very much a parallel and a reflection of the types of questions that had to be addressed 124 years ago.
We were all taught that in 1867 Canada became a nation and was by definition self-governing, but if you look at the question of self-government from the perspective of a student of federalism, the self-government exercise by Canada and by the provinces at that time was very different from what we exercise today. From the national perspective, there was a continued presence of British troops throughout the colonies. There was control of foreign policy by Great Britain. There was the appointment of a Governor General being a prerogative of the cabinet in Westminster. All court cases had to be sent to England for final adjudication, and of course any constitutional amendment of consequence required British concurrence and acquiescence.
For Ontario as a province at that time, the type of self-government that existed, from a bare reading of the Constitution, included a power which Ottawa could then exercise to disallow our legislation and to reserve bills for consideration by the federal cabinet.
Most important, if you think back, the power over peace, order and good government was to the framers of our Constitution a capacity for Ottawa to step in when it deemed appropriate and legislate for the good of the entire Canadian population.
Finally, the Senate was to provide a regional but not a provincial input into federal decision-making.
It was not until the appearance of Robert Borden in London during the First World War, the Statute of Westminster and the participation of Mackenzie King in the war cabinets of the Second World War, the ending of the appeals to the Privy Council in 1949 and the patriation of the Constitution in the 1980s that we could say that self-government was complete for Canada as a nation.
It was not until the early 20th century, when 50 years of court cases had passed and political relationships in Canada had changed, that we could say the provincial governments were no longer subordinate to federal disallowance or override powers. It was quite clear that by the 1930s the federal government was no longer politically able to sustain reserving provincial legislation. By that time the courts had made it very plain there were real limitations on the power of the federal government over peace, order and good government.
It is in this evolutionary context that self-government, and thus indigenous self-government, fits.
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Today, by assigning responsibility for Indians and lands reserved for Indians to the federal government, the formal Constitution of Canada provides a plenary power to Ottawa equivalent to peace, order and good government. The Indian Act, by allowing the federal Minister of Indian Affairs and Northern Development to approve or disapprove band bylaws, provides the equivalent of the old power to disapprove provincial laws, but the political reality has become that over the last 20 years neither the federal nor the provincial governments can sustain the organizational structures or the political legitimacy to make the types of decisions with respect to indigenous peoples that they were expected and prepared to make in the past. It is for this reason that an amendment respecting the inherent right to self-government is a part of Canadian nation-building today.
With that context, I want to turn to the issues I think are important for this committee to ask about and consider as it continues on with its public hearings and consultations.
The first issue I think the committee has to address -- and at this point I can only talk in this part of the text about questions, because it really is too early to find conclusions -- is, is it possible to spell out areas of jurisdiction that indigenous communities would exercise in the future?
I begin with the premise that it would be advisable to include in the Constitution a clear statement recognizing the roots of self-government which have led to the consideration of the entrenchment of the inherent right, but in expanding on that principle and in writing a constitutional provision itself, we are left with the technical task of deciding what basic approach to take.
In my mind, there are really three potential approaches. The first approach is a provision which would look very much like the peace, order and good government clause in section 91 of the current Constitution. This clause calls for a general capacity on the part of the federal government to make laws and exercise jurisdiction. In other words, the Constitution writers can provide a provision that an aboriginal community -- I think we will talk about its definition in a moment -- can make laws for the peace, order and good government of its members on its land.
The second approach would be to list the specific areas of jurisdiction which would be the subject matter of indigenous government, and that is equivalent to section 92 of the Constitution, which is the power provinces use to find their jurisdiction, where we put in place an enumerated list or a number of headings which then becomes the granted power that provinces can exercise.
The third approach would be what is called the rights-based approach, and this would see the inherent right to self-government as a further articulation or a further spelling out of the aboriginal and treaty rights that are presently found and protected by section 35 of the Constitution. In this approach, we add to the words "aboriginal and treaty rights" words such as "including the inherent right to self-government" and then we leave it to the courts to determine the breadth of that specific right.
Each of these approaches has its benefits and its costs. If one chooses the rights-based approach, however, one must consider the following: Does the analysis of the Supreme Court of Canada in the Sparrow case limit the inherent right to self-government? Let me talk for a moment about the Sparrow case, hopefully without become too technical, and I apologize if I am too technical. It is a problem with both being a bureaucrat and an advocate.
The Sparrow case is a case where the courts were asked to determine the constitutionality of federal fisheries regulations. These regulations were being challenged by an aboriginal fisherman fishing for food on the Fraser River in British Columbia. The court held that while the fisherman had an aboriginal right to fish for food, it was still possible for the federal government, in this case, to limit that right based on a need to protect the fish stock, eg, a conservation justification. At that time as well the Sparrow case stated that the right was a communal right which could be exercised by the aboriginal community.
In the previous discussions on self-government with respect to the inherent right to self-government of indigenous people, in the period between 1983 and 1987 the meaning of section 35 had not been determined by the courts. It was just an undefined provision. Now the courts have begun the process of spelling out a framework in which section 35 should be viewed.
Thus, if we were to include the inherent right to self-government in section 35 as part of the aboriginal and treaty right, the question we have to ask is whether this right is limited by a capacity of either the federal government or the federal and provincial governments to make laws which, if they can justify the reasons for the laws, would allow for the limitation of the inherent right to self-government.
This is important for two reasons. First, it is very similar to the American right to self-government. The American right to self-government provides that tribes in the United States are self-governing, but that their powers to make laws can be overridden by an act of Congress, and thus for any purpose that Congress may wish, it may limit the capacity of tribes in the United States to make laws. So the question becomes, is section 35 not only a place where the right to self-government can be articulated, but does it also now provide the capacity in governments to limit that right based only on a need to justify it for specific purposes? That is the first question.
The second question is, in looking at section 35 in the context of the Sparrow case, the reasons that Sparrow said were legitimate public policy purposes in the context of hunting and fishing were purposes such as conservation or public safety. If we were talking about the inherent right to self-government, we would not just be talking about hunting and fishing; we would be talking about the full range of powers that a government could exercise. Therefore the public policy purposes that may be acceptable to the courts would either have to be spelled out in advance or might be much broader than public safety and conservation. Therefore what you would see is essentially the need for a whole round of litigation before clarity was provided as to what powers could be exercised by indigenous communities and what powers governments had to limit those rights.
In discussions around the inherent right to self-government, I think it is clear that the context of the 1983 to 1987 constitutional discussions has changed because of court interpretation. I am not sure, just parenthetically, how much time the committee has spent on the 1983 to 1987 process. I take it you have some briefing material that will spell it out, but in the last round of constitutional discussions one of the provisions that was incorporated in the Constitution was a requirement on governments to negotiate with indigenous people a range of items of concern to indigenous people.
For four years between 1983 and 1987 there was an attempt to negotiate a self-government clause. This was not successful and one of the questions that will have to be addressed is, is it possible to find a process for negotiating such a clause in the future that has more chance of success than the process we have been through in the past? So question number one is how do you incorporate sort of a general provision to self-government into the Constitution as it may emerge?
The second question I thought I would like to talk about is what communities would be capable of exercising the inherent right to self-government. Would the communities be based on historical ties and relationships, for example, the Mohawk peoples, the Hodenausaunee or the Iroquois confederacy or the Ojibway people, or would they be based on relationships established by treaty, relationships between the crown and aboriginal people, which would include the people of Treaty 9 or northern Ontario, now called Nishnawbe-Aski Nation, or the people of Treaty 3 in northwestern Ontario, or would the people who could exercise the power to be self-governing be established by some other test?
That leaves open the very real question about whether a specific first nations community or a reserve, as defined by the federal Indian Act, would have the authority based on the constitutional amendment to exercise the right, and further whether a group of aboriginal people could in the future argue that their aboriginality itself was sufficient to allow for the exercise of this right. If that were the case, that would mean that the inherent right to self-government was not just based on the existence of a land base -- a concept we will come to in a second -- but would also be available to groups of people who may live in urban settings as well.
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A third question is with respect to the land base. It must be understood, I think, that what these constitutional negotiations want to do is establish, recognize and implement a new relationship with the indigenous people of Canada. This new relationship will be based on the historical fact that there were organized indigenous communities when first settlement from Europe occurred. It should be based on that view of our Canadian history.
A new relationship has the capacity to establish an agenda for reform, and one of the elements in this agenda for reform must be resolving the question of the land base. It will be important to indigenous people to show that this issue will be resolved. Whether through a specific constitutional provision or through a commitment to negotiate, there must be a realization that aboriginal peoples and aboriginal communities need an appropriate and sufficient land base to develop and grow, to ensure that harvesting rights can be exercised, and to ensure that they have sufficient territory to utilize and exploit natural resources.
How to do this in practical terms, both with respect to writing a provision and with respect to carrying out the provision, will be the subject of considerable discussion over the next year. Whether the results of these discussions lead to a constitutionalized amendment under self-government or through a rethinking of the power of governments to make treaties is also something that should be considered.
The final question to address is that of financial resources. An indigenous community needs financial resources to exercise self-government. The Constitution of Canada already makes provision for general recognition of equalization payments between the regions of Canada. As a principle, it should be possible to draft a provision that provides an adequate and secure resource base to aboriginal communities to be truly self-governing, to make choices between conflicting priorities.
Governments of indigenous peoples should not be dependent on annualized or discretionary funding as their only source of revenues. There should be some capacity for the whole range of intergovernmental fiscal arrangements to be available to indigenous communities. It may also be possible to look at some of the direct grants to individuals as being capable of being funnelled through indigenous communities as well.
In closing, I have tried to talk briefly about the inherent right to self-government, to talk about land, and to talk about financing in the context of the Constitution of Canada and constitutional amendment. I would be pleased to answer any questions you may have, both with respect to this item and with respect to current negotiations on specific self-government agreements and land claims.
The Chair: Thank you very much, Mr Krasnick, for that useful overview. Are there questions from members of the committee?
Mrs Y. O'Neill: You are able to be very concise even though you are a bureaucrat. It is kind of fun. I returned from two weeks in the Maritimes and I was very surprised to see how far along they are in guaranteeing seats to the aboriginals both in New Brunswick and in Nova Scotia. One seat, I think, is their original goal. I am wondering what your response to that is, how much discretion there is in Ontario among the communities and among the bands, because I do not know of much discussion here at Queen's Park about the issue. As I say, the breadth of the discussion in the two maritime provinces that I mentioned surprised me.
Mr Krasnick: I am trying to remember the briefs we have seen over the last couple of years. There has been considerable interest in guaranteed seats on boards, commissions and agencies. I think that is where the priority has been for the most part in the indigenous leadership in Ontario. There was one submission that called for, I think it was, seats in the Legislature, and I think there has been a brief from the Union of Ontario Indians in the past which has asked about that. It has not been a matter of priority because most of the interest has been in the constitutional inherent right to self-government, and that has been the priority of the first nations and other organizations to date.
Mrs Y. O'Neill: Do you see those two concepts as contradictory then?
Mr Krasnick: Not at all. I think the only place I know of where you have aboriginal seats is in the New Zealand Parliament, where a number of seats are reserved for that purpose. It is a way of incorporating the aspirations of, for the most part, people who do not live on reserve into Parliament as well, so I do not see them as being contradictory.
There is one proposal that has been advanced, and that is for an indigenous 11th province. In that sense, there would be seats in the new Senate, whatever that would look like, and there would be the whole range of provincial powers that would be exercised. But again, the bulk of the thought and discussion over the last decade has been around the inherent right to self-government. As it looks like issues of new institutions become clarified and as you start talking about what role the Senate may take, this may become a much more real possibility. It just has not been one yet.
I think the reason for that is that up until now the discussions around constitutional recognition of the inherent right to self-government have been parallel to the general constitutional discussions. At this point, there is a beginning of some sort of merging, and therefore new issues which were never talked about in the past are to become real issues for purposes of discussion.
Mrs Y. O'Neill: Thank you for bringing me up to date.
Mr Harnick: One of the difficulties that I think we, as a committee, are going to have is to determine who speaks for the native communities in this province. If we are going to try, in some sort of report form at the end of our committee deliberations, to set out certain guidelines that we think this province should follow in development of native self-government, whom do we have to speak to to try to get a consensus among native groups? How wide is the divergence of opinion among your three jurisdictional categories?
Mr Krasnick: I would think that if you go back to the 1983-87 process, speaking for groups across Canada you had the Assembly of First Nations, you had the Native Council of Canada, which was for the most part off-reserve and non-status people, you had the national Metis organization and you had the Inuit people. Those were the four people who have historically been recognized as having a view on these matters. The Assembly of First Nations has, as part of its process over the next number of months, decided to have four constituent assemblies, which will incorporate the views of urban people, the views of aboriginal women, the views of youth as well, and elders. I think those were the four. I think that added to the first four groups I talked about nationally, there will have to be the sense that the aboriginal women's community has been consulted.
In Ontario specifically, we are in the middle of an evolution; there is no doubt about it. It is clear that the Chiefs of Ontario are the primary spokespersons for the on-reserve first nations and are beginning the process of encompassing within their mandate urban status Indians.
The question of the Metis population is, I think for most groups, the responsibility of the Ontario Metis and Aboriginal Association. The question of off-reserve, both status and non-status people, is being discussed between various groups and there is still some controversy over it. I do not think there is any easy answer to that. I think you will have to listen to them all and then make your own judgement down the road.
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Mr Harnick: In your experience up to now, is there any kind of consensus emerging in the work that you have been doing?
Mr Krasnick: As to what the provisions should look like?
Mr Harnick: Yes.
Mr Krasnick: Other than the need for a constitutionalized provision which recognizes the inherent right to self-government, I think we are still at the start of the process. A number of the groups, as well as ourselves, through the auspices of this committee, want to do some thinking about that over the winter. It is just too early to say that a consensus emerges over which route to take or which approach to take. I would think the inclusion in section 35 of the recognition of the need for a land base for aboriginal people who do not have a land base would be part of that consensus, but how that will be reflected in a constitutional provision -- it is just too early.
Mr Harnick: One of the concerns I certainly would have is that if you look at your rights-based approach, if that was the direction you took, so much of the development of native self-government would be left to the courts. Could you maybe tell us what the feeling, in your opinion, is about courts developing the system or style of native self-government, as opposed to dealing with it in one of the enumerated powers approaches or even the peace, order and good government approach you have set out?
Mr Krasnick: My own view would be that a constitution as it deals with the relationship between governments is essentially a political document and that the courts should try to take a narrow view in interpreting it. In other words, the activist role of the courts, as many people, I guess, have written, has really begun in the modern era with the charter, which is really the relationship between individuals and the state. My own sense would be that with respect to relationships between governments, we should try to come up with a provision that leaves as little to the courts as possible. With respect to any relationship between individuals and communities, then clearly there is a role for the court.
Having said that, one of the concerns of the aboriginal leadership over the last decade has been, if it is just left to political determination, what is the incentive for government to get on with it and actually do the negotiating? That is where there has been a desire for a capacity of the courts, if negotiations fail, to impose some sort of settlement.
Under some sort of even rights-based approach, the originality we will all have to bring to bear on this process is how to provide sufficient flexibility and yet provide some capacity for closure, so that it is not just an open-ended clause that governments can let slide over the decades if they desire. That is the balancing act required by the history of the last decade.
Mr Bisson: I listened quite intently to the three recommendations that were made. Can you go back and take a look at those, because sitting there, looking at them and thinking about them while you were spelling them out, I see some inherent problems with some of them, and some positive things. Could you just go through them very briefly and talk a little bit about what you would see as some of the difficulties, especially the ones about inclusion in the Charter of Rights. Basically you were saying that you wanted to recognize self-government within the Constitution, allow it to evolve. Could you talk a little bit about some of the difficulties with that?
Mr Krasnick: I say as a precondition that there will be a set of words we can find that will recognize inherent right to self-government. Then the question becomes, how do you give more clarity to that provision in terms of the Constitution?
The clearest way, if it can be arrived at, is really spelling out, "These are the powers that will be exercised by indigenous governments." So clarity is the positive. The negative that goes with that is the fact that it is static, that there has to be some capacity for powers to change. Just like in the country, powers change over time. All sorts of things we would never conceive of as being within the ambit of self-government in the 1990s may be very realistic in the year 2010 and vice versa.
That is question number one and that was my second option when I said enumerating or listing the actual jurisdiction.
The first option, which is the equivalent of a peace, order and good government clause, is really very much like the American Constitution. It says that appropriate communities can make laws, period. Then it leaves to the general rules of the Constitution what happens if there is a conflict between laws made by an indigenous community, for example, and the laws made by either a province or the federal government.
The negative is that there would still have to be considerable negotiation over how we decide in a specific case, say the provincial Education Act and an aboriginal Education Act, which one has primacy. The other negative, or the positive, is that it is very open-ended.
The third provision, which is the inclusion in section 35 of the Constitution, has the positive aspect of being the closest to what the indigenous communities have been asking for. It bases it on a rights approach and says these were rights aboriginal people have because of their history.
The issue, and in my mind it has both positive and negative aspects, is really the question of court interpretation that Mr Harnick was just raising. You have that specific question about what role you want the courts to play in making determinations both as to what the provisions should be, but also with respect, I think -- and this will probably be the real question -- to the speed at which issues are negotiated. I think you are going to see that if it is left to another round of discussions, then there is going to be pressure for a time limit of some sort and then for something to happen at the time that occurs. So those would be a general articulation of the pros and cons.
Mr Bisson: Just to comment very briefly, the third point you made I think is quite interesting.
Mr Winninger: Mr Krasnick, you have been the deputy minister for native affairs for some time now and I guess you might sense better than anyone that there are many different notions of what self-government might mean. To some it may involve establishing separate structures and institutions of government that would parallel our federal-provincial-municipal levels of government, but to others it simply means more involvement in the process, and the models might be the agreement with the Nishnawbe-Aski nation or the Temagami Advisory Council where our first nations are more involved in the decisions that will impact on their environment and their livelihood.
I am just wondering whether you see any consensus emerging among the first nations as to what the model might be for self-government once it is enshrined in the Constitution.
Mr Krasnick: I think you are right to say there are a number of different definitions of "self-government." We are looking at the capacity for communities to enhance their capacity to make decisions. That is what we are talking about. Therefore it seems to me that depending on the location of the community and the history of the community, either an exercise of power on its own or an exercise of power as part of a broader regional decision-making, like the stewardship council in the Temagami area, may be perfectly appropriate. I think there is no consensus, given that each model of self-government will be rooted in its history and rooted in its location.
In terms of the exercise of powers to provide services to members, it is very clear that the first preference would be for local exercise of legislative jurisdiction and for administration together. At the same time, communities realize there are economies that can be made by grouping together, either regionally or through tribal councils or larger organizations, to provide services and specialized services which in some instances can be very costly.
In my mind the preference would be for maximum authority directly over specific territory and over specific powers or jurisdiction, but that in the context of other users of resources, say, or in the context of providing higher or post-secondary education, involvement in other local boards would be perfectly acceptable to communities.
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Mr Winninger: Can the inherent right to self-government be extended to the same rights that foreign nations might exercise vis-a-vis Canada? There seems to be one school that believes you can be a separate, self-governing nation within Canada, and another school that regards first nations as outside of Canada and dealing just as if they were foreign nations with the government of Canada.
Mr Krasnick: In light of the discussions I have been involved with, the consensus seems to be that we are looking at nations within the context of the Canadian nation state. So it is not foreign nations, but nations within the country. In the discussions around the statement of political relationship which this government has just finished negotiating, that was one of the items that had to be considered. The Assembly of First Nations has also made it clear that it is looking at a constitutional amendment, and in so doing it is looking in the context of a single nation.
If you go back to the patriation debates in the early 1980s the question was, was the federal government itself sovereign? We got through this whole debate of whether provinces could be sovereign. In the Canadian context, what a sovereign nations is, even, or whether provinces exercise limited sovereignty over their areas of responsibility and the federal government exercises limited sovereignty over its area, is something which is only a decade old.
It seems to me that we are clearly looking at it within the context of a single country, but the words we use, whether it is sovereignty or nation state, also have to be seen in the context of the country and may very well be quite reflective of the fact that in the federal state no one exercises true, final plenary power.
Ms Gigantes: When we talk about native people in Ontario, could you refresh us about the numbers. I think your phrase was "aboriginal people without a land base."
Mr Krasnick: There is no census -- let's start with the negative -- of aboriginal people without a land base. The best work we have been able to find is that there are between 170,000 and 200,000 aboriginal people in the province, and of those about 60,000 live in reserve communities. So that leaves you about 140,000 who are either status Indians living in urban centres, Metis people or descendants of aboriginal Metis people. That is the best, but there is a wide range of questions.
There are some communities throughout Ontario where there have been sort of offshoots of reserves. Groups of people have left reserves and moved into communities over the last 100 years, of which the number of communities would probably be in the dozens, where they would like some sort of recognition of their aboriginality. That is another way of coming at it. They just do not have clear numbers, and we have been trying to see whether it would be possible to do some sort of census some time. The question is not asked.
Ms Gigantes: This complicates the whole question of how we relate political rights to a land base.
Mr Krasnick: It does, because the rights of aboriginal people are both with respect to land but also with respect to their own aboriginality, and many of them have left the reserve and moved to other parts of the province or the country. Those people still have rights. If they have rights, there may be some aspects of their lives about which they have a valid argument to be self-governing. In terms of children's aid societies, we have looked at children's aid societies which could recognize a specific group of people other than the general children's aid society, and that may be the type of parallelism we have to look at with respect to aboriginal people as well.
The other, I guess, analogy is that -- and this is different in the last couple of years -- first nations are now starting to take responsibility for their membership, even when they do not live on the reserve, and therefore the question we have to face is the question of sort of extraterritoriality, sort of a governance whose basic nucleus is the reserve, which wants to extend jurisdiction over people who live in the city with respect to some aspects of their lives, especially child welfare.
Ms Gigantes: This whole question is one that I think probably is not well understood by Ontarians who are not of aboriginal origin. It certainly has not been by me, for example. I do not think I am unusual in this. When we talk about self-government, I think my tendency has always been to think of aboriginals who are on reserves and saying that group of people has a right to self-government. But it is much more complex than that and we are trying to figure out how those rights could be exercised by large numbers of people who might have a claim to the rights but who are not associated with reserves at all.
Mr Krasnick: I think that as a country, just to understand self-government in the context of reserves, we still have a long way to go. There is not much understanding about concepts like self-government, but you are right, there is another nuance which is quite fundamental, which is that you have small, dispersed populations within larger urban centres, and that has just not been debated.
It seems to me as well that you may very well find that any right to self-government or exercise of self-government very much reflects locality, so you are going to have a very different set of rules for an urban setting than you would have for a reserve community. I think that is really why in practical terms, when you are talking about implementing the right to self-government, you are going to have to have a process of negotiation where you can start relating the circumstance of the population you are dealing with to the exercise of self-government itself. That is where there is always going to be some negotiation process or some way of clarifying what the actual meaning is of the right as it starts to be exercised.
Ms Gigantes: Was there any in-depth discussion of this particular question, if I could phrase it, the question of aboriginal people without a land base, in the discussions that went on between 1983 and 1987?
Mr Krasnick: My sense is -- and I would have to get back to you on the specifics; I am not exactly sure -- that really the question was, first, for first nations communities and then, second, for finding a land base for the peoples across Canada. There are a number of regions where there just are not land bases; the Metis community in Alberta, for example. That was sort of the second priority. So while it was discussed, I think the main context of it was not this context but a broader context of the reserve and finding land, if I can put it that way.
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Mrs Y. O'Neill: I have a couple of questions, one after listening to all of this and knowing and having just done a review of what the status is of all of these things that are going on in Ontario. Do you have a feel within yourself -- and you do relate on a daily basis to the issue -- that there is a positive thrust now within the bands with what has gone on, whether it be economic development, whether it be the work with the children's aid, whether it be the attempts at doing something about the judgement on the Sparrow case? What do you feel is the actual mood at the moment, generally speaking, as we go into what I think you have stated, and I think it is true, is a very deep-thought kind of process?
Mr Krasnick: I think that is a very profound question and it is a very hard one, because I think the last year, beginning with the Sparrow case, with the shootings at Akwesasne and Oka, has been a time of some considerable upheaval in aboriginal communities, in the way governments react to aboriginal communities.
My sense is there is a belief that there may be something to this in terms of trying to start it again, in trying to work towards a constitutional amendment, but there is still a lot of -- I do not know if the word is scepticism or a lot of waiting to see proof out in the communities. I think that, as I was trying to say, to build a new relationship is something which we are starting. When I say "starting," it has been happening over a number of years, but it is a decade type of exercise and it will be accomplished in small steps.
I think that openly talking about these types of issues is viewed positively. I think being prepared to address the fact that the historic basis of aboriginal people pre-dates the discovery by Europeans is considered a positive step. Being prepared to say that the inherent right exists is perceived as that, but in terms of the other side of the equation you talked about, which is economic development, seeing real change on the ground, seeing an improvement in the quality of life of aboriginal communities in the way that suicide rates start to drop, people feeling that they have control over their own environments, I think there is still a very real wait-and-see attitude there and all one can do is keep working at it.
Mrs Y. O'Neill: One of the things I have noticed, again with surprise, particularly in the last two or three months in the non-native communities and in the press, is there is a recognition of the deep spirituality of aboriginals and talking that this is a great asset that they have as they enter into this process. It seems to me that leadership on both sides is absolutely crucial at this point and certainly I think most of us understand that.
You said something that surprised me when you were answering Mr Winninger, and I certainly would like a little more about it. You said each model of self-government will relate directly to its history and location. That is very hard for me as a politician and as a non-aboriginal person to understand, and I do not even know how we could deal with that, if that is what you are saying, each model of self-government. Obviously, Mr Winninger opened by saying there are various interpretations of this, so inherent self-government, from what you are saying, has many meanings.
Mr Krasnick: That is right. At the level of implementing models of self-government, if I can draw some analogies, you have the Iroquois confederacy or the Hodenausaunee, who are in southern Ontario for the most part and are potentially looking at models of self-government that would incorporate elected representatives and hereditary types of representatives in terms of their government decision-making process. They are also located in areas where there is use of a wide range of public services: high schools, hospitals, etc. They are sort of integrated in that sense into the service delivery network of the province and the adjoining communities.
You have other areas, in some of the northern parts of the province, where there has been very little contact with provincial delivery systems. Delivery systems have been for the most part federal, where their historic relationship is based on their relationship between adjoining communities and with the treaty they negotiated. In that sense their model of self-government, both in terms of their locale and in terms of how they interact with Canadians and with Ontarians, will look very different.
In a sense, however, if I can draw an analogy, the way provinces deal with issues may look very different, even though each province exercises the same range of powers, so in that sense you can have a general provision which says we exercise all these powers, but when you are in Nova Scotia, as you said, it looks very different than it would look when you are in Ontario, because of our history and because of where we are located and our traditions. That does not mean that we are looking at 140 provisions for Ontario or 140 different types of models, but it means that in those negotiations we have to start from the perspective that history and locale do make a significant difference.
Mrs Y. O'Neill: You said there is a lot of scepticism about such things as social services and economic development. Do you think a stronger commitment on the part of a provincial government -- and I guess I am talking about the funding that you mentioned as part of your original presentation -- would help these negotiations that are of a more nebulous nature? Would the companion step-by-step strong funding commitment to those kinds of things -- and there have been certainly some initiatives, I personally do not think enough, on behalf of the present government or the government that my party was taking leadership in -- be a very significant component to success here?
Mr Krasnick: I think the most important component to success at this point in time is affirming the inherent right to self-government. It really is on what you call the more philosophical question. Clearly improvements in funding for service delivery are important and will be seen positively, but the basic issue that I think will embrace the relationship over the next at least a year and maybe a couple of years is around the concept of government. That is where the priority will have to focus and that is where I think the sense of a new relationship will become real.
The communities know their history. They know that many of them require all sorts of changes within their own community, but this is, I think, the time in which they feel that dealing with the question of their relationship with other Canadians is real and therefore I think that is where the priority will end up being.
The Chair: Thank you very much, Mr Krasnick, for giving us a very useful overview.
Mr Krasnick: You are welcome.
The Chair: To members of the committee, our next group is due at 4 o'clock, so I think that given the time, we can recess at this point.
The committee recessed at 1507.
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CHIEFS OF ONTARIO
The Chair: I call the committee meeting to order. I welcome people back. We are happy to have with us Mr Gord Peters, grand chief, from the Chiefs of Ontario to speak to us this afternoon. Welcome, Mr Peters. It is nice to have you with us. We will let you make whatever opening comments or statements you want and then there will be a short number of questions from members of the committee.
Mr Peters: Thank you for the opportunity to be present and to be able to express our views on constitutional change.
I guess we are trying to express a number of our concerns and views about the way things are proceeding because of the kind of support that has been there for justice to be done, not only for the aboriginal people in this country but in terms of all the ways in which Canada is struggling to be able to meet its own requirements of dealing with its own people in terms of a people's relationship.
I think we have acknowledged many times that with the issues we have, our aboriginal treaty rights issues, we are not trying primarily to have those as the centre of our focus, even though we come to many of these forums. The basic thrust of our discussions is always how we see the aboriginal people of this country fitting into the process, what kind of recommendations we are going to make in terms of how we want to deal with other governments as a relationship, what has been the downfall in the past and what we see as the shining star for the future.
I guess one of the things we have been trying to make clear across this country for a number of years is that we too have a vested interest in how Canada develops as a nation. We have a vested interest in seeing what happens with Quebec, the positions that we take in regard to Quebec and unity in terms of how everybody binds together in Canada.
We have an interest in what happens in terms of the amending formula, because ultimately that is going to decide how we as a people are able to deal with the Constitution on an overall basis and a continuing basis.
Yes, we have particular items that we, as the aboriginal people, want to deal with in regard to the Constitution as well.
We have always said that we wanted to further entrench the inherent right to self-government in the Constitution of Canada. We have had this debate among ourselves, among our people, several times. The question we constantly ask ourselves is, if we are talking about the inherent right and the fact that our source of jurisdiction flows from our occupation of the land and it flows from the creator, how do we entrench that into someone else's Constitution, into another government's Constitution?
It is something we have had to answer repeatedly. We are saying that we are not getting our source of power from the Constitution Act, but rather that the Constitution is simply recognizing that we have those powers and that they do exist. That is the recognition process we are talking about.
We are also talking about how we will implement it. So the major thrust we have had in our constitutional discussions is that, number one, we want the explicit recognition which governments across this country have said were implicit in section 35. We want that to be explicit and we want the implementation process to follow.
That is something we have embarked upon in Ontario, the implementation process. The Ontario government has now recognized section 35 and that our rights are in section 35, including our inherent right to govern ourselves. Now we are embarking on a process of trying to understand how we exercise those jurisdictions that are exclusive to the first nations and where we deal with areas of overlap in jurisdiction and how we relate to each other on an administrative basis.
A lot of the comments I have for today kind of exclude or are premature in a sense that we are having our leadership in Ontario come together in the first part of August. We are doing the formal signing of the statement of political relationships on 6 August and we are having three days of discussion among ourselves on exactly where those things go and what are the expectations we have as a people in being able to implement the kind of items that we have before us.
The reality is that the statement of political relationships is a constitutional document, whether or not people recognize it. It is the basis of our work on the Constitution and it is the basis of the implementation process that we must go through as the first nations in Ontario. You cannot separate the statement of political relationships and you cannot separate the inherent right of self-government from the constitutional process. They are all combined together; they are all part and parcel of the kind of advancement that we need as a people to be able to effectively replace our jurisdictions that have been assumed and that have been occupied by other governments in Ontario.
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In this process we talk about constitutional responsibility and, yes, primarily our relationship is with the federal government of Canada. I say the "federal government of Canada" when I really mean the government of Canada, the crown in right of Canada, because our relationship is not only with the government of the day that is there, whether it be the Conservative government this term and the Liberal government the next term or the NDP the following term; our relationship is with the crown in right of Canada, which means that we have an existing relationship and there is a responsibility of the government as a whole to deal with our rights, because as we move through this process, as we deal with the rights and responsibilities that we exercise, there are also duties on the part of the state that must be acknowledged and dealt with as we move ahead.
So eventually, I guess, we see ourselves as being responsible for ourselves, but in the remainder, there is a relationship that exists between ourselves and the government of Canada. That relationship is already established under section 35 of the Constitution. It is an acknowledgement of an old relationship that existed hundreds of years before in the treaty-making process, and that has not changed. Those are still there, and the royal proclamation is appended to the Constitution Act of Canada. It outlines that treaty-making process, which very clearly identified the relationship that we have in this country.
We talk about the effect of provision of services to aboriginal people, and it is something that we see happening on a regular basis. We have seen that as a process that has, over a number of conferences, broken down our discussions on fiscal relationships. When we have talked about this, we have acknowledged that, yes, the provincial government does have some obligations in this process, because in a division of powers it is exercising the use of our lands at this particular time, and the use of our resources. They are also, in Ontario, the signatories of one of the appendices of one of the treaties, Grand Council Treaty 9, in northern Ontario. So the provincial government does have obligation, but our primary obligation rests with the federal government.
In terms of services, as we move into the areas of being able to deal with our own jurisdictions, what we are talking about is a fiscal arrangement, so that the services are not being provided under the auspices of federal legislation and provincial legislation and provincial policy and federal policy, but rather are being delivered through our own institutions, mandated by our own governments, dealing with our own citizens within our own jurisdiction.
We also say that if extensive changes are made to the divisions between federal and provincial powers, we issue a caution to the governments, one that we have issued time and time again. As we have indicated numerous times, there is a relationship that now exists and if we are to alter that relationship, surely the first nations should have a say in whether that relationship gets altered or not.
We will go as far as saying that, having a say in those issues, the track record that has been there for the number of years that we have been involved has not given us the kind of protection we need, and if there are going to be extensive changes required in this country, we again come to the table and require that a consent is needed before alterations are made about the responsibilities that we currently have with the government and the crown in right of Canada through the treaty-making process.
We come back to another issue that we have debated a number of times about the founding nations of this country. One of the fundamental characteristics in this country that we say is not described is that we talk about aboriginal title. There needs to be a recognition of our title in this country, and there is no recognition of our title. Not even within Ontario do we have a recognition that we are owners and occupants of our own lands. That has to happen.
We have to understand that when we start talking about those very fundamental things like title, from that point there cannot be three founding nations in this country. We have to understand that what we are talking about is a relationship. Different countries and different peoples came to our territories and they asked our permission to be on this land and they signed treaties with us signifying a relationship to be on this land and they established their governments. That description has to be done. The founding documents of this land have to be enshrined; those treaties have to acknowledge that this existing relationship has never been altered in this country.
Whether that can be done in the Canada clause remains to be seen. If it details those kinds of discussions that I have spoken of, then perhaps we can find it in the Canada clause, and perhaps it needs to be done in the preamble with the Canada clause. But certainly the Canada clause is something that came out of the woodwork when we were trying to find a way to deal with the Meech Lake accord, in its potential at that particular time to be stopped in Manitoba. But I think we need to pay some attention to the Canada clause to talk about the distinct relationship that we have and how that gets implemented within the Constitution.
We talk about sections 35 and 31 again. That is the initial question being asked about how we entrench self-government in the Constitution. Yes, they should be altered and they should reflect those powers in those jurisdictions that are exclusive to first nations that are going to be dealt with.
We talk about guaranteed representation in the House of Commons and the Senate, and at this particular point in time we have said to the Lortie commission that no, that is not something we are prepared to deal with, because of the unfinished business in this country. Guaranteed seats in the House of Commons, in the Senate and legislatures or any other proposal at this particular time only means to us that we have the opportunity to be able to be outvoted and to be able to be outdistanced in a race in any kind of discussion that goes on in this country about issues that impact the aboriginal people.
We have said before that we need to have some way to protect ourselves in this process and we have asked for a consent. Governments have told us that it is a veto and a veto is not acceptable, that no government in this country can have a veto. When we talk about our relationship and our being subsumed under the power of the Parliament of Canada, it becomes very clear to us that without that consent process, we will not put our relationship on the line in this country in a place where we would have maybe 10 or 12 guaranteed votes in a country that has 290 seats in the Parliament.
We have had many people come to us and try to convince us otherwise, that it would not prejudice aboriginal treaty rights, but again the track record that we have to live with every day indicates to us that it is not sufficient protection, somebody's word is not sufficient protection. We would require those kinds of certain protections for ourselves, such as the consent clause, in order for us be able to deal in any way with the House of Commons or the Senate in a majority government.
The other questions that we talk about are in terms of the development that is being pursued in the Yukon and the Northwest Territories. The only thing we have said in the past is that we need to have that forum dealing with boundaries and the creation of provinces left open so that in fact if there are wishes by the people in the Northwest Territories and the Yukon to be able to establish some kind of province, they have the capacity and the ability to do so. It should not hinge upon the new amending formula, but it should rest with the process of old that anybody who wanted to join Confederation simply submitted to the government of Canada and began negotiations on how to enter Confederation; not by using the formulas that have been established since 1982 but by using the process that was there prior to that of how provinces entered Confederation. If those were the wishes of the people of the Yukon and the Northwest Territories, I think they should be accorded that process. But I cannot speak for those people in the north, in the Yukon and the Northwest Territories. That is only some of the discussions we have had with them in the past.
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On the question about our aboriginal languages being recognized in the Constitution and which languages would receive such recognition, I think one of the things we have said in the past is that we have found it difficult to deal with our culture and our languages because of the limited definition that was given to them in the constitutional days. Our definition of culture, if it had been entrenched in the Constitution of Canada before, meant that we were talking about the explicit recognition of the inherent forms of our government, because the two are interwoven and they are inseparable. At that point the governments kind of pulled back the offer they had to deal with language and culture in the Constitution of Canada because it was very clear that our traditional forms of government entailed all of those items of our culture and our languages.
To us, there needs to be the protection of our languages and in some cases we would even look to some of the wordings that were put in the Meech Lake accord as a way for the government of Canada to be able to promote and enhance the kinds of things that we have on the table in terms of our cultural richness as well. We have said in the past that we need that ability for the government of Canada to be able to preserve those things that we have, and also to protect them. Whether they are our languages or whatever aspects they are that are endangered, we need those to be protected.
We see those things happening in some of the areas, but at the same time we become very leery of those kinds of descriptions, such things as a Cemeteries Act, the archaeological acts that are moving ahead right now, the heritage act, all of those things that are moving right now and have moved in the past. We need to be able to clarify very clearly how they are going to impact on our people, because in the past they have impacted negatively on our traditions and our cultures and we need guarantees that, if those things cannot, we need to be able to proceed with things under our own jurisdiction and under a working relationship with the government of Ontario and federally, areas where we can come to agreement jointly on things that would provide the kind of protection we need in those particular areas, language being one of them.
I guess on the last question about how representatives of aboriginal people in territorial governments can be ensured a meaningful role in the process of constitutional reform, we have taken the first steps ourselves to be able to do that. The provincial government can also do that very clearly by ensuring that if we move ahead -- not if but when we move ahead in implementing this statement of political relationships we have, that signifies we are talking on a government-to-government basis and there is an equality proposition to and that we are equals going to the table. That needs to be put forward by this government now in Ontario, and by future governments, that what we are talking about is equality, that we are talking about equals going to the table and moving ahead with those issues in a constitutional process, and constitutional reform has to reflect that equality.
As well, we have made that same presentation at the federal level to Mr Clark, who has been given the responsibility of dealing with the unity of Canada. In the first part of our discussions he was not very positive in terms of us moving ahead, but I think the understanding he had of why it was essential for us to move in the direction we are moving has had some kind of impact on him. In our discussions in Morley, Alberta, a couple of weeks ago, we have come to an agreement that we will be moving ahead with a parallel process nationally to deal with our specific items on constitutional reform.
The basic premise we are using is that we speak for ourselves and that we represent ourselves, and by virtue of that, we could not have the federal government speak to our issues for us in the constitutional process. Based on that same kind of premise, nor can the provincial government speak for us or represent us in the constitutional process. So we have to think about the offer made to us about the constituent assemblies in Ontario. If we are moving on a government-to-government relationship and we are talking about equality, then it becomes very difficult for us to be entwined in a constituent assembly in Ontario.
Those are some of the ways we see that we are able to promote a meaningful role in terms of the first nations of this country: the equality provisions that we need to deal with the government-to-government relationships and the equality provisions that we need in terms of our relationship on a nation-to-nation basis nationally respecting the treaty-making process that has been there.
I have gone over a number of the questions you have raised in particular to aboriginal people. As I said before, the process we see ourselves involved with does not only permit us to be relegated to dealing with those aboriginal issues, but in terms of the integrity of a process for Ontario and an integrity for a process nationally, as governments we see the same thing, that the integrity of our people in the process we are dealing with has to also include those elements of the relationships we have. We must come forward with views based on all of the items that are going before this country in terms of the reforms that are necessary. We will be doing that in the upcoming months. We will be trying to deal with the issues that everyone grapples with. As well, issues that have been created for us we will deal with.
We are trying to find ways to have input now from our youth. We are trying to find ways to have input from our elders. We are trying to find input from the women of our nation and we are trying to get the input from our urban people as well, so that we are complete in the representation of our nations, so that we have not left out or excluded any of our own people in bringing together those things that we need, not only to strengthen our nation but to be able to strengthen the Canadian nation as a whole, so that we understand the relationships that we have so that there can be certainty out there in terms of dealing with the lands and the resources and the people as a whole and our relationship is not based simply on economic unison but it is based on people having a direct relationship.
Those are the opening remarks that I have. What I would like to engage in today is question and answer, because I think we need very much to engage in discussions about how we see things unfolding in the few short months we have to deal with the constitutional process.
The Chair: Thank you very much, Mr Peters. There are a couple of questions and undoubtedly there will be others. I think I speak for the committee in first of all thanking you for coming forward, but also in saying that, as you indicated, the Chiefs of Ontario will be engaged in a series of discussions and meetings and we would be delighted, as you see appropriate, to be informed of any developments in positions that come forward. We would obviously be very happy to receive any additional information from you.
Let me start with Mr Miclash at this point.
Mr Miclash: I too would like to thank you for your presentation and a lot of very interesting points that you have brought up. Chief Peters, you well know that in my area I have a good number of reserves that I travel to, and I have been sort of involved with the youth on a number of those reserves. You indicated that you will be wanting to hear from your youth. What I would like to ask you today is, what have you heard from them so far in terms of what they want for their future, especially throughout the north?
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Mr Peters: I think one of the big things we have heard from our youth is that they are telling us we had better do something, and do it fast, because the times are changing. While we are at the table talking, there is much happening in the territories of our people. The timber is continuing to be cut, the mineral resources are continuing to be extracted, the fish are continuing to be taken, all of those things are continuing to be done. They are saying to us that if we do not get on with the discussions and we do not find results and bring results very soon, there is not going to be much left in the way of resources for us to control when we do find the control.
They are also telling us very clearly that they have alternative methods of making things happen, and I think that is a message we have given to this government before. We said very clearly to the Liberal government previously that we had to have changes that reflected the aspirations of our people, because there is a different element among our people now that we have to deal with. The young are becoming much stronger in their own ways. They are becoming more educated, they are understanding the system much more clearly, and they are also much more impatient than the previous leaders we have had. That is the message we are getting from our youth, and it is clear to us that it is a very strong message.
I guess the other message we are getting from our youth is that there is confusion in our ranks. On one hand we are advocating very strongly that, yes, we can look after ourselves and we can deal with ourselves, and on the other hand we are still having to deal with programs and services in order to be able to generate a livelihood for our people. That confusion is reflected in our youth, who are moving in particular areas, and I think when they see the confusion, a lot of times the strong ones are telling us the message I said to you earlier. The weaker ones are saying, "What's ahead for us?" They look back and they see nothing and they look forward and they see nothing. So what is there? What can there possibly be but this confusion?
What we have resulting from that is a large number of our people now taking their own lives because there is nothing they are able to see as a direct consequence in the future. It is very alarming to us, and the trend at one point was that we were dealing with males only as the majority. Now we are talking about females as well becoming a major part of that group of people who are living in that confusion. That is why we need to move quickly and that is why the youth are telling us we have to end this confusion, and yes, we have to have certainty in our communities about where we are going as a people.
Mr Miclash: You were talking about their involvement in future discussions. What is planned for them to get involved?
Mr Peters: At this particular point in time we have two things we are trying to do. Number one, we are trying to encourage our communities to get back into the areas of youth, especially in the areas of recreation, so that we can provide those additional forums for people to be able to exercise that leadership potential.
Second, what is very explicit in the short term that we are trying to do is our own constituent assemblies, and we are trying to solicit the opinion of our youth through the colleges and universities and the high schools by dealing with our own assemblies. I know the timing is short and we have committed ourselves to quite a task in front of us, but the commitment is there from our people and I think we will be able to do those kinds of things we are talking about.
Mr Harnick: Would a parallel process be something that should be looked at on a provincial basis, as well as the initiative that is now taking place on the federal basis?
Mr Peters: I think it will merit some discussion as to how we proceed. I think the door was left open the last time we met with the Premier. It was a proposal that he put on the table for three items to go ahead as part of the national agenda. It was also part of a proposal that he raised, the constituent assembly and how the aboriginal people in Ontario would be involved. I think at this particular point in time it is an internal discussion that we are having, and I very strongly believe that we will come back in the early part of August after our meeting and we will have some recommendations on how we will proceed. In all likelihood it will be very much like a parallel process, but it will certainly have to express clearly the equality of our governments in this process.
Mr Winninger: Earlier today a speaker mentioned that what self-government means can be largely tied to location and history, so that what self-government means to one native community means something entirely different to another. You have said today that the constitutional framework Canada has can often be constraining, and it does not encompass notions like language and culture. It is very difficult to fit your interpretation of language and culture into the constitutional framework that we have.
I am just wondering, given that you represent many first nations in Ontario and you have to somehow reconcile those differing notions of self-government -- and obviously a number of them believe that you can have self-government but within the Candian constitutional framework, because that is enshrined in the statement of political relationship -- surely it is going to be no easy task to define in the Constitution what self-government will mean in a manner that will satisfy all of the first nations in Ontario, let alone across Canada. Could you comment on that?
Mr Peters: I guess there are differences; that is very clear. There are differences in terms of the traditional governments that our people have. But the one thing that is not different for our people is that we are all talking about the same thing. We are talking about exercising our own jurisdiction. That comes from our source and that does not come from legislation or from the Constitution of Canada. What we are looking for is a framework that will allow people to address their particular governments as they see fit. But what we are talking about is that overall question of the jurisdictional component having to be there.
At this particular point in time, even within the Canadian constitutional framework, some of us would say that process is already there, that within section 35 you have already acknowledged the existing aboriginal treaty rights of the aboriginal peoples. In the past the governments have said that is a limitation, that the existing legislation meant that if you did not exercise those rights prior to 1982 they did not exist any more, and that if they were regulated, they could be regulated out of existence. But we know that is not true any longer. We have known it to be true all along that we had those powers and that those powers could not be extinguished. Recently, in the Sparrow case, the Supreme Court of Canada said those rights could not be regulated out of existence; they could not be extinguished because of regulation.
We continue now to deal with that constitutional framework in understanding that provincial legislation simply frustrated the exercise of that right; that provincial governments had no authority and no jurisdiction to be able to make laws over Indian people; that we are trying to unfold and to remove those jurisdictions where they exist now. We are trying to acknowledge, also within the Canadian constitutional framework in a larger and a broader context, the recognition of the existence of those things we have.
As you break it down, if it is the Ojibway nation, they are still fighting for that same jurisdiction. Even though their governments may be different, they are still talking about the same thing, about exercising that jurisdiction. The laws that they make will be based on their traditions and their way of life. Their laws may be different than those of the Cree or those of other nations in this country, but the framework will encompass that, and it will be still within the framework that they will be able to do the work that is necessary for them to have that negotiation process of how they implement their jurisdiction.
That is what we are trying to get across when we talk about the framework aspect. We are not trying to specifically entrench one way of being able to deal with the area of self-government. We are trying instead to provide the framework, and the approach that individual nations take will be respected within that framework so that as they negotiate they are negotiating the implementation of their jurisdiction.
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Mr Winninger: Would it be fair to say then that one first nation may be satisfied with participating in existing non-native institutions of government whereas another may choose to set up its own parallel structures and institutions of government, that the process may be different for each nation? Is that what I am hearing?
Mr Peters: I hope you are not. What I am trying to get across is that in terms of the Lortie commission, the electoral boundaries and financing commission that is going on, what we are trying to say right now from Ontario's perspective and what a number of our organizations and communities have said is that they do not see themselves being involved in another government's institutions and they do not see themselves exercising the jurisdiction of another institution.
What they are saying is that we want to have our own institutions, and whether they are political institutions, economic institutions, whatever kind of institutions they are, those institutions will exercise their own jurisdiction. Those people within those institutions will then interface with what exists in terms of the state of Canada or the provincial governments and the institutions that they have, and there will be administrative arrangements to understand how those things will work.
What we talk about is coexistence. I suppose the best way I can talk in terms of coexistence is that we have exclusive areas of jurisdiction that are our own and no one can make laws over another in those exclusive areas. Then there will be areas that we will share. We will have areas of co-jurisdiction. That is different than the idea of co-management. We need co-jurisdiction before we can talk about co-management of the resources that are out there, because that is one of the fundamental elements we have.
Those discussions are going on right now. If you look at the situation in Bear Island with the Mandamin stewardship council they are talking about, the concept of co-jurisdiction is going on right now here in Ontario. It is not new. It is not something we have to reinvent and come back to the table and say we wonder if this can work. We know where the snags are in the process right now in that implementation process and we know we can iron those things out and get past those areas. So those are the elements we are talking about.
I think in this country right now you have found that the discussions about people participating in other people's institutions and utilizing other people's institutions are there simply because there are no alternatives for them to deal with. What we are trying to do in Ontario now is to provide those alternatives so that you do not have to go back to the Indian Act and try to it to accommodate where we want to go, so that we do not have to go back into those same institutions like the federal Parliament to be able to have our voice heard.
Those are things we are saying that can be eliminated for us so that we operate under our own, totally under our own.
Mrs Y. O'Neill: I thank you, Chief Peters, for coming. I think we were supposed to meet earlier in the year, this committee and you, and that day you had to go off to Ottawa when we came to the cultural centre. You certainly have shown, in your attempt this afternoon to answer the questions we put to you, just how complex the issues are that you deal with and that we are trying to deal with with you. I appreciate the way in which you tried to answer those questions.
My first question is, do you think those were the right questions for us to ask? Are there things that are not attended to in these questions that you would like to say or that we should be looking at in reference to your people, things that we have somehow missed?
Mr Peters: The question that we deal with many times is, how do we actually implement self-government? The other question we are constantly asked is, what does self-government mean? To answer that first, I tried to answer in terms of Mr Winninger's questions about our own jurisdiction, about our own institutions and all that. That is what we mean by self-government, having that control and being able to have a relationship with Canada and also with the province of Ontario.
How do we implement that? We were talking about that at one stage, saying there has to be constitutional reform to be able to do that. Second, there has to be legislative reform, not only federally but provincially as well. I will give you an example. In Ontario you have Bill 77 right now. Bill 77 empowers our people to deal with our own child welfare institutions. When we say legislative reform, at some point we are going to have to deal with that legislation so that for our institutions that deal with our children and the welfare of our children, the authority does not come from the provincial government but from our communities, our first nations, to be able to empower them. So legislative reform is going to be critical here within Ontario as a method of implementation.
Third, we are going to have to deal with policy questions. There are a number of policy areas we are going to have to deal with right off the bat, because a lot of the premises that our relationship exists on right now in the province of Ontario are based on policy. There is a self-government policy in Ontario that is very limited. That is either going to have to be scrapped and a new one started or else we are just going to have to ignore that in terms of our discussions as we go along. The policies on dealing with land are going to have to be dealt with. The policies dealing with economics are going to have to be dealt with. All of those things are going to have to change so that they reflect the equality and the relationships that we have.
We are going to have to find new ways to deal with land. That is going to have to be dealt with, because as I said earlier in my presentation, there is no way for us to be able to own land in this country. There is no way for us to have and to hold aboriginal title even though it is talked about all the time. Our lands are held in trust by the crown. We need to be able to deal with the way we as aboriginal people own and occupy and control our own land and our own resources that are within those lands. That is something we are going to have to deal with.
The other thing that we are going to have to deal with in implementation is the real tough questions of third-party interest. Those things have hounded us from day one, ever since I have been part of any kind of process that has tried to deal with any implementation. That is where really tough, hard political questions are going to have to be dealt with.
When we start talking about implementation of our governments and our jurisdictions and our lands and our treaties, we are now talking about dealing with people who are already occupying those lands, about companies that are already cutting down forests and about mining resources. We are going to have to be able to say at some point in time, "Those are our resources." The switch has to come. The access to those resources is going to have to come from us, which means that 25-year forest management deals that are currently there, that cannot be evaluated every five years, should be evaluated. Where our people are ready to occupy and take over those lands and to regain control of their own lands, those things are going to have to happen. Fishing arrangements that are currently there with commercial fishermen are going to have to be revisited.
All of those things where third-party interests impact are going to have to be dealt with. Those are going to be very difficult questions for the government to deal with because they are tough questions for us to deal with as well. We are the ones who are saying, "We need you to make this decision," because we cannot survive right now in the state we are in. The federal government says to us, "We're prepared to talk to you about self-government," but it is in the confines of our reserves. We occupy one tenth of 1% of the land base in Ontario. How can anybody be expected to survive on that kind of land base? We need land.
First and foremost when I talk about a change in policy, the policy of compensation has to go, because our first premise that we deal with is that we need land and we cannot be giving away more land. The only thing the claims process in this country allows us to do is to continue to give away more land, and that has to stop. All of those things are part of the implementation.
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A lot of people out there agree with us that we should have the right to be able to govern ourselves, but those are the impacts people deal with. The tough decision to deal with the Algonquin people and their land areas that deal with Algonquin Park is part of that kind of long-term stand that successive governments are going to have to deal with. The reality is that in order for us to be able to have the economic self-sufficiency we need to stand as first nations and as communities within those nations, we are definitely going to need more land and we are going to need access to those resources to become economically self-sufficient.
Mrs Y. O'Neill: I thank you for answering so completely.
I want to say to you I was very happy to begin to read about your first nations circle on the Constitution. You likely know better than I that elders, native women, some youth and not very many urban aboriginals came before our committee when we did the tour of the province. I think some of the most poignant, direct, sincere, meaningful presentations were made by native women and I really am very pleased. The elders were an inspiration to us.
I wanted to ask you, because you seem to be able to express yourself so well, if you could tell us a little bit about what you hope for in this next conference that you said is going to take place at the beginning of August. Would you please help me understand, is that a conference of chiefs?
Mr Peters: Yes, it is.
Mrs Y. O'Neill: So at that time you will not be having the component of the youth, the women, the elders. That is going to be the other section of the assemblies in the constituent assembly aspect, right?
Mr Peters: Actually, our first round of discussions is dealing with all those issues we have on the table. What we are doing is we are bringing in our leadership from all over Ontario. We are bringing in the organizations, the grand chiefs, the tribal council leaders, the district chief leaders, the independents. We are bringing in the native women and also the friendship centres for our urban people. We are beginning to strategize on how we are going to be able to move these issues forward that we have, so that our relationships are ones we understand, so that we do not find ourselves embroiled in difficulties in our own backyard as we are trying to move ahead. We are trying to re-establish the linkages we have as a people to each other. Those things were done to us as well in the process of the Indian Act, of our people having to deal with the urban settings where they have lost their right to participate politically in our communities, because the Indian Act did not allow for those kinds of situations to occur.
The result of a lot of those things that have occurred is the different organizations that have sprung up with the women and the friendship centres and other aboriginal organizations within the cities. It is something we are trying to deal with internally. It is something we did not deal with effectively during the 1980s, during the last constitutional conferences we had. It is a mistake that we learned from, that we have had to come back and we have had to address.
One of the things that is very critical for us that we are working on now is ensuring that we know how we are going to be represented. It is an issue that we continue to deal with with the governments, because of our disagreement in terms of representation with the Ontario Metis and Non-Status Indian Association and its representation. We are at the point right now where we know we can organize ourselves and discipline ourselves to go past those barriers that are currently there with the federal government and we can adequately represent ourselves in this process. What we need to have is governments recognize the positions that we establish within ourselves. We need the governments, both federal and provincial, to be able to deal with some of the particular issues that we put forward in terms of representation.
But definitely the onus is on us to make sure our women and our urban citizens are represented. It is also very imperative that we get the voice of our youth actively involved, and that we begin to acknowledge and listen to the advice that is being provided to us constantly by the elders, something that has not had the kind of impact it should have had within our structures of the past, but certainly has had a tremendous impact, I would say, probably in the last three or four years as we have gone through a number of crises where the guidance of our elders, and particularly our spiritual elders, has been of the utmost primacy of resolving those issues in a peaceful way.
Mrs Y. O'Neill: A final question then. Will the statement of political relationship be part of your discussions?
Mr Peters: It will the major part of our discussions because we are hopeful we will be able to show the rest of the country that dealing with the inherent right to self-government is not something that is going to dismember this country or break Canada down as a country, but rather enhance Canada in terms of the certainty. We will want to be able to show concrete examples of how the inherent right can be exercised in working relationships with existing governments for this constitutional process. So the statement of political relationships becomes a major item on our table about how we intend to show the rest of the country and especially the federal government that there is no real danger here; that if we work co-operatively and drop the adversarial approach we currently have, we can find solutions.
We are prepared to deal with solutions, and we have offered solutions many times to the current issues we have. The statement of relationships offers to us in many ways a beginning of how we are trying to effectively demonstrate to our own people and the people in Ontario and nationally that we can do these things we talk about.
Mrs Mathyssen: I think in some ways you have addressed some of my concerns. Basically, I wondered about that process of drawing in urban native people, because many of them, it seems from the description of censuses, are urbanites. I wondered how successful you had been in drawing those people into the discussions because many of them have been cut off from native communities for one, two or even three generations. Are you happy with the kinds of results you have managed?
Mr Peters: I am happy that we are talking to each other and that we have passed some of the initial barriers we continue to generate among ourselves. We have had some very good discussions on how we see things happening in the future. Certainly organizations that have been there to represent our people off reserve are not going to suddenly disappear overnight because there are promises by the leadership that those things will happen. I think what we see ourselves embarking on now is a process that will take us two or three years to be able to put things in perspective. It will also deal with the institutions of our own governments and how we mandate those institutions, because we are not and we have never been trying to establish areas of jurisdiction within the cities. That is something we have never tried to do. We have simply tried to establish institutions that would be able to meet the needs of our people who are living in the urban centres.
Those discussions have started and we are making some good progress, and we continue to ask for their input, invite them to our sessions, to our chiefs' conferences this past year, to our discussions on the statement of relationships in its implementation, and now in terms of the constitutional discussion that we will be embarking upon. I guess it is up to us to change our attitude as well to be able to drop those barriers. Hopefully within a short time we will be able to have those common elements bind us together and make us a stronger nation than we have been in the past.
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Mr Eves: Chief Peters, you mentioned different areas in your discussion with Mr Winninger about what self-government meant to you and to your people. You mentioned areas of exclusive jurisdiction and areas of co-jurisdiction. I wonder if you could outline to the committee some practical examples of what you would consider to be areas that your people should have exclusive jurisdiction over and areas you feel should be co-jurisdictions.
Mr Peters: Right now we are involved in a couple of processes as well that are internal to us. Number one, we are going through a mapping exercise. We are dealing with our traditional land, and we would like to be able to map all of our traditional lands for two reasons: (1) we know we will be in a negotiation process dealing with lands, and that is something at the top of our agenda -- lands; (2) 1992 is right around the corner.
One of the things we have said before and we continue to say is that in fact we did occupy all these lands and we had traditional uses for all of its lands, much in the same way now that the government of Ontario has land management use plans for all of their lands. We have the same thing, and we had the same thing before you arrived. That is something we want to put back in place to be able to show people exactly what we have had.
So it will hinge on that as being the areas of exclusive jurisdiction. What we can negotiate in terms of those traditional lands, we know that we want more than being able to have the reserves as the exclusive areas of jurisdiction, what is talked about in terms of the federal government. As well, we want to talk about those lands that are adjacent to our communities and our traditional lands.
The best example I can give you is the Bear Island situation that you are probably aware of anyway in the sense that the community is there. It is a very small community. They talk about their traditional land as being about 4,000 square miles of land. They talk about how they are going to share those lands in areas of co-jurisdiction. They envision what they have as their lands, of what they want exclusive jurisdiction on, going beyond the small community they have. The co-jurisdiction process starts with the stewardship council, which says the local communities will have 50% jurisdiction and the first nations will have 50% jurisdiction. They will talk about how they will use those resources in that particular area.
The particular area they are talking about now is the forestry aspect. They would like to make decisions based on how they see their local needs being met locally in terms of the first nations and locally in terms of the towns and the municipalities and areas that surround our first nations. I think we see the kind of work that is necessary to be able to do those kinds of things in our surrounding communities. We know we have to get involved in the kind of research that is necessary to show the kind of usages that are potentially able to take place without destroying the environment. We know the kind of research that has to take place in order for us to have sustainable development that will sustain us not only for the next 20 years or 25 years, but as long as our people will live there, and to be able to enjoy the same kind of luxuries in relationship to our natural environment that we currently have in some of those particular areas.
That is the kind of work that is necessary, and those are the kinds of ways that we see exclusive jurisdiction and shared jurisdiction being dealt with. I guess it is sometimes difficult to envision when we only talk about it, but when you actually see it happening, it becomes much easier to understand and to be able to see that it can be a reality. Many times we are challenged with these issues, and everyone says to us, "Those things can't happen; they won't happen that way." But when you actually see them in the beginning stages and you see people working at them and you see them working, then you know it is there and it will happen more and more in the future to each of our communities across the board.
Mr Eves: I just have one more, smaller, more specific question. One area of jurisdiction, if you will, that has always interested me is the justice system. I wonder what you feel the aboriginal or native people think or what is a role that they perceive they have to play with respect to the justice system.
Mr Peters: I can tell you what we think about in terms of taking care of our own people. I can tell you very little about how we plan to interface with federal and provincial law at this point in time. As I said to you a few moments ago, I did not understand a lot of things in terms of how they were actually going to be able to work until I had seen some of them work. That means there are two versions of what we are having to do right now, one dealing with our own traditional ways of being able to deal with justice, as a way of being able to deal with our own people overall. We did not have courts, we did not have crown attorneys, we did not have prosecuting attorneys and we did not have all those kinds of things.
Mr Eves: You do not know how lucky you were.
Mr Peters: Yet there was a system there that people were able to deal with it by accepting the responsibility of the community of taking action in those particular areas, and those things still happen. I see them happen and I know they are possible, yet in the size of our communities, for our people to be able to move back into those things, there are some who do not exercise that way right now. But it is possible for us to be able to deal with, I would say, 99% of our own items in our community. Where we need the interface on some of those issues might be on the criminal aspects of some things at this particular point in time, but I think that even as we are moving along, we are talking about being able to handle all those areas of justice for ourselves.
The other one currently out there that is being dealt with is just the supplying of our own people to the existing kinds of institutions, and that is tribal courts, for example, that are there. It is the use of police constables and enforcement within our communities, the existing system that we know, that surrounds us. Many of our communities are saying, "We are going to have to be forced to use these right now, until we are able to bring back a value system in our community that forces our people to be responsible for what happens in our communities." We are hoping there will be a sunset clause on the use of those kinds of institutions so that we do not simply invoke the same kind of system into our people that we say does not work for us now as we have our relationship with the provincial justice system and the federal justice system.
I do not know how we are going to fully interrelate. It is something we are going to have to begin discussions on. We know we need a justice system. We know there are some things we cannot handle at this particular time, for instance, the use of your forensic capabilities. In dealing with those criminal acts, we do not have that kind of capacity and we know we are going to deal with them. The fact that we are going back and we are saying, "Yes, we'll use some of the institutions," we know that we will have to deal with some of the penal institutions you have in order to incarcerate people at this particular time. It is not our wish to continue to incarcerate people, but at this particular point in our history, it is something we are going to have to deal with and we are going to have to have administrative ties at that level as well.
How our police interact with each other is something that is being negotiated at this time, but the reality is that we will make our own laws in those areas of exclusive jurisdiction, we will enforce those laws and we will resolve those problems within our community. Our people will have to understand that yes, we will have appeal mechanisms in our community, but there will be no way they will be able to appeal to any outside government or agency to be able to resolve problems for them after a certain point in time. The decisions that will flow from any infractions of our laws will be strictly in our hands.
That is our plan at this point in time and that is what we are working for.
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Mr Harnick: Just very briefly, going back to the self-government aspect of this, you indicated earlier that constitutional reform must reflect equality, there must be government-to-government relationships. Just following through with the justice aspect, if we have a system where there is recognition of a form of native self-government, how will we resolve, in your eyes, disputes between those governments?
For instance, if there is a land claim and there is a native self-government scheme in place, and perhaps the provincial government might be involved with a land claim, the native government is going to be involved with that land claim and the federal government is going to be involved with that land claim, and let's assume it cannot be solved. Negotiations break down. Where do we go among three governments to resolve our disputes? Have you given that any thought in terms of dispute resolution among what would be three levels of government?
Mr Peters: Only in a very preliminary way. We have had some discussions on trying to look at some ways of resolving disputes that only reflect at this point your legal system. We have no other vehicle at this time that would take into account our jurisdiction and our laws and your jurisdiction and your laws and how those things would be resolved if they were in conflict. Obviously it is something we are going to have to deal with.
I do not have an answer for you today, but I know very clearly that we have kicked it around and we have not been able to find anything in terms of any kind of tribunal or any other mechanism for being able to resolve those disputes. The only thing I can say is that we are hopeful that as we move along and we understand each other, we will able to deal with some of those disputes so they do not become the kind of disputes we saw last summer and we do not have to resort to those kinds of actions to be able to resolve disputes among ourselves. That is the only thing I can say at this particular point in time.
Mr Harnick: My thoughts are really with that recent land claim decision in British Columbia, the difficulty being how you establish a court that is recognized by all of the levels of government that are involved, that has laws that reflect all of the communities involved and that has judges who are representative of everybody. I do not know if you can ever deal with that problem in a traditional way.
Mr Peters: I do not know either, but I know one thing right now: There is no aboriginal case law in this country. You do have court cases that reflect how Indian people are to be dealt with, but you do not have any of our laws that have ever been dealt with or have ever been put forward in terms of our own jurisdiction within our own systems in this country. I guess it is something we will live with for quite a long time in terms of this dispute resolution process, but hopefully the development that takes place will not provide those kind of head-on confrontations in the first decade or two while we are trying to resolve these kind of issues. Perhaps by that time we will have understood what it means when we talk about aboriginal law, and we may have given ourselves the opportunity to provide the vehicle to be able to deal with those kind of particular circumstances.
The Chair: Are there any other questions? Chief Peters, any other comments you would like to make?
Mr Peters: Only one comment that I have and, again, it is all related to this area of justice. I think one of the things we are trying to deal with throughout this whole process is to dispel a number of rumours and myths that have been allowed to continue over a number of years, and we talked about those here during this discussion. The myth that we gave up all of our land and all of our resources when we signed treaties is not true. We never gave up all of our lands and our resources. If you understand the philosophy and the strength of the ideology and the beliefs that our people have had and continue to have and the special relationship we have with land, you know it would be virtually impossible for our people to give up our lands.
On the other myth of parliamentary supremacy, we never gave anybody the right to make laws over our people. Those things have been assumed. The rule of law, of which we heard so much last summer, is also number one of those fallacies that continue to exist, because within the highest law that you have, you have already acknowledged the existence of the aboriginal treaty rights, yet rule of law excludes those. So that is something we have a great deal of difficulty with, the propaganda that is continued by government on the federal level in dealing with our people.
There are a number of those elements that we say have to be dealt with and they have to be looked at in a way that reflects the kind of positions we have come to understand in the last few months in Ontario. We are hopeful that we can dispel some of those myths with a good communications strategy. We are hoping that we will be able to deal with those with the anglers and the fishermen and with the developers and all the other people who have direct vested interest in Ontario and that we can help show them there are things that have been here hundreds and hundreds of years that are still intact and that are still valid today and that have never been relinquished or in any way superseded by any federal or provincial law or any Parliament or Legislature in this country, and that justice can be achieved.
With that, Mr Chairman, I thank you again for the opportunity to express our views and for sharing in being able to respond to the questions that are being asked.
The Chair: Thank you for being here, Chief Peters. I think you know there is a lot of sympathy within this room, but also certainly that we heard right across the province. For us the challenge is to try to turn those sentiments into some real, concrete action, and I think our continuing discussions will hopefully help in that respect.
I again conclude by inviting you, as I did earlier -- following your meetings in August, if you feel there is some additional information that you want to share with us at that point, please feel free to do so. Thank you for being here.
Mr Peters: Thank you. We will.
The Chair: With that, members of the committee, we are recessed until 2 o'clock tomorrow afternoon.
The committee adjourned at 1727.