Evidence of meeting #41 for Indigenous and Northern Affairs in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was women.
A recording is available from Parliament.
Conservative
Greg Rickford Conservative Kenora, ON
Sorry.
With the five important ways that reconciliation occurs, I think it's important for us to understand some of the great things happening in the context of economic development right now and what role the court could play in helping to facilitate that, if in fact it can.
Conservative
The Chair Conservative Bruce Stanton
We have time for a very brief comment on that statement, but that's about it. We'll have to move on.
Go ahead, Mr. McCabe.
As an Individual
The court will deal with cases as they come before it, and many of these are going to have to do with economic development. That's exactly what was going on in Haida and Take River, even.
Conservative
The Chair Conservative Bruce Stanton
We'll have to leave it at that.
I think we have time, just barely, for two remaining questions. This will be four minutes. It will be four minutes to Mr. Bélanger, followed by Mr. Duncan.
Go ahead, Mr. Bélanger.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
I have a couple of things.
I want to go back to this notion of the origins of this. You referred to a case, Mikisew. Our notes we received from the library refer to the same case, in particular to Justice Gwynne, who roots the honour of the crown back to 1895. Are you familiar with that?
Liberal
As an Individual
The references we had to the honour of the crown in Canadian cases having to do with aboriginal peoples prior to 1982 were in dissenting reasons. Actually, in 1982, in the Ontario Court of Appeal, the Taylor and Williams case—
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
Yes, but the majority did not challenge the dissenting view in terms of the rooting of honour of the crown.
As an Individual
I think if you analyze that case you'll see that the approach of Justice Gwynne was rejected by the majority. He did, along the way, say that the honour of the crown is engaged in respective treaties. It was a treaties case. It was a fight between Canada and Ontario.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
I'll read that one in detail.
For this to materialize, for the watershed to take effect, will take years, decades, generations—hopefully not too many generations. It will take a long time.
Bringing it back to the discussion on creating either guidelines or policies, perhaps eventually law that gives a body to this concept, will it require that, in your view?
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
Well, you have laws, and then regulations and policies and guidelines. It seems to me that on this one we're going the other way around; we're starting with guidelines. I'm wondering if there will be policy, perhaps eventually regulation, and who knows, maybe someday law.
As an Individual
The federal government and all governments in Canada are going to be constantly responding to what the Supreme Court of Canada hands down. In the course of carrying out its regular activities, I think it's almost inevitable with the federal government—again, the discussion you had on October 8—that across the various departments, notably in aboriginal affairs and northern development, there are going to be policies and then more detailed practices.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
Mr. Chair, there won't be enough time on that.
I wanted to remind you about the suggestion I had made, and I have no idea if it has been followed up on. Regarding looking into the concept of the honour of the crown and its evolution, it would perhaps be useful to hear from the interested parties also, the aboriginal communities. When I had made that suggestion originally, there was a lot of nodding of heads around the table, so I'm just reminding you and the clerk of that for down the road.
Conservative
The Chair Conservative Bruce Stanton
Okay. It's a topic for consideration by the subcommittee when it comes to our work plan.
Now we'll go to Mr. Duncan for four minutes.
Conservative
John Duncan Conservative Vancouver Island North, BC
Thank you very much.
It's a broad subject. Since 1982 there has been much movement. I've been here most of the time since 1993, so I was here through a lot of the decisions that came down, plus the Royal Commission on Aboriginal Peoples, so I have been here through the evolution, as you well described today. I think when Mauril was questioning you, you were getting to the fact that we now have a process, and you never got to complete that statement. I wondered if you maybe were about to make a comment on specific claims tribunals or something along those lines. I assume you would find that to be a positive development.
As an Individual
Yes. I think I was saying that it is almost inevitable that policies will be developed. It is interesting that the court has said in the two B.C. cases from 2004—the Haida case and the Taku River case—that existing institutional arrangements, such as environmental assessment tribunals and tribunals of that sort, are quite in order as the institutional setting for consultation that would go forward.
In other words, it's not necessary, from the point of view of the law that has been handed down by the court anyway, for new institutions to be created for this to go forward. Whether that is a productive policy direction to go in is another question, and probably one I'm not especially qualified to deal with.
Conservative
John Duncan Conservative Vancouver Island North, BC
In one of our background documents there is mention of a guide on aboriginal self-government. I guess this is a federal policy guide. It states that “as Aboriginal institutions assume greater governance and responsibilities, Crown responsibilities will lessen accordingly”. Is that consistent with your view based on precedent and the law?
As an Individual
I wouldn't think it would be a helpful statement in a broad sense. The crown's duty to deal honourably with aboriginal people is always at stake, and will continue to be at stake. It may be true, though, at the operational level. Naturally if you have aboriginal governments, which are taking over more and more responsibilities, and the department here is going to have less to do, one would expect it.
Conservative
John Duncan Conservative Vancouver Island North, BC
We didn't talk a great deal about fiduciary responsibility or fiduciary obligations. I guess the Wewaykum decision did differentiate. Wewaykum is in my riding, by the way. The decision said—I think I'm saying this correctly—that “some Crown activities affecting Aboriginal peoples that fall within the fiduciary relationship would not necessarily give rise to legally enforceable fiduciary obligations.”
Does the rationale behind that statement have to do with the fact that the crown has obligations beyond fiduciary obligations to other Canadians? Is that it?
Conservative
The Chair Conservative Bruce Stanton
Give a short response, please. We're out of time. Go ahead, Mr. McCabe.
As an Individual
I don't think that particular passage in Wewaykum is addressing the hats problem, that the crown wears different hats.