Good afternoon, Mr. Chair.
Thank you very much for giving me the opportunity to testify in the context of your work. I am doing so in a personal capacity while wearing several hats.
I wear the indigenous law lecturer's hat first. For the past 15 years, I have had the great pleasure of passing on my passion for indigenous law to university students. Currently, I teach the course entitled Canadian Law and Indigenous Peoples at the University of Montréal.
I am also vice-president of Acosys Consulting Services, an indigenous company that offers training and coaching services in governance for indigenous communities. In this capacity, I participate in negotiation tables with the federal government. In all, I have been working for more than 25 years in the field of indigenous law and policy.
The issue of the recognition of aboriginal and treaty rights is therefore part of my daily life. I am very honoured to be able to speak here today on Bill C-8, An Act to amend the Citizenship Act (Truth and Reconciliation Commission of Canada's call to action number 94).
First, let me commend the initiative behind this bill, which responds to the government's commitment to implement the commission's calls for action and foster reconciliation between indigenous people and Canadians. I respectfully submit, however, that the text as proposed in the bill does not truly reflect the intent of the legislation.
The purpose of the bill, as outlined in its accompanying summary, is to include in the Citizenship Act a solemn promise to respect the aboriginal and treaty rights of first nations, Inuit and Métis peoples.
However, the new wordings of the declarations proposed for both the oath and solemn affirmation do not require the person to promise respect for indigenous rights, but rather respect for the Constitution. May I remind you of the text in question:
[…] I swear to faithfully observe the laws of Canada, including the Constitution, which recognizes and affirms the aboriginal and treaty rights of first nations, Inuit and Métis peoples.
We swear to uphold the Constitution, but we do not swear to uphold aboriginal or treaty rights. Some may say it's a theoretical or linguistic nuance, but I don't think so. On the contrary, it is a fundamental nuance, given the principles of nation-to-nation relations between the Canadian Crown and aboriginal peoples.
As you are surely aware, aboriginal rights are known as inherent rights, that is, they exist independently of state recognition, whether by the Constitution or otherwise. The oath should therefore simply lead the person to promise respect for aboriginal and treaty rights, without a reference to the Constitution being necessary.
Moreover, the term Constitution itself is not used in an accurate and correct manner. Now it is the meticulous professor of law speaking. In Canadian law, the Constitution is the body of law that organizes Canada's institutions and determines the fundamental rules that govern society. When we say “the Constitution”, we are not talking about a single document. The Constitution is a mixture of laws, orders in council, court decisions and constitutional conventions.
Finally, let me also point out that section 35 of the Constitution Act, 1982, is itself a promise made by the Crown to indigenous peoples. This promise has not been fully kept. On the one hand, there are still many nations that are negotiating or awaiting recognition of their rights by the state. On the other hand, in interpreting section 35, the Supreme Court has limited its scope by allowing the government, in some cases, to infringe upon indigenous and treaty rights.
To be fully consistent with the concept of reconciliation and the principles of nation-to-nation relations, I believe that the reference to the Constitution should be removed and that the declaration should simply, directly, include a solemn promise to respect the indigenous and treaty rights of first nations, Inuit and Métis peoples.
Thank you very much, and congratulations for the work you are doing.