Madam Speaker, I wish to state at the outset that the aboriginal fishers and the commercial fishers on the east coast have my sympathies.
I had the pleasure of touring Nova Scotia in the summer of 1998. I would remind hon. members that, at the time, the entire area of education had been vested in the aboriginal people of Nova Scotia.
I took the opportunity to tour. I went to Indian Brook, and this summer I went to Prince Edward Island to see the people on Lennox Island, the Micmacs. I noticed one thing during my visit. There was social peace everywhere. The native community, and the non-native community, shared a lot of visions on the sea.
Then there was the famous Marshall decision. Unfortunately, I find that the government handled it very badly. If we look at the turn of events, what is occurring in the Atlantic provinces is not very happy.
I decided to raise the issue of the vision of the treaties, because, as we recall, the supreme court analyzed the Murray treaty before making this decision. The native peoples viewed the treaties very differently from the Europeans. For them, the treaties were not just between governments, but between nations as well.
What we can also see in history is that all of the people in an aboriginal nation felt bound by the treaty. Whether it was an ordinary treaty, a friendship treaty or a treaty of co-operation, all of the members of the nation felt bound by it.
I mentioned the example of the Micmac guardians of the treaty known as the Putu's. The guardians of these treaties, brought together the Micmac communities every year, reread the treaty and discussed it.
We realize that the native view of the treaties is something both quite sacred and important. Naturally, everyone knows, even if it is something rather folklorical for us, still it is a tradition that remains current. There were a lot of festivities when a treaty was signed: singing, dancing and so on.
Things were not the same for the Europeans. It was more a business matter, where the signing meant as much hold as possible on all of the land. Treaties were often signed by generals. This was the case with the treaty at issue, General Murray's treaty. No one knew the ins and outs of this treaty. They simply left it to the government or to the general signing the treaty and then forgot it.
When the treaty became a bit of a bother, it was stuck away in the bottom of a closet and forgotten. This is the way the native people have always been treated.
I would like to tell a story to explain what is going on in the Atlantic provinces. Two hundred years ago, a neighbour of my family decided to put up a fence that took in 50 feet of my property, and things stayed that way ever after. Each successive generation said it would straighten the matter out, reclaim our land and our jurisdiction. Two hundred years later, the highest court in the land, the Supreme Court of Canada, decided that the fence was in the wrong place. How long will it take for the fence to be put back where it belongs? No more than a day.
It was no surprise that native fishers set out in their boats immediately after the decision, because they want to force the issue. They see that they have been left out in the cold and that it is very important that they get out quickly so as to perhaps force negotiations. Unfortunately, negotiations are very slow in coming.
I would not want to forget the Murray treaty, because I mentioned this famous general earlier. Early in the 17th century, there were a series of treaties in Virginia, Massachusetts and Pennsylvania. As I said earlier, the British crown drew up treaties with all aboriginal nations.
There were treaties of this sort in Halifax in 1750. Grand chief Jean-Baptiste Cope, the aboriginal negotiator, concluded treaties. The one in dispute today, the 1760-1761 treaty, was concluded by General Murray, and had to do with matters of trade, including such things as trading posts. This was the dispute, according to the Marshall decision.
Nowadays, are aboriginal people allowed to trade a commercial fishery for goods or money? At the time, they had the right to do so and specific counters were set up for such activity. The English had total control over all commercial trading because, in signing the treaty, the aboriginals pledged to negotiate only with the British crown. That was for the Murray treaty.
Centuries have passed and a number of major events have occurred, including the Constitution Act of 1982, which includes section 35. That section, which was drafted after long battles by aboriginals, was included in the Constitution Act. In my view, three paragraphs are particularly important: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are recognized and confirmed. So, this type of treaty was reconfirmed by the court which said “Yes, this is valid”.
In the current act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada. This means that the Micmacs and Malecites meet the definition of aboriginal peoples and Indians. For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. This means that any land claim will now automatically be included and protected under the Constitution.
I looked at how the jurisprudence has evolved over time, because I feel it is important. Since this debate began, I have been hearing my colleagues commenting “We should go back to the supreme court in order to get it to specify what reasonable livelihood means; we should go back to the supreme court and ask it to suspend its decision”. Since 1973—I have gone back to 1973 but there are other earlier ones—aboriginal people have won just about all supreme court decisions. The first one I will refer to is Calder.
Mr. Calder is a Nisga'a—we shall shortly be addressing the Nisga'a question in the House—and he took a case to the supreme court back then, and the decision was as follows:
Six of the seven justices of the Supreme Court recognize the existence of ancestral title based on land occupancy Canada law. The justices acknowledge that aboriginal territorial rights exist not only by virtue of the Royal Proclamation of 1763 but also under Indian title as the result of ancestral occupancy. Above and beyond the rights guaranteed by treaties or laws, aboriginal ancestral rights exist in Canada, that is to say customary rights that have survived colonization and the political transformation of the country.
The year 1973 constituted a very significant breakthrough for aboriginal peoples before the supreme court. Then in 1984 there was Guérin. In this case, the majority of the justices of the supreme court reaffirmed the existence of ancestral title and emphasized the federal government's fiduciary role.
The federal government, therefore, has an obligation to become involved in what is going on at the present time on the east coast.
The Justices recognize that aboriginal ancestral rights existed before the British and Canadian regimes.
Thus, the rights existed even before the Europeans arrived here.
The relationship between the Government of Canada and the aboriginal people is a fiduciary one and imposes real obligations on the federal authorities.
Note the wording “real obligations”.
Then came the Simon case. The decision was as follows:
The Supreme Court finds that native ancestral or treaty rights are not extinguished through the implicit effect of a statute.
That means that the Parliament of Canada, even if it passes a law, cannot extinguish native rights. That is explained clearly in the decision in the Simon case, which dates back to 1985. I am following a time line up to the present. Members will realize that the solution is not necessarily a return to the supreme court.
In 1989, there was the Sioui case. In this decision:
The Supreme Court recognizes the validity of the treaty signed by General Murray... in favour of the Hurons—
He had concluded an agreement with the Hurons on September 5, 1760.
The Court recognizes that the consent of the native peoples is obligatory to the extinguishment of treaty rights.
That means that, without the agreement of aboriginal peoples, rights cannot be extinguished. Furthermore,
An ancestral or a treaty right may not be limited if public interest is served.
Now we come to the Sparrow case, which was pivotal to commercial and fishing activity in Canada. A lot of things were said in it:
—provincial laws cannot limit an ancestral right, even if public interest is claimed. Native fishing rights have absolute priority over others' fishing rights. Only the survival or the depletion of wildlife stocks may limit this right.
I think that is currently recognized now.
It goes on to say that, furthermore, an ancestral right cannot be interpreted so as to take in the particular regulation prior to 1982. Regulations that applied to one thing way back then could apply to something totally different today. That is the gist of the Marshall ruling. It says that there were trading posts at that time, and today native peoples are being given the right to engage in commercial fishing. This was the decision from which the case law evolved.
It added that any government measure detrimental to the ancestral rights of native peoples must be justified explicitly and in a convincing manner. And the interpretation of treaties in particular must be generous and liberal. This means that when the supreme court judges look at a case, they are going to give the broadest possible interpretation to the words and provisions of the earlier decision.
Then there were the three famous decisions we often read about in the newspapers: Gladstone, Van der Peet, and Smokehouse.
In Gladstone, the ancestral right to fish commercially was recognized. In Van der Peet and Smokehouse, the claimants had to show that their nation had already fished commercially in order to be granted the right to continue doing so, and failed to make their case.
The Calder decision of 1996 recognized that the right to regulate for conservation still exists. The minister is therefore right in saying that regulating conservation is an important role he must play.
Finally, there was the Delgamuukw ruling, which is revolutionizing our approach to aboriginals. Not only do we take into account the treaty, but also oral traditions. This means that someone appointed by his community could come before a court with oral traditions and say “I am in a position to demonstrate that we have always occupied that land”. If the oral tradition is accepted by the court, it would be as powerful as the signature on a treaty.
What I am trying to show is that the legal basis of the aboriginals is absolutely unshakable. Whenever the minister of Indian affairs comes before the committee, once a year, I always make a point of asking him or her the following questions “When are you going to act regarding the aboriginal issue? When will you stop waiting for the courts to rule on this issue?”
Today, parliament is faced with a supreme court ruling, and it is always the same story. All these decisions have led to minor changes in the government's policy. There are 1,000 grey areas in the Indian Act. There are 1,000 grey areas in the treaties. And what does the government do? It manages, but from one crisis to the next.
Since the crisis began on September 17, the government's attitude has been “If we can manage to solve this crisis and get it over with, we will go back to our business”. That has always been the problem. There will be other crises in natural resources. There will be other crises in forestry. There will be other crises regarding self-government, because of this government's total carelessness. It does not deal with the issue.
The government begins discussions with various aboriginal groups and overlooks potential crises. When a crisis erupts, parliament must be called. Parliamentary decisions must be made. The minister needs to get his feet wet.
In Marshall, as in all the other decisions, the government is completely subservient to the courts, not only to the supreme court, because the situation had to gravitate there. Instead of seeing what was up ahead, instead of saying “We will sit down and negotiate”, the government says “We will wait for the court to decide and then we shall see”.
The Marshall decision recognized the rights of aboriginal fishers on the east coast and now we are stuck with having to make room for them. Certainly, this upsets the old way of doing things. Ingrained habits die hard. White fishers were not used to seeing other people allowed to enter their market, their fishery. Someone is going to have to give in, and it is not the aboriginal people. Frankly, we are not going to send out the RCMP to arrest them when they have a Supreme Court of Canada decision that says they are entitled to be there.
The minister ought to settle this by negotiation. Earlier, I received some most alarming news over the news wire.
Instead of the minister coming along with his colleague, the minister of Indian affairs, both of them proud as punch, to inform us that everything is just fine, that there are no problems, that now there is a moratorium, that the people will talk to each other, he should hop a plane this very night with his colleague, go down there to sit down and define what is a reasonable livelihood. That is what the Marshall decision is all about.
In Marshall, it is stated that they are entitled to fish commercially for a reasonable livelihood. What does this mean? As I said, the Bloc Quebecois will certainly not be in favour of going back to the supreme court to ask it to define “reasonable livelihood”. Is that minimum wage? Is it $100,000 a year?
This needs to be thoroughly discussed. These discussions should be held at the bargaining table. The definition of the suitable subsistence level must be negotiated, not determined by moratoriums that no one respects and by other interpretations that could be requested of the Supreme Court.
I think historical errors have been made. For example, when the Fathers of Confederation signed the Constitution in 1867, the native peoples were not represented.
Treaties have always been made for the benefit of the moment. When they were unfavourable, they were stuck in the closet. There is good reason why native peoples are reacting aggressively today.
The government totally lacks courage, and shows a total lack of care. The Indian Act dates back 100 years, and the government is still trying to manage the aboriginal peoples with an act that is 100 years old. Why does the government not speed up the issues of self-government and territorial claims?
So long as the native peoples lack the land and resources to be self-sufficient, we will go round in circles in this parliament, and the native peoples will react, especially since the supreme court decisions are in their favour. As I said earlier, the score is about 50 to nil in their favour.
It seems to me there are things to be done. I say that Quebec's approach will be different. It has always been different and will continue to be in a sovereign Quebec. In the bill that was introduced in the National Assembly, it was clear that aboriginal nations would sit down with the government to draft the Quebec constitution, something the Fathers of Confederation did not do in 1867. We want to avoid past errors.
Finally, I say to aboriginal people that Quebec will always abide by the treaties that were signed by the British crown. It goes without saying that we must maintain the same statutes and the same conditions. In fact, we will probably improve them.
The James Bay agreement signed in May of 1975 is proof of that. The Quebec government has already said to the Cree “If you want to update the agreement, we are prepared to do so”. This is not done in this parliament. Here, the government goes from one crisis to the next. Right now, some serious and dramatic events are taking place on the east coast. I will get to that in a minute.
I want to tell aboriginal people that the Bloc Quebecois will always support their efforts to gain greater autonomy. The Bloc Quebecois is probably the one party in this house that is best able to determine and appreciate what it means to strive to achieve greater autonomy. I want to tell aboriginal people that we are on their side in this endeavour.
It is unfortunate that the minister is not here, and that the minister of Indian affairs is not here either.