Mr. Speaker, it gives me great pleasure today to speak to the bill concerning the Norway House Cree.
This bill was debated at length in committee. The motions we are considering today were suggested by a number of aboriginal groups who would very much like to see the word “right” included in the bill, and I will explain why.
When one person says to another “I have the right to do that”, there is undoubtedly a law somewhere to back him up. There may be a law, but there may also be court decisions. People before me decided to clarify certain matters with the various courts. Only then can anyone claim to have a right.
There is much talk of legal issues nowadays. Canada is facing tremendous problems where its aboriginal peoples are concerned, particularly with respect to the issue of rights.
I am one of those most frequently criticizing the government for its lack of political courage. In other words, in managing the native question, the government draws on legislation that is over one hundred years old. The only way the government has come up with to resolve the native issue is to cling to this law and try to speed up negotiations on land claims and self-government.
Some native people feel things are not moving fast enough. Naturally, there are grey areas in this legislation. It is really not surprising that a law dating back over one hundred years is no longer up to date or applicable or is at least hard to apply.
Native people were not satisfied with this law. They launched appeals in the various courts. Naturally, a number of these went as far as the supreme court, and this is the subject of my remarks today. I know I have only ten minutes, but there are a number of motions, and perhaps I will be able to return to finish up on the legal course all of that followed.
At the moment, things are happening at Burnt Church specifically as the result of a decision by the supreme court, which recognized certain native rights. It also recognized certain government rights over resource protection and so on.
There is often a problem when it comes to interpreting supreme court decisions. Unfortunately, except for Bloc Quebecois members, there are not many people who are siding with the aboriginals and recognizing that they have certain rights. This is why, when aboriginal groups appear before the standing committee on aboriginal affairs to discuss a bill such as the one before us, one of the first points they raise, one of their primary concerns is precisely the respect for their rights, including aboriginal rights.
This is why these motions are before us today. As I said earlier, we must understand the whole legal process and how aboriginal titles and aboriginal rights have changed. A number of decisions deal with aboriginal rights, but a pioneer in this area is definitely a Nisga'a named Frank Calder. Incidentally, I take this opportunity to salute my Nisga'a friends who may be listening to us, although it is rather early in British Columbia.
Just last week, I travelled to the home of the Nisga'a people for the inauguration of the new Nisga'a government building. It was nice to see how proud the Nisga'a were to finally have a building in which they will now be able to exercise a number of rights which, until now, were not recognized as theirs.
There have been pioneers, not only regarding that building and not just Frank Calder. Frank Calder was not only the inspiration for the building but also a landmark figure in creating a more precise definition of what a native right is. He deserves credit for this. The Calder decision dates back to 1973, when the courts for the first time recognized the existence of aboriginal title for the occupation, possession and use of ancestral lands. At the time, I know that the government lawyers were saying “Hold on now, there is another thing, the royal proclamation of 1763 in which His Majesty sent out the word direct from England that the lands could not be taken possession of without agreements with the aboriginal people”. The court went further than that, however. It said that what was involved was something other than the royal proclamation, something other than the treaties. Even if there had been treaties, there were some rights that perhaps were not included in them. This went beyond the Indian Act, as I have already touched on briefly.
That statute dates back close to 120 years. Its application today cannot be described as perfect. That is normal. Societies change. In the last 120 years, both white and aboriginal societies have changed. Imagine if we insisted here in parliament on hanging on to 120-year old legislation in all of the areas we deal with. This would, I think, be extremely awkward and it would be very difficult to apply legislation now that dates back 120 years.
The decision said that the royal proclamation of 1763 was not the basis for a decision and that it was not a treaty matter. It must be kept in mind that not all crown lands are covered by treaties. The Indian Act was not the basis for a decision either. The supreme court therefore found a concept: long-term occupation.
A native nation had to be able to prove long-term occupation. This is when discussion of an ancestral right from time immemorial began. Indeed, the court also recognized that these people were here before us and accordingly enjoyed specific rights. The Calder decision started opening things up in this regard, even though the supreme court did not define title as such. It said proof had to be established of long-term occupation, but that title certainly did exist. However, the court did not define it more than that.
Matters had to wait until 1984 with the decision in Guerin. This decision established that the government had a fiduciary duty, that the native peoples enjoyed a special land entitlement and that it was inalienable.
Therefore, in another instance, the court recognized the government's fiduciary right and its fiduciary duty.
This has caused many problems since then. I give as an example the decision in Marshall and Burnt Church with all that is happening there as a result at the moment. The government is caught in a dichotomy, in a state of incoherence, where it is obliged to defend Canada's interests. But it is a trustee and must protect the interests of the native people. This situation is causing some pretty significant problems.
Unfortunately, what we have seen in recent years is the government focusing less on its fiduciary obligation and more on its other obligations. This is one reason why the Department of Fisheries and Oceans is now seizing lobster traps, taking the view that the aboriginal fishers are completely in the wrong. One day, we will have to find a way to reconcile the legal concept and philosophy of the rights of whites with the rights of aboriginals. This will take time.
I see you indicating that I have one minute left. I had intended to speak a little longer, but as I said, I will come back to this for the second group of motions.
In short, I hope that members will support the inclusion of the issue of rights in the bill. This is important to aboriginals and it costs nothing. We will be told that it is included in section 35 of the constitution—this is an argument the government often uses, and it may be true—but what does it cost the government to include this motion which the aboriginals really want to have? It costs absolutely nothing.
I will be pleased to speak to this issue again for the second group of motions.