Mr. Speaker, I was speaking of the Calder decision, in which aboriginal title was recognized and for the first time it was said that “Yes, there is occupation, possession and use of ancestral lands, there is aboriginal title”. That is what the supreme court decided in 1973.
On the other hand, counsel for the Crown said “There cannot be aboriginal title because the royal proclamation of 1763 contained specific provisions”. There are specific provisions in the treaties and in the Indian Act.
The supreme court refuted those arguments and, in the Calder decision, stated that there was aboriginal right and aboriginal title without explaining what that title was. It merely stated that there was one. That had to wait for the Guérin decision, in which the supreme court stated in 1984 that land entitlement was special because of its inalienable character, that the government had a fiduciary obligation toward the aboriginal people, and that the honour of the crown was at stake. This was stated in several supreme court judgments.
My Alliance colleague has just said the same: the honour of the crown is at stake each time a treaty is signed, and each time legislation is passed in the House.
One important step had been taken. It was stated not only that there was aboriginal title, but also that this was inalienable in character and that the government ought to commit to defending the aboriginal people because of its fiduciary role. Hon. members will understand that the government is often uncomfortable with its role of trustee, as in the case of Burnt Church.
In this case, we have a government that is the trustee of the native people and that must defend them. However, it runs over the canoes of the natives with its boats. This is hard to reconcile. The government is certainly going to say the resource has to be protected and so on. There is no proof, however, that the resource is being threatened at Burnt Church. I can understand the natives in Burnt Church who are told when they fish “You are entitled to put 50 lobster traps in the water, but the white community next door is entitled to put in 50,000. For you, it is 50”.
Some people are starting to say “Listen, we are not responsible for declining stocks of fish and lobster in Miramichi Bay”. I understand the natives, and the government is still stuck on its role as trustee.
In 1988 it was the Paul decision. It held that the aboriginal title was sui generis , that is the only one of its kind. This was another step forward. The native title, and it is starting to be defined, is not only inalienable; it is unique. Previously there were naturally decisions recognizing that natives were here first and that they had specific rights because they were the first inhabitants.
Then came the Gladstone decision. It went even further. It provided that, when the government wants to impose a restriction on a native right, it must justify doing so clearly. Obviously in the case of Burnt Church, the government cites resource protection. This claim is not fully justified, however.
The government is not providing a specific study to show what size of catch is feasible during and after the fishing season. The government is not saying. The decision in Gladstone went even further.
This is why I can understand the aboriginals in Burnt Church. It would have been important to define the notion of right in the bill before us, but the government decided otherwise.
There was also the Delgamuukw decision in 1997, which went even further. Previous decisions always dealt with hunting and fishing issues. That ruling goes further by stating that the territory itself is included, that aboriginals who can prove long term occupation are entitled to more than hunting and fishing privileges. They have the power to decide on activities and to regulate them, including economic activities. This is where it goes a little further.
Meanwhile what is the government doing? It does not do anything. Yet the score, so to speak, is 50 to 0 for aboriginals in supreme court rulings. The definition of title continues to evolve.
The Delgamuukw decision goes beyond hunting and fishing. It states that aboriginals have the power to regulate things over their own territory. This includes forestry, mining and several other activities over their territory. Delgamuukw is yet another step.
The Delgamuukw decision brought about something rather disconcerting for white people. When white people reach an agreement they sign a contract such as a lease or some kind of convention, but the Delgamuukw decision provides that the oral tradition will have the same weight as historical documents. This goes quite far.
There are certain conditions: “Aboriginals must prove that they have occupied the entire territory in question before the arrival of the British”. In the case of the Cree, with their 10,000 years of history, and the Micmac with their 10,000, I do not think this should be hard to do.
“The occupation must have physically taken place and have been substantially maintained”. A number of court decisions have said this. I do not think it is difficult to prove. The Micmac are in eastern Canada and the Cree in the north. Archaeologists and the best experts will tell you that they were there before us. They had a political system, an economy, agreements with their neighbours. I think that it is fairly simple to show that they occupied the lands, and that the occupation took place physically.
“The group in question must have exclusive jurisdiction and control of the land”. This is akin to sovereignty, control of one's land. There is no doubt that the Cree have always controlled their land, and that the Micmac have always controlled theirs, before the arrival of the British and even of the Europeans.
Members will understand the importance to them of having the word “right” in the bill. Unfortunately the Liberal Party has decided otherwise and dismissed it.
I am going to speak a bit about consultation because I see this as an incredible oversight in the bill. As members know, this agreement was to have the approval of the community proper. What happened was incredible. The government said “Here is the agreement”. It agreed with the band council on the referendum question and that was what they asked.
Contrary to the government's expectations, they lost the referendum. The people said no because on the issue of ancestral rights it was not enough. The government changed its tack and said “I declare the referendum null and void”. People wondered why it voided the referendum. It was because it had lost by five votes. The government said “It is because people who live off the reserve were registered as natives and voted. We do not think they should have voted”.
They held a second referendum. They told the people before they voted “We have a cheque for $1,000 waiting for each native person in the community”, if they vote favourably, of course.
When someone waves a personalized cheque at a person who is one of the poorest in Canada, just before the Christmas holidays on top of it, and says “If you vote, you will have this cheque”, it seems to me that there is a bit of a problem there.
Members will understand that this is why we had a bit of a hard time when the Liberal Party said that our referendums in Quebec are not always democratic because of the way we hold them. I do not think we have anything to learn from the federal government with examples like this.
That is the problem. People appeared before the committee to tell us that it was not right that everyone was promised $1,000 if the outcome of the referendum was in favour of the agreement. It is like buying the results of a referendum.
The Bloc Quebecois will have to object to this, because I think that the government did not do its job. The money has probably already been paid. The compensation has probably already gone to people and been spent, but we must not keep being held hostage and told that this is an implementation act, that it has been decided and signed several years ago, and that, now, a bill is needed to give it force of law.
The government should go back to the drawing boards. If it was wrong, it can pay what it paid before. And if there is a different outcome in a few years with the Norway House agreement in an unbiased and properly held referendum, then the government can pay again.
The government is responsible for the terrible mess. Not just the ecological mess I mentioned earlier, but the democratic mess as well. It is responsible for consultations which consisted of promising people things and offering them a cheque for voting in favour. This is one of the primary reasons we cannot support this bill.
The issue of rights is a key one for us. It was very important to have it included in the bill. The government left it out and the members of the ruling party were all too quick yesterday to cast their vote showing that they thought it was not important. But it was indeed important for aboriginals. Perhaps not those of Norway House, because they were told that when it got passed there would be compensation. However, the others in the vicinity, for example the people in Cross Lake, which is next to them, will feel the impact of the decisions on this. They are being backed into a corner, because they are being told that the others have settled. That has an impact. If the democratic process that has been used is flawed, then things need to be started over again.
The government has decided to reject the entire matter of rights. We are not obliged to agree, now that there is something missing from the bill.
If the word right had been included, it would not have cost the federal government anything. If, as the government says, it is protected under clause 35, I do not see why the term right could not have been added. That would have not cost it anything. But there is a whole other matter, the fact that it does not want to recognize aboriginal rights.
It does not want to recognize them, even if the courts have recently said that there are ancestral rights, and that there are specific rights connected to the fact that they were the first inhabitants of this continent.
We will not reject the bill merely because of the matter of rights, but because the consultation process was very badly handled. I want the federal government, the Liberal government, to know that they need not lecture us on democracy when we hold our own referendum, and hold it properly.
The federal government made some promises at the time, saying “If you vote no, it is as if you were telling us yes, in favour of renewed federalism”. We have seen what happened as a result.
I do not think it has anything to teach us about democracy. Our referendums and our elections are always carried out properly. If people are told “You are going to get $1,000 if it passes” there is a problem.
For these two fundamental reasons, we will have to vote against Bill C-14.