Hon. Serge Joyal:
I do not want to delay the adoption of this bill at second reading, but there are some reflections that I would like to share with you, honourable senators, because this bill, as Senator Day has mentioned, was not debated in the other place at all. It reminds me of another bill that we debated here — and I’m looking at the other side, and some senators will remember it — the bill to assent to the amendment to the law of succession to the throne, in 2013. Senator Tkachuk might remember it. It was adopted in a similar fashion in the other place. There was not even a statement issued by the responsible minister to explain the bill because, of course, the bill related to the status of the Crown. As you know, Canadians are very lukewarm to the mention of anything in relation to the Crown or the debate of anything related to the Crown.
When it arrived here in this chamber, I and other senators stood up, and we were asked to adopt the bill in an afternoon because, of course, nobody wanted to ruffle feathers in relation to the Crown.
With the consent of the house, the bill was sent to the Legal and Constitutional Affairs Committee. We heard experts and witnesses, we received briefs from expert witnesses, and guess what happened? The bill was adopted at third reading, but in the next year the constitutionality of the bill was challenged in the court. We’re still in the courts in relation to that bill, as a matter of fact. Some of you know that I was in the Court of Appeal in Quebec last week to stand by the constitutionality of that bill because I strongly felt that what we did, in studying this bill at second reading and at committee, was most helpful for the court to understand the substance of the bill and the very important implications that are underlying the principles of that bill.
That being said, I totally concur with Senators Day, Patterson and Pate to have this bill sent to the Aboriginal Affairs Committee, but I want to share with you the principles that are at stake in this bill, in my humble opinion.
We’re talking about self-government. What does it mean? Self-government means the capacity to rule yourself by yourself and to have the financial support to give effect to your legislation. That’s why we have self-government in Canada, because we have a federal and provincial governments, and each is competent in their sphere of jurisdiction, allocated under the constitution, for instance, Indian affairs. Section 91.24 of the Constitution states quite clearly that “Indians, and lands reserved for the Indians” fall under the responsibility of the federal government in the same way that local affairs and education and health fall under the jurisdiction of the provincial government. It’s easily understood by each and every one of you that Canada is sovereign as a whole, as a country.
If we are to allocate self-government on Indian lands, and we have recognized status on Indian lands — we have mentioned it, and Senator Patterson mentioned it — section 35(1) of the Constitution Act, 1982 recognized quite clearly that:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
In other words, we are a country with a federal government, with a provincial government and with Indian lands. According to section 35, the Indian nation has sovereignty on those Indian lands. That’s the notion of self-government.
What is the extent of their sovereignty on those Indian lands? In other words, on which subjects can they legislate for themselves, by themselves and through themselves? That’s the fundamental question that is at stake in the bill now under consideration.
An agreement has been entered into by representatives of the Cree and the Naskapi, as we have heard Senator Pate and Senator Patterson, but we have to be mindful that when we approve this bill, the principle that we approve is the principle of self-government, that is the capacity for those Indian groups, those Indian nations, to legislate for themselves as much as it is recognized under the distribution of powers between the federal and the provincial governments because we are creating, we are recognizing another level of government.
Once we have passed this legislation, we will entrench, for the years to come, the sovereignty of those Indian nations on those sections of land that are covered by the agreement. And we not only do that. It’s not enough to say you’re competent to make legislation; you have to have the money to pay for it.
Because if we recognize that — and when I say “we,” I mean the Parliament of Canada — under its jurisdiction, on the whole of Canada, we recognize that Aboriginal nations have the right to legislate in relation to, for instance, education or local services like the supply of water, water treatment, sewage, where is the fiscal capacity to be autonomous?
You understand it very clearly in relation to cities, towns or villages. If you say that you are competent to rule on sewage, on the supply of water, you have to have the money to provide for it. Where does the money come from in relation to municipalities? It comes from land taxes.
In relation to the Aboriginal nations that are referred to in the act, the question to ask is this: How far is the autonomy in having the supply of money necessary to be able to assume the responsibility of self-government? Because what we’re doing here, as a template, could serve as a model solution for other agreements that might be entered into through representatives of other Aboriginal nations in other areas of Canada.
We have to be very mindful of what we are doing. I’m not against what there is in this bill. I want to be very clear that the members of the Aboriginal Affairs Committee will be able to look at the implications of the self-government that we are recognizing in Bill C-70 and the fiscal autonomy that we are recognizing to allow them to assume the total responsibility and their capacity to adopt legislation, regulations to rule the life of their community.
Otherwise, what are we doing? In fact, we are maintaining tutorship if they are not able to be totally autonomous in terms of having the money necessary to implement the legislation that they feel is appropriate to adopt for the benefit and the good of their own people.
I plead to the members of the Aboriginal committee to understand well the principles at stake here. Because it’s going to be very helpful to us in future years on the path of reconciliation to understand what we are doing in Canada in relation to recognizing — and I’m looking at Senator Forest — the capacity of the Aboriginal nations on their territory to rule their affairs as much as a municipality has the autonomy to decide for itself but being always dependent on the provincial government to approve their plan, their project, and to be constrained by the financial context under which they operate.
In my opinion, we have to be very mindful of the reflection to bring about, in that proposed legislation, if we really want to know the way that Canada will evolve in relation to recognizing the right to self-government that the Aboriginal nations will finally conclude with the Canadian government, through peaceful and lengthy negotiation and sometimes through court cases — As Senator Pate referred to, there were court cases in relation to this — so that we understand what, in the long run, we will create in Canada, the space of fiscal autonomy and responsibility for the Aboriginal people within the whole of our two levels of government, provincial and federal.
I tried to be as descriptive as possible and to present those principles in a way that is simple to understand. As much as the other place has done this in a fraction of seconds, I think that in this chamber of sober second thought we must fully understand the implications for the future, and the capacity of the Aboriginal Affairs Committee, with the help of experts — professors from the University of Saskatchewan and the Aboriginal law faculty — so that when we vote on this bill we are not just putting an envelope in the mail but are truly understanding, for the future of the negotiations that are presently under way.
I’m sorry if I have taken too much time this afternoon on this matter, but I think it is very helpful, in terms of what is to follow, to understand what is at stake with Bill C-70. I certainly support sending this bill to the Aboriginal Affairs Committee.