Thank you very much, and thank you, Mr. Chair, for inviting us here. I bring regrets from my president, Lucie Joncas, who was planning to attend with me but is tied up in some other matter.
Given that it's the first time in a while that we've been before this committee I thought I would outline a bit about the organization and then comment on some of the issues pertaining particularly to aboriginal women prisoners.
Some of you are aware that I've been doing this work now for about 26 years, starting first with young people, many of whom were aboriginal as well because I started in Alberta, and then I worked at the national level with men. For the last 18 years I've worked with women in the federal prison system predominantly, but also I've done work internationally as well.
Our organization has 25 members across the country. As many of you are aware, they are voluntary non-governmental organizations. We have a complement of about 582 staff, about half of whom are part time and half of whom are full time, across the country in those 25 societies, and in excess of 1,200 volunteers. The count last year was 1,243 volunteers doing that work. So we have a sound community base, and we rely on that community base to direct policy and practical work that we do out of the national office.
We have been working with aboriginal women in this context for 25 years, since the organization began, and 70 years since our first Elizabeth Fry Society started in British Columbia. One of the issues that are very key for us is the fact that women are the fastest growing prison population in this country as well as in other parts of the world. In particular, we're seeing that growth astronomically when we talk about aboriginal women in a more focused way.
There are the reports of the correctional investigator, but also successive reports over the years in my history with this organization, starting with the Task Force on Federally Sentenced Women in 1990, the Louise Arbour commission report in 1996, the Canadian Human Rights Commission report in 2004, and several United Nations documents. In fact, last week I was in at United Nations meetings looking at the very issue of the treatment of women prisoners in particular around the world, and the issue of overrepresentation of indigenous women is an issue for more than just Canada. There are also the reports that you're considering, in particular the Mann report and the annual report of the correctional investigator. All of those reports document very clearly a discriminatory impact, systemic discrimination as well as some of the discriminatory effect of policies that are discriminatory in other ways, whether it's by gender or by disability, particularly for women with mental health issues, for instance.
So I don't think I need t go over that. I did distribute in advance so you would have in that material some of the fact sheets that we use. We distribute those fact sheets the first week of May every year. We always have a National Elizabeth Fry Week preceding Mother's Day to draw attention to the number of women in prison who are mothers.
I'm most interested in trying to answer any of the questions you may have, but suffice it to say that one of the trends we're seeing, which you have probably already heard about from the correctional investigator and the Correctional Service of Canada, is that we see aboriginal women in particular, and men as well and young people, but in particular we're seeing this overrepresentation in the prison system. We're seeing it in terms of the charging practices, the remanding practices, the conviction practices, and sentencing practices; and then, once individuals are in prison, the overclassification, the more limited access to programs, the greater difficulty in gaining access to conditional release, and for individuals who do manage to be released on conditional release, the increased likelihood of that being revoked and their being returned to prison.
Those are some of the impacts we're seeing. We have particular focus--and I understand you have an interest in this also--on the management protocol, which is a peculiarity for women prisoners. I say that because the impact of the management protocol has created such incredible discriminatory effect for those women who have been subjected to it that I'm very pleased this committee is looking at it. We have flagged it since its inception. The first policy round we saw was in 2003. We flagged right away some of the very issues that have unfortunately unfolded—we would rather have been wrong on this—that we would likely see more people in more isolated conditions for longer periods of time with less access to programs, less access to services, and in fact conditions of confinement that are likely to increase rather than decrease the very behaviour that the management protocol was ostensibly established to address.
As I sit here today, all four of the women on the management protocol are aboriginal. There was one woman released recently who was taken off the management protocol. It's the second time someone has succeeded in being taken off the management protocol. The first woman was one who, everybody argued, including many Corrections staff, should never have been placed on it. The second one was one who was placed on it based on information that came from the provincial system while she was remanded in custody. It was later found to be erroneous, and it still took almost six months for that information to be corrected and for her to be taken off the management protocol.
The seventh woman who was on the management protocol was actually released directly from prison, from being shackled when she was being moved out of her cell, cuffed to the back in a security gown, with two to three—anywhere up to five—security staff with her, into the community. That woman has not gone on to commit the heinous crimes that everybody predicted she would, based on the fact that she was placed on the management protocol. I think it is this, as well as the number of cases we were in the midst of developing, as well as the correctional investigator's looking at this and making some recommendations about ending the protocol, that has now led to a review by the Correctional Service of Canada.
Our concern is that it may only be replaced by something equally egregious, and so I am very pleased that the committee is looking at this and that we can make some very strong recommendations about how we try to remedy it.
We continue to call for external accountability and, in particular, judicial oversight of corrections. This situation of aboriginal women, aboriginal women with mental health issues, speaks all the more clearly to this need, because although there is a deputy commissioner for women, that deputy commissioner does not have line authority or the ability to actually change the decisions. And while we generally support the recommendations of the correctional investigator and support the recommendation for a deputy commissioner for aboriginal issues, our concern is that it could be a role just as functus as the one we currently have for the women's portfolio.
So I caution you in that respect. Really, what we need to see is greater accountability mechanisms, an ability to trigger reviews—and, we would argue, judicial reviews, reviews that can cause the courts to look at these matters in the way that Louise Arbour recommended when she looked at what happened at the Prison for Women in 1994.
Those are my preliminary comments. I'm happy to try to answer any questions you have and, if there is additional information we can provide, to try to provide that as well. Thank you.
Thank you very much for the question.
If I wasn't clear.... We certainly wouldn't say that the system staying the same and just having a few accountability measures would change it. Absolutely not. So thank you for giving me the opportunity to clarify.
There are a number of recommendations we have made. In fact, the Canadian Human Rights Commission report came about as a result of a complaint we filed in conjunction with the Native Women's Association of Canada, Amnesty International, and about 24 other national and international groups, talking about the systemic nature of discrimination against women, particularly racialized women--especially aboriginal women--as well as women with mental health issues and women generally.
That complaint was not just about Correctional Services. It was about the fact that, as we've seen cuts to social services, health care, education, and all the areas whose services those who are most marginalized tend to rely more on, as we've seen those services dissipated--demolished in some areas, basically the ground and the rug pulled out from under people--it's not a big surprise that those individuals who are most marginalized, most victimized, and therefore most reliant on those services have ended up increasingly in prison. Again, worldwide, that's seen as the single biggest factor contributing to why women are the fastest growing prison population. It's not because of criminality. It's not that there's a crime wave involving women anywhere, particularly among indigenous women.
As you pointed out--and I'm wearing the Sisters in Spirit pin--many of the women who have disappeared and are presumed dead, who have gone missing and have been murdered, are women who have also known the criminal justice context. It's not acceptable that we rely on prisons to try to mop that up.
Having said that, however, I think there are things that can be done within the prison context. We know that women generally, and in particular aboriginal women, are more likely to plead guilty, so they're often charged high. I've heard different people within Corrections talk about women getting shorter sentences, particularly aboriginal women, but that's if you look only at the charge, only at the sentence, not at the context. In most other contexts, those charges would have been pled down to something lesser. The sentence looks low only if you look at the charge alone. If you look at the context, the sentence actually often looks very high.
I would say it isn't my experience that people are unreceptive to opportunities to engage in programs or services or interaction. In fact, it's quite the opposite. It's usually that the programs and services are not set up to engage the individuals. And it's not just aboriginal people, but it's people with mental health issues as well.
When we're talking about individuals, many of whom have experienced abuse in the past, when we're talking about aboriginal women alone in the federal prison system, the task force is the last very complete review, and it has found that 90% to 91% of the aboriginal women had histories of abuse. When you compound that with histories of residential schools, family members with history in residential schools, and social service involvement, there's a high degree of distrust for the system. So to engage, the most effective methods we've found—in fact, we're doing a project that came out of the human rights process, recommended by many of the aboriginal women—was a process of providing them with the skills to advocate on their own behalf.
The most effective programs anywhere are usually programs that involve the individuals themselves in peer-related activities. So individuals have come through, come back in, and provide some support. And those are the most effective, in our experience, with aboriginal women and men.
You can imagine what it's like if you don't see someone who looks like you in terms of your life experience, your class, your education level. Many people in Canada have never even been to a reserve and so have no idea that we have living conditions in those areas that are lower than those in most developed countries—no running water, not clean water, not adequate utilities, any of those sorts of things. So coming into the system, you come in with a lack of understanding of how to negotiate that system, and it's not a very friendly system for engaging you in that process. Those are the starting points.
Then you have a classification system that is based on, if you'll forgive me, a very white, male, middle-class model of what society is like. So if you don't have a bank account before you come in, if you haven't had a job, if you don't have other family members or some of the social conditions that you cannot change, if those are your social conditions that predetermine that, you're going to be at a higher classification to start with. If you then have a history of violence, whether you're the perpetrator of the violence or the victim of the violence, the points get ratcheted up as well.
We've documented this quite well in our submissions to the Canadian Human Rights Commission back in 2001 to 2003. I'm happy to provide those, if they would be useful, because they go through some ways that you could actually turn that around. And we talked about capacity-building models. We said, instead of allocating resources that only identify risk—taking needs and translating them into risk factors—we should be looking at allocating resources according to those needs that you identify and building up the supports, so that individuals are both supervised in a structured environment and then supported to be able to survive.
A good example is that last night I was up until the wee hours doing a submission to the National Parole Board for a woman I've known for 18 years, an aboriginal woman who's doing very well in the community. She might be seen as a statistic of someone who has not done well—quite the opposite. But here is the paperwork of her life: abandoned on a bus at the age of six months; cycled through the system; lived on the street; had to learn how to fight to protect herself, so had assault charges; pleaded guilty to every charge that she did; only pleaded not guilty to the ones she wasn't responsible for and was acquitted on most of them. But as you know, those follow you through the system, nevertheless. On paper, she looks like a danger. In reality, almost every one of those situations has been a response to her being attacked. It doesn't excuse her having to use violence--
In the context of the numbers, that 32% of women in federal prisons are aboriginal, that aboriginal women's incarceration rate has increased by 151% between 1997 and 2007, and that 45% of the maximum security federally sentenced women are aboriginal and so on, the numbers are pretty shocking.
Mr. Chair, in that context, it is important that this committee report back to the House on this matter so that we can keep it on the radar that the committee has taken it under consideration.
There are three questions I'd like you to address. You mentioned in the management protocol that a process was being done. First, has there been a consultation process with organizations like Elizabeth Fry, the Native Women's Association of Canada, and other organizations around this management protocol and how it adversely affects women?
Second, you indicated that you thought it would be important to have an external accountability process. What would that look like? If I have time, I'll come back.
Third, what is the single most important thing you think this committee can recommend?
I'll let you just go to it.
In terms of consultation, I'm very pleased the committee is doing this work, because it seems to coincide with the combination of this committee focusing on this area and the correctional investigator issuing his report.
Corrections is currently doing a consultation on the management protocol. It started two weeks ago, I believe it was, and prior to that there was a consultation on the proposed policy that evolved to be the management protocol. It's interesting that the first time I ever saw the management protocol as a proposal, it was on union letterhead. It was something that had been proposed by the Union of Canadian Correctional Officers for the treatment of women who were posing management problems. We had proposed some very different approaches and we had proposed that, in fact, there'd be more intervention with elders, more supports from the aboriginal communities the women came from, more access to their children, more of the interventions that we saw would actually link into the women they were and encourage them to want to move out and get back into the community as opposed to putting them in more and more isolation, with less and less stimulation. In fact, unfortunately, it has gone to the complete opposite--isolation cells, security, no human contact, even to the point where I'm sometimes not even allowed access to segregation to go in and see these women. That's been since the death of Ashley Smith. We're still negotiating access.
So yes, some consultation has been started.
In terms of external accountability, I think the best recommendations I and our organization have seen so far are the recommendations that Louise Arbour made. Rather than trying to replicate or restate them, I will just summarize them.
She said if there is correctional interference with the administration of a sentence, there should be an ability to go back and review that sentence. For instance, some of the women on the management protocol.... One woman started on a three-year sentence and has now accumulated over 20 years, all within prison. This is a phenomenon that, when I started this work, when the commissioner started his work, when the correctional investigator started his work, we did not see. In fact, I was just at the United Nations, and a number of the European countries were horrified to hear that you could actually accumulate charges and sentences that way in a context that everybody recognizes happens in a prison setting because sometimes staff are tired, or sometimes they are inexperienced, and often you're dealing with people who are there because they've had huge challenges. Instead of racking up more and more charges and longer sentences, the presumption is that you should take a different approach, and those should be seen as administrative breaches, which they are as well, because usually those individuals get punished in the prison setting and also get additional sentences.
I think many other things will flow from having the kind of external accountability and judicial oversight that Louise Arbour talked about: things like the changing of the overall environment that I was asked about earlier, things like ensuring that people have an understanding of aboriginal issues, things like developing the appropriate programs at the appropriate times for individuals.
We are being asked increasingly now, more than we have been in the last two years, by very senior people in Corrections as well as people in the front line in the institutions working as correctional officers, to intervene in situations. I would never have dreamed when I started this work that we'd be asked to sue Corrections, or we'd be asked to bring more human rights complaints, or we'd be asked to put more pressure on from the outside to change things because people are feeling so impotent inside the institutions. I think there is a vital need for external oversight to provide a way to start to change that environment, because inside there is increasingly a bunker mentality. People feel unsafe, which then creates unsafe working conditions. It creates unsafe situations for prisoners as well. Ultimately, it creates greater risk to the public when people are coming out if in fact we haven't dealt with the very issues that precipitated people being in the system to start with.
Good morning, and thank you for being here.
I'm quite aware of the Elizabeth Fry Society, which in my books is a B.C. success story. You mentioned that it started in 1939; there were visits through the war years into the prisons, and it grew across the country. I think it's very important to note that there's no international equivalent, as far as I know. It's a Canadian icon and an institution.
Through the first 30 years of its existence, the Elizabeth Fry Society received no government funding. In 1969, they received their first federal moneys. The caveat was that they had to form a national umbrella organization, which is basically the roots of the organization that you represent today.
I grew up in a house full of Elizabeth Fry people. My mother was involved. She joined in 1959, and this year she received her 50-year certificate, with your name on it. You were one of the signatories. She was very active in visiting prisons early on and then in building up the Vancouver-based society. She was president on two occasions, and they were 20 years apart, I might add.
They had some real firsts. They were the first to receive CMHC funding for charitable housing and they had the first group home for women. That occurred in 1965. Those are reminiscences that I've had with my mother, knowing that you were coming.
She recalls what an unpopular cause it was in 1959. She separated what she called the “do-gooders” from those who did good. This crazy activity that she was involved in was very much criticized within her circle of acquaintances, but it's a very good cause.
There is a very good book for source material on 50 years of Elizabeth Fry in British Columbia. It's called Women Volunteer to Go to Prison: A History of the Elizabeth Fry Society of British Columbia, 1939-1989, by Lee Stewart. The inside cover says, “This book is dedicated to the memory of the remarkable women, the founders of the Elizabeth Fry, who took up an unpopular cause when they first volunteered to go to prison”. I want to enter that as a little bit of background.
When I looked at your web page, one of the principles stuck out at me. I was never aware of this before, and I think it would concern a lot of people. Your third principle states, “Women who are criminalized should not be imprisoned”. What does that mean?
Thank you for raising the point about your mother. She has done remarkable work and has been an inspiration to many of us over the years. We have a commemorative pin that we wanted to give her this year, so I think I'll talk to you afterwards about how to get in touch directly.
As to that principle, it came up about 20 years ago when we started to see increasing numbers of women going into the prison system. It's interesting that you asked about that today, because I just returned from a United Nations meeting last week in which we were looking at the development of minimum standard rules for the treatment of women prisoners. Two things were determined: one, that alternatives to prison need to be developed; and two, that there is a worldwide plan to get rid of prisons for women. This is because the majority of those who end up in prison are there largely because of the responses they've had to various situations.
It doesn't mean that there aren't people who need to be separated from society for a time, either for their own protection or the protection of others. What we're talking about is not having the prison system, which was developed to protect the community from men who may have committed violent acts. We should be focusing on the needs that women have.
That's how this developed. It came about after the task force work, which found that even the most progressive penal reform experiments in the world had not had the impact that was anticipated. I mentioned the healing lodge earlier. In all of the new prisons that were developed across the country, there was uniform agreement that women should be in minimum security settings, recognizing that most women are not a risk to the community. Every successive report—the Arbour report, the human rights report, UN documents, the correctional investigator's reports—has repeated that message. They were supposed to provide opportunities for women to go into the community. So in fact, programs offered in the prisons were initially supposed to be offered in the community, not in the prison setting, and women were supposed to be going out into the community as much as possible.
Last week when I was talking to people from European jurisdictions, they were talking about that very model. In some of these jurisdictions, they have housing units in the community. Women go out to care for their children, they go to school, and they go to work and come back only to sleep in the prison at night. That was the model being examined. The physical prison setting was based on a model out of Minnesota, the Shakopee Prison. It's interesting that the prison still exists without a fence around it. Recently, the prison system was going to build a fence around it, and the community rose up and said that for a hundred years it had existed and the community had grown up around it. We haven't flexed our thinking to figure out how we can keep people in the community in ways that are more constructive for them and for others.
I hope I can be of assistance in some way, though I'm sure that others who will appear before you will have much more than I to say about the actual working out of this doctrine of the honour of the crown, and also about their aspirations as to how they would like to see it evolve in the future.
I've read the transcript of your proceedings on October 8, and I see that you had a very good short introduction to the subject, courtesy of Mr. Pryce, from the federal Department of Justice.
It seems to me that the best thing I could do in just a few minutes is present a brief summary of the development and the role of the doctrine of the honour of the crown as it has been worked out by the Supreme Court of Canada.
It's important to appreciate, I think, that the doctrine as it applies to aboriginal peoples is very much the creation of the Supreme Court of Canada, and mostly in the last ten years or so. The little note that I sent to the clerk, which I expect you have, is a kind of running account of the court's shaping of the law through the cases, eventually settling on the doctrine of the honour of the crown as a key doctrine and then working out some of the important effects of the doctrine in the cases.
What I'd like to do is take a couple of minutes to take you through that document, if you have it. It begins with what the court has said about the pre-1982 circumstance in Canada. You can see that there are three short excerpts from cases in the document.
From the Sparrow case, there can't be much doubt that over the years the rights of the Indians were often honoured in the breach. We cannot recount with much pride the treatment, and so forth.
In the Marshall case, in 1999—this is the case from Nova Scotia that had to do with the taking of eels by Mr. Marshall and some of his colleagues—Justice Binnie, who wrote the majority reasons in that case, pointed out that until the enactment of the Constitution Act, 1982, the rights of the aboriginal peoples in Canada could be overridden in the same way the rights of any of us can be by competent legislation.
Then there is the Mitchell case in 2001, along the same lines: that aboriginal rights and treaty rights were vulnerable to actions essentially by Parliament, in delegated legislation, until 1982.
Then we have the Constitution Act, 1982, section 35, which is really the watershed event when we're speaking of the law of aboriginal peoples, aboriginal rights, and treaty rights in Canada. In 1982, as part of the patriation that occurred, we have our new constitutional instrument. Subsection 35(1) says:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
The court was of course faced with the question, what does that mean in practice? I think it's important to recognize that at the time many people said things such as: “That's all very nice. The court will acknowledge that the Constitution now says that the rights of the aboriginal peoples are now recognized and affirmed and will carry on business as usual.” Some of you will recall that essentially this happened with the Bill of Rights many years ago.
But the Supreme Court didn't take that tack at all. Beginning with the Sparrow case in 1990, the court told us that it was going to apply what it called a “purposive analysis” to section 35. That means it has a purpose. It isn't just those innocuous words on the page, “the rights...are hereby recognized and affirmed”, and that's the end of it. This has a purpose; it's supposed to take us somewhere. They told us that in Sparrow.
Turning to the next item, on the second page, the Supreme Court revealed in the course of time what that purpose is. It turns out that it is reconciliation. Our law in this area is purposive, and the purpose is reconciliation. You can read those excerpts there from Van der Peet, the reconciliation of the fact that the aboriginal peoples were here before the Europeans, before other people came to these shores, so there is a need to reconcile that presence and the fact that there were existing societies and existing laws at that time with the sovereignty of the crown and with the rights and interests and aspirations of the rest of Canadian society, of which the aboriginal peoples are part.
So it's reconciliation. When you come to the Mikisew case in 2005, Justice Binnie, writing the reasons for the court, starts off with this first sentence:
The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests, and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding.
Beginning shortly after 1982, with the Nowegijick case in 1983, the Supreme Court begins to equip themselves and the rest of the Canadian judiciary with a series of doctrines, which in the course of time will be the means by which this reconciliation—which is the purpose of the law—is going to be achieved. They tell us that in the interpretation of treaty rights, of statues having to do with aboriginal peoples, the interpretation of the Constitution itself, we need to apply a principle of generous interpretation.
Secondly, aboriginal and treaty rights were extinguished prior to 1982. And when you just read the bare text of the constitutional provision, you wonder about all that went before. The court says that there was extinguishment of aboriginal and treaty rights only if that intention of the crown in the legislation, or whatever, was abundantly clear and plain. This is illustrated, for example, in the game and fish realm. Over the years, of course, the rights of aboriginal peoples in Canada to take game and fish had been regulated in many different ways, in terms of bag limits or seasons or means by which the fish and wildlife can be taken. There was an argument that what the Constitution recognizes and affirms are the existing aboriginal rights of the aboriginal peoples must mean existing as of April 17, 1982, with all of these attendant regulatory impingements that had occurred over the years.
The court said no, that these rights continue in their pristine form, and the fact that this regulation took place doesn't mean anything in that respect. If there had been extinguishment, we'd have to be persuaded that the intention of the crown was clear and plain in working that extinguishment.
In other doctrines, aboriginal peoples retain significant autonomy, and the federal Indian Act seeks to strike a balance between protection on the one hand, and autonomy on the other hand. Then both the aboriginal peoples' perspective on their rights and that of the common law must be accorded weight. Again, we're working through these doctrines that the court has propounded.
I have listed here that the crown has fiduciary duties judicially enforceable by private-law remedies, such as compensation, or injunction where that's important, where the crown's activity engages specific cognizable—as they say—legal interest of an aboriginal people. It's basically land interests, money interests. The crown is first cousin to a trustee. That's a cognizable Indian interest, and the crown could have fiduciary duties enforceable by private-law measures in that circumstance.
Justice Binnie helpfully adds, I think it's in the Wewaykum case, that a quasi-proprietary interest, for example reserve land, is a cognizable legal interest that there might be a fiduciary duty in relation to, but a government benefits program is not. That is not the kind of thing the government has a fiduciary duty to in relation to the aboriginal peoples.
The last two are very important. Aboriginal rights and treaty rights aresui generis, unique. That means that the court is in a position to shape those rights, to explain what they mean, to examine all of their permutations and combinations, and create law as it goes along. I don't mean to be cynical. I don't have any intention at all about being cynical, because it is in a worthy cause, by and large, but if a right is sui generis that means just wait; we're going to tell you what it means. The court has put itself in a position where it can define the nature of these rights. They are sui generis.
Then the last one, the one this committee is interested in at the moment, is the doctrine of the honour of the crown. The honour of the crown is always at stake in its dealings with aboriginal peoples, the courts have told us, and therefore the courts require that the crown act in accordance with courts' assessments of what constitutes honour in the specific circumstances of particular cases.
These last two doctrines clearly have the most potential to be worked out and expanded and shaped, the sui generis nature of aboriginal treaty rights and the honour of the crown.
On the honour of the crown, I have tried to identify here in the last page or so of this document five important ways in which the honour of the crown has been put to work as a means to achieve reconciliation.
I'll go through these five cases quickly. The first is the justificatory framework. This is the Sparrow case in 1990. This applies where there has already been an infringement. That is, the law of the Fisheries Act or what have you allegedly infringes upon an aboriginal or treaty right. The court has established this justificatory framework. They say that Parliament, the delegated legislators, are not impotent. These things can still have an effect with respect to the rights, but you have to satisfy us, the court, that this infringement is justifiable or justified. In the course of working that out, the court makes use of this concept of the honour of the crown.
Second, the court has said that it is willing to supply the deficiencies of treaties. Many of these treaties are very informal. The later ones--the modern treaties, beginning in Quebec and going into the 1990s and beyond--obviously are not. Those things are anything but simple or informal. But many of the earlier ones are. The court has said that in order to make honourable sense of these treaties, in order that the honour of the crown be complied with, we, the court, are going to supply the deficiencies of the treaties. This is the first Marshall case, the Nova Scotia case from 1999.
Third, where no treaties yet exist, the crown has a legal duty to negotiate them. It isn't just good policy; the crown has a legal duty. The court has told us, especially since the Haida Nation case in 2004 in B.C., that this is indeed a legal duty. As you know, there are many places in Canada where there are no treaties. This is becoming less of a truism, because we have a number of recent treaties in the north and so forth. But in most of mainland British Columbia and elsewhere, that's been the case until recently.
It's often said that the very land on which we're situated right now is the subject of a land claim. There was no treaty of surrender with respect to the watershed of the Ottawa River east of Mattawa, on either side of the river. The Algonquin of Quebec and Ontario take the view that they have aboriginal title, an aboriginal rights claim. There was never any treaty with those people. There's a legal duty, a constitutional duty, one might say, to negotiate treaties in those circumstances.
The last two really go together and are about consultation. The honour of the crown requires that where activity is proposed by the crown or through the permission of the crown--it might be a grant to a private party--that might adversely impact the exercise of an aboriginal right, treaty right, or aboriginal title, the crown needs to consult with the aboriginal people affected. That's true both where the right is established, as it was in the Mikisew case--you had a treaty right that was an issue--or where the rights are not yet established, as in the Haida case, in the various B.C. cases, and in the north. They haven't been proven in court. They are not the subject of a treaty. Yet there is some proposal for mining or lumber development or what have you. During the period during which the claim is outstanding and is being negotiated, the crown has a duty to consult with the aboriginal people affected.
The last aspect of that is that in the course of consultation, the consultation will be directed toward what accommodation, if any, needs to be made in relation to the right that's asserted.
I could continue all day.
Thank you, Mr. McCabe, for coming here today.
I've had a chance to go through your book and these briefing notes, and it poses certain challenges for me as a lawyer who has worked to some extent on a variety of issues.
I might comment that the cases you cite in your briefing note, and indeed a number of others, actually are quite rich in terms of what they're practically dealing with, whether it's traditional practices and the use of resources on land and/or in water versus a rightfully growing concern we have about the need to include first nations communities in major economic development in regions or around a resource. Indeed, it's particularly relevant that a person of your stature and authority, if you will, on the judicial piece to this whole discussion could benefit.
So I'm going to try to go down the economic road consistent with some of the things that our study is looking at, but it is building a little on Ms. Crowder's important question at the end with respect to economic developments. Because the fact of the matter is that we can't always wait for the Supreme Court of Canada for these decisions.
I'm not going to talk so much about aboriginal rights on a right-to-right basis. Again, I want to focus on the economic development. I may ask you to do some practical translations of some of the great legal work that you've done in these areas.
Historically we've looked at fiduciary relationships and obligations. Of course, the Royal Commission on Aboriginal Peoples recognized that there was a balancing of rights going on here. Wewaykum, which you quote on page 3 of your brief in a slightly different context from what I'm raising here, identified that the crown is no ordinary fiduciary. Depending on the context, they have to regard the interests of several different parties. Importantly, I think, they're not restricted to section 35 rights.
That's important, because what I want to ask you is a very open question. We have land claim agreements settled. Some are in the process of being ratified. They deal with a number of issues, which include, inter alia, issues around MRP, matrimonial rights property, resource utilization, and participation in the economic benefits it has.
To that extent—let's try to flip this over—what are the challenges for the court in view of some of the emerging regulatory frameworks and some of the land claim settlements that have occurred? Some are in the process of occurring that many first nations are quite excited about getting done because they have become an integral part of an economic strategy in a particular region, or perhaps nationally.
Thank you, Mr. McCabe, for giving us your time here today on a very intricate topic, critical to the kinds of issues that come before this committee.
Committee members, there are a couple of very short items that we need to dispense with before we adjourn. The first is going back to Ms. Crowder's comments earlier in the meeting. We are now in receipt of a motion from her. I'm going to read that into the record. We will not deal with this item today. We will make room on the agenda for Thursday, but I'll read it into the record so you can look at it before we have this discussion on Thursday. It reads as follows:
That the Committee has considered the 2008-2009 report of the Office of the Correctional Investigator and its supplement entitled “Good Intentions, Disappointing Results“ and recommends the implementation of the Correctional Investigator's recommendations, and that the adoption of this motion be reported to the House.
That is deemed received and we will discuss it on Thursday.
There are two other short items.
For Thursday, the minister was unable, in the short period of time that we had, to make time available for the consideration of the supplementary estimates (B), so we will have officials to report, as the committee requested. We wanted to consider those estimates, and we will do that on Thursday. The witness that had been arranged for Thursday will be pushed off to a later time. That will be on Thursday. I won't say what room because I don't know it at this point.
Finally, the subcommittee met this morning and has recommended that the December 10 meeting be cancelled so that members have the opportunity on Thursday to attend a portion of the special chiefs assembly here in Ottawa. The Assembly of First Nations is here in Ottawa next week, and their last day is on Thursday morning going through to midday. That will give members an opportunity to attend on December 10, next Thursday.
That's all we have for business of the committee today.
Thank you again, Mr. McCabe.
The meeting is adjourned.