AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 23, 1999

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[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Welcome, everyone, to the Standing Committee on Aboriginal Affairs and Northern Development. It is meeting number 16, and we are video-teleconferencing today. The order of the day is Bill C-9, an act to give effect to the Nisga'a Final Agreement.

Joining us from Toronto, from Osgoode Hall, we have Dean Peter Hogg and Professor Patrick Monahan.

I welcome both of you to our hearings. Thank you very much for fitting us into your schedule. I know you're busy—and these members are busy—and I think it's important to have your contribution to this debate.

Without further adieu—we're going until 2 o'clock, an hour—if the two of you would like to make an opening statement of no more than 10 or 15 minutes, we'll then go to five-minute rounds of questions, the five minutes including both the question and the answer, as much as possible.

Who would like to start?

Professor Patrick Monahan (Osgoode Hall Law School, York University): I will start, Madam Chair and members of the committee.

Just to clarify the scope of my remarks and, I think, the dean's remarks as well, what we will be addressing is the issue of the constitutional validity of both the agreement and the enabling legislation, that is to say, does the agreement itself constitute a constitutional amendment or an amendment to the Constitution of Canada that would require a constitutional amending procedure to be followed, or is the agreement and the ratifying legislation valid on the basis that it's consistent with section 35 of the Constitution Act of 1982?

We're only addressing that legal question. I won't be speaking to the broader question about the policy of the treaty or the legislation. We're simply looking at the legal question, which is the constitutional question of the validity of the legislation and the agreement.

My general conclusion is as follows.

While I think there are some respectable arguments challenging the agreement that can be made on the basis of some older cases decided by the Privy Council in the early part of the twentieth century, in my view, the better or more persuasive legal conclusion is that the agreement and the ratifying legislation are valid and do not constitute an amendment to the Constitution of Canada.

The main reason why I have reached that conclusion is based on the terms of subsections 35(1) and 35(3) of the Constitution Act of 1982, which I'm sure members of the committee are familiar with. Subsection 35(1) says:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

So it protects both aboriginal rights and treaty rights.

Subsection 35(3) provides that “treaty rights” under subsection 35(1) includes rights acquired under land claims agreements.

So subsection 35(1) clarifies, for example, that it is not simply the agreements that existed in 1982 and the rights under those agreements that are constitutionally protected, but also rights acquired under future agreements.

Essentially my view is that subsections 35(1) and 35(3) of the 1982 Constitution contemplate precisely the process that is occurring here, namely, an agreement that is reached between aboriginal people and the federal and/or provincial governments. Upon ratification of those agreements, the agreements come into effect in accordance with their terms. The rights acquired under the agreements are then constitutionally protected.

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That does not mean that the agreements themselves become part of the Constitution of Canada, but what it does mean is that the rights are protected and that any federal or provincial law that is inconsistent with the rights under the agreement would have to meet the test of justification which the courts have set for infringements of rights protected by section 35. That test was set in a case called Sparrow. The agreement, then, would have constitutional status in the sense that the rights are protected in that way, but they would not be a formal amendment to the constitution.

I know I have some fairly limited time, but essentially my conclusion is based on two arguments.

First, the terms of section 35, and in particular subsection 35(3), contemplate this process, the process of entering into treaties and the treaties becoming protected. That's the only reasonable interpretation we could give to the intention of section 35, subsections 35(1) and 35(3).

Secondly, in my view, it is very likely that the courts, quite apart from the terms of any agreement, will recognize that self-government and the right of self-government is an inherent right of aboriginal peoples that is already protected under subsection 35(1), because, as I read to you a moment ago, subsection 35(1) protects two categories of rights. It protects aboriginal rights, which are rights the courts have said arise from the historic occupation and use of land by aboriginal peoples, and then there's the second category, which are rights acquired by treaty.

Based on my review of the Supreme Court of Canada's decisions dealing with aboriginal rights, it's my conclusion that it is very likely, although it has not yet been authoritatively decided, that the courts will recognize that self-government is already protected by subsection 35(1).

On that theory, and if that is correct, then what we have here is merely an attempt to define by agreement the scope of self-government rights. In other words, we are not creating a new order of government because, on this argument, the courts have implicitly already recognized that aboriginal peoples and rights of self-government of aboriginal peoples have constitutional status. So for that reason, even apart from the existence of subsection 35(3), which provides for these modern land claim agreements, it seems to me that what we are doing here is merely defining the scope of a right that already likely exists under subsection 35(1) of the Constitution Act of 1982.

Therefore, I do not think that the arguments that have been raised, which the committee may have, in fact, heard from previous witnesses... I'm not aware of the witnesses that you have heard from, but the argument that this creates a third order of government that is different from what we already have, it seems to me, on balance, is not likely to be accepted by the courts. The courts will likely rule that there already are these rights of self-government and that all that's happening here is an attempt to define them.

That, Madam Chair, is, in essence, my conclusion and the basis for it.

The Chair: Thank you very much.

Professor, would you like to start your presentation now, please?

Professor Peter Hogg (Dean, Osgoode Hall Law School, York University): Madam Chair, I fully agree with everything that Professor Monahan has said. If I may, I will just express the same ideas very briefly in slightly different language.

I think the committee should start with the assumption that the Nisga'a people already have aboriginal rights, that is to say, rights that stem from their pre-European occupation and organization before white people arrived. They already have aboriginal rights to land—we know that from Delgamuukw—and they almost certainly have rights to self-government, because of course they were organized societies before European settlement.

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So although the courts haven't squarely decided that issue yet, I have very little doubt that the courts will decide that there is an aboriginal right to self-government.

So the Nisga'a people have those things now, whether or not a treaty is entered into. The objective of the Nisga'a agreement is to substitute for those “aboriginal rights” to land and self-government more clearly defined “treaty rights” to land and self-government. If no treaty were entered into, if, for instance, Parliament did not approve the Nisga'a treaty or if it had never been entered into in the first place, there would still be the problem of bringing certainty and clarity to the rights that the Nisga'a people now have, as aboriginal people, to land and self-government.

I think the best way to think of the treaty is as a vehicle to convert aboriginal rights into much clearer and more certain treaty rights. That's all I want to say as a preliminary matter, Madam Chair. I'll be happy, along with Professor Monahan, to respond to questions.

The Chair: Thank you very much, both of you, for your testimony. Before we go into the rounds of questioning, let me just say that I'm getting an echo in my listening device, so if anybody doesn't understand anything at any time, just please indicate that to me so we can have it repeated.

Mr. Konrad, we're starting our five-minute rounds with you. Please go ahead whenever you're ready.

Mr. Derrek Konrad (Prince Albert, Ref.): Thank you very much, Madam Chair.

Thank you for your learned opinions, gentlemen.

I simply point out that what you have given us are your views based on your study of the treaty and of history, decisions, and other documents that have probably been subject to your scrutiny. I wonder how many academics foresaw the decision in Marshall in the recent past few weeks and what they might have done about it had they seen it coming—including the government, which also didn't seem to see it coming.

I would be hesitant to tread down a path where we are depending on views, particularly when there are people of goodwill who have a good understanding of constitutional arrangements and agreements, without providing some certainty in the legislation or some escape mechanisms to provide for the possibility that things won't work out the way we thought they would.

For instance, the agreement itself is not a part of the legislation before government right now. If it becomes mired in the Constitution and out of reach of Parliament, there may be some things that a future Parliament may decide to change, possibly—and hopefully—even with the agreement of the people governed by the Nisga'a treaty. I wonder if you could comment on those observations.

Prof. Peter Hogg: It seems to me that a very important difference between Marshall case, for example, and the Nisga'a treaty, is this: the Marshall case concerned a very old treaty, which was couched in very vague language, and it was very difficult to know what it meant—and of course the Supreme Court of Canada divided on the question of what it did mean. When you look at the Nisga'a agreement, what you find is a very detailed and very clear attempt to spell out the exact nature of such things as fishing rights, timber rights, oil and gas. There is an attempt to deal with everything in a very clear fashion.

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In terms of clarity and certainty, I think we will be far better off with a document like the Nisga'a agreement than is the case with very old agreements or, as in the case of most of British Columbia, where there are no agreements at all and it's extremely uncertain what the aboriginal rights are. As well, I take the point that you made yourself, Mr. Konrad, that is, if the provisions in the agreement do turn out to be—

The Chair: Excuse me, but I have to stop you there for a second.

Are you having problems hearing them?

Mr. Derrek Konrad: Yes, for the last minute.

The Chair: It doesn't sound very clear to me.

Can we ask for a technician here?

Prof. Peter Hogg: Is the problem at our end?

The Chair: I think it's the reception at our end. Are you having any problems hearing us?

Prof. Peter Hogg: No. We can hear you very clearly.

The Chair: Oh. This is like an echo in our headphones.

Why don't we just try for a second without the headphones at this end?

Just go ahead and we'll see if this works a little better.

Prof. Peter Hogg: Are you ready? Can you hear what I'm saying now?

The Chair: Yes. Go ahead. It's still with an echo. I think the difficulty may be at your end, though.

Prof. Peter Hogg: We have a technician making an adjustment here to see if that helps.

The Chair: Thank you.

Prof. Peter Hogg: Let me repeat what I said earlier. If it's difficult to understand, we'll try to make more adjustments here.

What I said earlier was that the difficulties caused by the Marshall decision a few weeks ago were in large part the result of that depending upon a very old treaty, which was couched in very vague and broad language. The difference between that treaty and the Nisga'a treaty is that the Nisga'a treaty, as all members will appreciate, is a very detailed document which tries to spell out in some detail exactly what rights are possessed by the Nisga'a people with respect to each of the areas that it governs.

I think we will be much better off with a treaty that spells out rights clearly than we would be with no treaty, where the Nisga'a people would end up having to go back to court to get the courts to define what land they were entitled to and what self-government powers they had. It would not be spelled out as it is in the Nisga'a treaty. If the Nisga'a treaty does turn out, as in the future it probably will, to be defective in some way, then it can be amended by the procedure set out in the treaty, which of course would involve the consent of the Nisga'a people.

The Chair: Because I interrupted you, Mr. Konrad, if you wish to ask another question I'm going to allow it.

Mr. Derrek Konrad: I read the treaty that the Marshall decision was based on. I note that there were justices who said there were no contradictions on the face of it, so that's always open to argument.

But that didn't really answer my question. The question I had was this: do we want to put these things out of the reach of Parliament for all time or do we want to include the treaty in the bill before Parliament so that it becomes a bill, or not the... The land claim agreement, fine: let's have a land claim agreement that talks about geographic extent and money and that kind of thing, but the self-government provisions wouldn't have to be in there. Don't you think it would give a better result and would result in a lot less opposition to the treaty if that were so?

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Prof. Patrick Monahan: I'm trying to understand the purpose of that. Would that be to give the provisions in the treaty force of law through statute? I'm not sure you would want to do that. I haven't thought particularly about that issue.

The point we're trying to make here is that in the absence of this agreement, you would be left with the judges in effect creating these rights entirely on the basis of the judges' view as to what is appropriate.

For example, in chapter 11 of the Nisga'a agreement, there's a setting out of the different powers of the Nisga'a governments and how the laws enacted under those powers will interact with federal and provincial laws. If you do not have that agreement, that treaty, it would then be up to the courts do create their own lists of powers and their own theory as to the relationship between the federal and provincial laws and the aboriginal laws.

The Chair: Thank you.

Ms. Davies, go ahead, please.

Ms. Libby Davies (Vancouver East, NDP): I'm one of the representatives from British Columbia. As I'm sure you're aware, we've had a rather epic debate in B.C., actually the longest debate in history in the B.C. legislature, and extensive public hearings. There have been opinions on all sides. One of the things that really drives me crazy is this very popular notion that the Nisga'a treaty is illegal in some way. We hear this over and over again. The Reform Party continually says that.

Even this morning we had witnesses who told us that—Mr. Flanagan, I think his name was, from McGill University, and actually a Mr. Scott as well. Their notion was that because the agreement, the treaty, somehow creates an order of government that is separate and apart and this is now going to be mirrored across the country, it's unconstitutional. We keep getting left with this question. But as I understand it from what you've said today, subsection 35(1) clearly lays out the inherent right to self-government. That has existed. That's something that modern-day society cannot confer. It existed before European contact.

Your point that we are now dealing with the issue of defining those rights is something that I think is very important, but I'm not sure that it gets out there. Vis-à-vis the Marshall decision, it seems to me that we're much better off to have aboriginal rights defined and in effect codified through a treaty than we are having it left vague and ambiguous or continually subject to legal interpretation.

Here's the question I have. You're quite clear about subsections 35(1) and 35(3), but are there any decisions that have been rendered by the courts that would actually undermine what you're saying? Are the court decisions quite clear in that regard in terms of backing up your conclusion?

Prof. Patrick Monahan: Well, let me just say that subsection 35(1) does not expressly say there's an inherent right to self-government, but based on reading the Supreme Court of Canada decisions interpreting section 35, I think it is very likely that the courts will recognize there's an inherent right to self-government in section 35.

But to be fair to the issues—and you commented on other witnesses who testified—there's nothing expressed in subsection 35(1). It's not that subsection 35(1) expressly says there's an inherent right to self-government, but I think it's implied in the decisions the courts have reached in interpreting section 35 to this point. So yes, I think on balance the courts will agree that this process, which is to codify the rights or to define the rights through treaty, is valid and appropriate.

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There are some older cases decided by the Privy Council, which may have been referred to by Professor Scott. I don't know. I didn't hear his testimony. There are some older cases that talk about the federal and provincial governments as having the entire scope of government under the Canadian Constitution. There are those older cases.

I would simply comment that those cases were decided in the early part of the twentieth century before we had a recognition of aboriginal rights—which we now have, since 1982—so I think it's really mistaken, with all due respect to Professor Scott and perhaps others, to try to take those older cases, which are now 60 or 80 years old in some cases, and use them as the basis for the interpretation of section 35.

In the last ten years, we've had a number of decisions of the courts on section 35. I think those decisions very strongly suggest to us that there is already an inherent right to self-government, which arises from the prior occupation of land by the aboriginal peoples. Therefore, that is the basis upon which the courts will interpret this legislation in this treaty.

The Chair: Professor Hogg, go ahead if you want to add something.

Prof. Peter Hogg: None of the old cases dealt with aboriginal—

The Chair: Professor, can you just wait?

Can we get the volume turned up again? I can't hear.

Could you try again, Dean Hogg? Go ahead.

Prof. Peter Hogg: I was simply...

[Editor's Note: Technical Difficulty]

...powers were exhaustively distributed between the federal Parliament and the provincial legislatures. None of them concerned have original self-government, so there was no case that denied...

[Editor's Note: Technical Difficulty]

The Chair: It's still not perfect at this end—far from it.

Mr. Keddy, go ahead. I'm going to allow about two minutes extra for everybody, just so people can speak more slowly, just so we can get more clarity when the other centre is speaking to us.

Mr. Gerald Keddy (South Shore, PC): Thank you, Madam Chair. No one speaks slowly in the Maritimes, but we'll do our best.

We appreciate the witnesses appearing by video conference, but I certainly want to expand on the reference to the Marshall decision. I appreciated your answer on the fact that the Nisga'a treaty codifies or, if you will, puts in order the rights under that treaty, or that the treaty will provide. I think the mistake people are making about the Marshall decision, notwithstanding your answer that it was an old treaty based on the 1760 treaty and it was certainly vague and ambiguous in places... it dealt with one issue, with catching eels—and the judges clarified that—and it can be expanded to harvesting game and perhaps to gathering.

Unless we have a modern-day treaty or a treaty that clearly codifies the rights and laws and establishes what, if any, aboriginal title exists with the Mi'kmaq, we'll continue to have the courts simply decide that for the Parliament of Canada. If anything, the Marshall decision should be an argument in favour of settling modern-day treaties so that rights are clearly established and defined. Would you care to take that a little further on the Marshall side?

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Prof. Peter Hogg: I agree with that argument completely. It seems to me that the great advantage of the modern treaties is that they do define the rights with great detail and clarity. That is what the Nisga'a agreement does. I'm also familiar with the Yukon agreements; they do the same thing. That is a huge advantage over having no treaty at all, which is the Nisga'a situation, or of having a very old treaty, which was not designed—

The Chair: Excuse me, Professor. We're going to take a five-minute break. The technicians have requested it. They're going to restart your system. Hopefully when they reboot it will be a little clearer than it is right now. Your testimony is valuable to us and we want to make sure we can hear it.

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The Chair: Okay. We will continue. Hopefully this adjustment to the equipment has made it much clearer. I think I interrupted the answer from our witness.

If you would like to go back and take the floor again, I will give you the time.

Ms. Libby Davies: What was the question?

Some hon. members: Oh, oh!

The Chair: What was the question?

Yes, if you remember the question, that is.

Mr. Keddy, could you just briefly re-state your question? Then we'll continue. Thank you very much.

Mr. Gerald Keddy: I'm dying to restate my question without the preamble. Very quickly, the question was on the Marshall decision on the east coast and the fact that without a modern-day treaty we're going to continue to revisit that issue over and over and define rights one at a time, which you alluded to already. That could be the case with the Nisga'a if we don't define these rights and codify them somehow.

The Chair: Go ahead, Professor.

Prof. Peter Hogg: My answer to that question was this: that is absolutely right. I believe that by having a detailed modern treaty it is very unlikely that we will need future litigation in order to clarify the rights possessed by the Nisga'a people. It's set down in considerable clarity and certainty in this document. We're therefore buying, it seems to me, peace and clarity in the matter of the rights of the Nisga'a people.

Mr. Gerald Keddy: Would—

Prof. Patrick Monahan: May I just add one additional comment?

Mr. Gerald Keddy: Sure.

Prof. Patrick Monahan: In the court decisions, in the Delgamuukw case in particular, the courts have repeatedly said that they wanted to encourage negotiations and voluntary agreements between the aboriginal peoples and governments, as opposed to going to the courts and asking the courts to define the rights. What the judges are saying is that if they have to, they will, of course, but they would much prefer the political authorities to come to an agreement.

That's what has happened here, in effect. There has been an agreement. It's now in the process of being ratified, and if it is ratified, it's for that reason that I think the court would say, well, we're going to give effect now to the terms of this treaty, which means that the courts don't have to create, for themselves or for us, the scope of self-government rights. We can now look to the terms of the treaty. If you go back and look at the decisions of the courts, that's what the courts are really encouraging the political authorities to do.

The Chair: Mr. Keddy, one short question with one short answer.

Mr. Gerald Keddy: Well, I'll make it a short question, but I don't think there is a short answer. Within the NFA, it certainly states very clearly that the Charter of Rights and Freedoms applies. Yet the argument has been made that the Charter of Rights and Freedoms doesn't apply. Do you have an opinion on that?

The Chair: Go ahead, please.

Prof. Peter Hogg: My view is that if the agreement says that the Charter of Rights applies, then the Charter of Rights applies. It's as simple as that. There has been some argument about whether or not the Charter of Rights would apply to aboriginal self-government if you did not put in a provision like that. My own view is that the charter still applies, even in that situation, but it becomes perfectly clear if you put the provision in.

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The Chair: Thank you very much.

We go to Mr. O'Reilly. We're back to the five-minute rounds now because the transmission is perfectly clear.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank you very much, Madam Chair.

Thank you very much to the witnesses for appearing.

I wanted to clear up one of the areas that I believe Professor Hogg has some expertise in, that is, the myth of taxation without representation. I would draw your attention to the agreement between the Champagne and Aishihik First Nations, the self-government agreement, which I believe is nicknamed the Yukon agreement, isn't it? In that agreement, taxation laws are enacted. I believe they say that the Champagne and Aishihik First Nations have the power to enact laws in relation to:

Taxation, for local purposes, of interests in settlement land and of occupants and tenants of settlement land in respect of their interests in those lands, including assessment, collection and enforcement procedures and appeals

relating thereto, and “other modes of direct taxation of citizens”, and, if under section 14, “of other persons and entities within settlement land,” to raise revenue for Champagne and Aishihik First Nations purposes.

It goes on and on. I realize it's not a section 35 agreement, that it's outside of section 35, but I wanted your comments on that. We've had a lot of people from the Reform Party indicating that somehow we're creating some kind of a third-world power of taxation and that it's something we should all be afraid of. If in fact this other agreement is already in force and has similar provisions, how is it that this is being described to us as brand new and outside the context?

I wondered, Professor Hogg, if you could compare the Nisga'a agreement to the Yukon first nations agreement.

The Chair: Dean Hogg, go ahead.

Prof. Peter Hogg: I'm not able to give a detailed comparison between the Champagne-Aishihik provisions—which I did know in some detail a few years ago—and the Nisga'a ones. Let me just answer in very general terms that if you are creating self-government powers in a modern treaty, the first nation has to be able to finance its government. If the first nation government is not going to live exclusively on transfer payments from the federal government and the province, it has to have some powers of taxation. It seems to me that this is an inevitable part of a modern treaty. That's why it's in the Nisga'a agreement and that's why it's in the Champagne-Aishihik agreement.

Mr. John O'Reilly: Thank you very much, Professor.

Perhaps Patrick Monahan... I notice that he took the “g” out of his name. If he's a true Irishman, it would be “Monaghan”, with the “g”. Perhaps Patrick Monahan would like to comment.

Voices: Oh, oh!

The Chair: Go ahead, Professor.

Prof. Patrick Monahan: I was told a story by my grandmother: they were so poor when they came over from Ireland they didn't have enough ink in the pen so they thought they'd write it without the “g”.

But that's not what you wanted me to comment on. Let me say that I agree with what Dean Hogg has said. Any form of government, whether it's municipal or a government under the Nisga'a agreement, requires a method of financing their operations. If we accept the principle of self-government—and as I said before, whether or not we accept it, I think the courts are going to interpret section 35 as already including that right—it makes sense to provide for a method for those governments to finance their own operations.

In the absence of such a provision, there would be taxation without representation entirely, because if we didn't have the ability of the Nisga'a governments to raise money through taxation, the entire revenue base of the Nisga'a government would have to come from the federal or provincial government. So the argument that there's taxation without representation, if there is such an argument... it would be even worse or exacerbated if we did not allow for this taxation power under this agreement.

The Chair: Thank you very much.

Mr. Scott, please. Go ahead.

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Mr. Mike Scott (Skeena, Ref.): Professor Hogg, in 1991 you published a book called Is The Canadian Constitution Ready For The 21st Century?. At the very end of the book, under “Self-Government”, you wrote:

the federal government is willing to negotiate self-government agreements as part of the comprehensive land claims process, with the important proviso that such agreements are not to be regarded as giving rise to section 35 treaty rights. The federal government's concern, no doubt, is not to pre-empt the constitutional amendment process, in which the provinces would be participants along with the aboriginal organizations.

We heard from Professor Stephen Scott this morning, and clearly from your book you anticipate the same thing, that is, for the first time, with the Nisga'a agreement, which is different from the Champagne-Aishihik agreement, the Yukon land claims agreement, or any of the other agreements negotiated north of 60°, the government is including self-government in the treaty and therefore is letting it become subject to section 35 treaty rights. You characterized this in your book as pre-empting the constitutional amendment process. I would like to ask you if you still agree with that point of view you apparently had in 1991.

The Chair: Go ahead.

Prof. Peter Hogg: The position that I have always taken and that I took in 1991 was that it was a mistake for the Government of Canada not to include self-government rights in the land claims agreements. In other words, I have always taken the view—and I don't have the exact language of what I said in that article in front of me—that the self-government rights ought to be part of the land claims agreements. In other words, I was reporting what the government was doing there, but I wasn't approving it.

In fact, the Government of Canada is now embarked on a process to constitutionalize the self-government agreements in the Yukon as well, because they were made under the old policy. The new policy, which is now reflected in the Nisga'a agreement, is to have the self-government agreements as part of the treaty. That, in my view, is the correct way to go.

Mr. Mike Scott: I understand clearly what you're saying. Your personal opinion is that the government ought to take these steps regardless, but I do see that you characterize this kind of inclusion of self-government provisions in a treaty as pre-empting the constitutional amendment process in your 1991 paper.

I see that you also said that just because the people of Canada defeated the Charlottetown Accord in 1992 and the inherent right of self-government was one of the five key components of that accord, that should not stop government from proceeding with implementation of the inherent right to self-government in any event.

So I guess the question I have for you is this: don't you think that the people of Canada, in defeating the Charlottetown Accord, said no to including self-government as an aboriginal or treaty right within the meaning of section 35 of the Constitution? Don't you think that if the government were intending to go this route that it would have the right to do that, provided that it goes through the amending process, not pre-empting the constitutional amending process, as you described in your paper?

The Chair: Go ahead, Dean Hogg.

Prof. Peter Hogg: The Charlottetown Accord was a fantastically complicated agreement that dealt with a huge number of matters in addition to aboriginal rights. It would be wrong to describe the defeat of the Charlottetown Accord as being a rejection of any one part of the accord. Was it a rejection of the Senate provisions? Was it a rejection of the distribution-of-powers provisions? Was it a rejection of the Supreme Court of Canada provisions? Was it a defeat of the changes in the amending procedures? The Charlottetown Accord covered so much, I think, that it would be quite wrong to regard its defeat as being the defeat of every single thing that was articulated in the Charlottetown Accord.

The Chair: Thank you very much.

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Mr. Iftody, please.

Mr. David Iftody (Provencher, Lib.): Thank you, Madam Chair.

Thank you very much, gentlemen, for your presentations. I'm very pleased to have two distinguished and eminent Canadian lawyers helping us in our deliberations and debates here. I want to take the opportunity to say thank you for your time.

I wanted to asked a couple of questions. First a comment, if you could... I don't know if you've had the opportunity to read the briefing by Mel Smith on his view of, as he called it, a new third order of government that goes beyond powers delegated under section 92, through provinces to municipalities. He used that as an example and then went on to argue that these powers in the Nisga'a treaty, for example, are much more broad-based than that, therefore triggering a constitutional amendment, and therefore, following that, triggering a referendum, in this case, in British Columbia. I would like you to comment on that.

My second question is on the concerns about the possibility of infringement on some of these rights. In other words, we've heard that this is cast in constitutional concrete, far beyond the reach of any of us, and that our children's children for generations will never be able to touch this. But I refer to Sparrow, somewhat, and in particular to the Badger case, where the courts have said that the supremacy of Parliament is very much considered in these kinds of agreements and that should something go awfully and terribly wrong in the bad, awful world that's often contemplated by the opposition, there would still be a residual kind of broad-based power, under these kinds of provisions, through the charter, the Constitution, or the notion of the supremacy of Parliament.

Could you answer those two questions? Thank you.

Prof. Patrick Monahan: Maybe I could start. First of all, I agree that the powers here are broader, I think, than the powers one would typically find at the municipal level in Canada. For example, we do not have any municipal governments in Canada that can pass laws which would take precedence over federal or provincial laws, as can the laws passed by the Nisga'a governmental bodies. In some circumstances, those laws can take precedence over a federal or provincial law.

So I would agree with Mr. Smith that these powers are not perfectly analogous to the powers of municipalities as they now exist. But generally, I would say, the kinds of powers that are given to the Nisga'a institutions and the circumstances in which those powers will take precedence over federal and provincial laws have to do with local matters, generally matters of local interest to the Nisga'a people. In fact, I think there's quite a careful balance struck between the powers of the Nisga'a peoples and their Nisga'a governments to pass laws and the continuing power of the federal Parliament and of the provincial legislature to pass laws of general application.

I think the treaty really tries to strike a careful balance. You might not agree exactly with how they've struck the balance, but I think they've tried to do it in a very careful way. As I say, in answer to Mr. Smith, with all due respect to his view, I think the Constitution's section 35 contemplates self-government rights and contemplates entering into agreements such as we have now, so the Constitution does expressly provide for this type of agreement with these powers.

On the second question, the issue of infringement, yes, I agree with that. I think there would be some scope for Parliament under the Sparrow test, under the Badger case, to pass a law that might in some circumstances take precedence over the terms of the treaty.

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I would say, though, in fairness, that I think the courts would construe that very narrowly, because the test of justification that would have to be applied in those circumstances would be a very significant test, I think, a very rigorous test. Because how could the courts say that we have now entered into this agreement and compromises have been made—the aboriginal people have made compromises, federal and provincial negotiators have made compromises—and now Parliament in effect wants to overturn that? I think it would be a very limited kind of circumstance in which you could envisage Parliament or the legislature enacting laws that were inconsistent with the provisions of the treaty.

The Chair: Your time is up.

Mr. Keddy, you're going to have our last round of five minutes.

Mr. Gerald Keddy: Thank you.

This question deals directly with the NFA, but it's not something that we've discussed a lot at the table here. For the benefit of all of us... when I read the Nisga'a Final Agreement, I see within certain clauses that there's room for a natural evolution, if you will, of the governmental process. There are things within the Nisga'a agreement that are stated very clearly—how the laws work today—but they allow for room for future change. Myself, I think that's one of the benefits, if you will, of the agreement: this agreement can actually change within the scope of the agreement itself.

In particular—and I'd like your opinion on this—do you see within the NFA the room, for instance, for the Nisga'a government to change and evolve? Perhaps the Nisga'a government that would be there in 20 years or in 50 years or in 100 years will not be exactly the same as what is written down in the NFA. Perhaps it would be a part of the natural evolution of governments throughout Canada.

The Chair: Professor Monahan, go ahead.

Prof. Patrick Monahan: The agreement does specifically provide that it doesn't dictate the form Nisga'a government has to take. It provides the authority for the Nisga'a people to constitute political institutions. So of course you're quite right: the agreement doesn't carve in stone any particular form of government, but what it does do is give the Nisga'a people the opportunity to shape those political institutions and to adjust them and change them from time to time as circumstances change.

Mr. Gerald Keddy: Thank you.

The Chair: You have more time if you wish, Mr. Keddy.

Mr. Gerald Keddy: Does anyone else have a question they've been waiting to ask?

The Chair: Is there anybody else around the table?

One question, Mr. Finlay.

Thank you very much, Mr. Keddy.

Mr. John Finlay (Oxford, Lib.): Thank you, Madam Chairman.

Thank you very much, gentlemen, for joining us as closely as you can through the wonders of modern television and technology.

Mr. Keddy asked a question about the application of the Charter of Rights and Freedoms, and I would like to continue on that line for a question here. Can you comment on the purpose and effect of the qualifying phrase that appears in paragraph 9? It says:

The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a Government as set out in this Agreement.

How do you comment on that qualifying phrase? What does it mean in layman's language? Is there room for concern about future interpretation of those terms or is it clear enough?

Prof. Peter Hogg: In the Charter of Rights itself there is a provision which is section 1 of the Charter of Rights. What it says is:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

So every charter right is subject to that qualifying clause, and it does enable governments to pass laws that limit charter rights if they are doing so for a purpose that is very important and if they are doing it in a way that limits the right as little as possible.

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We've had many cases in which the Supreme Court of Canada has upheld laws that limited charter rights, based on section 1. I think what chapter 9 of the Nisga'a agreement is designed to do is to simply make clear that there will be some laws that will infringe on charter rights but are justified by important social objectives. The Nisga'a right to do that is, as I say, very similar to the way in which the federal Parliament and the provincial legislatures now have exactly the same right to limit charter rights.

Mr. John Finlay: Thank you very much.

The Chair: Professor Monahan, go ahead.

Prof. Patrick Monahan: I just wanted to add that I take some comfort from the latter part of that phrase in chapter 9, because what it suggests to me is that Nisga'a governments, when they seek to justify laws and limits on rights, will be subject to precisely the same tests as the provincial and federal governments. The test will be exactly the same, so that to the extent that the Nisga'a governments, for example, could not show that the law was a reasonable limit demonstrably justified in a free and democratic society, that law and that limit would be inconsistent with the charter.

So really I take comfort in that as suggesting that the same test that's set out under section 1 of the charter is applying and will apply to Nisga'a government.

The Chair: Thank you very much.

On behalf of all the members of the committee, I want to thank our witnesses for their testimony. It's very important that we hear a broad range of opinions on this. I think you've added to our debate today. I apologize for the five minutes we lost in rebooting the system, but I can assure you it was well worthwhile, because your words were heard much more clearly at this end afterwards.

Thank you very much. We'll adjourn.