Assault on rights alleged

Page 1

Analysts of First Nation government say they are seeing a widespread assault on Aboriginal rights and some believe it's a sign that the Prime Minister is still trying to pass his much-reviled 1969 White Paper assimilation agenda into law before he retires.

Windspeaker found evidence of the assault in several proposed government bills that could have an effect on Aboriginal rights. These bills are in addition to the ones being proposed on governance by Indian Affairs that will soon be going through Parliament.

Minutes of the Dec. 3, 2002 session of the Standing Senate Committee on Energy, the Environment and Natural Resources show that Aboriginal Senators are fighting for the continued existence of non-derogation clauses in Bill C- 5, respecting the protection of wildlife species at risk in Canada.

A non-derogation clause is a legal device that states that anything written down in a new law will not detract from a right in an existing law. It allows that rights guaranteed in law, for example the Aboriginal rights in Section 35 of the Canadian Constitution, cannot be "un-guaranteed" by accident in any new legislation.

The Senators were discussing a letter from Minister Martin Cauchon, Minister of Justice and the Attorney General of Canada.

"Minister Cauchon has indicated that the government will adopt a policy of not including non-derogation clauses in proposed future legislation," said Senator Nick Sibbeston, a Metis from the Northwest Territories.

"I do not know what the minister's plans are with respect to the bill. Will it be a bill to delete all non-derogation clauses from past bills? Is the government's solution to do away with non-derogation clauses?

"If that is the case, it was not our intention. Aboriginal rights are significant. They are more than the rights that are contained in the Charter of Rights. There is some purpose in referring to non-derogation clauses. It seems to be the practice or convention that has been established in our country in Parliament and in legislatures throughout the country. The non-derogation clause is a useful item. It reminds legislators and the courts of the importance of Aboriginal rights."

Nick Sibbeston said he was "horrified" by this initiative and that it "would be seen as an attack" by Aboriginal people.

Another Aboriginal Senator, Charlie Watt, also expressed his concern.

"I want to mention that the Aboriginal people will consider this a threat to their Aboriginal rights," he said.

Justice representatives told the Senators that the non-derogation clause was not necessary because Aboriginal and treaty rights are already protected in the Constitution. They argued that having repetitive language in legislation could lead to confusion.

But one of Canada's pre-eminent Aboriginal law scholars, Osgoode Hall law professor Kent McNeil, disagreed.

"If the situation is [that] there's an act with a non-derogation clause in it that generally says 'This act does not derogate from Aboriginal or treaty rights that are recognized and affirmed by Section 35 of the Constitution,' I would be concerned if that were removed, from a legal perspective," he said. "The reason for that is, and it's going to depend on the statute, legislation can infringe the treaty or Aboriginal rights that are protected by Section 35. They can't extinguish them because they're constitutionally protected, but they can still be infringed. So if the non-derogation clause says this act does not derogate from any Aboriginal or treaty rights, that should protect them from infringement just as a matter of interpreting the statute, because a judge looking at it would say, 'Well, there's no intent here to actually infringe these rights. I need to interpret the statute in a way that doesn't infringe them.' If that isn't in there, a judge could say, 'This statute is inconsistent with an Aboriginal or treaty right to this extent and that's an infringement.' If the government can justify that under the Sparrw test, then the infringement would be valid."

In other words: Section 35 is protection against extinguishment, of completely doing away with Aboriginal or treaty rights. The whole gray area of justifying infringement, where the government can put its own interests ahead of Aboriginal or treaty rights for reasons of public need if the government follows rules laid down in the Supreme Court of Canada's Sparrow decision, that's where the non-derogation clause provides a whole extra layer of protection. If you take the non-derogation clause away you are taking that extra protection away.

Another stunning example of potential encroachment of Aboriginal rights comes with a review of the Citizenship of Canada Act.

In response to the terrorist attack on the United States on Sept. 11, 2001, Canada is reviewing that act in Bill C-18 with an eye to improving security. That may mean that citizens of Canada will be required to carry national identity cards.

Patrick Brascoupe Apikan, a veteran First Nation technician who now works for Kahnawake Chief Joe Norton, appeared in front of the Standing Committee on Citizenship and Immigration in Montreal on Feb. 18.

He told the committee that under this national identity card program Native people who insist they are not Canadians, but Mohawks or Algonquins or members of other Indigenous nations, will then be considered immigrants in their homelands under Canadian law.

"In my brief, I explain how it is that thousands of North American Indians with deep roots in Canada share three circumstances: We are not citizens of Canada. We do not need to become citizens to enjoy our birthrights and fundamental freedoms in our ancient homelands, even though it may now be divided by a Canada/U.S. border. [And] if we did apply for citizenship, we would have to become a willing accomplice to a legal fabrication, that after 8,000 years of uninterrupted occupation and evolution in this part of the world, we are immigrants in our own homelands."

He cautioned the standing committee that failure on its part to take these facts into account as the members reshape the act would result in the revival of a long discredited government practice.

"Enfranchisement-the legal termination of our status, rights and freedoms as Indian people in exchange for citizenship in the Canadian state-dominated such matters from 1857 to 1985 when enfranchisement was finally removed from the Indian Act. The enfranchisement regime lasted 127 years, and even today, hundreds are still applying for reinstatement as Indian people. In the past 18 years, about 127,000 of the 233,000 applicants were reinstated," he said. "The objective of the enfranchisement laws (to remove all legal distinctions between Indians and non-Indians until there were no Indians), and the following treatment of Indian people as wards, or children of the state, have both been eclipsed by political discussions and court cases attempting to reconcile our status, rights and freedoms with Canadian status, rights and freedoms. This reconciliation has just started, and is far from over. Consequently, there remains a strong belief that to accept the offer of Canadian citizenship would mean the giving up our right of self-determination and status as free and independent people."

He made several recommendations to the committee, including that "an exception to s. 53(c) of Bill C-18 (the taking, acquiring, holding, or disposing of property only by citizens of Canada) should be added so that Mohawk and Algonquin people, who are not citizens of Canada, would be treated in the same manner as a citizen," and "that Canada acknowledge that while enfranchisement was the only expressed route to Canadian citizenship in the past (until 1985), the lack of citizenship in Canada will never be construed to limit, alter, suspend, or diminish Mohawk, or Algonquin citizenship, or their rights and freedoms in Canada."

Contacted after his presentation, Apikan said he didn't see any sign tha the committee will enthusiastically get to work on his suggestions.