EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 9, 1995

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[English]

The Chair: Order.

We have with us Deputy Grand Chief Blacksmith, Mr. Robert Mainville, Mr. B. Craik andMr. B. Namagoose.

We also have on the panel the Council for Yukon Indians, represented by David Joe andMr. P. Birckel.

We have received both of your briefs and they have been distributed to all the members. If you can read the briefs in 15 minutes, please do so. If you can't, we'll have the full brief attached to the record. In that case, I would ask you to read parts of it or to speak to the major parts of it.

It's our custom to call on the witnesses on the panel in the main order in which they are listed on the notice of the meeting. So I will first give the floor to the Grand Council of the Crees of Quebec and Deputy Grand Chief Blacksmith. Of course, you can have the brief read in part or in whole by other members, if you wish.

Deputy Grand Chief Kenny Blacksmith (Grand Council of the Crees (of Quebec); Chairman of the Hunting, Fishing and Trapping Coordinating Committee): Thank you,Mr. Chairman.

For clarification, we were supposed to have two submissions submitted, one from the Hunting, Fishing and Trapping Coordinating Committee and also one from the Grand Council of the Crees.

The Chair: I have one brief from the Grand Council of the Crees (of Quebec)/Cree Regional Authority and the Cree Trappers' Association. That's all in one brief. Then I have another just given to me that says ``Submission of the Grand Council of the Crees (of Quebec)''. It's the same thing. Are there two briefs within that same brief?

Deputy Grand Chief Blacksmith: No, it's a separate brief that I believe is being distributed.

The Chair: Okay. We'll proceed.

Deputy Grand Chief Blacksmith: Thank you very much, Mr. Chairman. We appreciate very much being able to make this presentation.

For clarification, I would like to have Mr. Bill Namagoose make the submission of the Grand Council of the Crees of Quebec. I will present the submission of the Hunting, Fishing and Trapping Coordinating Committee and will remain to answer questions on the Grand Council of the Crees submission.

Mr. Bill Namagoose (Director General, Grand Council of the Crees (of Quebec)): The Grand Council of the Crees of Quebec and the Cree Regional Authority represent the James Bay Cree of Quebec. The Cree Trappers' Association has been created to assist Cree trappers in pursuing their traditional activities.

We are not here to comment upon the merits of gun control legislation for the non-native societies of Canada. Our interest in Bill C-68, or any gun control legislation for that matter, is limited to the impact that such law may have on our way of life, on our aboriginal, treaty and human rights and on our fundamental freedoms.

I'm just skimming through the Grand Council brief and will not read the whole statement.

Hunting, trapping and fishing are at the heart of Cree society. Virtually every Cree takes part in the hunt at one time or another during the year and a great number of our people depend on hunting, trapping and fishing for their subsistence. Obviously, firearms are indispensable to this way of life. Almost every Cree owns several firearms. Again, these are essential tools for the continuance of our hunting and trapping traditions.

As you are certainly aware, in the early 1970s the Quebec government proposed the development of huge hydroelectric projects on our territory. We opposed this development and went to court to stop the destruction of our land. As a result, the Cree, Quebec and Canada in 1975 entered into the James Bay and Northern Quebec Agreement.

One of the fundamental undertakings made to the Cree by both Canada and Quebec in this agreement was that our traditional way of life based on hunting, trapping and fishing would be forever protected. To this end, the agreement provides for exclusive hunting, fishing and trapping rights for the Cree over vast territories known as category I and II lands, as well as for the right of the Cree to hunt, fish and trap year round in all of northern Quebec.

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Paragraph 24.3.12 of this agreement specifically provides that:

The right to harvest shall include the right to possess and use all equipment reasonably needed to exercise that right -

Moreover, paragraph 24.3.18 of the James Bay and Northern Quebec Agreement provides specifically that:

...the Native people shall have the right to receive such leases, permits, licences or other authorizations at a nominal fee through their respective local governments.

Furthermore, the agreement specifically states that a ``minimum of control or regulations shall be applied to the Native people'' and that the ``right to harvest shall include the use of present and traditional methods of harvesting except where such methods affect public safety''.

We understand these provisions to ensure us a constitutionally protected right to possess and use firearms for harvesting and to provide that any firearms licensing or certification scheme would be managed through our local aboriginal governments. We are furthermore entitled to obtain such licences and certificates at no charge.

Once again we stress that we do not wish to debate here the merits of Bill C-68. Our point is that Parliament must ensure that any such legislation it adopts is compatible with the aboriginal and treaty rights, as well as with the basic human rights and fundamental freedoms, of the Cree and of all native Canadians.

We therefore suggest that four fundamental provisions be incorporated in the legislation, should it be adopted.

First, the legislation should specifically state that any individual who is entitled to hunt, trap or fish under an aboriginal or treaty right is automatically eligible to hold a licence and to obtain registration certificates for his or her firearms for a nominal fee.

The right to hunt, trap or fish is fundamental to aboriginal life and is one of the most important inherent aboriginal rights.

This right to hunt, trap or fish is not simply limited to those Cree who hunt and trap for sustenance, but extends to all Cree individuals who, though they may be working in the wage economy, actively participate in many traditional hunting activities in our communities.

The first proposed change to the legislation would preserve the fundamental purpose of the act - namely, the universal registration of firearms and firearm owners - while respecting the constitutionally protected aboriginal or treaty right to hunt, trap and fish of all Cree individuals.

Second, we suggest that legislation permit the appointment of aboriginal firearms officers for those first nations that wish to implement the act themselves. Such aboriginal firearms officers would, within the aboriginal communities in question, have the same powers and authority as a chief firearms officer. The act, of course, would expressly provide for adequate resources for these aboriginal firearms officers.

For the isolated Cree communities, and probably for most northern aboriginal communities, the appointment of local aboriginal firearms officers would be the only realistic and effective method of ensuring the proper licensing of individuals and the registration of firearms under the act as now conceived. Administering such a scheme from afar is simply not practical and would lead to massive non-compliance with the law.

Third, we request that the legislation allow first nations to adapt the provisions of the act and its regulations to the particular circumstances of their communities.

Paragraph 110(t) of Bill C-68, as submitted to Parliament, already allows the Governor in Council to adapt, by regulation, the application of any provision of the act or its regulations to aboriginal peoples.

This is an ethnocentric and paternalistic approach.

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The government has already acknowledged the need to adapt the law to aboriginal circumstances. Who is in a better place than first nations to determine for themselves the nature and extent of the accommodations required?

Finally, we request that the legislation specifically state that nothing in the act is to be construed so as to abrogate or derogate from the existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.

The government may attempt to assure us that the changes we seek can be readily implemented through regulations adopted by the Governor in Council under clause 110 of the proposed law. This, however, is no solution at all.

Bill C-68 is unconstitutional in so far as it violates the Crees' aboriginal and treaty hunting and trapping rights. The amendments we propose are therefore essential to the legislation's legality in this respect.

While it is conceivable that regulations adopted under clause 110 could be drafted in such a way as to attempt to remedy the act's violation of the Crees' rights, the mere possibility of such regulations is not sufficient to render the act constitutional in respect of those rights. Clause 110 merely empowers the Governor in Council to enact the regulations. Therefore, there is no duty imposed on the Governor in Council under the act to rectify the legislation's illegality.

Yet the legality of statutes is not a matter for the Crown's discretion, to be effected at the Crown's whim. It is, therefore, utterly inappropriate and unacceptable that the substance of the proposed amendments be left to such discretion, that the act's very constitutionality rides on the Crown's goodwill.

Furthermore, as the embodiment of general principles as opposed to mere administrative rules, the proposed amendments belong in the body of the statute, not in the regulations.

In conclusion, we hope that the committee members recognize the spirit of compromise in which these amendments have been proposed. Our people are not unmindful of the problems created by the unsafe and illegal use of firearms. These amendments in no way undermine Parliament's aim of tracking all firearms and firearms owners in Canada. Far from it. They will in fact further that aim.

As it stands, the bill is impracticable in Cree communities and this can only lead to massive non-compliance unless these amendments are adopted.

This ends my submission. Thank you, Mr. Chairman.

The Chair: Thank you very much.

Mr. Blacksmith, you have the other brief.

Deputy Grand Chief Blacksmith: The Hunting, Fishing and Trapping Coordinating Committee is an expert body, constituted under section 24.4 of the James Bay and Northern Quebec Agreement. Its main purpose is to review and manage the hunting, fishing and trapping régime established under the James Bay and Northern Quebec Agreement and also under the Northeastern Quebec Agreement.

The coordinating committee is made up of representatives from the Government of Canada, the Government of Quebec, the James Bay Crees, the Inuit of Quebec, and the Naskapis of Quebec.

Under the hunting, fishing and trapping régime, the Crees, the Inuit and the Naskapis have the exclusive right to harvest wildlife within the territory. Harvesting includes hunting, fishing, and trapping by Crees, Inuit and Naskapis for personal and community subsistence purposes and for commercial purposes related to the fur trade and commercial fisheries. The territory is what is commonly known as northern Quebec and comprises those parts of the province of Quebec annexed in 1898 and 1912, and having a total area of approximately 410,000 square miles.

The rights of the Crees, Inuit and Naskapis under these agreements are rights entrenched under the Constitution of Canada by virtue of section 35 of the Constitution Act, 1982 and, as such, have priority over all inconsistent federal and provincial legislation.

Sections 24.3.12 and 24.3.18 of the James Bay and Northern Quebec Agreement provide for certain rights of the Crees, Inuit and Naskapis respecting firearms and permits for their use. Section 24.3.12 states:

The right to harvest shall include the right to possess and use all equipment reasonably needed to exercise that right with the exception of the following: -

I'll stop reading the subsection there.

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Section 24.3.18 states:

The exercise of the right to harvest shall not be subject to the obtaining of permits, licences, - etc.

The Native people shall have the right to receive such leases, permits, licences or other authorizations at a minimal fee through their respective local governments.

In summary then, the Crees, Inuit and Naskapis have the exclusive right to harvest wildlife within the territory. The right to harvest includes the right to use and possess firearms, subject to applicable laws and regulations of general application concerning weapon control and so forth.

Subsection 106(2) of the Criminal Code, as it presently reads, has been of concern to the coordinating committee in relation to its apparent conflict with the foregoing provisions of the James Bay and Northern Quebec Agreement. These concerns were set out in a letter addressed by the coordinating committee on August 24, 1994 to the Minister of Justice, the Hon. Allan Rock. A copy of that letter is attached hereto as appendix A. The Minister of Justice has never replied to that letter.

The apparent lack of willingness on the part of the Minister of Justice to consult with the coordinating committee on the issue of firearms control and the impact thereof on the beneficiaries of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement is a matter on which we would like to comment.

It is clear from section 24 of the James Bay and Northern Quebec Agreement that the coordinating committee is the preferential and exclusive forum for the Crees, Inuit and Naskapis and the Governments of Canada and Quebec to jointly formulate regulations that affect the hunting, fishing and trapping regime.

Section 24.4.23 states:

The Coordinating Committee shall be a consultative body to responsible governments...and as such shall be the preferential and exclusive forum for Native people and governments jointly to formulate regulations and supervise the administration and management of the Hunting, Fishing and Trapping Regime.

Section 24.4.26 states:

All regulations relating to the Hunting, Fishing and Trapping Regime proposed by the responsible governments shall be submitted to the Coordinating Committee for advice before enactment -

Other provisions of the James Bay and Northern Quebec Agreement relevant to the consultative role of the Coordinating committee in the specific context of firearms control legislation are as follows.

Paragraph 24.4.27(o) states that on ``regulations which prohibit the possession and use of equipment for the purpose of exercising the right to harvest'', the coordinating committee must be consulted.

Section 24.4.29 states:

The coordinating committee may:

(e) make recommendations concerning weapon control where such control is directed to public security.

Finally, we draw attention to sections 24.4.36 and 24.4.37 of the James Bay and Northern Quebec Agreement, which underline, inter alia, the obligation of the federal government to consult with the coordinating committee when enacting new laws affecting the hunting, fishing and trapping regime.

Section 24.4.36 states:

Before submitting a new regulation or other decision for enactment or taking new action and before modifying or refusing to submit for enactment draft regulations or other decisions from the Coordinating Committee, the responsible Provincial or Federal Minister shall consult with the Coordinating Committee and shall endeavour to respect the views and positions of the Coordinating Committee in any matter respecting the Hunting, Fishing and Trapping Regime....

Section 24.4.37 states:

In all cases where the responsible Minister modifies or decides not to act upon the recommendations of the Coordinating Committee or decides to take new actions, he shall, before acting, consult with the Coordinating Committee when his decisions relate to Native and non-Native activities and the wildlife resources in the Territory....

Given all of the foregoing, and considering that the undertakings of the Government of Canada in treaties and land claims settlements are especially solemn undertakings, the coordinating committee deplores the fact that the Minister of Justice has seen fit to ignore the coordinating committee's letter of August 24, 1994 and has otherwise failed to consult with the coordinating committee on his gun control initiatives.

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Bill C-68 will incorporate and expand upon the elements of the existing section 106 of the Criminal Code, effectively purporting to make it mandatory for the beneficiaries under the James Bay and Northern Quebec Agreement and the North Eastern Quebec Agreement who wish to use and possess firearms for harvesting purposes to meet, or to have previously met, the full screening process, including the required safety course or test.

In addition, Bill C-68 does not contain a provision equivalent to the existing subsection 106(12) of the Criminal Code, which provides that no fee is payable in respect of a firearms acquisition certificate that is issued to a person who requires a firearm to hunt or trap in order to sustain himself or his family.

The coordinating committee considers that if a universal registration system for firearms is introduced by the federal government, it would be appropriate for the Crees, Inuit and Naskapis to participate therein, provided the registration system was not in conflict with the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

We note that if Bill C-68 is not modified to permit the beneficiaries of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement to participate in the registration system, it would result in a very significant number of firearms not being registered, which in itself could compromise the overall effectiveness of the registration system.

The foregoing principles we have enunciated are congruent with the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. As matters of principle, they should be expressly articulated in Bill C-68 and should not be relegated to subordinate legislation, as is contemplated by paragraph 110(t) of Bill C-68. Regulatory authority would, however, be appropriate to give the Governor in Council the mandate to negotiate, in conformity with such principles, specific arrangements with each native authority concerned.

We hope that the foregoing submission will be taken into serious consideration.

Further, we look forward to consultations with the Minister of Justice and his officials and trust that the minister will recognize the importance of his obligations in this respect as provided for under the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

There is a summary of recommendations that we wish to table.

Firstly, under the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, the Minister of Justice is obliged to consult with the coordinating committee on firearms control legislation. The Minister of Justice should consult with the coordinating committee on the existing firearms control provisions of the Criminal Code and on Bill C-68, with a view to ensuring that there are no conflicts with federal firearms control legislation and the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

Secondly, Cree, Inuit and Naskapi local government should be the authorities designated to dispense firearms safety knowledge courses and issue firearms use permits to Cree, Inuit and Naskapi harvesters.

Thirdly, the cost to Cree, Inuit and Naskapi harvesters for firearms safety knowledge courses and for firearms use permits should be nominal.

Lastly, the principles stated in paragraphs 2 and 3 should be contained in firearms control legislation and should not be relegated to subordinate legislation, although it would be appropriate to give the Governor in Council the mandate to negotiate, in conformity with such principles, specific arrangements with each native authority concerned.

Thank you very much.

The Chair: If I remember correctly, I was the minister who introduced the legislation confirming and enforcing the James Bay Agreement, so we had better take this seriously...I would also have to resign as the chair. I assure you it will be taken seriously. It was good to hear those provisions of the agreement again.

Now we'll have Chief Paul Birckel and David Joe, who have the brief from the Council for Yukon Indians. Chief Birckel.

Chief Paul Birckel (Champagne and Aishihik First Nations, Council for Yukon Indians): Thank you, members of the committee.

The purpose of this brief is to present the views of the Council for Yukon Indians, of which I'm a director, in respect of Bill C-68, an act respecting firearms and other weapons. The bill as drafted, we believe, tramples upon the constitutional rights of Yukon First Nations. Our submission outlines briefly our history and the use of firearms and the current circumstances respecting our constitutional rights as conveyed in Yukon first nations final and self-government agreements and the Constitution of Canada.

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In 1973 the fourteen Yukon first nations submitted an aboriginal claim to Canada with respect to our traditional territories within the Yukon Territory. Yukon first nations are involved in the continuing negotiations of that claim, which culminated on May 29, 1993 with the signing of four out of fourteen Yukon first nations final and self-government agreements. These agreements have now been approved by the majority vote of the members of the four Yukon first nations, including the Champagne and Aishihik First Nation, of which I'm chief, the Vuntut Gwitchin First Nation, the Teslin Tlingit Council and the First Nation of Nacho Nyak Dun. These agreements have also been approved by legislation passed by the Yukon Legislative Assembly and the Parliament of Canada, and these agreements of the four Yukon first nations were proclaimed on February 14, 1995.

On October 4, 1994 the Hon. Allan Rock, Minister of Justice for the Government of Canada, visited the Yukon Territory. During that visit Mr. Rock chose not to meet with individual Yukon first nations, but briefly met with the Council for Yukon Indians respecting his plans for gun control.

Ironically, on February 14, 1995, the day on which four Yukon first nations final and self-government agreements were given effect, the Minister of Justice introduced the new proposed Firearms Act. This act, if passed as drafted, would have an enormous impact on our citizens.

This brief, in a summary fashion, will deal with the major proposals set out in the proposed Firearms Act and will consider the impacts this proposed legislation will have upon the aboriginal rights of our first nations in the Yukon.

Bill C-68, the proposed Firearms Act, is currently 124 pages long. It is a complex document that essentially proposes to establish a licensing system for persons wishing to possess firearms. Persons who meet specified criteria may be licensed to possess legal firearms. A licence to possess prohibited firearms will be issued to an individual only if the individual possessed a firearm of that kind before it was declared prohibited. Businesses that supply firearms to the military or to the police may also be licensed to possess prohibited firearms.

The act also establishes a system for the registration of all firearms. Clause 13 of the proposed Firearms Act provides that:

A person is not eligible to hold a registration certificate for a firearm unless that person holds a licence authorizing the person to possess that kind of firearm.

Further controls in the act include a check to confirm the absence of public safety concerns before a person can loan their gun to another person. The act also contains controls on the import and export of firearms and on the carrying and transport of restricted and prohibited firearms.

The aboriginal rights of Yukon first nations are currently contained in subsection 35(1) of the Constitution Act, 1982, which provides as follows:

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

The Supreme Court of Canada and the B.C. Court of Appeal, in cases such as Sparrow and Delgamuukw, respectively, have held this to mean that only the Government of Canada is able to receive the surrender of an existing aboriginal right or title.

Subsection 35(3) states:

For greater certainty, in subsection (1) ``treaty rights'' includes rights that now exist by way of land claims agreements or may be so acquired.

As such, the first four Yukon first nations final agreements are now included as treaty rights within subsection 35(1).

In addition, the courts have also held through cases such as Guérin, Sparrow and Delgamuukw that the Crown owes a fiduciary duty to first nations. In Sparrow the court stated:

...the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is trust-like, rather than adversarial. The contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.

The Sparrow case also proposed a two-stage test, the first of which was to determine whether or not there was interference with the subsection 35(1) right of the Constitution Act, 1982. The second test was to determine whether such interference can be justified by reference to the legislative purpose of the law or regulation, such as conservation.

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In the Delgamuukw case the court stated:

Secondly, the Ministers of the Province and their officers should always keep the aboriginal interest of the Plaintiff very much in mind in deciding what legislation to recommend to the Legislature; and what policies to implement in the territory. There should be reasonable consultation so that the Plaintiffs will know the extent to which their use might be terminated or disturbed. The right of the consultation does not include a veto or any requirement for consent or agreement, although much is to be desired....

The court cases make it clear that the aboriginal peoples must be consulted when their aboriginal rights may be impacted upon. This has not been the case with respect to the proposed Firearms Act.

In the news release that accompanied the proposed Firearms Act, the minister stated:

This legislation would get tough with criminals who use firearms in crime and will enhance public safety. The bill clearly is premised upon the principle of public safety.

The issue then becomes whether or not the proposed Firearms Act can withstand the tests of consultation and fiduciary responsibility of the federal Crown to aboriginal peoples and whether or not the new law is an interference with a subsection 35(1) right and, if so, whether or not such interference can be justified by reference to the purpose of the law, which in this case is public safety.

The Government of Canada has not consulted to the degree that is expected of a fiduciary. Even if the courts hold that Canada has consulted, the issue becomes whether or not there has been an interference with a subsection 35(1) right. Clearly there has been an interference with this right. The only question becomes whether or not this interference is justified.

Let me give you examples of the grave concerns our elders have with respect to the proposed legislation. Our elders believe that they will be the hardest hit by Bill C-68. The majority of our elders live on the land and will continue this lifestyle.

Our elders taught us how to use firearms safely. Bill C-68 now interferes with this vital form of cultural transmission through the technical requirements of the bill, which cannot and will not be taught by our elders. This erodes a vital foundation of our culture.

Potlatches, feasting and gun-giving are still an important method of maintaining traditional relationships between our families in Yukon and the state of Alaska. In particular, gun-giving is a traditional activity at these potlatches. This practice of gun-giving has been ongoing for approximately 200 years, but it will be effectively outlawed by Bill C-68.

The lending of firearms is a practice that complements our nomadic lifestyle. We note that Bill C-68 does not permit a conveyance of firearms through wills. This creates a large gap in the custom and legacy of first nations citizens.

The very nature of our lifestyle makes it virtually impossible to have storage as proposed by Bill C-68 in our traditional hunting and fishing camps. These apparent constraints are unjustifiable infringements on our treaty rights. Bill C-68 is premised upon national public safety concerns. Our Yukon first nations lifestyles are not the prime motivators for this review and the proposed legislation.

In the Yukon there will be two classes of subsection 35(1) rights. The ten Yukon first nations that have not completed negotiations on their self-government and final agreements will have their subsection 35(1) rights as they may exist in law from time to time. Those first nations that have made final and self-government agreements with the Governments of Canada and Yukon have treaty rights that are detailed in their agreements and are now included in 35(1) rights. These rights are part of the Constitution Act, 1982, and pursuant to section 52 of the Constitution Act, 1982, these rights are paramount over all other laws.

Those first nations with treaty rights having provisions that deal with harvesting for subsistence and the use of firearms have been included in sections 16.4.2 and 16.4.3 of the Umbrella Final Agreement. Section 16.4.2 reads as follows:

Yukon Indian People shall have the right to harvest for Subsistence within their Traditional Territory, and with the consent of another Yukon First Nation in that Yukon First Nation's Traditional Territory, all species of Fish and Wildlife for themselves and their families at all seasons of the year and in any numbers on Settlement Land and on Crown Land to which they have a right of access pursuant to 6.2.0, subject only to limitations prescribed pursuant to Settlement Agreements.

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Section 16.4.3 states:

Yukon Indian People have the right to employ within their traditional territories traditional and current methods of and equipment for harvesting pursuant to 16.4.2, or limited pursuant to a basic needs allocation or pursuant to a basic needs allocation of salmon, subject to limitations prescribed pursuant to Settlement Agreements.

These sections make it clear that those first nations with treaties shall have the right to hunt at all seasons using traditional and current methods of harvesting within their traditional territories. In our opinion, Yukon first nations with treaties have the constitutional right under subsection 35(1) to use firearms for subsistence harvesting in their traditional territories or in any other traditional territory subject to the consent of that first nation.

Section 16.3.3 provides:

The exercise of rights under this Chapter subject to limitations provided for elsewhere in the Settlement Agreements and to limitations provided in legislation enacted for purposes of conservation, public health or public safety.

16.3.3.1 Any limitation provided for in legislation pursuant to 16.3.3 must be consistent with this Chapter, reasonably required to achieve those purposes and may only limit those rights to the extent necessary to achieve those purposes.

16.3.3.2 Government shall Consult with the effected Yukon First Nation before imposing a limitation pursuant to 16.3.3.

Section 16.3.3 requires government to consult. ``Consult'' under the terms of the treaties means to provide to the party to be consulted (a) notice of a matter to be decided in sufficient form and detail to allow that party to prepare its views on the matter; (b) a reasonable period of time in which the party to be consulted may prepare its views on the matter and an opportunity to present such views to the party obliged to consult; and (c) full and fair consideration by the party obliged to consult of any views presented.

For the four first nations that have treaties, the duty of government to consult is contained within section 16.3.3 and the Sparrow decision. This consultation as defined in section 16.3.3. has not occurred.

In addition, it is made clear that any reliance on public safety must be reasonably required to achieve those purposes and may limit those rights only to the extent necessary to achieve those purposes. In this case, under the proposed Firearms Act, first nations' citizens must obtain a licence to possess and use firearms. In addition, a Yukon first nation person must also register that firearm.

Both of these requirements are in our opinion inconsistent with the terms of the first nations final agreements. For Yukon first nations without land claims agreements, the issue becomes whether or not the common-law rights of a first nation under subsection 35(1) are at least equal to the first nation treaty rights as contained in land claims agreements for the first four Yukon first nations. In our opinion, these rights are the same, and therefore the licensing and registration requirements as contained in the proposed Firearms Act are a breach of the Crown's fiduciary and constitutional responsibilities as contained in the Yukon final agreements, and the constitutional law of Canada.

As part of the Yukon first nations treaty rights, under section 16.4.10 it has been agreed that ``government shall not impose any fee or tax on Yukon Indian People in respect of any permit or licence to harvest fish or wildlife''. The current draft of Bill C-68 would be in violation of this treaty right.

Yukon first nations self-government agreements: As previously mentioned, the Governments of Canada, Yukon and British Columbia have recognized the inherent right of self-government. Although Canada has established policies on the meaning of the inherent right, this issue is likely soon to be resolved between first nations and the Government of Canada.

The first four agreements on self-government in section 13.1.1 provide for the exclusive power to enact laws in relation to the following matters:

the management and administration of rights or benefits which are realized pursuant to the Final Agreement by persons enrolled under the Final Agreement, and which are to be controlled by the First Nation

The regulation of guns or other equipment used for subsistence harvesting is a section 16.4.3 right that can be exclusively regulated by the first nation as a part of its self-government agreement. This provision of regulation is within the first nation's traditional territory and may be expanded into other traditional territories as contemplated by section 16.4.2 when the first nation consents to other first nations' citizens harvesting within their traditional territory.

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In addition, under section 13.3.21 of the self-government agreements, the first nations have the powers to enact laws of a local and private nature on settlement land in relation to the following matters: ``control or prohibition of the possession or use of firearms, other weapons and explosives''.

This provision makes it clear that the Yukon first nations have the jurisdiction to enact firearms laws on settlement lands.

Yukon first nations and governments have also provided a process whereby the issue of which law will be paramount will be resolved through negotiations. Section 13.5.2 of the Yukon self-government agreements states that the parties:

shall enter into negotiations with a view to concluding, as soon as practicable, a separate agreement or amendment to this agreement which will identify the areas in which laws of the First Nation shall prevail over Federal Laws of General Application to the extent of any inconsistency or conflict.

This section from the self-government agreements makes it clear that in some cases Yukon first nation laws may prevail over federal laws, and one of these circumstances from a self-government perspective may be the matters dealing with use of firearms by first nations citizens.

Paragraph 110(t) of the proposed Firearms Act states:

The Governor in Council may make regulations...respecting the manner in which any provision of this Act or the regulations applies to any of the aboriginal peoples of Canada, and adapting any such provision for the purposes of that obligation.

We note that there are two unique aspects to this regulation-making power. First, the procedural requirements of clauses 111 and 112 stipulate that the regulations must first be scrutinized by the House of Commons and the Senate. The regulations may not be enacted before 30 sitting days of each of those bodies or until there is a report from any committee to which the proposed regulations have been referred. Secondly, paragraph 110(t) cannot be used to undermine aboriginal or treaty rights but, rather, creates broad authority in government to act in a manner consistent with aboriginal and treaty rights, which cannot interfere with first nations' rights.

We believe this regulatory power does not properly acknowledge respect for the constitutional rights of Yukon first nations.

In summary, the Government of Canada is obligated under its responsibility as a fiduciary to consult all Yukon first nations on any legislation that may affect Yukon first nations' aboriginal rights. This has not occurred in respect of the proposed Firearms Act. The first four Yukon first nations have final agreements that contain a treaty right to be consulted, and this consultation has also not occurred in respect of the obligations contained in their final agreements.

Canada must also meet the two-pronged test outlined in the Sparrow case. The proposed Firearms Act interferes with Yukon first nations' aboriginal rights within subsection 35(1). We have given some examples of this blatant interference.

In our opinion, the threat of Yukon first nations' use of firearms, in respect of public safety, has not been sufficiently demonstrated to allow the restriction of our aboriginal rights. We do not believe that the courts should be used as the forum to determine if our rights have been unnecessarily interfered with. In our opinion, there are political processes that would better facilitate common understanding and mutual agreement with respect to the exercise of our treaty and aboriginal rights.

It is not acceptable that the citizens of our first nations become criminals in our own homelands. Canada has agreed to a process within our treaties and we believe these matters must be dealt with in the context of first nation laws. The period of colonization of first nations is long over and Canada must live up to its constitutional obligations under Yukon treaties.

We understand that the Department of Justice has set up a consultative process dealing with Bill C-68. We are not interested in determining the extent to which Canada is in breach of its constitutional obligations to Yukon first nations through discussions with the Department of Justice consultants or employees. This is highly improper.

Finally, Canada has accepted the inherent right of first nations and, under the terms of the Yukon self-government agreements, Canada has recognized the exclusive rights of first nations to regulate harvesting rights and the right to use traditional and current methods of harvesting under our treaties. This is an exclusive matter on which only first nations could properly enact laws.

For all of the foregoing reasons, we firmly believe that the proposed Firearms Act, as presented, is unconstitutional.

This concludes our presentation. We are prepared to answer any questions you have of our delegation.

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The Chair: Thank you very much.

[Translation]

I will start with Mr. de Savoye. You have 10 minutes.

Mr. de Savoye (Portneuf): Thank you, Mr. Chairman. You have the interpretation device close by? Yes? Fantastic!

Gentlemen, I must admit my ignorance of your traditions and your customs. If you could kindly answer the questions I want to ask you, it will help me better understand the representations you are making in your briefs.

On the one hand, it is clear to me that your rights, the rights of your people, the rights that are recognized through a statute or an agreement, must be respected. On the other hand, I am trying to see in which context the traditions you are talking about should be put.

When you are talking about firearms, whether it is about owning, using, donating or inheriting firearms, you say that you have traditions. However, and don't forget that I am just trying to understand what you're saying, before the arrival of Europeans on this continent, your people didn't have firearms. So this is where the tradition comes from and I would first like you to tell me about it.

The Chair: Your question is for both groups?

Mr. de Savoye: Who is better able to answer it?

[English]

Chief Birckel: I could answer that question. Before firearms we had things like bows and arrows, spears and other things, and they were considered to be weapons.

When the firearms came, we traded a lot of furs for the first ones that came in. In fact, we had to pile our furs up to whatever the height of the gun was to get one of those, and we did it.

That was a better form than using what our bows and arrows at that time would do.

So we consider the bow and arrow and the gun to be basically the same, and we've had it ever since. I guess the Russians were the first ones in our territory who we traded with for guns, through our cousins in Alaska, who brought the guns up and we traded for them. It's been a part of our life ever since.

[Translation]

Mr. de Savoye: Before the traditions that you are referring to, there were other traditions that had to do with those weapons you were using before the first guns came in. Am I right?

[English]

Chief Birckel: Yes.

[Translation]

Mr. de Savoye: My next question is for the Deputy Grand Chief.

You realize that, among white people, especially in rural areas, such traditions also exist. So, in which way would the importance of your traditions, as opposed to those of rural people, differ? Could you clarify that for me?

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[English]

Deputy Grand Chief Blacksmith: I guess the greatest distinction is that the aboriginal people who have lived here for thousands of years have had their way of life altered by the destruction of the environment and by the onslaught of various developments and the imposing of different ways of life. We have some of these rights or some of what's left of our traditions entrenched in treaties, which I guess the non-native community does not have at this point.

Also, just going back to your earlier comment, before there were firearms we did have a very peaceful, very simple and very contented way of life. It was only when the earlier settlers came in that we had the difficulties that we face today.

Even if we have those treaties or understandings between governments and native people, are those treaties respected by the governments? That is always a problem that is added to the changes that we have to face.

We don't oppose the changes. We know that we have to adapt to different ways as time evolves. However, the little things that are there that are protected or guaranteed right now are the things that we last hold on to, and we hope that such legislation or the differences between non-native and native will be very distinctive and be recognized and respected by the governments. The big difference between non-native and native peoples is that we have to give up our land and our way of life in order to enjoy what is taken for granted by non-native people.

[Translation]

Mr. de Savoye: My next question is addressed to both Chiefs. The purpose of Bill C-68 is to reduce violent crime committed with firearms. Do your people think that Bill C-68 will help reduce violence and is violence related to firearms a problem you have to deal with?

[English]

Deputy Grand Chief Blacksmith: I don't think Bill C-68 will reduce any violence that may exist in the Cree communities or in any other aboriginal communities. This is another piece of legislation that's added to the various others or to treaties that are there that have not been respected.

The difficulties we face in most native communities arise from the fact that governments have failed to respect their obligations and have not recognized aboriginal people for who they are, being the aboriginal inhabitants of this country. A lot of the unnecessary problems that we face are imposed on us because of the various changes that we are asked to adapt to within a short time. The James Bay Crees had to adapt our ways to be at par with your ways within a span of twenty years.

Along with that, there are social problems that arise. It's not because of our unwillingness to adapt; it's because of all these immense pressures to try to live your way of life while our way of life is not being respected.

I'm sure some of my colleagues have some answers to that question as well.

Mr. Namagoose: I don't think we're saying that our traditions are more important than somebody else's traditions. I think all traditions should be respected and safeguarded.

I think I'll try to put it in the perspective of where you're coming from. In the Cree society in terms of the economic value - I think those are the terms you may be able to understand - our hunting, fishing, trapping way of life in terms of monetary value is 40% of our Cree economy. We harvest over one million pounds of meat from the Cree traditional land using hunting, fishing and trapping techniques. So we call that tradition, but that's still a very vital and very important part of our economic activity. We don't want that disrupted in any way. That is the only economy we have left. The other 60% is from a wage economy created by various treaties and agreements that we have created.

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I think violence exists in all societies, and violence is not created by guns. Violence is created by criminal intent of people. We've been taking measures in our communities to educate our people about violence.

A lot of the violence that we experience in all native communities across Canada is a result of the social conditions we find our people in - the terrible living conditions, the lack of housing, and the lack of jobs that exist on the reserves today. That's where the violence comes from, not from the guns. That is the aspect that all aboriginal leaders are trying to address, the social conditions of the people.

Just a couple of weeks ago, this government cut the housing budget for native people by 50%. The housing conditions of our people are such that our people live in deplorable living conditions all across Canada. This is where the violence and social upheaval comes from, yet this government cut 50% of the native housing budget.

So I hope I have enlightened some of your comments or your questions.

The Chair: If some of you want to answer the question further, you may, but his time has expired for asking further questions.

If not, then I'll move to Mr. Ramsay.

Mr. Ramsay (Crowfoot): Thank you for your presentations. I appreciate that you are here and I appreciate what you've said.

Deputy Grand Chief Blacksmith, do I understand correctly that the James Bay and Northern Quebec Agreement has been violated by the creation of Bill C-68? Is that your interpretation?

Deputy Grand Chief Blacksmith: For Bill C-68, the process itself has been a problem. We have not been consulted, both at the grand council level as well as through the mechanism that's created under the James Bay and Northern Quebec Agreement, which is to coordinate a committee as a mandate to be able to supervise, manage, control or enact various regulations on gun legislation or other means.

So I'm saying that, yes, Bill C-68 in fact, because it's processed by regulation, has violated the James Bay and Northern Quebec Agreement. But if it's under legislation, if we're able to work something out, as my friends from the Yukon have stated...that there is a political process for respecting the treaties that are there, and that can be workable.

Right now, nothing has been workable to this date because there has been no real effort from the governments to work with aboriginal people.

Mr. Ramsay: Inasmuch as Bill C-68 impacts upon your people, was it incumbent upon the justice minister to involve you in the process from the beginning, according to the James Bay and Northern Quebec Agreement or any other agreement?

Deputy Grand Chief Blacksmith: As the agreement says right now, yes, I think the minister was obligated to work with us to ensure that the process or the mechanism that was agreed to....

Certainly there was give and take when the James Bay and Northern Quebec Agreement was signed. The governments agreed with us that they would work with us; they have not worked with us up to now.

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The previous legislation, Bill C-68 - the Campbell legislation - did not involve the Cree. There were no consultations. The coordinating committee was bypassed, even though there were specific undertakings under the James Bay agreement to work with a committee that was created there. So even though the government is obliged under the agreement to ensure there is a working relationship, that has not been effected.

Mr. Ramsay: According to what I understand from what you have said, the Government of Canada is under an obligation, and that obligation is spelled out in the James Bay and Northern Quebec Agreement, to enter into negotiations and a consultative process with your people at the time it begins to create legislation that is eventually going to impact upon your people. Am I correct?

Deputy Grand Chief Blacksmith: Yes. The submission that I've made is from the Hunting, Fishing and Trapping Coordinating Committee, which is the expert body created under section 24 of the agreement, consisting of federal representatives, provincial representatives, the Cree, the Inuit, and the Naskapis. That's what we are saying, that there is a mechanism in place and that mechanism has been undermined and the whole mechanism has been bypassed by the government.

Mr. Ramsay: Then is it reasonable to assume that the justice minister has violated that agreement?

Deputy Grand Chief Blacksmith: Yes, that's the way we understand it, because there was a process established under the agreement - that we all agreed to - that that's how we were going to work things out, and when we write letters of concern to the Minister of Justice and he doesn't respond and doesn't care whether we exist or not, then yes, the agreement has been violated.

Mr. Ramsay: How do you feel about that?

The Chair: Control yourself.

Deputy Grand Chief Blacksmith: I think my colleagues here have been trying to control us.

If the agreement is not going to be respected by either government, and in this case it appears that the federal government is not attempting to respect its obligations as well as the provincial government.... We're trying to make things work out. Certainly we're very disappointed and very angry and frustrated that this agreement is not made to be workable in that sense. Our people don't understand. There was this undertaking by the governments to work with us to ensure a guaranteed way of life for us and now that there is this proposed legislation that may further affect that way of life, our people are very concerned.

Mr. Ramsay: Perhaps the James Bay and Northern Quebec Agreement is just a piece of paper that doesn't mean anything.

Deputy Grand Chief Blacksmith: I guess, in a sense, the Constitution of Canada.... The James Bay and Northern Quebec Agreement is intrinsic to the Constitution of Canada.

Mr. Ramsay: If the Minister of Justice of Canada can ignore that agreement, then he must consider it to be worthless.

Deputy Grand Chief Blacksmith: Perhaps.

Mr. Ramsay: Do you consider it to be worthless?

Deputy Grand Chief Blacksmith: No. We have this understanding and we have always been there to work with the governments to make it workable.

Mr. Ramsay: Then why do you think the justice minister has refused to negotiate with you according to that agreement?

The Chair: If you wish, your colleagues with you can answer, if you want them to.

Deputy Grand Chief Blacksmith: Maybe you should be asking the minister, since you're in a better position than I am, and if he's not going to listen to me, perhaps he'll listen to you.

Mr. Ramsay: With your permission, I will ask him a question in Question Period about this agreement and why he has not gone along with it and why he has violated the agreement that the federal government has entered into with the James Bay people.

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I find it unacceptable that the government will make agreements with our aboriginal people and then violate those agreements. This is unacceptable. What's the purpose of the agreement and where's the honour in the agreement if it's simply going to be violated? No wonder the aboriginal people come forward. I admire your patience. I can't get over your patience in the face of this kind of treatment.

My time is running out. Well, it's not running out.

The Chair: Yes, it is. It has not quite run out, Jack, but it has almost run out. You have one minute.

Mr. Ramsay: I'm sure I heard a similar story in the presentation of the aboriginal delegation from the Yukon, that there's a self-government agreement in place. We debated that and we had some concerns about it, but now that it's there we wish you the best.

What you're telling us, I think from what I heard, is that you're being treated in the same way as the James Bay Cree and you're being ignored where there is an agreement in place that would demand the federal government to consult you on legislation that's going to impact upon you. Am I correct in that?

Chief Birckel: That's right.

Mr. Ramsay: Mr. Chairman, I have nothing further to say.

The Chair: Thank you, Jack.

Before I turn to Mr. Lee, I've been looking at these things closely and according to the Constitution Act of 1982, when a land claims agreement is signed and concluded and agreed upon, it becomes part of the Constitution in accordance with section 35.3. So once the James Bay agreement is concluded and agreed upon, it becomes part of the Constitution of Canada. Once the Council for Yukon Indians agreement becomes agreed to, it becomes part of the Constitution of Canada.

As such, both agreements, as part of the Constitution of Canada, override all other ordinary law and would override Bill C-68 if it became law. In other words, it would prevail over them. All sections of the Constitution override ordinary legislation, federal or provincial. Not only would both of their land claims agreements override the ordinary legislation, including Bill C-68, but you're quite correct in stating if there's a requirement in those agreements now, the government is violating the Constitution in not consulting.

I don't know whether it was done intentionally by the Minister of Justice, but we will certainly have to bring these matters to his attention, because there are some serious violations of the Constitution. Your agreements are part of the Constitution, and I am quite familiar with those provisions, but I had to be reminded of them because it's been over ten years since I dealt with it.

Mr. Lee, ten minutes.

Mr. Lee (Scarborough - Rouge River): Thank you, Mr. Chairman. I'm delighted to see my friend from the Reform Party being such an outspoken advocate of aboriginal treaty rights.

The Chair: There's always hope.

Mr. Lee: It remind me of Saul on the road to Damascus, but I think that's great. Now, would that I had spoken in Latin -

Mr. Ramsay: A point of order, Mr. Chairman. This has to do with human rights. Yes, they're aboriginal people, but it's human rights and that's what we'd better be standing for here. If the hon. member over there wants to make some type of comment about the human rights of these people here, let him make that comment. I don't find that very honourable, Mr. Lee.

The Chair: This is a point of debate, not a point of order.

Mr. Ramsay: Thank you.

The Chair: But it's on the record, as are all non-points of order.

You can proceed, Mr. Lee, but let's not provoke one another. Let's stick to the subject-matter.

Mr. Lee: I'd like to go back to the twenty-second mark of my ten-minute round,Mr. Chairman.

The Chair: Yes, I'll give you an extra minute there.

Mr. Lee: As I understand the submission, our witnesses are relying, as well they should, on the Constitution of our country and I can call them treaty rights, but we're calling them ``agreements'' now, as opposed to ``treaties'', I guess.

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I want to note as well that it's very good you have come here to make your point to parliamentarians. There might be some places in the country where aboriginals might not even want to talk, so it is good that you have come and I thank you for that.

Reading your submissions and listening to you, I note that you have referred to the fiduciary obligation of the federal government - I think we're all agreed on that - and the obligation of the federal government, and provincial governments where appropriate, to consult before or as they legislate. I note from your own brief that the right of consultation does not include a veto or any requirement for consent or agreement, although they might be desirable.

Do you think the process you have come to here, now, is part of the consultation that should be there? Do you regard this as consultation? First from the Crees of northern Quebec.

Deputy Grand Chief Blacksmith: I just want to come back to your comment about aboriginal rights. Yes, there are inherent aboriginal rights that should be recognized and respected. The treaties are there for better or worse and we have to live with them. The fiduciary obligations are there for the government to live up to.

We don't see this as a part of the consultations we should have. When we make requests to meet with various ministers on a political level and in a political spirit to work with each other, that's consultation, but right now it's almost after the fact to sit down together to review an issue of concern for us.

Mr. Lee: Mr. Birckel, on the last page of your brief you say, ``We understand that the Department of Justice has set up a consultative process dealing with Bill C-68.'' Are you not acknowledging that the Department of Justice has set up a consultation process?

Chief Birckel: No.

Mr. Lee: What do you mean by that sentence?

Chief Birckel: Well, they're supposed to consult, and I think there is a committee that's supposed to be going around to communities to consult with us, but we haven't heard anything about that.

Mr. Lee: Okay. So you understand that a process may have begun; you just haven't heard from the Department of Justice yet.

Chief Birckel: We haven't heard anything.

Mr. Lee: Okay.

On page 7 of your brief, Mr. Birckel, you state that the lending of firearms is a practice that complements the nomadic lifestyle. Are you aware that the bill does contain provisions in clause 32 dealing with the lending of firearms? We don't need to get too technical here, but the bill does make an attempt to deal with lending. Have you had an opportunity to read that clause?

Chief Birckel: Yes, but there are constraints in a lot of those things. That's the problem, from our point of view.

Traditionally, guns are part of our way of life and we pass on the guns. We lend them to our kids and our grand-kids and we use them all the time, one way or another. It becomes almost a communal thing we use. If somebody wants to use my gun because he saw a moose on the lake somewhere and he wanted to get it, then he just comes to borrow the gun. I give it to him and he goes out to shoot it. Basically, we're lending it because he needs to get that game.

Even though the bill says we can lend, we have to sign a whole bunch of papers to make sure that person has the authority to do it. That's not the way we do things.

Mr. Lee: I don't think the clause contemplates any paperwork, but it does contemplate the existence of a beginning piece of paper, a registered firearm and a licence to possess it.

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Clearly, we have to do some work on this because of the apparent clash of the hunting rights that exist in the agreements and treaties and the provisions of this bill, which clearly attempt to regulate all firearms, including the firearms that aboriginals may possess.

I don't actually know where it's going to end up, except that there are some provisions here that may need some work. We are not advised of the position of the Department of Justice or the minister as to how the interface will take place.

Do you see any provisions of this bill, particularly those that would be similar to existing legislation, being usefully applicable to the people you represent? I'm thinking here of training courses and the counterpart of the firearms acquisition certificate in the new bill, which is a possession licence. Do you see those as workable and useful for the people you represent?

Mr. Namagoose: In our presentation, we did propose some draft amendments to the bill and that's how I think the James Bay Cree and the James Bay and Northern Quebec Agreement, which is a treaty, can be accommodated. We're seeking accommodation, not that...and the provisions we made to amend the agreement will fulfil that obligation on the part of the Quebec and federal governments to respect the James Bay and Northern Quebec Agreement.

Mr. Lee: Yes, that's a very constructive beginning. It may, in fact, be the beginning. You have come forward with suggestions rather than the Department of Justice going to you first. I have no idea what it's done or not done up to date, but that is constructive.

Mr. Namagoose: If I may add, the Department of Justice recently hired some officials to conduct consultations with the aboriginal people. That's after second reading of the bill. That should have been one of the first acts of the minister.

Mr. Lee: To be fair to the minister, he doesn't really have a provision in law that he can negotiate or consult with yet. He has a bill that's been approved in principle, but there may well be refinements made at this committee or in the House. There would appear to be opportunities and I guess there will have to be opportunities to consult in the future on application of those provisions.

Deputy Grand Chief Blacksmith: I could just add that I think the intent of the minister in terms of consultations has been somewhat of a farce up to now. There have been no real consultations with anybody. As Bill Namagoose has said, this is after second reading. On top of that, there is the James Bay and Northern Quebec Agreement, which has set in place a mechanism the minister has not respected or recognized to work with. The fact is that we've written many letters to the Minister of Justice with no response.

Mr. Lee: There are many groups, agreements and treaty rights with respect to aboriginal peoples all across the country, from the far south to the far north. I'm wondering which group the minister should start with, or which group we should start with, because there are many and there are many different perspectives.

I realize you speak for your people, but there are many groups across the country and it's a bit of a challenge to know where to start. In fact, the minister or the department may have started elsewhere and not even got to you yet.

Deputy Grand Chief Blacksmith: Maybe the minister should start working with recognizing and respecting the Constitution as it is right now. There are treaties entrenched in the Constitution.

Yes, there are similar situations as well with other aboriginal groups who are negotiating or are about to negotiate. Those should be respected and recognized.

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Mr. Lee: I'm sure the minister couldn't help but recognize and acknowledge the existence of the groups and their rights, because in many cases they are written down in law, as are the provisions that you rely on.

I don't have any further questions, Mr. Chairman. Thank you.

The Chair: Before I go to Mr. de Savoye, because a lot of the members are new and not familiar.... There are only very few agreements like the James Bay agreement and the Yukon agreement. There are not agreements like this all across the country. These are relatively new agreements that have been signed in the last 15 or 20 years and are called ``modern treaties''. There are only very few agreements that have what the Yukon Indians have and what the James Bay Cree have, and I don't think we should reread the brief, because it says - this is paragraph 24.4.36:

Before submitting a new regulation or other decision for enactment...the responsible Provincial or Federal Minister shall consult with the Coordinating Committee....

That's in the Constitution; that's part of the Constitution. So -

Mr. Lee: Mr. Chair, you didn't want to carry on a debate here with me tonight, did you?

The Chair: No, but I think we should be clear. As to the suggestion that the minister had many of these agreements all across the country, I think I just want to clarify -

Mr. Lee: If you did, I'd be prepared to do that, but -

The Chair: As chair, I -

Mr. Lee: As chair, I agree, you might want to get on to the next questioner.

The Chair: No, I think it's important that we keep the information straight here. I've tried to do that in all the meetings I've chaired, and if we say things like that, we must be careful not to mislead the Canadian people.

There are only one or two agreements like this. I think the Nunavut agreement has this in it; the James Bay agreement has it; the Yukon Indians.... It's only the most recent agreements. If you look at the old treaties, they don't have this provision.

So I'm not debating with you, Derek, but I'm saying we should not misinform people. I don't think you did it deliberately, but...and I don't think the minister deliberately -

Mr. Lee: Mr. Chairman, you're not suggesting I misled the Canadian people here tonight, are you?

The Chair: I think -

Mr. Lee: Mr. Chairman, I take great exception to that.

The Chair: I think, inadvertently, when you suggested the minister had to go consulting all across the country because many Indian nations had this in their agreements, that was not correct.

Mr. Lee: There are treaties with aboriginal groups all across this country.

The Chair: They don't have these provisions in it, Derek.

Mr. Lee: The consultation requirements in the Sparrow agreement were applied right across this country, Mr. Chairman.

The Chair: No, Derek, I don't want to -

Mr. Lee: It's a decision of the Supreme Court. In any event -

The Chair: I don't want to have a debate with you, but -

Mr. Lee: - if you don't want to get into a debate, I suggest we leave it here. Otherwise -

The Chair: I don't think you can, because we're dealing with provision 24.4.36 of the James Bay agreement, which is very specific, and under 35.3 of the Constitution Act of 1982, this becomes part of our Constitution.

All I'm saying is that the old treaties don't have those provisions in them. There are only a few treaties that have that in them - modern treaties. I just want to make that clear and put that information on the record. If that's not correct, the witnesses may contradict me.

Mr. Ramsay: On a point of order, I want to thank the chair for bringing the proper information to the attention of the committee. In fact, I don't know whether it's in order or not, but I would move a motion that this committee do no further work until we clear up the business of whether or not we are participating in a violation of the Constitution of this country with regard to the James Bay treaty.

An hon. member: Hear, hear!

The Chair: You can move that motion, but you know the rules of the committee. We can't consider it for 48 hours.

Mr. Ramsay: I'll wait 48 hours.

The Chair: Table the resolution and we'll....

Now, I move on to Mr. de Savoye.

[Translation]

Mr. de Savoye: Thank you Mr. Chairman.

I won't take all these considerations into account. I am not knowledgable enough. I will simply try to better understand your approach.

In your briefs, you say you are against the fact that Bill C-68 will require the registration of all firearms and will force all individuals to obtain a licence. You say that this infringes upon your rights. I have two questions on that. I imagine the two Chiefs will be able to answer.

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This is my first question: According to the present legislation, are your hunters required to obtain a firearms acquisition certificate like hunters in the rest of Canada?

Second: Do you people use off-road vehicles, 4x4s, motorcycles or snowmobiles to go hunting and do you have to have a licence to drive these?

I think you can see my point. I am trying to determine if there is a relation and a difference between the present situation and the one proposed in Bill C-68 for hunters in your communities.

Which one of you, Chiefs, would like to answer first? Please.

[English]

Mr. Dave Joe (Legal Counsel, Council for Yukon Indians): I'm certainly not a chief, but I will attempt to answer your question.

With respect to the current requirement to comply with FACs, the basic answer is yes. In the event that I were to purchase a new firearm, I would have to get an FAC. However, if my father, for example, left me ten old guns and his father before him left him ten old guns and I got these twenty new guns that I did not acquire from a store, I would not have to get an FAC. That's my understanding of the current law. So, in many respects, the current requirement for me to comply with an FAC is not needed at this point in time. The only time I need an FAC is when I get a new gun.

In terms of using 4x4s and ski-doos and such, the answer is, yes, we do use them. We use them to hunt, fish and trap. But do we need a licence for them? The answer is yes, only if they're used on a public road. You need insurance and a driver's licence as well. Most of these activities do not occur on a public road because they would contravene the rules of public safety.

Basically, no, we don't have to comply with the current law on FACs and no, we do not need a licence to use ski-doos and 4x4s, as long as we don't do it on a public highway.

Mr. de Savoye: A driver's licence, but what about a licence plate?

Mr. Joe: Only if it's done on a public highway. I should point out that under the terms of our current agreement on self-government, the first nations have the exclusive right - I shouldn't say the exclusive right, but the concurrent law-making ability to pass laws respecting motor vehicle use on settlement land. To the extent that our law conflicts with the law of the Yukon, our requirements for use would be paramount.

Mr. de Savoye: Could I have the same information from our friends of the Cree Nation?

Deputy Grand Chief Blacksmith: I think our situation is very identical in terms of the responses you got on the firearms acquisition certificates, as well as the changes we have to adapt.

I would just add that I think most people fail to realize the hardship our people have to live under. Even though there are treaties, we had to give up a lot of land for the enjoyment of southern convenience. While this southern convenience continues to develop more and more, our lands seem to be smaller and smaller, and while we live on reservations, they are indeed very much match-box reservations that have a lot of restrictions and regulations imposed on us by governments. Again, there is a major difference between what is acceptable in the south and what is acceptable in the north.

The fact remains that we are constantly under all types of onslaught to our culture and our traditional way of life.

The Chair: Mr. Bodnar, for five minutes.

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Mr. Bodnar (Saskatoon - Dundurn): Mr. Chairman, my questions were answered by other questioners and I have no further questions.

The Chair: Mr. Ramsay.

Mr. Ramsay: Deputy Grand Chief Blacksmith, do you have legal counsel here tonight with you?

Deputy Grand Chief Blacksmith: Yes, I do.

Mr. Ramsay: Would you identify him?

Deputy Grand Chief Blacksmith: Mr. Robert Mainville.

Mr. Ramsay: Mr. Mainville, I would like your opinion as to the constitutionality of the process that has created Bill C-68. I have understood the direction from the chair that the James Bay and Northern Quebec Agreement now forms part of the Constitution of Canada.

Mr. Robert Mainville (Legal Counsel, Grand Council of the Crees of Quebec): That's correct.

Mr. Ramsay: And that within that agreement it was necessary for the justice minister to involve the James Bay Cree in the -

Mr. Mainville: The coordinating committee. There's a coordinating committee under the agreement, which is a committee that regroups representatives of Quebec, Canada, the Cree, the Inuit of northern Quebec and the Naskapi in northern Quebec, which are basically the three aboriginal nations of northern Quebec and the two orders of government. We've had jurisdiction in that territory.

Mr. Ramsay: If I am correct, any legislation that's enacted by the federal government but impacts upon the James Bay Cree and those people whom you've mentioned -

Mr. Mainville: Legislation that impacts upon their hunting, fishing and trapping activities, and obviously, in our opinion, gun control legislation impacts very strongly on those activities.

Mr. Ramsay: If this is true, then we are violating the process.

Mr. Mainville: I can't express an opinion on that.

Mr. Ramsay: Why can't you?

Mr. Mainville: What I do know is that clearly the Minister of Justice of Canada has not proceeded to consultation under the James Bay agreement with the coordinating committee.

Mr. Ramsay: Does that not mean this action is in violation of the Constitution of this country?

Mr. Mainville: There's obviously a violation of the James Bay agreement, which is contemplated by section 35 of the Constitution. In our opinion there is a violation of the agreement, and therefore of the Constitution, as long as the minister does not proceed to the consultation.

This is not a situation where the minister has not been advised of the situation. The committee has written to the minister and has not received any response, and the Cree have also written to the minister on this subject and received no response. So it's not a technical breach here. It's clearly, in our opinion, a breach where advice or notice was given to the minister that modifications to the gun control legislation that presently exists and legislation that is contemplated now before Parliament was in conflict with the James Bay and Northern Quebec Agreement and needed to be corrected.

Mr. Ramsay: When does this process by the federal government have to begin, from your understanding of the agreement?

Mr. Mainville: It has to begin as soon as it's reasonably feasible.

Mr. Ramsay: What does that mean?

Mr. Mainville: In our opinion, it should have taken place as soon as the bill was filed with Parliament. There should have been consultation with the committee either prior to the filing of the bill or immediately subsequent to the filing of the bill with Parliament. There should have been a consultation process between the Department of Justice and the coordinating committee, on which Canada sits.

Mr. Ramsay: Inasmuch as this bill may become law by the end of this sitting, which is the end of June, where does that leave the process with the Constitution of this country?

Mr. Mainville: Our objective here today is to obtain a modification to the bill that's before you and to render that bill compatible with the provisions of the James Bay and Northern Quebec Agreement. That's our objective. We're hopeful the Minister of Justice of Canada will proceed to the consultations provided for under the James Bay agreement as soon as possible and of course before the adoption of the bill and that the bill itself will be amended to ensure its compatibility with the provisions of the James Bay and Northern Quebec Agreement. That's our basic objective, and we're hopeful that all this can be achieved before the final adoption...if the bill is adopted, the final adoption of this bill by the House.

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Mr. Ramsay: Were the James Bay Cree involved in Bill C-17, which impacted upon them in a like manner?

Mr. Mainville: Bill C-17 being the amendments to the Criminal Code?

Mr. Ramsay: Yes.

Mr. Mainville: No.

The Chair: [Inaudible - Editor]...1991-92.

Mr. Mainville: They were not. Also, at that time correspondence was sent by the coordinating committee to the responsible ministers on that subject.

Mr. Ramsay: So you have been ignored by both governments, the former one as well as this one.

Mr. Mainville: That's my understanding.

The Chair: Your time is up. I go to Mr. MacLellan for five minutes.

Mr. MacLellan (Cape Breton - The Sydneys): I want to say to Deputy Grand Chief Blacksmith that if there has been a delay, then certainly that's unfortunate, but it is certainly not the intention of the minister not to negotiate on this area under the James Bay agreement. I can assure him those negotiations will be taking place. As he may or may not know, the minister just arrived back last evening; he's been away for 10 days. Certainly he is very much aware of the James Bay agreement and the necessity to negotiate.

I guess the feeling was that, in some areas, it was hoped that we would have the chance to talk to you here in committee, first to get an idea of the concerns of the Cree and the Council for Yukon Indians, perhaps, and then to be able to go from there, as a starting point. It is certainly not, asMr. Ramsay says, the intention to have this bill passed by the end of June, because it has to go to the Senate, for one thing. But it is certainly not the intention to let this go indefinitely, either. So I would say you will be contacted within the next week.

Also, was no negotiation made at all with the Yukon council? It was my understanding that there was an attempt by the committee to meet but that there was a wish to meet with the minister first. Is that correct?

Mr. Joe: The only correspondence with Mr. Rock was dated April 19 of this year. Basically, he advised that he knew the requirements expressed in section 16.3.3 of our final agreements and he expressed the desire to initiate a process, to be in compliance with the requirements of our agreements, but aside from that, we haven't heard from him.

Deputy Grand Chief Blacksmith: I just want to say that even though we had expressed a spirit of compromise or at least a spirit to work with the minister, we are nevertheless quite disappointed, because this was not only the second...but there have been numerous times the government has failed to respect the James Bay and Northern Quebec Agreement, as a whole. To us this agreement fell, a long time ago, by the trail of broken treaties.

We would welcome the minister's attempt, at this late stage in time, to work with us. But we cannot just put aside our frustration that the minister has not attempted to work with us at an earlier time. This is the second time...and now we're into the standing committee process. So in fact our people are very, very concerned about the issue that we're going to be consulted quite late in time. But we would welcome the opportunity to be able to sit down with the minister on this issue.

Mr. MacLellan: I just wanted to mention to Deputy Grand Chief Blacksmith that the main area of negotiation will be in respect of regulations. Of course that will take place later, but first will be the passage of the bill. It is hoped that we will be able to have some negotiations on that.

But I can assure the Deputy Grand Chief that there has been no attempt to sidestep the Cree or the James Bay agreement in any fashion and I think he will be made aware of this by the minister.

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Deputy Grand Chief Blacksmith: I think that's the main problem with this aspect of regulation, making amendments or changes to the James Bay and Northern Quebec Agreement. It is an agreement that's entrenched in the Constitution. If any changes are made, they're made by legislation, not by regulation.

Mr. MacLellan: That's correct, but the question here is not so much of legality...because I don't think there has been a breach. There may have been a discourtesy shown to the Cree under the James Bay and Northern Quebec Agreement. That is a possibility, but I'm not even prepared to say that was the case, because there was a meaningful attempt to get some idea of where the parties stood before a contact was made. That has been achieved here this evening and that will lead to negotiations very shortly.

The Chair: Audrey McLaughlin is not a member of the committee. Does the committee agree that she have the right to intervene for five minutes?

Mr. Ramsay: Mr. Chairman, I will allow the five minutes as long as I get another five-minute round. I would agree to that.

The Chair: Yes, the way it would go is this. Next on my list is Mr. de Savoye, then Ms Torsney, Mr. Ramsay and then nobody else. We could hear from Ms McLaughlin now or later, but you would still have a chance. We have time for three rounds. We're supposed to adjourn at 9:30 and I'd like to stick to that. We have 18 minutes.

Ms McLaughlin (Yukon): I could take three minutes.

The Chair: All right. Can Ms McLaughlin take three minutes? She has three minutes and by agreement you'll get your five-minute round, Mr. Ramsay.

Mr. Ramsay: Thank you, Mr. Chairman.

Ms McLaughlin: I have a very direct question. There's no doubt by the evidence you've presented here that there is a very real breach of trust in terms of the agreements. What is disturbing - and I asked the question of myself - is, if you were not here today, would this issue have been raised by the government? In other words, is the onus simply on first nations to raise the issues related to these kinds of agreements? Should the government not have initiated this before you came here?

My question for both the Council for Yukon Indians and the deputy grand chief is this. Before you came here today, was anything initiated by the government with respect to the James Bay treaty and the Yukon land claims agreement on this issue?

Deputy Grand Chief Blacksmith: There may have been a consultation process abroad, but certainly not with the Grand Council of the Crees.

Ms McLaughlin: But directly as a result of the agreement?

Deputy Grand Chief Blacksmith: No, and as you state quite clearly, it's always the native people who seem to be the ones trying to protect what little remains in so-called modern-day treaties. The government should be doing a lot more to respect its own obligations.

Mr. Joe: We met with Allan Rock on October 4 and expressed to him at that point in time -

The Chair: October 4?

Mr. Joe: October 4, 1994. It was not in respect of this issue. It was with respect to the administration of justice by the Teslin Tlingit. We said to him at that point, oh, by the way, we understand you have some plans for gun control and you should be aware of the fact that our current agreements express that you have to consult with us and there are a number of required steps that government is to be in compliance with.

Second, with respect to our section 35.1 rights, as far as we are concerned they are sacred. Further, we have the ability to pass laws with respect to firearms, as our brief states, on settlement land.

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That's not to say that we do not also have the exclusive ability to pass laws for the management of our rights to hunt and, second, with respect to our ability to carry guns and the exercise of that right, as expressed by section 16.4.3 of our agreement. This we believe to be part of the supreme law of the land and Canada should consult in that respect. We don't think you are doing that. Tell us what your plans are.

That was at the meeting I was at. There may have been a vicarious reference to what his plans were. Other than the scheme of osmosis whereby we were supposed to infer what Canada was thinking, they did not consult us with respect to their plans.

We basically twigged them to the fact that they had to comply with the terms of our agreements. They wrote to us on April 19, 1995 expressing their desire to comply with the constructed terms of our agreements at that point in time. We've heard no word from them thus far.

Mr. de Savoye: We share the same second language. Unfortunately, I don't speak your language and you don't speak mine, so we'll use this second language for my last question.

Bill C-68, as I understand it, will not help reduce violence related to firearms in your nations. On the other hand, the Grand Council of the Crees of Quebec are proposing draft amendments so as to be in a situation to comply with Bill C-68, but at the same time there are provisions that will have this at no cost to you.

My question is the following. On the one hand, you say Bill C-68 is of no use to you and you are ready to comply if it is at no cost - and I guess that's interesting - but then why not go for the alternative, saying Bill C-68 being of no use and an infringement on your rights, you don't want Bill C-68 to apply to you at all? Why are you open to complying with Bill C-68 with your draft amendments?

Deputy Grand Chief Blacksmith: I guess we did say Bill C-68 would not reduce violence, because there are other factors that contribute to situations of violence. Perhaps our weakness is in trying to be so trusting of the government, thinking and hoping things will improve if we try to work with the government. That has always been the position of the Grand Council, to try to work with the governments, hoping somehow in the end there will be a solution that's mutually acceptable.

We understand that there are universal situations that affect everybody regardless of race, community and geography. We have the same concern. Irrespective of Bill C-68, our people have always had concerns about safety measures. They've handed down and taught their children from generation to generation about gun safety and so forth. There is a common concern there that implies that we try to work with the government in having Bill C-68 workable, or at least compatible with our way of life and with the modern-day treaties that are there.

Provisions of no cost, of course, relate to the fact that there are specific provisions in the James Bay and Northern Quebec Agreement that state that such amendments or legislation should be at a nominal cost. Again, that's entrenched in the Constitution - as we understand it - that these should be at no cost or at the cost of $1, and also that proper resources should be provided.

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Mr. Lee has more or less implied that there are no administrative problems with the application of Bill C-68, but there are a lot of administrative problems. For one thing, as you mentioned, our people speak Cree, and to try to teach an elder, who speaks nothing but Cree, about this legislation, is a hard task in itself. So there are a lot of problems with trying to get our people to work with the gun legislation.

Again I say maybe we're too trusting. Maybe that's our problem. Nevertheless we try to work with the governments.

The Chair: Ms Torsney.

Ms Torsney (Burlington): I have a couple of questions. One relates to consultation within your own groups. Deputy Grand Chief, I wonder what kind of consultation has been done with women's groups within both of your organizations in the preparation of your document?

Deputy Grand Chief Blacksmith: The Grand Council works with the Cree Trappers Association and this submission is made jointly with them. Both women and men are members of the Cree Trappers' Association and we work with them as much as we can.

I have to say, though, that we had a lot of problems in trying to make this appearance before the standing committee. There were certainly a lot of obstacles to overcome in order to appear before you.

Chief Birckel: We've been consulting with chiefs and there are women chiefs on our council, the Council for Yukon Indians. There were also several elders, including some women, who approached me to come down and try to do something about this gun control, because they're very frightened of the provisions. The elders still remember how the RCMP used to harass our people and get after them. They're just now getting used to the fact that the police can't do that any more and now we're getting into a situation where the police have the right to go into your house and do what they want.

Ms Torsney: Actually, they don't, but yes -

Chief Birckel: I mean, basically they can.

Also, now with that paper to buy a gun.... I know a month ago an elder came into our band council meeting and said, I want to buy a gun but I have to fill this out and it asks embarrassing questions about my family, what I do, and things like that.

Ms Torsney: And she had trouble with that or she was supportive?

Chief Birckel: She had trouble with it, because she didn't understand what you were trying to do here. She was asking if somebody could help her fill it out. Most of the members of our council, even though they're educated, still had problems in even trying to fill it out. With the new licensing, I imagine it will get worse.

Ms Torsney: I'm very worried about this issue of consultation you've raised. It is my information that currently some consultation is going on in the eastern Arctic, in Iqaluit, Igloolik, in Rankin Inlet, and in Whale Cove, and a week on Monday, in the western Arctic, consultation will be taking place. There has been consideration of the fact that people are going out on the land and there has been some interest.

Chief Birckel, I believe Victor Mitander, Albert James, and Richard Sidney have been consulted by Justice officials about some consultation. Are they not representatives of the Council for Yukon Indians?

Chief Birckel: Yes, they are, but they are the executive of the council. Each one of us has his own jurisdiction, in terms of our first nation, even though it is the political body of all of our chiefs put together.

Mr. Joe: If I could add, the treaty requirement to consult, for the first four, requires them to consult with that first nation and if they are the executive, then, in my humble opinion, that vicarious degree of consulting is not appropriate in those circumstances.

Ms Torsney: No, but certainly there'd be people to contact to start arranging consultation meetings, and if they indicate they don't want to consult, then I guess there's a sort of communication problem, is there?

Mr. Joe: The last time I checked, the Champagne and Aishihik First Nations had a phone, as does CYI, so why not call them?

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Ms Torsney: We'll ask that of the minister.

Deputy Grand Chief Blacksmith: There are two points I'd like to raise with you. This consultation we have seen was basically a letter floating around saying, if we can meet with you, we'd like to explain the bill to you, but already this is its second reading and so forth, so again it's very late in time. We haven't been able to sit down before to discuss or exchange comments and concerns.

There's also the issue of regulations Mr. MacLellan has raised, and I'd like to get Robert to -

Mr. Mainville: I think the crux of our submission here is we believe Parliament should clearly state in the legislation that there should be protection for native people and people who are detained and who have aboriginal rights or treaty rights, and these rights should be taken into consideration not in the regulatory powers of the government under clause 110 but in the proposed act itself. There could be regulatory powers concerning aboriginal peoples in the proposed act, but we really feel, taking into account the experience of the Cree with the lack of consultation and the lack of application of our own agreement, that the legislation itself should specifically provide for the scope of aboriginal and treaty rights in relation to the application of gun control to native people, and particularly to people who have specific treaty rights to use guns for hunting, trapping and fishing activities.

The thrust of our presentation basically is we want to ensure Parliament itself incorporates into this bill specific legislative enactments that specifically instruct government to take into account and to respect the rights of aboriginal peoples, either aboriginal rights or treaty rights.

Mr. Ramsay: When was the first time you wrote the Minister of Justice about the process that is a constitutional process? When was the first time you wrote the justice minister requesting that this process be engaged in?

Deputy Grand Chief Blacksmith: Mr. Ramsay, there's a letter annexed to one of the submissions. I think the letter is dated August 24, 1994. Although there had been some discussion at the committee level, that's the one letter I've seen on file.

Mr. Ramsay: Okay. When was the last time you wrote the minister about this matter?

Deputy Grand Chief Blacksmith: As recently as a few weeks ago, again expressing the concerns that we have had because of the late consultation with the minister or the lack of response from the minister.

Mr. Ramsay: If I understand you aright, you're testifying here today that you have not received any response for any of your letters requesting the minister adhere to this process. Is that correct?

Deputy Grand Chief Blacksmith: That's correct.

Mr. Ramsay: Is it your desire that the progress on this bill be stopped until your constitutional rights are complied with?

Deputy Grand Chief Blacksmith: That would be very nice to have.

Mr. Ramsay: If you were the boss.

Deputy Grand Chief Blacksmith: If I were the boss, yes. But I'm not. Yes, that would be one of the main things or the interest we would have, to be able to say that our constitutional rights or inherent rights are not affected by regulation or by legislation that did not take into account any working relations with the aboriginal people.

Mr. Ramsay: Then it is my feeling, and I think I have the support of my Reform Party colleagues on the committee, that this committee ought to take no further action until this process is engaged in. Would you support that?

Deputy Grand Chief Blacksmith: Yes.

Mr. Ramsay: We'll see what this committee.... We're democratic and we vote. We have only three votes on this committee, I and my two colleagues, and we will see. We have to look at this in 48 hours, because of the motion that I made.

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In fact, at that time I will amend the motion to indicate that the committee can proceed with the bill only after the constitutional process involving your people is engaged.

Now I would like to ask the delegation from the Yukon, would you like to see this committee stop the process on Bill C-68 until such time as your constitutional rights have been engaged in?

Chief Birckel: Yes.

Mr. Ramsay: Okay.

Thank you, Mr. Chairman, that's all I have.

The Chair: Although you stated your motion verbally, I haven't yet received it. So you should write it out and leave it with the clerk.

Mr. Ramsay: I will do that.

The Chair: You don't have to do it immediately, but as soon as you wish to do it.

Mr. Ramsay: I might as well do it now.

The Chair: You can do it even after the committee adjourns.

I want to thank our two witness groups here tonight, the Grand Council of the Crees of Quebec and the Council for Yukon Indians, for attending this evening and bringing some very important matters to our attention.

I can assure you they will be followed up by the chair and by other members of the committee, maybe not always in the same way. There are differing views on how we may follow up on that, but I can assure you they will be followed up.

The meeting is adjourned.