STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 16, 1999

• 0905

[English]

The Vice-Chair (Mr. John Duncan (Vancouver Island North, Ref.)): Everybody's in place. The regular chairman will be here in about half an hour. In the meantime, we'll get the meeting started.

With us we have Larry Chartrand.

Are you current president or past president?

Mr. Larry Chartrand (Past President, Indigenous Bar Association): I'm past president.

The Vice-Chair (Mr. John Duncan): Larry Chartrand is past president of the Indigenous Bar Association.

Melinda Martin, are you also with the Indigenous Bar Association?

Ms. Melinda Martin (Representative, Indigenous Bar Association): Yes. I'm a law student.

The Vice-Chair (Mr. John Duncan): I understand you've been told you have about 10 minutes for a presentation. Then we'll have questions and comments.

We also have with us Stephen Patterson from the University of New Brunswick.

Good morning, everyone. For your information, this meeting is being televised. I'm not sure exactly when it will run. It runs live on the Hill and will be shown nationally on the parliamentary network at some point.

Welcome. Please proceed, Mr. Chartrand.

Mr. Larry Chartrand: Thank you very much.

I'll just briefly introduce myself and my colleague and tell you what the Indigenous Bar Association is. Then I'll get right into the substance of our presentation.

I'm a professor in the University of Ottawa's faculty of law. I specialize in aboriginal rights and have done so for about seven years. My colleague, Melinda Martin, is a third-year law student in the faculty of law at the University of Ottawa and a member of the Indigenous Bar Association, as I am.

The Indigenous Bar Association is an association of aboriginal lawyers, judges, and law students from across the country. We number approximately 350 members right now. One of our objectives or mandates is to promote legal education about aboriginal rights and to do so in a context that recognizes and acknowledges aboriginal laws—and I mean aboriginal laws in the sense of the laws of the indigenous nations as well as their institutions—in the process of reconciling aboriginal interests with the interests of mainstream Canadians. That, in a nutshell, is the Indigenous Bar Association.

In our presentation today, we wanted to focus on certain issues that were raised in the Marshall case, in terms of what is meant by “moderate livelihood”, what is meant by “subject to regulation”, and what is meant by “workable terms”. Before I get into these specifics, I think it's important to present a bit of an overall context in terms of how we should look at first nations that have entered into treaty negotiations with the crown.

One of the most important things to remember, I think, when we're talking about treaties or negotiations with aboriginal peoples and the crown is that we're not talking about the establishment of rights based on racial grounds or cultural differences. We're talking about rights that are based on a negotiation with a distinct, autonomous, political community—in this case, the Mi'kmaq, the Maliseet and the Passamaquoddy nations. It's important to understand that this is the perspective and that this is how their rights ought to be interpreted: as political rights, not as cultural rights or racial rights that happen to be possessed by distinct peoples.

• 0910

I say that because one of the implications of this is the fact that a Mi'kmaq person, a person who belongs to a Mi'kmaq band, may not necessarily be Mi'kmaq in blood or have any ancestral origins in terms of Mi'kmaq ancestry. The person could in fact be a non-aboriginal, European-based person who was adopted into the Mi'kmaq community by the laws of the Mi'kmaq Nation or the customs of the Mi'kmaq Nation. That person could equally practise the treaty rights of that collective community if that person indeed was accepted as a member of the Mi'kmaq community.

It's political rights. It's not necessarily racial and it's not necessarily cultural. That's the first point I wanted to make.

The second point is that these treaties, from the indigenous perspective, are international treaties in the true sense of the term. Aboriginal people have always maintained that the negotiations with the British crown have always been undertaken on a nation-to-nation basis, and they continue to maintain that.

It's only the fact that the Supreme Court of Canada has interpreted the treaties as sui generis that has rendered them subject to domestic law and domestic interpretation and, as a result, has taken away their international legal significance. This approach by the Supreme Court of Canada in this interpretation of treaties by aboriginal peoples is not consistent with international law.

Reports at the United Nations level are increasingly stating and coming to the conclusion that the treaties with the indigenous nations and the British crown, the French crown, or whatever other European nation you're discussing, are international treaties in the true sense of the term. I've cited a report by Miguel Alfonso Marinez, special rapporteur for a United Nations study, a 1998 report that concludes this is indeed the true interpretation of aboriginal treaties.

The second thing I wanted to get into is a bit of a discussion on which entity actually possesses a treaty right here. Is it the Mi'kmaq Nation as a whole or is it individual Mi'kmaq band communities or individuals? Certainly we know it's not individuals, because treaty rights, by definition, are collective rights enjoyed by a distinct political community. But in the aboriginal context, depending on the laws of the nation, for example, the Mi'kmaq Nation, the authority to enter into treaties may not rest necessarily at the Mi'kmaq Nation level but rather at the band community level.

You can see that this has certain implications in terms of the authority that is exercised to interpret the treaty and to manage the treaty right. It's the position of the Indigenous Bar Association—and they've maintained this position in other parliamentary committee hearings—that, by and large, the tradition of indigenous societies is that the authority to enter into treaties rests at the band community level.

That's not to say that each band belonging to the Mi'kmaq Nation as a whole cannot allocate or transfer their decision-making authority over treaty rights to the nation as a whole. The political structure of indigenous societies has always been one from ground up to the nation and the central authority, not the other way around. Any authority that the Mi'kmaq Nation as a whole is going to possess will have to come through the individual band councils allocating and transferring that authority.

What that means in terms of being subject to regulation is that individual Mi'kmaq bands are the ones that possess the treaty right. It's up to these individual bands to determine how the right to trade to earn a moderate livelihood will be implemented.

• 0915

There are all kinds of options these individual bands can employ to indeed do that. They can allow their members individually to exercise the treaty right of the band without having much control over that process at all, or alternatively, if we're talking about fishing, they could have a few assigned members of the band do the necessary fishing, trade that fish, and distribute the profits on a per capita basis among the members of the band. An alternative is that it might go into a fund, and the community would allocate those funds to create projects that will benefit the community, such as a recreation centre. The point is that it's up to the individual band to decide how they would regulate the aboriginal right to earn a moderate livelihood.

The question is, how do you define a moderate livelihood? “Moderate livelihood” is not a term that was coined by or understood in terms of an indigenous traditional concept. The term “moderate livelihood” was coined originally, I think, by Justice Lambert in the Van der Peet decision. Chief Justice Lamer refers to his definition as a guiding principle for understanding moderate livelihood. So moderate livelihood is really just a common law concept. It's not one that had any traditional connotation in the aboriginal context.

Having said that, though, moderate livelihood conceptually would be no different for an aboriginal person than for a non-aboriginal person. It entails a standard of living that is certainly far above a meagre subsistence but short of an outright, unlimited accumulation of wealth. It's somewhere in between.

The Supreme Court of Canada, of course, left it vague as to how you define that. Do you use national statistics in terms of what is the average income of the Canadian family? Do you use regional statistics of the average income of maritimers, or do you use local statistics of what a moderate income is? That is one of the areas left unanswered by the Marshall decision.

It's one of the areas that will need to be negotiated in terms of clarifying, through a process, a workable formula at a band-by-band level that would determine the catch that would allow a moderate livelihood for each band community. The calculation of that would be at the band community level. You determine how many families are in a band and what the standard of living in terms of a dollar amount would be. You aggregate that, and that would be the total amount the band could gain in terms of harvesting a resource and trading that resource.

In terms of wrapping up my part of the presentation, I just want to mention that the Marshall decision and the fact that the exercise of the treaty right is band community oriented are consistent with the concept of community-based fishing management, as opposed to DFO's current management structure, which is centralized and favours corporate interests. The traditional aboriginal means of managing the fishery has always been one of stewardship, which is equivalent to the modern approach to fisheries management that is referred to as community-based fisheries management. It's an approach that integrates management and conservation with production and use in a holistic manner and, arguably, is more efficient in achieving conservation than the current DFO management structure.

• 0920

I make these comments based on a report I've recently received by the ECO-Research Chair of Environmental Law and Policy in Victoria. The report is entitled Fishing Around the Law: The Pacific Salmon Management System as a “Structural Infringement” of Aboriginal Rights, and I cite it in footnote 3 in our presentation material.

I think that's all I want to say.

I want to pass the presentation over to my colleague, Melinda Martin, at this point.

The Vice-Chair (Mr. John Duncan): Thank you. Go ahead, Melinda.

Ms. Melinda Martin: Bonjour. Good morning. Weliegsitpúq.

My name is Melinda Martin. I'm a Mi'kmaq law student from Listuguj First Nation. I'll be graduating in April from the University of Ottawa law school.

The purpose of my presentation is to provide examples of Mi'kmaq conservation plans. To do so, I will share some of what I've learned from my uncle, Isaac Metallic, who continues to hunt and fish as his father and grandfathers did.

The Marshall decision recognized the treaty right of the Mi'kmaq, Maliseet, and Passamaquoddy to fish commercially. If we are to exercise our treaty rights, we must also exercise our responsibilities. Our responsibility to Mother Earth and to the next seven generations is to protect and conserve the resources.

What has not been prominent in debates to date is the fact that the Mi'kmaq, Maliseet, and Passamaquoddy have practised conservation since time immemorial. We are conservation-minded people. Conservation can best be understood as respect for Mother Earth and the gifts Mother Earth and the Creator have placed here for us. The Canadian government has not recognized the practices of our people to protect the resources. Now, more than ever, it is time that Canada's governments recognize our role in the protection of the resources in order to ensure that the fishery remains a sustainable and viable industry.

There are some Mi'kmaq people who view the fishery from an individualistic point of view, but the majority of community members see it as a communal right to be exercised for the benefit of the whole community.

I would like to highlight two examples where the Mi'kmaq have taken steps to develop their own conservation measures in the fishing industry and where Mi'kmaq governments continue to protect their rights. Protecting our rights has everything to do with conservation.

I will start with my community, as I know it best. Listuguj is located on the Restigouche River, which is famous for its salmon. In recent decades the Mi'kmaq of Listuguj were subject to fishing regulations that were unilaterally imposed by the federal Department of Fisheries and Oceans and other governmental agencies. The department would set down catch quotas and dictate when and where we were to fish.

One year our community refused to sign these agreements. The community members were convinced that they could design and implement a better conservation plan than the one that was imposed on them. The input of all community members was sought. The involvement of Mi'kmaq fishermen themselves proved crucial to the compliance with the conservation measures the community identified. The conservation plan met and surpassed DFO regulations.

The band supplied DFO with catch records to assist in providing scientific data for conservation sustainability and management of the salmon fishery. Mi'kmaq people were hired to collect such data at the docks as the fishermen came in.

The Province of Quebec entered into a service agreement with the Listuguj First Nation, and the band provided conservation officers to ensure that the conservation plan was followed. The Listuguj conservation plan was so well received that the province later presented the band with an award for its conservation efforts. That plan is still in place today.

The second example of a Mi'kmaq conservation plan involves the Shubenacadie Band First Nation. Prior to the Marshall decision, the Shubenacadie Band Members' Lobster Committee worked with the Indian Brook First Nation chief and council to develop a lobster conservation plan. The band passed a band council resolution to ensure that the Indian Brook fishermen would follow the interim agreement for conservation sustainability and management of the lobster fishery. The chief and council enforced penalties for those who did not comply. The band had power to impose such penalties as the revocation of a fisherman's tags.

• 0925

The season was determined by mutual agreement between the Shubenacadie Band First Nation chief and council, the Shubenacadie lobster committee, and DFO. Tags were distributed by the band. Guidelines conformed to DFO regulations on catch size, trap size, and lobster size, and releases of all marked females were applied. The band went one step further and increased the lobster size for St. Mary's Bay from DFO regulations of three inches to three and one-quarter inches.

The band supplied DFO with catch records to assist scientific data collection for conservation, sustainability, and management of the lobster fisheries. The Shubenacadie Band lobster fishermen and the Shubenacadie Band First Nation also entered into agreement that 30% of their catch would go to the band for use by the members with regard to food and social and ceremonial purposes.

This agreement was made a condition of the fishermen receiving the allotted tags under the management plan. This agreement represented a conservation plan prior to the Marshall decision. The Mi'kmaq will have to sit down again to consider their treaty rights and responsibilities in light of the Marshall decision, which allows commercial fishing.

These two examples, albeit brief, illustrate a community perspective on this treaty right to fish. This perspective is not fully understood by Canada's mainstream population. The Marshall decision focused on the commercial right to sell fish, but what underlies this right is the responsibility to conserve.

My Uncle Isaac wants to see that his children and their children will be able to exercise their treaty rights to fish, and this is best achieved through a common understanding and approach to conservation.

Welalin.

The Vice-Chair (Mr. John Duncan): Thank you very much, Ms. Martin.

I'd like to quote now from our orders of the day—the reason we're here—because I think I failed to do that at the beginning.

Pursuant to Standing Order 108(2), we're here to study the implications of the September 17, 1999, Supreme Court decision on Regina v. Marshall on the management of fisheries in the Atlantic region.

Our next witness is Dr. Patterson.

Yes.

Mr. John Cummins (Delta—South Richmond, Ref.): I'm just wondering whether it would be advisable to question these witnesses and then move to Dr. Patterson after. Would that be a better way to do it?

The Vice-Chair (Mr. John Duncan): Go to the top of the hour and then start with Dr. Patterson?

Mr. John Cummins: Well, I don't know. Maybe this group could take questions for a round before we go to Dr. Patterson, because I think maybe he has a slightly different approach.

The Vice-Chair (Mr. John Duncan): Does the group feel that would be appropriate?

Some hon. members: Agreed.

Mr. Sarkis Assadourian (Brampton Centre, Lib.): We should ask the witnesses if they agree.

The Vice-Chair (Mr. John Duncan): Is that agreeable to the witnesses?

Mr. Larry Chartrand: We can do it either way.

The Vice-Chair (Mr. John Duncan): We'll proceed in that fashion, then.

The Reform Party is up first. Are you up first, John Cummins?

Mr. John Cummins: Yes, thank you, Mr. Chairman.

I'd like to thank the witnesses for being here this morning.

The first question I have deals with the notion of moderate livelihood. With regard to your reference to the Van der Peet decision, was not the notion that the moderate livelihood would be an appropriate measure rejected by the justices in Van der Peet as something that was unworkable?

Mr. Larry Chartrand: Yes. One of the ironic aspects of Chief Justice Lamer's reference to Lambert's analysis of moderate livelihood is that the argument as presented by the majority in Van der Peet did indeed suggest it was unworkable.

On the reference to it as the point for beginning the analysis in Marshall by Chief Justice Lamer, he must have felt that he didn't agree with the majority in Van der Peet about its unworkability. He does go on to elaborate a bit in the Marshall judgment itself in terms of what that is, in terms of a certain standard of living that all Canadians ought to enjoy. So he does modify it a bit. I think he's taken from the more detailed analysis of Justice Lambert in Van der Peet and added to that.

• 0930

So I'm just as perplexed as you are in terms of why he chose that particular term over any other one.

Mr. John Cummins: It just seems to me that for somebody, moderate livelihood may be a new pickup truck, and for the other guy it may be an Oldsmobile. I think it's a very difficult term to achieve.

I'd like to turn, if I could, to the Gladstone decision, which I'm sure you're familiar with. In the Gladstone decision, the justices talked about the purpose of section 35 of the Constitution as having to do with reconciliation of aboriginal peoples with non-aboriginal peoples.

Perhaps I can quote a couple of paragraphs from that decision for you and then get your comments.

At paragraph 73 the justices noted:

Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation.

They go on in paragraph 75 to say:

Although by no means making a definitive statement on this issue, I would suggest that with regards to the distribution of the fisheries resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard. In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.

It seems to me that in Gladstone, the justices were suggesting that somehow we had to work out this problem, that there were rights that had been acquired by others than aboriginals, by people who had participated in the fishery over a period of time, non-aboriginals, that they had in a sense acquired some rights, and that somehow a balance must be achieved in the act with regard to access to the fishery.

But this Marshall decision makes no reference to Gladstone and makes no reference to seeking balance. It simply suggests that, in essence, there's a priority aboriginal right here. If you look at the numbers, that priority aboriginal right, if it's exercised to its limit, would mean there is no access for anyone else. Therefore, it just seems to me that the notion of reconciliation seems to be out the window with Marshall.

I wonder what your thoughts are on that.

Mr. Larry Chartrand: I think what you have to realize is that the court didn't even go to the justification analysis where Gladstone would be relevant. The court defined the treaty right in the circumstances of the 1760 treaty. They put a limit on that treaty right, because it's a limit that was built into the treaty itself, that limit being that it was for trade to achieve the necessaries of life, which has been defined in a modern context as moderate livelihood.

But the analysis normally doesn't stop there. The next step would then be up to the crown to argue that they can justifiably infringe the treaty right. In Gladstone that was an aboriginal right, but the court seems to think the justification test also applies to treaty rights. I think the question has yet to be fully explored as to whether or not the crown can justify an infringement of a treaty right. It's like allowing one party and another party to come to agreement and then somewhere down the line letting the second party have a second kick at the can because they didn't agree properly in the first place.

I think the Supreme Court of Canada's seeming adoption of the Gladstone justification test to the treaty context is inappropriate. It wasn't analysed at all in the decision. It just seemed as though they ought to apply it. I think that awaits further clarification.

Gladstone, in the justification test, wasn't even relevant in Marshall. The crown didn't even put forth arguments that they can justify an infringement of the treaty right. If they did so, then they would have to get into the reconciliation test that Gladstone envisions. Then you get into the balancing of interests of non-aboriginals with the aboriginal interests, and there's a whole series of analyses and tests that have to be employed by the court to work through that analysis.

• 0935

Mr. John Cummins: It seems to me that's the unfortunate part of this. If I could reference you to the 1954 Brown decision of the U.S. Supreme Court on the school situation down there, in the rulings—and there were two judgments there—the U.S. Supreme Court didn't require that the next day the existing order of things be overturned and sort of grant due rights or acknowledge some different rights for a particular group of people.

It seems to me what has happened in this Marshall decision is that the existing order of things has simply been overturned by the court. It seems to me the court is almost negligent in its action here, because the type of disruptions and civil disobedience we've seen is almost predictable from the way the court dealt with it. It's different from the approach taken by the U.S. Supreme Court in Brown.

Mr. Larry Chartrand: I tend to take a different perspective on the effect of the Supreme Court of Canada's decision. All the Supreme Court of Canada is doing is upholding what a treaty right was and what a treaty term was in the treaty of 1760.

If there has been any disregard or upsetting effects, it's from the fact that the treaty right wasn't implemented to begin with. But that doesn't necessarily help matters much now, in 1999. The treaty was entered into in 1760, when you had very few non-aboriginal people settled in the province. Today you have a significant settlement of non-aboriginal people who rely on the industry and the resources. The treaty is still a treaty, dating back to the 1760 context. You have to modernize that treaty to allow for the new changes in socio-economic circumstances and other interests in participating in their resource. The question is, what is the best way to do that?

If two parties feel that an agreement is no longer suitable because of changing circumstances, those two parties renegotiate the treaty or the agreement. It's now up to the crown to employ good faith bargaining, good faith negotiations, to come to an interpretation of the treaty that can now fit into a 1990 maritime context. I think that's how you resolve this issue.

The Vice-Chair (Mr. John Duncan): Have you something really quick?

Mr. John Cummins: The point is that the court didn't allow for that transition to take place, and I think that's the regrettable part.

Would you not agree as well, though, that the treaty right was really not infringed until licensing restrictions came in 1968? Until then, there was no restriction on the treaty or infringement on the right.

Mr. Larry Chartrand: Without analysing the historical documentation better, I'm not sure about that, whether or not the exercise of their rights started to be infringed by regulations in 1968. I suspect it was earlier at times as well. I don't have the documentation before me.

The Vice-Chair (Mr. John Duncan): Thank you.

We will go to Yvan Bernier from the Bloc next.

[Translation]

Mr. Yvan Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine— Pabok, BQ): First, I want to greet the witnesses who appeared before us this morning. I would like to ask them a few questions myself and I might keep some for the end, after we will have heard the other witness.

Our witnesses said interesting things this morning, but I am still curious about several issues. I always try to understand who the Canadian government or the non-indigenous fishing communities will have to negotiate with. The witnesses seem to suggest that the way they understand the treaties everything will have to be negotiated with each band.

• 0940

I would like the witnesses to tell me if it is possible to give us an orientation and to provide a definition concerning the sharing of the resource as such. As they told us that negotiations would take place at the level of the band, would we only deal with aboriginal people living on territories called reservations? Should we negotiate with off-reserve aboriginal people, but who have ties with the band? I would like the witnesses to advise the Committee on the fashion we should proceed.

Secondly, how do we integrate the notion of community-based management and that of cohabitation with non-indigenous fishermen? I will clarify my question. I would first like to know amongst how many individuals in the aboriginal community we will share the resource. I am trying to find out if there is a volume that we could transfer. Would this volume be managed separately by the community? Who would manage it? Of what order would it be? How would it be managed in the community?

[English]

Mr. Larry Chartrand: In terms of the first question, as to which entity has the authority to negotiate the treaties, it originally resides at the band level. However, the bands realize that this is a larger issue than just an individual band matter, and according to traditional Mi'kmaq law the bands can transfer that decision-making authority to the Mi'kmaq Nation as a whole. But the power and the authority originally rests at the band level, and right now that's what the Mi'kmaq Nation is doing.

The individual bands are meeting to develop a political process to understand their collective interests and so they can pursue the issue on a more national level, Mi'kmaq national level. I'm not aware of the actual details of their political process, but they have entered into a process. I think Bernd Christmas talked a bit about that at one of the earlier hearings.

[Translation]

Mr. Yvan Bernier: We talk about management at the band level and we say that the negotiations may sometimes take place at the level of 35 bands. I will speak to the point this morning. What really stupefies the fishing communities is the fact that everything seems to be negotiated piecemeal. Perhaps the government is too lax. Do we have an idea of the final position that the Mi'kmaq society wishes to achieve?

Three years ago, a conflict erupted at the bottom of Chaleur Bay. We had already experienced events similar to those of Burnt Church. In Restigouche, Gaspé fishermen were dumbfounded when they saw the band fishermen coming in. It was not their first such experience but the issue is now settled and the salmon fishery management in the Restigouche River is working very well.

In order not to have to go through every stage of stupefaction, would it not be possible to establish a dialogue ahead of time between the Mi'kmaq communities and the neighbouring non-aboriginal communities? Your chiefs might sometimes confer with government representatives, from Canada or Quebec, but we don't know what is going on. You are our neighbours and all of a sudden everybody is very surprised. I noticed that when Indian bands negotiate with their immediate neighbours, issues are dealt with a lot faster.

• 0945

This fall, the salmon fishery was the point at issue. Should I tell the crab fishermen that there will be a conflict next Spring? Will the scallop fishermen be next? We are only talking about fishing here whereas the Marshall decision also concerns hunting and gathering. Are we going to go from crisis to crisis? This is the purpose of my question this morning. Can you enlighten us?

[English]

The Vice-Chair (Mr. John Duncan): Could we get a short answer? We would like to move on to a couple of other questioners.

Mr. Larry Chartrand: Certainly. There are a couple of levels here. The one level is that if you're renegotiating the treaty, that treaty was with the British crown and now it's the Canadian government that represents the British and adopted the obligations under the treaty. And the British crown is supposed to represent the community interests at the local level in those negotiations.

That's not to say that the local Mi'kmaq communities and the local non-aboriginal communities can't get together to resolve their differences and interests in a mutually acceptable way. It wouldn't be through the formal treaty process, though. It would be through community negotiations and arrangements. It's not at the nation-to-nation level. The treaty at the nation-to-nation level would still dictate and would still rule.

The other thing is that there's a need for a process to reinterpret and implement treaties not just in the Maritimes but all over Canada. This decision has implications for the rest of Canada as well in terms of treaties with the Canadian government.

The Royal Commission on Aboriginal Peoples had been fully aware earlier in the 1990s, before the final report was released, that there was a need for a national treaty implementation definition process of some sort, where the parties can sit down, identify those terms in their treaties that need definition in a modern context, and come to some sort of agreement and modification of the existing treaties that suit current needs. That recommendation went to Parliament and has not yet been adopted or considered I think in any meaningful way.

I know the Assembly of First Nations has pursued it and other aboriginal groups are pursuing it. Some are even pursuing it on a regional level despite the federal government's lack of pursuing that recommendation. Had it been pursued, some of the problems in the Maritimes may have been avoided.

The Vice-Chair (Mr. John Duncan): Could we go to Sarkis Assadourian and then Carmen Provenzano.

Mr. Sarkis Assadourian: Thank you very much. I too welcome you to this hearing.

I have three questions. You may answer them in any order you wish. I'll make my questions very brief.

Can you list the historic events, the way you see it, that led to the 1760 treaty?

Second, are there any other treaties you know of, before or after 1760, signed between the Mi'kmaq and the white people, or English people or French people, at the time?

Third, how do you define “international treaties” on page 2, the fourth paragraph from the top, where you say “understanding such these treaties are international treaties in the true sense of the term”? How are you defining “international treaties”, and how does that international treaty affect or compare to the 1760 treaty?

Mr. Larry Chartrand: Without looking at the documentation and the historical evidence about what treaties existed prior to 1760 and what treaties existed afterwards, I'm not up on that historical analysis. However, in terms of the international treaty concept, what I mean by the fact that aboriginal treaties between first nations and the crown are international in the true sense of the term is that they are no different in nature and concept than a treaty between Canada and the United States. They are on a nation-to-nation basis, and that was the sense of it in 1760.

The British crown acknowledged the independence and autonomy of the Mi'kmaq, Maliseet and Passamaquoddy nations. They did not purport to decide or exert any control over them, and any reference in a written treaty that alludes to that is probably a misinterpretation of the written treaty.

• 0950

Mr. Sarkis Assadourian: So what historic events led to the 1760 treaty, from your point of view?

Mr. Larry Chartrand: I'd say that they were typically peace and friendship treaties between two nations. There was obviously a conflict between the Mi'kmaq and the English because of their alliance with the French. After the defeat of the French control in the Maritimes, there was a need to enter into negotiations with the Mi'kmaq to achieve peace. And that's the historical context of the 1760 treaties: they were between two independent powers, and they allowed them to come to a mutual resolution that would benefit all parties.

Mr. Sarkis Assadourian: You describe this treaty as like the Canada-U.S. treaties we signed so many of in the last couple of hundred years. So in your mind this treaty of 1760 was a treaty between two sovereign states. Is that what you're telling us?

Mr. Larry Chartrand: Exactly.

Mr. Sarkis Assadourian: So in your mind the Mi'kmaq were sovereign in 1760, in or around that time, and they gave certain rights to the white people then and white people assured them or gave them guarantees that these treaty rights would be respected throughout time. Is that your point?

Mr. Larry Chartrand: That's exactly right.

Mr. Sarkis Assadourian: Finally, in the House of Commons during question period, the opposition, and especially Reform, made the point that this treaty gave preference to certain blood—in this case Mi'kmaq—because if you're a Mi'kmaq you can fish, you can do whatever you want, based on this treaty. Do you argue with that statement?

Mr. Larry Chartrand: No, it's a completely inaccurate statement. The treaty is not with a racially distinct people. The treaty is with a distinct autonomous political government, the Mi'kmaq government, just like you make a treaty with the United States. And non-Mi'kmaq, non-Indian blood members of the Mi'kmaq band could exercise the Mi'kmaq treaty rights; there's nothing to stop that. An adopted English person could—if adopted by the Mi'kmaq Band and a citizen of the Mi'kmaq Band—exercise that treaty right. It's not racially based. It's a political right, belonging to the citizens of the Mi'kmaq Band and government.

Mr. Sarkis Assadourian: What do you mean by “citizen”? Do you mean band members? Is that what you're saying?

Mr. Larry Chartrand: Band members.

Mr. Sarkis Assadourian: Canadian citizens, though.

Mr. Larry Chartrand: Mi'kmaq citizens, citizens of the Mi'kmaq Nation.

The Vice-Chair (Mr. John Duncan): Mr. Provenzano, go ahead.

Mr. Carmen Provenzano (Sault Ste. Marie, Lib.): Mr. Chartrand, it was a very interesting presentation, but I'm trying to understand something. We have the Mi'kmaq Nation as a whole, and the Mi'kmaq Nation is made up of individual bands, and the bands are made up of individual members. The 1760 treaties—plural, more than one—were treaties that were made by the bands, the individual bands. Is it possible, Mr. Chartrand, under Mi'kmaq law for individual bands to obligate the entire Mi'kmaq Nation unilaterally without the consent of the Mi'kmaq Nation, to obligate the entire Mi'kmaq Nation in any individual dealings between the band and any government? Is that a possibility, where the band could act on its own and obligate the entire Mi'kmaq Nation?

Mr. Larry Chartrand: From my perspective in terms of my limited understanding of Mi'kmaq traditional law, I don't think it would be within the powers of an individual Mi'kmaq band to be able to obligate the Mi'kmaq Nation as a whole.

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Mr. Carmen Provenzano: This is where my difficulty comes in, Mr. Chartrand. In your presentation, you say that the 1760 treaties were entered into at the band level and that the treaty rights belong to the individual band community. But that individual band community, it's suggested, could transfer the benefit of the treaty to the Mi'kmaq Nation as a whole. Is that the suggestion here?

Mr. Larry Chartrand: Yes.

Mr. Carmen Provenzano: Well, this is where my difficulty comes in. If it's not possible—and I don't think it would be possible under any law of any other nation—under Mi'kmaq law for individual bands to obligate the entire Mi'kmaq Nation, how is it possible to transfer the benefit of an arrangement and not the obligation? The suggestion here is that the benefit could be transferred to the nation as a whole, yet obviously we have a difficulty in that you couldn't unilaterally transfer an obligation. Doesn't that present a problem in your hypothesis?

Mr. Larry Chartrand: Yes. Perhaps I'm not quite clear in that written part dealing with the issue.

Mr. Carmen Provenzano: Do you see what I'm saying?

Mr. Larry Chartrand: Yes.

Mr. Carmen Provenzano: You can't obligate unilaterally. How can you transfer the benefit without an obligation that's attached to it? This is a true right. Can we transfer a right without the obligation? If we don't have the right to obligate, how can we say it's tribal in nature, national in nature, as opposed to the individual band?

Ms. Melinda Martin: My understanding as a Mi'kmaq person is that these treaties weren't entered into by individual bands; there were representatives of these individual bands, but the treaties were entered into as the Mi'kmaq Nation. That's how these rights are transferred to all the bands, all the members of the Mi'kmaq Nation. Also, because in the treaties of this period similar treaties were signed by the Maliseet and the Passamaquoddy, these three nations would be included and would be entitled to these treaty rights.

Mr. Carmen Provenzano: So you would alter that part of the presentation?

Ms. Melinda Martin: This is my Mi'kmaq understanding.

The Vice-Chair (Mr. John Duncan): Carmen, can I stop you there?

I think what we'll do at this point is introduce Professor Patterson. Everybody has had one round. We'll receive that submission and do the questions and go from there.

I'm going to take a minute or two to introduce you, Dr. Patterson, because your presentation doesn't do that. I'll take the liberty of quoting from your web page, or wherever this document came from.

Stephen E. Patterson received his doctorate from the University of Wisconsin. He teaches graduate and undergraduate courses at the history department of the University of New Brunswick in the early American field and in the field of the native-European encounter. He's the author of “1744-63: Colonial Wars and Aboriginal Peoples” in The Atlantic Region to Confederation; “Indian-White Relations in Nova Scotia” in Acadiensis, 1993; and Political Parties in Revolutionary Massachusetts, amongst several other works.

Mr. Patterson is a former chair of the history department. He's currently director of graduate studies. Current research focuses on the native-European encounter in colonies, especially in Nova Scotia and New Brunswick. He supervises graduate students in a variety of topics in colonial, revolutionary, and early nineteenth-century American history.

We know you've had a long involvement with the Marshall decision, but I think you do talk about that. Please proceed, Dr. Patterson.

Mr. Stephen Patterson (Individual Presentation): Thank you very much, Mr. Chairman and members of the committee.

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Your introduction was generally accurate. I should make this point: don't be misled by the fact that my PhD was taken at the University of Wisconsin. I was born in Fredericton, New Brunswick, and have never strayed very far from home. I'm a Canadian and have always been.

In the last 10 or 12 years, most of the work that I have done has been in this field that I call “encounter history”, that is, the overlap or the meeting of aboriginal people with non-aboriginal people in the colonial period, with special focus on Atlantic Canada.

I prepared some remarks and I'd like to follow my text fairly closely. It may take me a bit longer than the 10 minutes. It's as tight as I can make it given the complexity of the matter.

I want to make it clear both to the committee and to anyone else who's interested that my object in being here is to serve the process and to perhaps improve the process rather to make any extensive criticisms of what has already transpired, especially in the Marshall case.

You correctly pointed out that I was a witness—called “an expert historical witness”—in Marshall. Since my testimony was given at the trial level, I was involved in the Marshall case from the very beginning. It's on that basis that I want to review the case with you and perhaps give you some sense of my feeling that there is a need for some reform in the process by which historical information is used to inform cases of this sort.

I should say, given recent criticisms of the court, that I believe the courts are the proper place to resolve the difficult issues of aboriginal and treaty rights. I believe it is not only appropriate but essential that the ultimate arbiter be the Supreme Court of Canada. There is no other institution better equipped to consider such issues fairly, judicially, and impartially. I am satisfied that the Supreme Court, in Marshall and in all other aboriginal rights cases, has applied the highest standards of the law.

But I have also to observe that we in Canada may not yet have come to grips with the full import and meaning of subsection 35(1) of our Constitution. It guarantees to aboriginal people their existing aboriginal and treaty rights, and that short clause carries in it much more than words of legal import. It is packed with the stuff of history.

The customs and traditions that define the rights of aboriginal people can only be discerned through historical observation. Treaties are historical documents. Importantly, the customs and treaties that are protected by this clause are as numerous as the hundreds of first nations found in Canada today. There is enormous diversity, none of which can be comprehended outside of the historical dimension of time and place.

I think the truth of this observation has been well recognized by the Canadian courts. The Supreme Court, in Simon, Sioui, Sparrow, Van der Peet, and Delgamuukw, just to name only some of the better-known cases, has confirmed the importance of history in determining the nature and extent of aboriginal and treaty rights.

Determining the date of first contact or the time of the assertion of British sovereignty requires historical knowledge. Ascertaining the customs or traditions that are integral to the culture of an aboriginal people can only be done with reference to history. Analysing a treaty to determine the intent of the parties requires an examination of historical context.

When the courts call upon us to consider what it calls extrinsic evidence, it is in fact requiring a broader examination of historical context. When, as Mr. Justice La Forest says in Delgamuukw, “the understanding of certain issues is highly contextual”, he is telling us that a most detailed consideration of historical information is needed to resolve the problem.

In a word, our Constitution requires that questions involving aboriginal and treaty rights be resolved with reference to both history and law. There is no longer a choice in the matter. As I read the Constitution, this clause uniquely constrains the courts. It enforces on them a constitutional requirement that they devise a proper method for collecting historical evidence, reading it, and interpreting it in a fashion that does justice both to the facts and to their full historical context.

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While the Supreme Court is well aware of the constitutional requirement to consult history, I would suggest that the process by which it carries out this constitutional requirement is still a work in progress. The rules are vague, and with all respect, I would suggest that the rules are inconsistently applied. In 1985, in the Simon case involving a Mi'kmaq from Nova Scotia, the Supreme Court accepted Mr. Simon's reliance on the treaty of 1752 because the crown had produced no evidence to support its claim that the treaty had been extinguished by hostilities. The court had been presented with piles of historical documents but no expert testimony. The decision said it was impossible for the court to determine what was going on along the east coast of Nova Scotia in 1753. If I may interpret this, the court found that the historical record did not speak for itself. As I read Simon, it warns that raw historical data must be rendered intelligible by someone capable of interpreting it, and that the court itself will not undertake to do this on its own.

To me, the Simon decision is a wise acknowledgement by the court that when it comes to interpreting history, the court has limits. Whether these limits have been defined or generally accepted is another matter. My observation is that they have not been, and it is my constructive suggestion that they need to be. The Supreme Court needs to decide how it will handle historical questions when the evidence provided by and through the lower courts is inadequate or deficient in some respect.

This brings me to Marshall. Let me outline very briefly some aspects of this long and difficult case to illustrate what I think are some difficulties that the courts have in using history to resolve questions of aboriginal and treaty rights.

The focus in the case was on treaties signed by the Mi'kmaq in 1760 and 1761. All of the natives in the region—Mi'kmaq, Maliseet and Passamaquoddy—had been fighting against British colonizers for years, and had been particularly active in colonial wars as allies of France. After 1758, when France lost its foothold in the region, all of the native peoples gradually came in to treat with the British. The Maliseet were the first to do so, and their treaty was finalized in February 1760. The Mi'kmaq were widely dispersed throughout the region, and were organized in about a dozen separate communities or bands. Rather than attempting to assemble them all and treat with them as a single entity, the British decided to treat with each separately, and this is the reason we have a series of Mi'kmaq treaties spread over several months, beginning in March 1760 and ending in November 1761.

The written texts of all of these Mi'kmaq treaties were identical. They began with what the British called a submission. The Mi'kmaq acknowledged the sovereignty and authority of the British crown in Nova Scotia and submitted to that authority. They promised not to interfere with British settlers and, where there were misunderstandings, to “apply for redress according to the laws established in his said Majesty's Dominions.” They also promised not to trade with the French, but rather to confine their trade to British truckhouses to be established for the purpose.

But in addition to the written documents, we also have minutes of discussions that took place at the time some of the treaties were made. The most extensive record is of the treaty ceremony of June 25, 1761, at which four Mi'kmaq bands made their treaty with the British. It seemed fortunate in this case—the Marshall case—that Donald Marshall Jr., a member of the Membertou Reserve of Cape Breton Island, was represented, in a sense, at this treaty ceremony in 1761. In other words, the chief of the Cape Breton Mi'kmaq was present at this ceremony. This is Marshall's treaty, so to speak, and the minutes we have form what the Supreme Court calls “extrinsic” evidence or, in other words, the historical context that might help us better understand the intent of the parties. This material received considerable attention at trial. It seemed at the time to be most relevant to the question of Mr. Marshall's treaty rights.

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Let me point out just a few particulars from the minutes of the treaty ceremony. Several of these points deeply impressed me and, in large measure, shaped the interpretation that I adopted and presented in my testimony at trial.

I found it particularly striking that the Cape Breton chief, speaking for all of the others, said, “our intentions were to yield ourselves up to you without requiring any terms on our part.” In other words, they made no demands and set no conditions. In his lengthy speech, which was carefully translated by someone who spoke the Mi'kmaq language, he made not a single reference to trade. He concluded this way:

As long as the Sun and Moon shall endure...so long will I be your friend and ally, submitting myself to the Laws of your Government, faithful and obedient to the Crown.

Nova Scotia's Chief Justice at the time, Jonathan Belcher, spoke on this occasion for the crown. This is what he said: “The Laws will be like a great Hedge about your Rights and properties.” My interpretation of this was that the Mi'kmaq would be treated like all other subjects of the British crown. Aboriginals would enjoy the freedoms all British subjects enjoy, and the laws would protect them.

Importantly, Belcher put this essential point into clear language. He referred to the British in Nova Scotia as “your fellow subjects”. In future, he said, natives and non-natives would fight on the same side when they fought in a war, as brethren, “that your cause of war and peace may be the same as ours under one mighty Chief and King, under the Same Laws and for the same Rights and Liberties”.

As I read the document, Belcher's words and those of the Cape Breton chief provide written evidence of the intention of the two parties to the treaty that was signed on June 25, 1761. They seemed to have a meeting of minds. There is much more to the treaty than this, of course, and much more evidence was presented at trial to show that in the years thereafter the two parties behaved in a manner of consistent with the notion of a common understanding. The treaty partners agreed that the Mi'kmaq were British subjects, and as such the Mi'kmaq were to be governed and also protected by the prevailing laws of Nova Scotia. A Mi'kmaq chief petitioning many years later, in 1825, pointed out that despite all of the problems confronting him and his people, he had always been “unwilling to contend against the laws which he had pledged himself by treaty to obey.”

My interpretation of this evidence did not go unchallenged at trial. Defence witnesses presented a differing view. But my point here is that the evidence was extensive. It was well canvassed at trial, the arguments were heard, and on this basis the trial judge made important findings of fact. And because he also largely accepted my interpretation, it is worth my summarizing it here.

My interpretation is that the treaties of 1760-61, unlike earlier treaties, did not contain British promises to the Mi'kmaq or specifically guarantee rights. There is not a word about hunting, fishing or trading as a right. All of these may be implied, but they need not be the implications of the treaty itself. Rather, they are the logical implications of the rule of British law, the common rights of all British subjects that, in the context of the time, were permissive rights rather than constitutionally entrenched rights. They were, for everyone, rights limited by whatever laws and regulations were in place to maintain order, peace, harmony, security, etc. In my reading of the historical evidence, there is not a hint in any of these treaty negotiations in 1760 and 1761 that the Mi'kmaq, while being welcomed as British subjects, were at the same time granted an exemption from British law.

• 1015

Let us turn now to the case as heard by the Supreme Court. To my great surprise, both the hearing and the majority decision revolved not around Mr. Marshall's treaty, the treaty of June 25, 1761, and its substantial extrinsic evidence, but rather around the first treaty signed in February 1760, the Maliseet treaty. I was surprised, because it appeared to me that the Supreme Court's highly focused attention on the events of February 1760 had no parallel in the lower courts. The Maliseet, after all, are a distinctly different people from the Mi'kmaq, and Mr. Marshall is a Mi'kmaq.

Nevertheless, Mr. Marshall now argued, through his counsel, that his treaty right to trade was derived from a British promise to the Maliseet. Because the Maliseet treaty became the model for treaties with the Mi'kmaq, presumably anything promised the Maliseet was equally promised to the Mi'kmaq. The majority of the court essentially accepted this reasoning and determined that while the native right to trade was not explicitly stated in any of the treaties, it was implicit in them. The proof, said the majority, was to be found in the extrinsic evidence related to the Maliseet negotiations, specifically the minutes of their meetings with the governor and council in February 1760. In these negotiations, said the majority, the Maliseet demanded a trading right as a condition of their signing the treaty. The British, allegedly fearing the power of the aboriginals and eager to bring about an immediate peace, promised such a right in exchange for the treaty.

It is my observation that the Supreme Court's ultimate decision focused on an episode in the treaty process that was not a central aspect of testimony at the original trial in provincial court. It was certainly not part of Mr. Marshall's original defence. He originally cast his net widely, claiming rights under many treaties, especially on the liberal promises of hunting, fishing and trade in the treaty of 1752, the treaty relied upon by Mr. Simon several years ago.

The crown had to respond equally broadly in order to respond to any and all possibilities in what appeared to be a very unspecific defence. The crown's case was designed to illustrate the rather extensive history of over a dozen treaties signed between 1725 and 1779, with special emphasis on the treaty of 1752, which seemed to be the most in contention, as well as the treaties of 1760 and 1761. Interestingly, the two expert historians who testified in Mr. Marshall's defence carried the context even further. They brought in treaties from the 1690s in New England to provide clues to our understanding of both British policy and native experience in dealing with Europeans.

It was weeks into the trial before Mr. Marshall focused his defence on the treaties of 1760 and 1761. Even then, the Maliseet treaty was given no special attention.

It is my observation that Mr. Marshall's reliance on the Maliseet negotiations of February 1760 as the crux of his defence was advanced first at the Supreme Court level. This was done by argument. The evidentiary base for examining the question was limited. It had not been extensively canvassed at trial. The majority of the Supreme Court panel decided that the trial judge had erred in law for not examining extrinsic evidence related to the Maliseet treaty.

It is not my place to defend the trial judge, but my observation is that he dealt with the evidence he had before him, and that a full examination of the extrinsic or contextual evidence related to the Maliseet treaty was not led either by the defence or the crown. That evidence was not before the court, perhaps because no one at the time determined that it was the crux of the issue. At least no one openly said that it was.

My point here is that there is more historical evidence on the background of the Maliseet treaty than was led at trial. The full evidence would have included reports of the initial contacts between the Maliseet and the British soldiers at the mouth of the Saint John River in the fall of 1759. Here, the Maliseet took an oath of allegiance to the British crown, effectively settling the issue of peace and submission long before they went to Halifax to sign a formal treaty.

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The evidence would also have included the first offers of the government in Halifax to set up truckhouses at the mouth of the Saint John River, which again came several weeks before the treaty negotiations in Halifax.

The evidence would have shown that when Maliseet delegates arrived in Halifax, they confirmed that they wished an opportunity to trade, effectively taking the British up on their offer of a truckhouse.

This evidence might be interpreted to mean that trade was not a demand of the Maliseet or a condition of their treaty with the British, but simply a request for an opportunity to trade. But this evidence was not led at trial, or at least was not presented in detail. It was not available to the Supreme Court, perhaps for the very reason that Mr. Marshall is a Mi'kmaq and details about a treaty the British made with a distinctly different people seemed somewhat peripheral.

What should the Supreme Court do in a case like this? The majority in Marshall decided that the evidence before it was sufficient to resolve the issue. They found that the Maliseet demanded a right to trade as a condition of the treaty.

By paragraph 52 of the decision, this Maliseet demand is presented, and I quote, “as a positive Mi'kmaq trade demand”. It was the aboriginals, say the majority, who first raised the matter of special truckhouses as the place where the trade should take place, not the British, who sought to confine trade to truckhouses as a means of preventing aboriginal trade with the French. It therefore was a condition of peace, and the British response was effectively a promise that the honour of the crown demands must be upheld.

These assertions placed the majority of the Supreme Court in the position of answering important historical questions on the basis of very limited evidence before it. Faced with contrary views from a minority of the court, the majority argued in paragraph 30, to take an example, that it was the Indians who “first requested truckhouses. The limitation to government trade came as a response to the request for truckhouses, not the other way around.”

My response to these findings is that the court needs to rethink what it means by extrinsic evidence. From a historian's viewpoint, it means the broad context of an event, and it should include all the available historical information that is germane to the topic. In this instance there is historical evidence that was not led at trial, or at least not examined and explained at trial, because neither side pursued it.

Rather than fill in the gaps itself, the court might well have phrased unresolved issues as historical questions. Did the Maliseet first raise the idea of truckhouses? Did the Maliseet demand trading rights as a condition of their making peace? Did the Mi'kmaq likewise demand trading rights? Were the unwritten promises to the Maliseet identified by the majority communicated to the Mi'kmaq, and did they therefore become unwritten promises to the Mi'kmaq?

All of these are historical questions for which evidence is available. Having identified the crucial questions, it seems to me that the Supreme Court might have ordered the matter back to the trial court, where expert historical evidence might have been called in order to answer the questions.

The process itself did not demand that the Supreme Court grope with inadequate findings of fact, or that it compensate for those deficiencies by reconstructing a complex history. An alternative in such cases would be for the Supreme Court to call the witnesses before it to answer any questions that may not have been properly or fully addressed at trial. This, I acknowledge, would be a most unusual step, but the constitutional requirement that aboriginal and treaty rights cases draw on history as well as law may justify extraordinary measures. The object surely is to ensure that the highest standards of legal and historical interpretation are afforded Canadians who rely on subsection 35(1) for protection.

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Let me conclude where I began. Our courts are the proper place to adjudicate issues of aboriginal and treaty rights. But the process of adjudication will normally require that the courts consider rival interpretations of the past and ultimately decide where the weight lies. I accept that my interpretation of what happened in 1760 and 1761 is only one way of looking at the evidence. Simply put, I believe that the Mi'kmaq were asked to live under the laws governing all British subjects in Nova Scotia, and they agreed to do so. This interpretation satisfies me. But it is clearly not the only interpretation possible, nor is it necessary that there be only one interpretation.

It is entirely appropriate for the courts to hear the differing interpretations of historians, anthropologists, ethnohistorians, archeologists, and any others who study the past with the disciplined critical skills available to them. I do not exclude from this list the tribal historians or keepers of the oral tradition, who may also have valuable information to communicate. Variety will be inevitable and consensus rare.

But historians who have voiced criticisms of the court's handling of history do not ask for suspension of the court's work until historians reach a consensus. Rather, they are asking for an understanding of the methods and principles that govern professional historical inquiry for a recognition that legitimate historical questions require the analysis of layers of historical evidence and foreign acceptance of critical techniques for doing so.

It is my hope that our discussions about the Marshall decision will lead to modest reforms in the way aboriginal and treaty rights cases are handled in the courts. We need to apply the highest standards of legal and historical inquiry to accomplish what our Constitution requires of us.

Thank you.

The Vice-Chair (Mr. John Duncan): Thank you very much, Dr. Patterson.

We have nine members present right now, and there's one little housekeeping item. I wonder if we can deal with it now. That is approving our operational budget on the study on the implications of the Marshall decision. We have a budget here. We've spent some of this money already—a witness expense of $45,000; videoconferences, $17,500; and miscellaneous, $3,000—for a total of $55,500. Could we have a motion to approve that budget?

It is moved by Carmen.

(Motion agreed to [See Minutes of Proceedings])

The Vice-Chair (Mr. John Duncan): I'm sorry to interrupt the witness.

We'll go on to questioning then. Mr. Cummins from the Reform Party.

Mr. John Cummins: Thank you very much for appearing here this morning, Professor. Your presentation was certainly enlightening and as well has not only raised some serious concerns about this case, in my mind, but parallels other cases that have found their way recently to the Supreme Court of Canada.

What I'd first like to do is comment on the changes Mr. Justice Binnie made to the decision that he wrote. Those changes were released, as you know, on October 1, 1999. He made a change in paragraph 37, which I'll just read into the record. The sentence reads:

In this particular case, however, there was an unusual level of agreement amongst all of the professional historians who testified about the common intention of the participants regarding the treaty obligations entered into by the Crown with the Mi'kmaq.

It was changed to read:

In this particular case, however, there was an unusual level of agreement amongst all of the professional historians who testified about the underlying expectations of the participants regarding the treaty obligations entered into by the Crown with the Mi'kmaq.

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Then in paragraph 37, the sentence reading “His overall conclusion was provided in a relatively lengthy and reflective statement, which should be set out in full:” has been changed to read:

While he generally supported the Crown's narrow approach to the interpretation of the Treaty, which I have rejected on points of law, he did make a number of important concessions...which should be set out in full:

Did you want to make a general comment about Mr. Justice Binnie's changes?

Mr. Stephen Patterson: Mr. Justice Binnie's changes did not materially alter the decision. This is what I would call a minor refinement simply to acknowledge that for the most part, my testimony supported the position of the crown.

Do you want me to comment further than that? I find it a very minor alteration in what is said.

Mr. John Cummins: If you have some more to say on that subject, it would certainly be worth while for this committee to hear it.

Mr. Stephen Patterson: The fundamental point here is that my testimony and the testimony of the defence witnesses were not in agreement on this point.

My testimony was that native people, subsequent to the 1760-61 treaties, had rights to trade, rights to fish, and things of that sort, but I assumed that the court and anyone listening to me would understand that within the context of all of my testimony, which was first of all that the treaties conveyed no rights, but that the treaties acknowledged that the Mi'kmaq were to be British subjects and to have the rights of British subjects.

So when I say, as I do in the sequence that's quoted in the decision, that the Mi'kmaq had fishing rights and trading rights, I'm referring specifically to the fact that these are the permissive rights all subjects of the crown would have.

We need to keep in mind that in the 18th century, there were no entrenched rights, at least in the British constitutional form. There was no Charter of Rights. Rights existed in British law within the framework of the law. Frequently people would say “I have the right to do something”, but they didn't mean it was an unlimited or unconstrained right. It meant simply they had the right to do this within the framework of the law. I was using that permissive rights approach in my answers to questions.

There is a second point. If you look at the question carefully, you might say I was being asked to solve the case. I might have been asked, “Is there a treaty right to fish and trade?” If I'd been asked the question that way, I would have said no. But, number one, it's my understanding that the rules of evidence don't allow a witness to answer the main question, and if I had interpreted the question as the main question, I would have been mistaken in answering it. I mean, I would have been out of line in answering it.

But more than this, at the very beginning, when I was qualified, I was qualified as a historian to give expert historical testimony. Mr. Marshall's lawyer, in cross-examining me, made the point to the court that I was not a lawyer, was not a legal expert, and should not be permitted to give legal evidence. The court put that constraint on me. So when I'm asked a question as a witness, I have to abide by the constraints of the court, the rules of evidence, the regulations that have been placed upon me and perhaps all other witnesses.

I was not permitted to construe his question as asking me for a legal opinion. I took some time and gave it some thought, and the thought that came to me was, “I must answer this question within the context of the permissive rights of the 18th century. I'm a historian of the 18th century. Stick to what you know, Patterson. Don't stray from it. Don't start pretending you're a lawyer.” And that's the way I answered the question.

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I think what that illustrates is that when it comes to rights, we throw the term itself around rather loosely. If you ask me a question, do you have a right to do something, do you have a right to cross the street, do you have the right to get up in the morning, I'm going to say yes. But of course that's not a right entrenched anywhere; it just means it's okay for you to do this. In a free society, there are lots of things you can do without constraint.

In the 18th century, the British normally talked that way. They talked about rights. So if you have a right to fish, yes, but it's within the law. I guess I'm immersed enough in the context of the 18th century that this is the way I would think the question was meant and should be understood, but I must confess to you I didn't stop and define it. I probably should have. I probably should have said, okay, if we're going to talk about rights and you want me to answer this question, I will answer it within the context of the meaning of rights as it would have been understood in the 18th century—permissive rights, not entrenched rights.

I think the other thing here is we have to decide where rights come from. The courts have to decide where rights come from in cases involving subsection 35(1). They have to decide whether the rights come from a treaty in this case. Are the rights embedded in the treaty? Do they originate in the treaty or are they acknowledged in the treaty, or are the rights simply the rights that come from some other source, in this case, using my argument, the source being British law itself, the normal rights that people would have within the framework of the law?

I don't find the decision really gets into that kind of analysis, and I wish it had. I know in advising the crown during this case, whenever the question came up I insisted that we had to talk about rights in relation to their source. Where did the rights come from?

I know a concern of the crown throughout the case was this: it's Mr. Marshall's job to say where his rights come from, and we're not quite sure yet what he's pleading; it's not clear to us where his rights come from.

Keep in mind what I said here. He claimed rights under a whole batch of treaties. How are you going to prepare yourself for that kind of case? You're going to have to deal with them all. There are treaties that stretch from 1725 to 1779. Those are the Mi'kmaq treaties in Nova Scotia. We dealt with them all.

It took us days and days, full days of testimony, the testimony of thousands of pages to do all that. We spent a whole lot of time on the treaty of 1752, and then after my testimony had been given on the treaty of 1752, Mr. Marshall's counsel announced they were not going to rely on the treaty of 1752, but would stick with the treaties of 1760 and 1761 only.

In order to deal with a case, the crown has to know what it's up against. Anyone does. It happens that in subsection 35(1) cases, the native defender must state very clearly what his rights are. In the court, in this case, I think considerable latitude was given to Mr. Marshall and it was possible for him to cast his net widely, as I've suggested, and then gradually narrow it. But I think my ultimate point is that the narrowing continued even after trial, and they were still narrowing at the Supreme Court level at a time when new evidence couldn't go in. I think that becomes a source of the problem we got into here, and I was trying to suggest a solution to the problem.

Mr. John Cummins: I guess this notion that the Supreme Court is continuing the refinement after trial is not one that we're unfamiliar with if we followed these cases. You'll recall, of course, the Delgamuukw decision of the Supreme Court of Canada, where I think about 60 days of oral testimony was taken at the Supreme Court of British Columbia level. Chief Justice McEachern rejected that testimony as contradictory. He said that after listening to it and careful consideration, he couldn't determine one truth, so he had to reject it and refer to other sources to establish what was correct in that particular instance. When the matter got to the Supreme Court, of course, they said insufficient weight had been given to oral testimony, in order that this would have to change in the future.

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I wonder if we've seen that level of change here with this Marshall decision, whether that's what has happened here, that the court has in fact established two levels of the burden of proof. Two levels are required here. There's one level if you're arguing for the crown against the existence of a particular right, but if you are suggesting that the right exists, the burden of proof is simply not as onerous. Did you have a sense of that in this case?

Mr. Stephen Patterson: There was no oral testimony or oral history led in this case, and on that point I have to say I agree with the court that oral testimony should be allowed and due weight should be given to it.

I think my major concern is this: where the Supreme Court finds itself in the position that it's left to make a decision on the basis of inadequate evidence, it shouldn't try to do the historical research itself. It shouldn't try to fill in the gaps. That's why I make the suggestion that in all such cases the matter go back to trial, where the historical evidence can be led more fully. I offered the alternative of perhaps the court calling on the witnesses to come before the court itself, which I don't think they would do, but it is an alternative approach.

But my point is that I'm arguing here for the integrity of history and for the integrity of historical method. There are lots of people in this country who read history and think of themselves as amateur historians. But if they're not equipped, first of all, to find the evidence that's needed and then to piece it together in a disciplined, critical kind of way, weighing the evidence, discerning where there is bias in the evidence, sorting out what is garbage and what is reliable, if they're not trained to do that, then I don't think they can do it, nor should they do it. I think the courts at every level need to accept that since this is part of our Constitution—the history is, not the historical method—the history requires as disciplined and as sophisticated a means of analysis as lawyers and judges normally bring to the law.

They practise the highest standards of their discipline in applying the law to a given instance. But if they don't know what the highest standards of historical analysis are, how are they going to apply it? The only answer I can come up with is, go to people who have that skill and make certain you have those people provide you with the benefit of their thoughts. Then it does go to the weight.

If you're stuck with diametrically opposed interpretations, clearly someone has to make the decision. But that's what judges do. I'm satisfied with that part of it. I just want to make sure the full historical analysis is before the court before they jump to the conclusion. I think in this case that was not the case.

The Vice-Chair (Mr. John Duncan): Yvan Bernier, from the Bloc.

[Translation]

Mr. Yvan Bernier: Mr. Chairman, I will try to be brief so that my colleagues can also have the floor.

I would like to thank the witness as well for his statement. Being a layman in constitutional law, I must say that I just don't know what to think about his way of seeing things. Am I to understand that if a different light had been shed on the court, we could have expected a different ruling? This is my first conclusion. Nevertheless, we cannot change the decision that has been made.

I am one of those people who prefer a bad out-of-court settlement to a lawsuit whose issue is always uncertain. I consider that the light shed by the witness will be very useful to us in the future.

• 1045

The history of Canada is as much the history of aboriginal people as it is that of Canadians and Quebeckers. I would not want to forget any part of Canada whatsoever. But it sometimes happens that we have a different perception or interpretation of history.

I would like the witness to explain to us how the court interpreted the history and the dates chosen, as we remain perplexed. I don't wish to embarrass the witness but we do not seem to be sure of the interpretation to be given of history though we say a decision must be made. I am under the impression that the Supreme Court is sending a message to politicians and is enjoining them to integrate the notion of aboriginal self-government to our modern management. Is it in that direction that the Committee should turn its work as neither side will ever have a clear idea? In terms of constitutional law, we cannot come back on that. Is it the last message that I must remember, that is that the court is enjoining us to find a way to integrate aboriginal self-government to the current Canadian management structure? I don't know if the witness will be able to answer this question. You can interpret my intervention as a comment but it is the feeling that I had this morning.

[English]

Mr. Stephen Patterson: Let me answer this way. Historians are not the proper people to predict the future, but in my remarks I am making a recommendation for future action. It is simply that there be some reform in the fashion in which the courts handle historical material. I think it's a modest suggestion. I'm certain the courts themselves are grappling with this issue.

That being the case, here is the input of one historian who, perhaps on a self-appointed basis, is speaking for the historical profession in saying that history as historians understand it needs to be better understood by the courts and the skills historians have could be better utilized by the courts. I'm suggesting that the way for the future is to focus on that.

As for Marshall, I accept that this is the decision and this is the law. I wouldn't want anything I have said today to give people the sense that I want them to throw this decision into the ashcan and take the law into their own hands. This is the law. I accept that, and everyone should. The upsets that have occurred across the country as a consequence of it are perhaps simply the consequence of years and years of tensions and of the Canadian society's inability to come to grips with some important issues. You can't blame it just on the decision.

All of that being said, I think there are some very important lessons to be learned from this decision, perhaps from all decisions, but this is the one I know. Since it touches me directly and I'm quoted, someone told me, 11 times in the decision, it seems appropriate for me to comment on it and to make the recommendations I'm making with regard to improving the process, which is my limited objective.

The Vice-Chair (Mr. John Duncan): Next is Wayne Easter.

Mr. Wayne Easter (Malpeque, Lib.): Thank you, Mr. Chairman.

Welcome, and thank you for the well-thought-out and articulate presentation.

You do make some extremely interesting points on reforming the process in terms of how you look at historical evidence, and I'm certain the committee will consider that.

But our mandate as a committee is to study the implications of the Marshall decision on the management of fisheries in the Atlantic region, and that's what I want to deal with specifically, and where we go from here.

On page 3 of your brief you include the following quote:

As long as the Sun and Moon shall endure...so long will I be your friend and ally, submitting myself to the Laws of your Government, faithful and obedient to the Crown.

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There's another quote on page 4, and these quotes have been taken from the original language:

that your cause of war and peace may be the same as ours under one mighty Chief and King, under the Same Laws and for the same Rights and Liberties.

What we're hearing in our discussions with commercial fishermen and from the general public and some people from the native community is, how do we manage the fishery in a way that basically has fair equality under the law? One of the big issues is seasons. Certainly what I'm hearing from the fishing community, and I think it's the same for other members, is that any management plan has to recognize both the rights under this treaty and the privileges of the commercial fishing community, which are fishing under the same seasons. It's better for enforcement, and it's better from a management perspective. It's better for a number of reasons. The Supreme Court itself said that under section 61 this could be a regulated right and enforced without violating the treaty right.

Why I'm giving you that background is that whatever we do at the end of the day, the fisheries minister and the Government of Canada have the authority over management plans. The last thing we want to do is to establish a management plan that's going to end up being challenged in court and that will create further problems.

In your interpretation as a historian and based on some of the quotes I've quoted from your documentation, in terms of its final decision on a management plan for the fisheries in Atlantic Canada and recognizing the rights that have been recognized, does the Government of Canada have the authority to establish seasons and not be in jeopardy of having that plan overthrown by the courts?

Mr. Stephen Patterson: My reading of the decision is that the Government of Canada has the right to regulate the trade and the gathering activities that produce the product for the trade. I've given this a bit of thought. It seems to me that the approach that's being taken by the Government of Canada is entirely appropriate. You start with negotiations, and if you can get a common agreement on how these things should work, it's going to be greatly to the satisfaction of all and will solve future problems.

But I think native people also need to understand the limits that are contained within their treaty. From the decision, it appears to me that, for example, if native people were to balk at reasonable suggestions for regulation, including seasons, and the Government of Canada was still determined that there be seasons in the lobster fishery, the government could simply impose it, and that would be well within the framework of the decision. The decision doesn't say you have to work out every detail to the satisfaction of both parties. It's not there.

Mr. Wayne Easter: So from your interpretation, then, the Government of Canada would have that authority.

I think we recognize that the best way to proceed is with negotiated agreements. But as you clearly state, and I think the Supreme Court said it as well, this is not an unlimited right. At the end of the day, if you can't gain a negotiated settlement, the Government of Canada or the Minister of Fisheries is going to have to make a decision on what those management plans will be.

I just wanted your interpretation of that from the historical perspective. We want to have a negotiated settlement, but I wanted to hear what your interpretation would be if we ended up having to go back through the process. So I thank you for that information.

That's the only question I have, unless you have other information you want to add relative to it.

• 1055

The Vice-Chair (Mr. John Duncan): Mr. Drouin, do you have a question?

[Translation]

Mr. Claude Drouin (Beauce, Lib.): Mr. Chairman, I would also like to thank the witnesses who appeared before us this morning.

My question is similar to those of my colleague. You said that the treaties signed at the time recognized the British law. I do not want to rewrite history as I am not a specialist in the matter but I seemed to understand that those rights had been transferred at the Canadian level and that today aboriginal peoples had to comply with the Canadian law. Is my interpretation right?

[English]

Mr. Stephen Patterson: Yes, that's certainly my interpretation of the treaties. I'm not sure that the law as defined by the court in the Marshall decision agrees with that, and you shouldn't take my interpretation as the last word on the subject. I'm not in a position to elevate my interpretation into law. The court has made use of certain aspects of my testimony and other persons' testimony and has told us what the law is. I think the more important question here is what the decision says, not what I think.

[Translation]

Mr. Claude Drouin: Are there rulings other than the Marshall one that explains today's situation, that is that Canadian laws are authoritative and that decisions have to be made according to these laws? Are there other rulings demonstrating that clearly?

[English]

Mr. Stephen Patterson: You need to keep in mind that I'm not the legal expert here, so I'm not really in a position to tell you what the laws do or don't do, or what the decisions of recent years do in that respect. I'm just not the person to ask that question to.

The Vice-Chair (Mr. John Duncan): Do you have a quick question? Go ahead, please.

[Translation]

Mr. Claude Drouin: Even if you cannot answer me because you are not a lawyer but rather an historian, do you think that if we take for granted that the Canadian laws apply we are required to negotiate because we must respect the Aboriginal traditions, but based on what is actually done in Canada at the level of all fishermen? Is it what you are recommending?

Thank you, Mr. Chairman.

[English]

Mr. Stephen Patterson: I think the point has been made that aboriginal and treaty rights as defined in subsection 35(1) are meant to reconcile the interests of natives and non-natives in this country, and it seems to me that any steps that are taken in our time to reconcile the interests are in conformity with the spirit that is implied there.

I think the concept of reconciliation is the key, and in fact, in my study of history, I believe long before the 20th century it was the objective of governments to attempt to reconcile the interests of native and non-native people. In fact that's the way I interpret the treaties of 1760 and 1761. It seems to me that was the best job that people in Nova Scotia could do at that time to reconcile the interests of the two parties, and the notion that prevailed at the time, as I interpret it, was we'll have one set of laws and one approach to life under the laws; we won't create a dual system. The native people were being brought within the framework of law and custom according to the English tradition. It was a challenge, of course, to figure out how that was going to work, but my reading of the historical evidence is that this reconciliation actually began at that point.

The Vice-Chair (Mr. John Duncan): Thank you.

We have time for one more question, from Bill Gilmour from the Reform Party.

• 1100

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): Thank you, Mr. Chairman, and welcome, Dr. Patterson.

From an historical point of view, with regard to the treaties of 1760 and the technology available at the time there was a fairly limited fishery. It was limited to tidal waters. With different species and deep-sea fishing and so on, it has progressed.

Is there anything in the treaties or subsequent to the treaties that defines the native right to fish in terms of what was available at the time of those treaties, or do those treaties come into the present day and expand into different areas and different species? Is there anything that from an historical perspective defines that progression?

Mr. Stephen Patterson: Yes, there is. All kinds of historical information gives us a better understanding of how the fishing rights of native people were handled within the context of this process of reconciliation. Let me give you one example.

In 1762 the Mi'kmaq had made a claim to a certain stretch of coastline in Nova Scotia. The British crown was invited to make a ruling on this question: Will you recognize that they have this land as theirs for fishing purposes? The answer of the crown, from London, was, no, we do not recognize that they own that land, but we do recognize that they have a right to pursue the fishery on that coastline “in like manner as His Majesty's other subjects”. So there's one piece of information from the early 1760s, not long after the treaty, where the crown itself is interpreting what's going on.

Subsequent to that, we have numerous examples of people suggesting that the Mi'kmaq should become involved in the commercial fishery. The idea is that opportunities should be presented to native people to participate fully in the commercial fishery. The notion that this should happen is there in the historical record and is repeated for decades. It's as if native people are not participating but the opportunity is there for them to participate, and the encouragement should be given to them to participate. So I think that's on the record.

It's clear that under the laws of Nova Scotia, up to Confederation, the Mi'kmaq could fully participate in the fisheries commercially with other subjects of the British crown, subject to the same rules and regulations as everyone else. The opportunity was there.

The Vice-Chair (Mr. John Duncan): Thank you very much.

I'd like to thank our witnesses, Larry Chartrand, Melinda Martin, and Dr. Patterson.

Professor Patterson, the committee is going to be in Moncton, the Miramichi, and Halifax next week. Are you going to be in New Brunswick next week? If so, and if we want to put you on the witness list again, would you be available for any of those venues?

Mr. Stephen Patterson: I would be, yes. I'd be glad to.

The Vice-Chair (Mr. John Duncan): That's something the committee might want to do.

Would anyone like to suggest that from this committee? Do you think that's a good idea?

Mr. Bill Gilmour: Yes, Mr. Chairman.

The Vice-Chair (Mr. John Duncan): Very good.

The clerk will be in contact with you, then.

I want to thank you all very much. I declare the meeting adjourned.