Wednesday 30 October 1991

Ontario Federation of Students

Canadian Ethnocultural Council

Committee of Persons with Disabilities on the Constitution

Chiefs of Ontario; Teme-Augama Anishnabai


Acting Chair: Drainville, Dennis (Victoria-Haliburton NDP)

Vice-Chair: Bisson, Gilles (Cochrane South NDP)

Carter, Jenny (Peterborough NDP)

Curling, Alvin (Scarborough North L)

Eves, Ernie L. (Parry Sound PC)

Harnick, Charles (Willowdale PC)

Harrington, Margaret H. (Niagara Falls NDP)

Malkowski, Gary (York East NDP)

Mathyssen, Irene (Middlesex NDP)

Offer, Steven (Mississauga North L)

O'Neill, Yvonne (Ottawa-Rideau L)

Winninger, David (London South NDP)

Clerk: Brown, Harold


Drummond, Alison, Research Officer, Legislative Research Service

Kaye, Philip, Research Officer, Legislative Research Service

The committee met at 1535 in room 151.


The Chair: Mr Craft, I want to welcome you and thank you for being willing, on reasonably short notice, to come before the select committee on Ontario in Confederation to respond to the federal proposals. Not being that long out of university, I have a great appreciation for the work the Ontario Federation of Students has done in the past. For the record, could you give your name and the organization you represent. We hope you have 15 minutes of speaking, and if we could have 15 minutes to ask you questions, that would work out quite well for us.

Mr Craft: Certainly. That is good. My name is Ken Craft. I am with the Ontario Federation of Students.

The Ontario Federation of Students welcomes the opportunity to present to the select committee on Ontario in Confederation. We represent over 210,000 college and university students in Ontario and are closely associated with the Canadian Federation of Students, which represents almost 500,000 students across Canada. Our goal is to improve both the accessibility and quality of Ontario's post-secondary education system through lobbying, province-wide political action campaigns and research. We also work on issues of equal concern to students, such as employment, women's issues, human rights and international affairs. Since 1972 we have been the established voice for post-secondary students in Ontario.

Our brief will discuss the recent federal government proposals for constitutional reform as they pertain to post-secondary education. However, we would like to inform the committee of several federation policies pertinent to the committee's deliberations.

At the 1990 general meeting of the federation we adopted the following policy: "Be it resolved that the OFS/FEO endorse the proposal that a unilingual French university be maintained in northern Ontario."

At the 1988 general meeting we adopted the following: "Support the creation of an autonomous, unilingual francophone university in Ontario."

At that same meeting we adopted the following policy: "Support the creation of three autonomous unilingual francophone community colleges in Ontario; one college to be located in the east, one in the north and one in the south. These three colleges to be supervised by a unilingual French Council of Regents."

The year before we passed the following motion: "Endorse the demand for accessibility to French universities and colleges in Ontario, so as to give Franco-Ontarians the right to post-secondary education in their own language."

Finally, in 1986 we passed the following motion: "Urge the expansion of the number of courses taught in French at all post-secondary institutions in Ontario."

The federal budget and post-secondary education: The last federal budget extended a freeze on transfers to the provinces from two to five years. Keeping to the current trend, federal transfers for provincial health and post-secondary education programs will be effectively eliminated over the next 10 to 15 years.

Federal funds account for almost three quarters of the total provincial budget for post-secondary education in Ontario. As a result of the federal cutbacks to post-secondary education through established programs financing, colleges and universities in Ontario will lose approximately $1.14 billion from 1990-91 through 1994-95. Total losses to post-secondary education across the country will exceed $3 billion. Recent trends of federal and provincial restraint will inevitably lead to more calls for increased user fees -- tuition and incidental fees -- and less student aid. Meanwhile, underfunding will cause the post-secondary system to cease to function. Access to education will be restricted to wealthy people in the wealthy provinces, as it has been in the past.

The federal government's initiatives to absolve itself of responsibility for funding post-secondary education, setting educational standards and providing a national system of grants are part and parcel of its agenda of massive decentralization. This agenda is the overriding theme for its newest proposal in constitutional reform. The proposal would restrict the right of the federal government to implement new national programs in the areas of provincial jurisdiction. This would make a system of national standards for student aid or access to education a virtual impossibility.

Such programs, we feel, are critical if Canada's commitment to accessible post-secondary education is to be anything but hollow. I am not sure if the members of the committee are aware of this, but the federal government is a signatory to an international covenant to the progressive abolition of tuition fees in this country. Its cutbacks in established programs financing show anything but a commitment to removing this impediment to post-secondary education.

The government's constitutional proposal would also give the provinces complete control over training and eliminate any federal responsibility. This proposal is made despite the government's attestation that the unemployment insurance program was slashed to provide more money for federal training programs.

The federation supports the establishment of national programs for post-secondary education because it believes all people in Canada should have equal access to high-quality services regardless of where they live.

At the end of the 1930s, university enrolment in Canada was 36,000 students. Private funding was the principal source of its support, with student fees accounting for 33% of the budgets of universities and colleges. After the Second World War, veterans began enrolling in post-secondary education. By 1946-47 they accounted for about half of the total university enrolment. The veterans themselves received government support to continue their education, and at the urging of the National Conference of Canadian Universities, the predecessor of the Association of Universities and Colleges of Canada, the universities also received annual grants of $150 for every veteran enrolled.

By the early 1950s most of the veterans had graduated. As a consequence, the universities were losing the federal veterans' grants. Universities, however, were faced with the need to maintain expanded facilities to support the growing enrolment of civilians. Here began the federal government's long-term commitment to funding post-secondary education. In 1951-52 the federal government began a program of university grants at the rate of 50 cents per capita of provincial population. By the last year of the program, 1966-67, the rate had risen to an average of $5 per capita. This amounted to about $100 million. Payment in all provinces except Quebec was made directly to the eligible institutions. After 1966-67, post-secondary education support payments were made directly to provincial governments.

The 1967 Federal-Provincial Fiscal Arrangements Act provided for federal transfers to the provinces amounting to either $15 per capita of provincial population or 50% of eligible operating expenditures for post-secondary education incurred in the province, whichever was greater. The total transfer was made up of two general components: a transfer of taxing power and cash adjustment payments to bring the total transfer up to each provincial entitlement.

The 1967 act resulted in a number of problems for both the federal and provincial governments. In the first three years, costs rose about 20% per year, with cash payments rising faster than the tax-point component. The fact that the entitlement for each province was determined by the amount spent by the province's colleges and universities meant that the federal government had no control over the cash it paid. Spending rose from $422 million in 1967-68 to $1,778,000,000 in 1976-77. As a result, the federal government capped the overall increase at 15% in 1972. In addition, the program required continuous auditing to ensure that only eligible expenditures were included.

After 1977-78, the programs for post-secondary education, medicare and hospital insurance were financed by block funding to each province. Funding was unconditional. These block funds were provided for under the Federal-Provincial Fiscal Arrangements and Established Programs Financing Act, 1977. This act was amended in 1984 and is now officially called the Federal-Provincial Fiscal Arrangements and Federal Post-Secondary Education and Health Contributions Act, 1977, but it is usually referred to by its former title, EPF.

In 1982, some technical changes altered the original 1977 formula. This marked the beginning of the federal government's retreat from funding post-secondary education. Instead of having to match funds to get funds, provinces got block transfers regardless of how much they committed out of their treasuries. The current federal government has restricted the growth of EPF transfers to the point where they are effectively shrinking and will be eliminated in the next 10 to 15 years. The federation believes there are problems with the current system, but it is vastly preferable to having no system at all.

While the block funds are intended for spending on post-secondary education and health care programs, there is no mechanism to ensure the funds are actually used for this purpose. EPF has no mechanism for accountability; that is, once the post-secondary education entitlement has been handed over to the provinces, it is deposited into the general revenue and from that point on, no guarantees exist to ensure that post-secondary education funds are allocated to the universities or colleges. In 1984, the Liberal government ensured more accountability for health spending by establishing the Canada Health Act. However, spending on post-secondary education remained unconditional.

The OFS believes Canadians are concerned about more than just the free flow of goods and capital. They are concerned about the right to education -- primary, secondary and post-secondary -- health care and social security. But the proposed Canada clause makes no mention of any of this, referring instead to a vacuous "commitment to the wellbeing of all Canadians." This statement should come as cold comfort to the millions of Canadians whose wellbeing has been eroded or destroyed by federal government policies such as free trade, the goods and services tax and cuts to unemployment insurance.

In the case of post-secondary education, we have outlined how the federal government has laid the basis for the financial ruin of our colleges and universities. We have explained how the proposals would make it nearly impossible to recoup these losses through any new federal initiatives. We should also point out that its intention to privatize the Canada student loan program and its introduction of a 3% user fee on student loans also jeopardize the future of education in Canada. These measures would render any constitutional commitment to education a complete and utter farce.

The federation urges the Ontario government to oppose the federal government's Shaping Canada's Future Together proposals and instead support a restoration of cost-shared provincial-federal funding arrangements for post-secondary education, a national system of student grants as opposed to the current mixture of loans and grants, the inclusion of post-secondary education as a fundamental social right in the Constitution -- I think that would fit quite nicely into Premier Rae's suggestions for entrenching social rights in the Constitution -- and a mechanism to ensure federal-provincial accountability for post-secondary funding.

Thank you very much for this opportunity to make this presentation.

Mr Offer: Thank you for your presentation. I think we are all very well aware of the work done by the Ontario Federation of Students over the years, and some of the concerns and issues highlighted in your brief certainly attest to the good work of the Ontario Federation of Students.

My question deals with where the OFS is. Do you want the central government to have more of a role to play in post-secondary education in this country and would you rather see it as a federal power as opposed to the shared provincial? The reason I am asking this is that, on one hand, you say you would like this to be a clear-cut federal jurisdiction without any provincial contribution whatsoever and, on the other hand, you are talking about some very deep concerns about contributions by that central government. I am wondering if you might want to help us on that. I have one other question after that, Mr Chair.

Mr Craft: The position of the Ontario Federation of Students on funding of post-secondary education is the same as that of the Canadian Federation of Students. At our last general meeting we adopted the Strategy for Change, which was the CFS's position.

To summarize it briefly, it called for a minimum 3% corporate tax to pay for the post-secondary education system and it called for a national system of grants, as opposed to a loan and grant system, arguing that the best form of income-contingent repayment of university education is through a progressive income tax system.

Essentially the position of the Ontario Federation of Students is that the federal government should be funding it completely through taxation and that it should be setting national standards. However, it could transfer that money to the provinces, and the provinces could then continue to use that money to administer the system while adhering to national standards.

Mr Offer: Some of the points you are bringing forward deal with the ongoing issues the federation deals with, as many other people deal with issues on an ongoing basis. This committee is dealing with the Constitution and the federal proposal. What if the federal proposal does not contain these particular points? What if it does not meet the concerns and the issues of the Ontario Federation of Students? Are you and the Ontario Federation of Students prepared to say categorically to any proposal, "We reject it," even fully aware of what that means to the future of the country? Because that is where we are right now.


Mr Craft: The Ontario Federation of Students has not sat down as a plenary and fully debated what it would do if its proposals were not put in, so any answer I give would have to be prefaced with that.

No, I do not believe the federation will do that. There is a possibility that it could. I cannot speak for the members. They will decide something like that in January, but if what we are lobbying for is not included in that Constitution, we will continue to do what we have done since 1972, which is lobby for the inclusion of these sorts of changes to the way the country is governed.

Mr Offer: Thank you very much for the frankness of your response. It is going to help us as we start to move into what this committee really is all about.

Mr Eves: On the last page of your submission you have a statement, "The federation urges the Ontario government to oppose the federal government's...proposals." I am a little concerned about that.

Everybody has accepted the fact, including every premier that I can think of, that we have to start somewhere, and as a discussion point -- not to say they cannot be improved upon and changed in many ways -- there are the federal proposals. Do you really mean what you say there and, if so, why?

Mr Craft: It may be worded a little strongly and may need a few qualifiers that were not put in there. Essentially what the federation is saying is that, as it stands now, it is something we oppose and we want the Ontario government to oppose. The major things we want to see put in there for amendments are the four things that are enumerated on the last page.

We in the federation are very much aware of the delicateness of the situation. I myself am a Canadian historian and I am very much aware of the delicacy of constitutional negotiations and all the different constitutions we have had as a country over the past 200 years. That is essentially saying we do not like it the way it is. It needs to be worked on and here is the sort of way that we can see it being fixed.

Mr Eves: Okay. That is a fair comment. I have one more brief question.

When you talk about the inclusion of post-secondary education as a fundamental social right in the Constitution, is it your view that is a justiciable right? We had a meeting here Monday evening with the federal joint committee on the Constitution and I think it is fair to say that there seems to be much more ground for compromise than I had thought there might be. I was pleasantly surprised, for example, when I was talking about whether or not a social charter or social rights in fact would be court enforceable.

Mr Nystrom of the federal NDP indicated that he has never thought they should be justiciable rights. He thought they should be rights that are enforced by some other mechanism such as the Council of the Federation or new Senate, whatever you want to call it. I wonder what your comments are about that.

Mr Craft: I think it could be a right enforced in any way possible. I guess our feeling on post-secondary education, the reason why we want to see it enshrined as a right, is that we feel education is a right for every individual within the Canadian society; and if it is a right, what follows from that is the fact that it should be something that is free and paid for by the government. I am not sure I am answering your question too well here, but they could be put in there in a lot of different ways. It does not necessarily have to be under the Charter of Rights and Freedoms.

Mr Eves: So you are very flexible with respect to that, as long as the right is in there.

Mr Craft: Yes, we are.

Mr Winninger: You have recommended the inclusion of post-secondary education as a fundamental social right in the Constitution. I would like to explore that with you, because we need to fill in some of the detail in connection with this concept of a social charter.

I might agree that financial limitation should not stand in the way of access to post-secondary education, but if we include post-secondary education as a fundamental social right, what happens if a university says, "You don't meet our academic standards. We can't admit you"? The academic standards may change from university to university. Can that person then try to enforce his or her right to attend a university or college, notwithstanding he or she may not make the grade?

Mr Craft: I would assume not. There are always going to be standards within any educational system for progression through the ranks. I do not believe by including that as a right that it would mean every person, regardless of his ability, would be able to go on to post-secondary education, even though we do believe that everyone should have the opportunity, because with society moving into the 21st century, most jobs are going to require some sort of post-secondary education in order to be a profitable citizen in Canada.

Mr Winninger: Do you think that limitation should be spelled out or do you think it is implicit in the kind of right you would like to see enshrined in a charter?

Mr Craft: I think it is implicit in common law and in the Canadian Charter of Rights and Freedoms, as I understand it now, that you are allowed reasonable limitations upon things. That would be subject to judicial review, though.

Mr Winninger: Thank you.

Mr Harnick: One of the things that causes me some concern is where you draw the line about what should be formally entrenched in the Constitution and what should be the policy of a government in terms of the legislation it is going to enact. When I see things such as a national system of student grants or the inclusion of post-secondary school as a fundamental social right, I tend to ask where, if these things are entrenched in the Constitution, the government is going to get the money to do all these things. And if governments cannot afford to do these things, are they breaching the Constitution? Are you setting governments up to be in default of their obligations under the Constitution because the funds are just not there to pay for these kinds of things?

Mr Craft: We at the Ontario Federation of Students believe the CFS Strategy for Change provides a very workable framework for paying for this. In Canada, corporations pay the second-lowest base corporate tax in the western world. By placing a 3% corporate tax on them, a surcharge for post-secondary education, that would provide the amount of money that is in the system now and I believe another 30% above that and would be able to pay for that system.

Mr Harnick: Why do you decide to pick on corporations to pay that bill? Corporations maybe should pay 3% more so we do not have to close hospital beds or corporations should maybe pay 3% more so that our environment is clean. Why do you walk in here and all of a sudden assume that you are going to pick one institution out of society to pay your bills? What makes you more special than every other group that wants corporations to pay its bills?

Mr Craft: I do not think we feel that we are any more special than any other group in society that wants corporations to pay its bills. What we do believe within the Ontario Federation of Students is that the primary beneficiary of education in this country is the private corporations, and we believe that since they are paying the second-lowest tax within the western world, a 3% corporate tax upon them would not be onerous and would certainly make them pay their fair share for the educated workforce they get out of the post-secondary educational system in Canada.

The Chair: Mr Harnick, I am going to interject there, because this is not a discussion. You have asked some questions and I think your point has been made. I also think Mr Craft's point was made. I went out of rotation because I did not see Mrs O'Neill, but I will turn to her now.

Mrs Y. O'Neill: I would like you to verify the statement you have been making about the second lowest. Could you tell us what other country is paying lower?

Mr Craft: The United States of America.

Mrs Y. O'Neill: Okay, thank you. I wanted to have that on the record.

You speak of mechanisms to ensure federal and provincial accountability. Because you have made such a sweeping statement, that you want us to basically oppose the Shaping Canada's Future Together document, have you examined at all within your organization the Council of the Federation, which is a body that is suggested within the document? Certainly the Senate in its reformed state could be another. Have you examined any of those things in reference to your requests for standards and for funding?

Mr Craft: Yes, we have. The funding mechanism that we would like to see for post-secondary education is essentially the same one that exists in the health transfer payments, in which the provincial governments would be penalized dollar for dollar for each dollar that they do not spend.

Mrs Y. O'Neill: When you talk about a mechanism for accountability, is that what you are talking about?

Mr Craft: Yes, it is.


Mrs Y. O'Neill: I go to a lot of university graduations because the city I represent happens to have two universities. There are many age groups within those graduation classes and I am very supportive of that. What are you suggesting here, a life-long ability to return to post-secondary education at the cost of the existing governments?

Mr Craft: Yes, we are.

Mrs Y. O'Neill: That sounds a little bit difficult.

Mr Malkowski: You presented very well, but I want to ask you two specific questions. Do you support native governments for education? What is your organization's position on that? You look at other countries in the western world which include the right to post-secondary education within their constitutions and where the goal is no tuition fees, and our Constitution is silent on that. What is your position?

Mr Craft: I will deal with the second one first. I believe the second one was essentially asking what our position was on tuition fees. We believe in the progressive abolition of tuition fees and post-secondary education being free for students.

On the first one, I believe I have been asked what our position is on native education rights. We have been working very hard to make sure that there are educational programs for native Canadians at post-secondary institutions and that they have a very large part in deciding what that curriculum is going to be in order to meet their needs.

The Chair: Mr Craft, I want to thank you on behalf of the committee for coming forward with your brief. I appreciate the short amount of time that you have had to prepare this to bring to us. Please give our regards to the organization. We hope you will continue to watch our deliberations as we go forward. We are hopeful that in February we will have our final report out.


The Chair: I now call the representatives from the Canadian Ethnocultural Council. Welcome.

Mr Malicki: Thank you very much. I will introduce the persons present today. We represent the Canadian Ethnocultural Council. My name is Marek Malicki. I am the vice-president of the Canadian Ethnocultural Council and at the same time the president of the Canadian Polish Congress. I also practise law in the city of Mississauga. Magda Theoharous is the secretary of the ethnocultural council and the vice-president of the Cypriot Federation of Canada, and she works in Toronto. Anna Chiappa is the interim executive director of the Canadian Ethnocultural Council and she is with our office in Ottawa.

Very briefly, who are we? The Canadian Ethnocultural Council consists of 37 national ethnocultural organizations. If you look at the very back page of the submissions we have made, you will see the names of the various ethnocultural organizations. These are national organizations and include some of the largest ethnocultural groups, such as Ukrainian, German, Jewish and all the other groups that you see on the back. The ethnocultural council acts by consensus. It is not a body that imposes its decisions or policies, but it is an opportunity for the various groups to get together and formulate policies on issues that are of concern to them.

Canada is composed by more than 40% of people whose ancestry is neither British nor French; in Ontario, it is closer to 49%; and in Metropolitan Toronto, probably closer to 60%.

The Canadian Ethnocultural Council was formed in 1980. Among its goals are equality and fairness in Canada. Certainly most recently national unity is one of its main topics for discussion. The groups make their own individual submissions to provincial governments, the federal government and whatever bodies they think may be able to influence the future course of Canada.

Let me simply indicate at the very beginning that all our groups are committed to a united Canada, and we are committed to ensuring that we can help in whatever way possible to ensure our continuation as one country. There are several specific points that we will touch on. In a moment I will permit Ms Theoharous to deal with our position on the concept of a "distinct society" and the "notwithstanding" clause in the Constitution, and Ms Chiappa on the question of aboriginal rights, and I will complete this presentation with some submissions with respect to the Canada clause.

We think that Ontario and the submissions of this committee will be one of the integral contributions to the national debate. We are under no illusion that Ontario perhaps is the single most important player in this. We also are well aware of the composition of the population of Ontario. We have direct access to the grass roots. We have access to the media and various ethnocultural languages. We are also involved on the community level with social programs, whether it be immigration, seniors or work in other areas.

We think the concept that has arisen in Ontario of a national social charter is a very interesting and relevant approach, one that of course has to be studied but one that we think is very well worth considering in elaboration. It is certainly something that makes us very distinct from the United States of America and something worth preserving.

Getting down to the meat of this presentation, perhaps I can give Magda an opportunity to present two of our points.

Ms Theoharous: The views we are putting forward focus particularly on minority rights and represent a wide consensus. They are also from a perspective that believes in the advancement of multiculturalism in the widest and most Canadian sense of the word. What I will be dealing with first is proposal one, dealing with the "notwithstanding" clause and guaranteeing minority rights.

We, the Canadian Ethnocultural Council, view the "notwithstanding" clause -- that is, section 33 of the Charter of Rights -- to be a clause that allows a government to ignore the rights of Canadians as guaranteed in the Canadian Charter of Rights and Freedoms and to pursue rights as it sees fit. We believe there is a potential for abuse there, and for minorities such a provision is not a reassuring one. Our preference has always been to have the clause repealed entirely. However, since that does not seem a realistic goal at this time, and since there may be some circumstances when the clause could be necessary, we believe that its use should be limited further.

The rights of minorities should also be ensured in a manner that is free from this override. The "notwithstanding" clause can be used in reference to section 2 and sections 7 to 15 only. We therefore would like the equality rights clauses exempted or a clause similar to the gender equality clause, section 28, to be placed such that it is outside the purview of the "notwithstanding" clause.

We recommend that the use of the "notwithstanding" clause be further limited such that a vote needed to invoke this clause (1) be supported by 66% of the members of Parliament; (2) be supported by members of more than one political party; (3) be renewed every two years instead of the current five years.

Furthermore, we recommend that section 15, which deals with equality rights, should be exempted from the "notwithstanding" clause, or a new section should be added to section 27, the multicultural heritage clause, or to section 28, guaranteeing rights and freedoms to persons regardless of origin.

Moving on to the distinct society, there should be a clarifying of the issue. The cultural diversity of Canada must be clearly recognized and rights guaranteed in the new package; otherwise, one third of the Canadian population will be left out. The distinct society and linguistic duality proposals to be added to the charter will be parallel to the multiculturalism and gender equality sections; that is, sections 27 and 28. The "distinct society" clause will be an interpretative clause applying to the entire charter in a manner parallel to the multiculturalism clause, section 27, and the gender equality clause, section 28. The wording, which is similar to the multiculturalism clause, will be interpretative and will help in the interpretation of other sections in the charter.


All these clauses will have to be considered simultaneously by the courts without any one overriding or subverting the other. Had Quebec been an active participant in the 1981 constitutional round, such clauses would have been included. The federal proposals go further than the Meech proposal in that they define the distinct society. Because the clause will be interpreted along with other clauses, it is unlikely to threaten minority rights in Quebec, although this should be further examined.

Another point to consider is that this clause is designed to defend a language and culture, a concept not foreign to multiculturalism. It is a much-needed affirmative measure. Since the Meech proposal was released in 1987, the council has been on record as generally supportive of the clause. The definition is an improvement on the original wording.

Ms Chiappa: With respect to aboriginal rights, the CEC has long been concerned that the status of aboriginal peoples has remained at an unacceptable level. We have supported the need for a royal commission on aboriginal peoples and are pleased to see it now in effect.

This round of constitutional development must settle the constitutional issues of concern to aboriginal peoples. While we welcome some of the proposals, we feel they should be strengthened to recognize the inherent right of self-government and to ensure speedy settlement of outstanding issues.

Therefore the CEC recommends that this constitutional round include a recognition that aboriginal peoples have an inherent right to self-government; that the issue of self-government be resolved now rather that over the proposed 10 years; that the national aboriginal organizations be included at constitutional meetings of first ministers, and that mechanisms be established to ensure protection of aboriginal land rights and the resolution of land claims.

On this note, on behalf of the CEC I would like to praise the government of Ontario for its support and leadership with respect to aboriginal rights.

Mr Malicki: Perhaps I can conclude with some comments on the Canada clause. I will not read from our presentation, because that can be read separately.

Let me say first of all that our membership supports the concept of a Canada clause. The Canada clause really will be the context within which the Constitution and its provisions will be interpreted. Whether we delude ourselves now that it will be part of any court's consideration or not, it ultimately will be the framework within which the whole concept of the issues in the Constitution will be interpreted. It is a statement of principles of who we are. The way it is drafted by the federal government now is too intangible. Perhaps it is done intentionally so that it is susceptible to many interpretations and will offend no one. It has to be more specific. We must not be afraid to define who we are. We have to be a bit more assertive. We cannot avoid a statement of what we believe in and who we are.

We believe the concept of two founding nations, however, is incorrect and misleading. It is more important to state who we are presently and what the composition of our nation is. There is no need to maintain any subtle categories or distinctions of who we are. We support the concept of a bilingual and multicultural country.

When we leave Canada, we suddenly realize that we really are in the vanguard of change in the world. Canada is held up in the world as an example of how a country can develop in a multicultural concept, and we underestimate how important that is to us and how the world views us. Really, what we do is analogous to what citizenship in the Roman Empire was, the concept of oikoumene of Alexander the Great that all members are part of one great polity.

We do not understand that multiculturalism, which some of us see as a threat, is something the world looks at with envy. They do not see the internal bickering we have; they look at us with envy. We have to look at Canada as it is today and not delude ourselves that there were somehow two founding nations, because there were not; there were many founding nations. Talk to the Germans who came here in the late 1700s and 1800s and helped settle the country.

There is concern about many of the positions the government takes in the Canada clause, but there is one in particular that is very ambiguous and susceptible to various interpretations -- the statement that there should be a recognition of the responsibility of governments to preserve Canada's two linguistic majorities and minorities. How do we preserve linguistic majorities? As opposed to what? In what way? Do they need preserving? What is the nature of the government's responsibilities to preserving these two linguistic majorities? To preserve them in terms of language, in terms of culture? In the end, one does not know what the federal government intended by putting that clause in.

I think any attempt to define this country in terms of two founding nations will be very divisive. It leaves out a very considerable portion of the country, a population of the country which is dedicated to preserving the unity of Canada but feels left out of the discussion. I think the overwhelming concern about Quebec leaving Canada tends to focus this as an English-French issue and tends to lose sight of the fact that 40% of Canadians are committed to preserving a united Canada and want to have an active participation in it.

The Canada clause should be more specific. It should not be afraid to define who we think we are as Canadians. Those are our submissions. Thank you.

Mr Bisson: I just want to touch very briefly on something you have mentioned, and I have heard this on a number of occasions from people in regard to the federal proposals around aboriginal recognition of self-government. Many people we have talked to who have presented to us and many people out in society have read page 8 as meaning to say that the whole process is delayed for 10 years.

There are two points that are made there. What it says here is "that the general enforceability of the right be delayed for a period of up to 10 years from the time that the amendment is adopted," but then it goes on to say "that during this initial stage, agreements reached in negotiations will proceed and that agreements reached will receive constitutional protection as they are developed."

I might be mistaken, but the way I read that, it means that if you come up to a deal with the federal government and a particular aboriginal group in Manitoba, Ontario or wherever it might be, and come to an understanding with the federal government within the 10 years, this would be protected under the Constitution after the time the amendments are put in.

What you have said, and what other people have said, makes it sound as if it cannot happen for 10 years. Could you clarify that for me?

Ms Chiappa: I do not have the document in front of me, but my general feeling, based on our quick look at it, was that it appeared it would take 10 years to make those decisions, as opposed to making some decisions now in terms of some of the problems. It has come out misleading and it is something we have to take a look at in greater detail.

One of the points we did neglect to make was the fact that this is a preliminary analysis, from our point of view. On November 17, the board of 37 presidents will be meeting to look at this in greater detail, and those are the kinds of things we will be looking at.

Mr Bisson: I just asked the question because maybe I am not reading it properly. A number of people have said that about that proposal. I am just wondering if I am interpreting it improperly.

Mr Malicki: It may very well be. It is obvious the federal government intended to make these much more general than the previous ones simply so that there would be no preconceptions as to what was intended to be done. There is an advantage to that, but there is a disadvantage also in that really those who discuss the proposals do not really know what the federal government intends.

I think the aboriginal groups are concerned that the interpretation we put on is the one they put on it, whereas the federal government may have something completely different in mind. I think it is necessary, certainly in certain aspects of the federal proposals, to be much more specific, without the fear of offending particular groups.

Mr Bisson: The thing is that it is interpreted from where we come from and from what our perceptions are of the integrity of the federal government.

Mr Malicki: Very much so.

Mr Bisson: Just the last point on that. As on aboriginal issues, and other issues relating to the Constitution, you are advocating from your position that the interpretation of our Charter of Rights and Freedoms be done through the courts. Has your group talked about the possibility of looking at that being a role of a reformed Senate? What I am basically saying is that I personally have some fears. I would feel much more comfortable having the Constitution interpreted by elected officials in a Senate than non-elected people on a court somewhere.

Mr Malicki: Well, that is susceptible also to various interpretations. Remember, we represent 37 ethnocultural organizations from Nova Scotia to British Columbia. A Canadian of Polish origin in Halifax will look at these things differently than one from BC, so it would be ill advised of us to say there is a general consensus.

I am a lawyer by profession and I am much more confident in the court's interpreting this than politicians.

Mr Bisson: I will not hold that against you.

Mr Malicki: As far as the role of the Senate, there are different views throughout the country. Clearly there has to be Senate reform. I do not think there is any clear-cut view as to what the role of the Senate will be in the future will be. We are all very sanguine about how wise the deliberations of the future Senate will be, but I am not persuaded that it will be the best forum in which to make these decisions.


Ms Chiappa: If I could just add to that, I think there are also concerns expressed in this paper regarding the voice of minorities in an elected Senate, for example. We are still questioning whether that would be the most appropriate way to take into account the concerns of racial and ethnic minorities.

Mrs Y. O'Neill: I would like to talk about the Canada clause because, as you likely realize, you are one of the few groups to talk to us consistently about the Canada clause. I would like first of all to ask you to respond to the federal proposal of such. My second question would be, have you as a group, or will you on November 17, actually be putting together some words or suggesting what things in the federal proposal you can agree with?

The reason I say this is that at our conference held in mid-October, the Canada clause we were working with or trying to develop did not seem to have enough oomph as we were working. Of course, we had a very short time. Would you please respond to that first, and then I have one brief other question.

Mr Malicki: We think the Canada clause is important. It has to be there. We have to define who we are. We put together a Canada clause that we felt was acceptable and suitable, and then Mr Clark came up with some new proposals. We want to be able to consider the Canada clause that we drafted in the context of those new proposals, which we will be doing in November. We certainly can undertake to provide you with any revised versions that we have, simply for your consideration as to how the Canadian Ethnocultural Council views the Canada clause should be phrased.

Mrs Y. O'Neill: You will send us the results of that conference and what you have developed?

Mr Malicki: Yes. I concur with you entirely; there is not enough oomph in it. It is very watered down the way it is.

Mrs Y. O'Neill: Although you did not attend to it in your presentation, I think with the answer to Mr Bisson you touched on this. As you said, there seems to be a lot of indefinite response to Senate reform. People want it, but what does it mean?

I guess some of the groups, like yourself and some women's groups and certainly aboriginal groups, are wondering if the Senate would be as reflective under new considerations as it is now, and how could we be sure there would be a certain number of francophones, a certain number of women, a certain number of aboriginals, indeed a certain number of many of the cultures you have represented over a long period of time? Political leaders, in appointments to the Senate, have been somewhat sensitive to that, maybe not as much as some people would hope, but certainly somewhat. Meaningful built-in mechanisms of involvement and then the representation aspect of it -- are you quite fearful that things could slide, and how would you try to prevent it?

Mr Malicki: We are concerned about it. We are concerned that the criteria that may be used may be based on what may be territorial consideration. It may be other kinds of considerations whereby the various groups that have come from different cultures will have an under-representation in the Senate and the perspective they have on the future development of Canada may simply not be heard.

As an analogy, I will give you something positive that has been done in Ontario to remedy a similar situation; that is, in the court system. The attempt of the Ontario government to ensure that there is an equal number or a greater number of women judges, of the disabled, of visible minorities as judges in the system is an attempt to remedy a very great deficiency that existed in our judicial system.

I do not know how one can work out a formula to make sure that an analogous form of choosing a Senate that is truly representative is made, but our concern is that the same thing will develop in the Senate as developed in the judicial system over many years in Ontario; in other words, people deciding our future who do not truly represent the cross-section of our society. That is of very great concern to the ethnocultural communities.

Mrs Y. O'Neill: And to some of the rest of us as well.

Mr Malkowski: Do you feel that the Canada clause protects the rights for the use of cultural interpreters in court as well as heritage language? Do you feel there is enough protection in the current clause?

Mr Malicki: The short answer is no. The longer answer is that, because of the very general way in which that clause is phrased, it can be argued from the drafters' point of view that it is all included there. But I suggest to you that they did not address their minds to these considerations when it was drafted. If we are more specific in that Canada clause, they have to direct their minds specifically to the issues you raised. I agree; those are matters that should be considered in the drafting of a more specific Canada clause.

Mr Offer: My question deals with the distinct society proposal. Reading it and reading it against the federal proposal, which talks about interpreting the charter in a manner consistent with Quebec as a distinct society and also, again, interpreting the charter in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians, it seems to me that is what you are saying in your proposal. I am just wondering if you might want to verify that in fact your proposal agrees with the federal proposal.

Ms Theoharous: I would say that we agree there should be certain changes there, but the "notwithstanding" clause should be worded in such a way that it will guarantee -- especially section 15 for the equality rights should be exempted from the "notwithstanding" clause. That is what we are saying. We are saying that because we see that the "notwithstanding" clause leaves them open to potential abuse of clauses such as section 15, where the minority rights are protected right now.

Mr Malicki: Let me just add to that. Our initial concern with the "distinct society" clause when the original Meech proposals came out -- and this is not only the ethnocultural council in general, but most members -- is that it would lead to different classes of citizens throughout the country. Meech failed because there was a perception that different people would be treated differently in different parts of the country.

We are now faced with a different set of circumstances, and we can all perceive the future of Canada and the unity of Canada as being an issue that has to be dealt with now. In the same way as Mr Wells of Newfoundland has come around to some extent in his thinking that the concept of a distinct society can exist at the same as assuring an equality of rights to all people, we do not disagree with the concept of a distinct society, as long as there is adequate protection to those who want equality of rights with the rest of Canada. That is the general concept.

Mr Offer: Yes, that just brings you right back to the question, and I think it is very important for our committee to know, because one of the essential elements we are going to have to deal with is "distinct society." It just appears to me from your presentation that in the main you agree with the federal proposal, which recognizes Quebec as a distinct society, and also in the charter provisions, which talk about the interpretation of the charter in a manner consistent with the enhancement of the multicultural heritage of Canadians. It will be important for us to have and to keep in mind that you are in favour of this.

Mr Malicki: We are in favour of it because it may be the only way to preserve the unity of our country.

Mr Offer: I agree.

Mr Bisson: That was a good answer.

Ms Chiappa: Again, I would like to stress the fact that we will also be discussing this at our board of presidents meeting, so generally yes, but we still have to go back to our board of presidents to have unanimity and consensus on that.

Mr Harnick: I was interested in your area dealing with the Canada clause and the founding nations and your feelings about that. We have heard people come before this committee to say that there are three founding nations; we should recognize the three founding nations. We have heard other individuals come before us and say that they may have been the founding nations, but by recognizing the three founding nations, you are ignoring the country as it exists now. Is there a way you can see to recognize the three founding nations and the country as it exists now?


Mr Malicki: You know, it is strange that in Canada we are so lacking in self-confidence that we have to define who founded us. I cannot think of any other country or nation in the world that had to insert in its primary document, its social contract, that it was founded by so-and-so, as if not stating that would somehow diminish the value of who we are. Is it that important, and will it not cause a definite feeling of two classes or more than one class of citizen in the country? If I am not a member of a founding nation as defined by the Constitution, do I therefore maintain an inferior position in our society?

Why is it necessary? I do not think it is historically accurate. I do not think any of us in the ethnocultural council think it is historically accurate. Why is it necessary for us to say who founded us? Founded in what way -- by conquest, by settlement, by trade, by power, by financial power? I think it is a red herring, and I think if we really sincerely take a look at the concept of founding nations, we will see that it is discriminatory and adds nothing to our definition as Canadians.

Mr Harnick: I appreciate your answer and I think it is going to help this committee.

The Chair: I thank you very much for coming. We really appreciate the questions you have put to us, and the challenges also of dealing with this very important issue, and hope you will follow our work as we try to come forward with a final document in February.

Mr Malicki: Thank you.

The Chair: I would like to mention to the committee that there is just some nuts-and-bolts work that we need to do between 4:30 and 5 o'clock, when we have our next deputant come forward, so I will adjourn the meeting until 5 o'clock, but I would ask people to stay to speak about some of that nuts-and-bolts business.

The committee recessed at 1632.



The Chair: We are very pleased to have before us the Committee of Persons with Disabilities on the Constitution. You have been before us before and it is very good to have you back. I would like to welcome you all, particularly Angelo Nikias, the chairperson. He has been before many committees in this place and it is very good to have him before us again.

We have half an hour for the presentation. We hope you will leave a reasonable amount of time for us to ask questions. For the record, begin by introducing the people you have here today.

Ms Arsenault: I am Francine Arsenault. You have already met Angelo Nikias. With us are Hugh Scher and Joanne Doucette.

We thank you for the opportunity to speak today about these issues. Unquestionably, the issues we are about to discuss are the most important facing Canadians today. As you have mentioned, on August 1 of this year we appeared before your committee and put forward our views in relation to the Canadian Constitution. We indicated then that when the federal government made public its own constitutional proposals we would be interested in returning and sharing our view with you.

We have made an initial analysis of the two documents, Shaping Canada's Future Together and Canadian Federalism and Economic Union, put forward by the federal government. Generally we are in agreement with the aspirations and values the federal government has professed to champion. We have concerns, however, as to whether the concrete changes proposed by the government are consistent with its professed goals. Below, we intend to touch on the reasons which give rise to our concerns. On a later date we would be prepared to further elaborate on these issues.

I will turn it over to Hugh.

Mr Scher: Paragraph 1 of the federal proposals refers to the reaffirmation of the charter. In the brief we submitted on August 1 we emphasized the urgent need to strengthen equality rights and protection for persons with disabilities specifically in the charter. We have resubmitted a copy of that brief in a slightly modified form.

In direct response to the Premier, we express our support in principle for the view that a social charter can be an important part of nation-building. While the Ontario discussion paper outlines interesting approaches concerning the content, entrenchment and implementation of the social charter, much work remains to be done to ensure that it puts into effect the actual values expressed within it. We agree especially with the affirmation of "our commitment to equalization and our knowledge that there can be no meaningful national standards without it." Being fully aware of the importance of this principle, we sought to emphasize it in our August 1 brief.

In that brief we also stated that "Ontarians with disabilities recognize the rights of the aboriginal peoples and the people of Quebec to self-government and self-determination respectively." We are pleased to see that these principles have been accepted by the federal government. However, we support the demand by the aboriginal peoples that the federal proposals should recognize their inherent right to self-government. We also generally support the explicit recognition of Quebec as a distinct society. We hope this recognition can be a basis for resolving the national unity question. Furthermore, we think this approach is more consistent with our own position, which celebrates our diversity. Indeed, treating everyone the same regardless of particular circumstances, as was noted quite often by Chief Justice Dickson, is not treating everyone equally and is often a way of perpetuating conditions of socioeconomic disadvantage.

While the government says it "reaffirms the basic rights set out in the charter as a fundamental feature of the Canadian Constitution," we are concerned that some of its specific proposals may in fact undermine the realization of these rights; for example, the proposal intended to entrench property rights within the charter. It is difficult to respond to this proposal without having specific wording, but we are concerned that if a general property right is entrenched, it will be used by powerful economic interests to challenge a wide range of social legislation and measures, including those beneficial to persons with disabilities. This will be especially true if the property right is framed so that it supports an unqualified right of freedom to contract. Commercial interests would inevitably lead to challenges of human rights legislation, labour and employment minimum standards, consumer protection and environmental laws, as well as other socially desirable interventions in the marketplace.

In relation to the override clause, section 33 of the charter, we think the federal proposal to require a 60% majority vote is a step in the right direction. However, we suggest that perhaps an even more stringent requirement, such as a two-thirds or 75% majority, would be appropriate as it would make its use possible only in truly compelling circumstances.

The proposed Canada clause in the federal proposal refers to "a commitment to fairness, openness and full participation in Canada's citizenship by all people, without regard to race, colour, creed, physical or mental disability or cultural background." We propose that this be strengthened by referring to the equality rights of these groups. We also support expanding this section to include other disadvantaged groups.

Ms Doucette: As people with disabilities have traditionally been excluded from political decision-making processes, we generally support measures designed to make our major political institutions more democratic, accessible and representative of all Canadians. Specifically, we support the proposal to allow more free votes in the House of Commons. This approach, we believe, can contribute to better laws and policies.

The proposed reform of the Senate is a move in the right direction, especially the position that Senators be elected. The questions of whether the Senate should consist of 50% women and equal provincial representation are still under discussion. While we have not yet reached a decision as to whether there should be equal provincial participation in the Senate, we support the position of the National Action Committee on the Status of Women that 50% of the Senate's seats should be designated for women. We also support the representation of aboriginal peoples in the Senate.


With regard to the harmonization of economic policies, we well appreciate the need for greater co-ordination of fiscal policies between governments. We think, however, that this issue is best left to the usual political process and should not be constitutionalized. We are concerned that entrenching it in the Constitution will produce unnecessary inflexibility. It appears that paragraph 16 is intended to be integrated with paragraph 17; that is, reforms to the Bank of Canada. Making price stability the sole mandate of the Bank of Canada is, in our view, far too one-sided an approach. We recognize that fighting inflation is a genuine policy objective. Among other reasons, low inflation is necessary to protect the purchasing power of fixed incomes on which many persons with disabilities rely.

We are concerned, however, that removing the policy option of stimulating the economy to achieve higher levels of job creation will hurt our constituency even more, as it would make lowering of the high unemployment rate among persons with disabilities even more difficult. Furthermore, the combined effects of paragraphs 16 and 17 will unduly limit the options of governments in designing their budgets. The two proposals together introduce a strong element of inflexibility into the economic policy area. This does not belong to the Constitution, but should be left to the political circumstances prevalent at any given time. Deficit financing, though not desirable, may sometimes be required.

We have specific concerns about the federal-provincial immigration agreements contemplated by proposal 19. As current immigration policy has tended to discriminate against persons with disabilities, we suggest the proposed agreements be clearly subject to the charter. This, we hope, may minimize the danger of discrimination against a person with a disability seeking to immigrate to or relocate within Canada.

We are concerned that the combined effects of paragraph 22, residual power; paragraph 23, removal of federal declaratory power, and paragraph 24, explicit recognition of areas of provincial jurisdiction, may erode the cohesiveness of the national fabric in ways that are not clearly understood at present, with unacceptable results.

Mr Scher: We will next consider paragraph 25, dealing with legislative delegation. A bit of a history: Administrative delegation is one of the tools currently employed by governments to facilitate a greater rationalization and harmonization of programs. Its use in this classical form entails the delegation of powers from either a provincial or federal government to a third-party administrative board or agency, usually created by that government.

These arrangements promote administrative efficiency without blurring the line of democratic accountability. We recognize, however, that the Supreme Court of Canada, in Coughlin v Ontario Highway Transport Board, extended this power to include administrative interdelegation. In this case the court allowed the federal government to delegate its regulatory authority over extraprovincial buses. This was a federal matter and it was allowed to be regulated by provincial motor carrier boards. This kind of interdelegation of powers has created several problems for persons with disabilities which I will now outline.

The proposed legislative interdelegation involves the delegation of federal powers to a provincial Legislature or from a provincial Legislature to the federal Parliament. The Supreme Court of Canada, in the Nova Scotia interdelegation case, strictly prohibited this kind of interdelegation without an express constitutional amendment, claiming that it would "disturb the scheme of distribution of powers within the Constitution." What the current federal proposal would attempt to do is overrule the Nova Scotia interdelegation case. Persons with disabilities have some specific concerns related to this.

We fear that the political responsibility and accountability of our institutions will become increasingly confused if governments are allowed to delegate powers on an ad hoc basis. We fear and feel that it would undoubtedly facilitate buck-passing between the two levels of government and would diminish the likelihood of achieving legislated access standards that are comparable between provinces. We feel it could possibly even lead to the complete abdication of legislative responsibility over access standards. The federal delegation of powers to the provinces unaccompanied by the necessary tax revenues to pay for the required administration and services associated with those powers could also potentially increase regional disparity.

Finally, once a power became constitutionally delegated to the other level of government and the bureaucracy was in place and the administrative powers were there, it would be extremely difficult, if not impossible, for that power to be revoked by the level of government that delegated it. Consequently the delegation would effectively constitute a constitutional amendment to the division of powers, while avoiding the formal amending procedures.

The division of powers contained in a Constitution for the people of Canada should not be shuffled like a deck of cards at the whim of governments without regard to the interests of individual Canadians or the concerns of persons with disabilities. For example, we point out that the government's proposal to delegate jurisdiction over ferry services to the provinces could detrimentally affect persons with disabilities if access standards get lost in the shuffle of jurisdictions. This was the case with access standards for interprovincial bus transportation following the adoption of the federal Motor Vehicle Transport Act. This act, of course, was upheld in the Coughlin case, which I outlined earlier.

One answer to the concern about interdelegation would be the outright rejection of the constitutionalization of this legislative delegation and the prohibition of administrative interdelegation, which is currently allowed in our federal system. At a minimum, however, we suggest that strict scrutiny be applied to the delegation of powers and its effect on matters such as access standards, those which have traditionally fallen through the legislative cracks, and that these should be monitored, either by the Council of the Federation or the reformed Senate. We further suggest that a mandatory review of the delegated power after five years might help to ensure that these matters are addressed.

Paragraph 28 deals with the Council of the Federation. At first glance the proposed Council of the Federation appears to be introducing a new level of government. While the council may fulfil a much-needed co-ordinating function, it constitutes a move towards stronger practices characteristic of executive federalism. We are concerned about this for these reasons: First of all, it tends to exclude from the decision-making processes people as a whole, but specifically it appears to seek to strengthen the role of the executive arm of governments and exclude or minimize the role of the federal Parliament and the provincial legislatures. We would suggest, therefore, that if the Council of the Federation is indeed deemed a necessary new institution for the better government of Canada, specific measures be built into its design to counteract the above-expressed fears.

Mr Nikias: In conclusion, I would like to say that the brief is necessarily brief because we do not have the resources to carry out a lot of analysis. Also, we did not have enough time to actually address all the points.

I want to make sure it is clear to you that we have attached the brief we submitted on August 1. That is important, because in that brief we focused on issues which concern persons with disabilities. We had put forward two proposals, one relating to the strengthening of section 15, the equality section in the Charter of Rights and Freedoms, and another concerning the establishment of a barrierremoval review process every four years. We still think that those proposals, as far as disability is concerned, are appropriate, and we want to make sure you understand that the two briefs go together.

There is one further point that I want to address, and that is the question of somehow ensuring that the protection of the communication rights of deaf persons in section 14 of the charter be actually implemented. We are still studying ways of putting a proposal forward, and we hope that in the near future we will be able to submit another written brief. I do not think we want to come back here necessarily, but we would like the committee to accept a further brief, in which we will elaborate on some of these issues.

The Chair: I want to thank you for a very comprehensive and very clear delineation of many of the issues. What was particularly helpful to this committee was your writing specifically to the federal paper. I must say that I certainly appreciated your presentation. We will move now to Mr Harnick.

Mr Harnick: My question is related to your discussion of property rights on page 3. I agree with the analysis you have set out there. The question I have is whether you believe there is any way to have a property rights clause entrenched in the Constitution that will protect against the issues you have outlined.


Mr Nikias: Our thinking has been that property rights, generally speaking, have not been threatened, especially the property rights of the institutions and people that we think the federal proposal is addressing itself to. If there is need for the protection of property rights of the weaker members of our society, then it should be up to the federal government to define that more specifically, and then it is a different matter. But the way it looks now, especially as proposed in the Charter of Rights and Freedoms, I would say it is suspect. On that basis we have opposed it. I do not know that property rights are threatened. Whose property rights are threatened?

Mr Harnick: I agree with you. I do not quarrel with that at all. I agree with the position you have taken. What I am wondering is if you have done any work in terms of looking at the idea of property rights in a way that narrows the definition specifically in a way that would protect property in its intrinsic form.

Mr Scher: There are a couple of points I could perhaps direct to that. First of all, the issue of property rights is seen as being quite broad. One way that might be addressed is by changing the concept of property rights to something like legal entitlements. In addition, the American experience might be looked at whereby expropriation of public property with due compensation is the model. However, we have to reiterate our tremendous fear that the entrenchment of a general property right or even of a property right that is vaguely defined could have serious negative ramifications for persons with disabilities. For this reason, without specific wording, there is very little chance that we could adopt and support such a clause.

Mr Harnick: I appreciate your insight into this area, because we have not had it to date. So this will be very helpful.

Mr Malkowski: A tremendous presentation. It was very good. I have two questions I would like to address to you if you could clarify for me how this would work. First, section 15: Do you feel that section 15 does not provide enough protection to persons with disabilities, and how could you improve that? In which way would you improve it? Would that be limited to distinct groups in section 15, or would you have any recommendations on that?

My second question would be related to the barrier removal process. Would we have to have a review for that every four years? Would you require that to be entrenched in the Constitution or would that be done by legislative assemblies across the country? How would you do that to make sure that barriers are removed? Where would you put that and who would have the authority to make sure that it gets done? Who would end up with that responsibility?

Mr Nikias: First of all, both of these proposals are addressed in the August 1 brief. I urge the members again to look at it very carefully. We have actually proposed specific organs, which I think not many groups have done yet.

Section 15 should not be a problem, but it has been a problem. There have been interpretations, and we fear more interpretations, which in a way subvert the purpose of the affirmative action concept and basically say that as long as a program or a policy can be defined as an affirmative action, it does not have to meet high standards of equality. We have provided specific cases, citations, in our brief, which should be able to help you in further thinking about this. So section 15 has to be addressed. Hugh, do you also want to say something about it?

Mr Scher: Yes, I would address that. One of the main problems we are facing with regard to the interpretation of subsections 15(2) or 13(1) in the parallel human rights codes is that the intention has been the interpretation of the word "object." One of the problems we are facing is claims of reverse discrimination. These problems could be addressed, first of all, by ensuring that only members of disadvantaged groups are able to avail themselves of the protection of the non-discrimination clause, which was originally its intent. That is what we propose through an amendment to subsection 15(2) of the charter. This is again a constitutionalization of the Supreme Court of Canada's interpretation in cases such as Andrews and Turpin.

Further, there is the second option which we have put forward which would allow for an interpretative clause or a set of interpretative clauses to aid the courts in interpreting section 15 of the charter. This would, in our belief, prevent the sorts of problems that have been faced by persons with disabilities as they pertain to the affirmative action clauses within the Constitution. These are outlined on page 4 of the brief submitted in August 1. The modified form addresses a new addition to that, the proposed interpretative clause I mentioned, and I would urge you to please look at that if you are searching for words that will address that problem.

I would like to thank you for asking that question, because one of our greatest concerns is that the issues of equality rights and subsection 15(2) and the idea of a barrier review process will be swept aside. As constitutional negotiations progress and the fear and the requirement of coming to an agreement and recognizing Quebec's distinct society and aboriginal self-government come to the centre in constitutional negotiations, we fear that our interests are going to be overlooked. We believe they can be addressed in a substantive way without adversely affecting the interests of those who are seeking other constitutional protections.

Mr Nikias: I also wanted to say something about your second question, the proposal we have made that we include in the Constitution a barrier removal review process. The premise behind this proposal is basically that the participation of persons with disabilities in the social mainstream is the desirable goal, but it is also prevented by a number of barriers. These barriers are definable at any given time, but they change, and the solutions also change. As technology and other social research improves, the solutions to problems we face become, we think, easier. Also various concepts of what the solution is actually change.

What we are proposing here is that we do not try to resolve everything at once, but that all governments be mandated in the Constitution to look every so often -- every four years in our proposal -- at what measures they are taking to enable persons with disabilities to participate in society more fully. I think the beauty of this proposal is that it is flexible, that it does not commit anyone to something very specific right now, but it puts into the Constitution a process that will keep governments aware of this issue and that will also enable the disabled community to mobilize from time to time, examine what problems remain, think about solutions and advocate in order to achieve those solutions.

Mrs Y. O'Neill: If you listened on Monday night, you realized we had quite an interesting discussion here between the federal committee and our own. The first item on the agenda in many people's minds at that meeting was Senate reform. You have talked to that item on page 4. It is kind of difficult -- and I would like you to try to think through this with me -- to really hear what you are saying or read what you are saying because you, like I think all Ontarians we have spoken to, do not like the status quo. You do like the word "elected," but the word "elected" carries with it many complexities, as we know. In your next phrase, you talk about 50% for women and you talk about respecting the representation of aboriginal peoples. The equal Senate at the moment, in most people's minds, means equal representation by provinces, whatever and however that would spin out. You seem to be throwing in another mix, which would be guaranteed representation, and I am wondering how you feel we as a committee can read what I am seeing as somewhat confused and, if not, perhaps conflicting concepts.


Mr Nikias: I am not sure what the confusion is. We have said very clearly we do not take a position on the question of equal representation by provinces. What we are doing is supporting the position put forward by the National Action Committee on the Status of Women that 50% of the seats in whatever arrangement, whether it is equal or equitable, be reserved for women. There is nothing more to that and we cannot really elaborate any more on that right now.

Mrs Y. O'Neill: You say you are supporting aboriginal peoples, because at the moment the federal proposal guarantees representation, or it is certainly one of the strong suggestions.

Mr Nikias: Suggestions.

Mrs Y. O'Neill: You are suggesting that we now go also to guaranteed representation for women.

Mr Nikias: That is the position we are supporting, yes.

Mrs Mathyssen: I would like to thank you for a very succinct brief. I think it is going to help us a great deal.

My question comes from your reference to the issue of free votes. This is something we grappled with at our conference here in Toronto two weeks ago. There were issues raised then and I will mention them now and perhaps you could help me with some of those.

The proponents of a free vote that would allow MPs or MPPs to reflect what their constituents are telling them is generally perceived to be more democratic. My problem is that I represent about 70,000 people, and even at the best of times I cannot hope to be in touch with them. I can only hear from or talk to a fraction of that group. People have good intentions, but they just never get around to writing that letter.

My concern is that while providing for free votes is on the surface apparently more democratic, the reality is that it may not be. Do my constituents have that right to expect me to exercise my judgement on their behalf? Can you help me with this? I am grappling with this and trying to understand how we can utilize free votes and whether they really will give that extra democratic feel to a legislature.

Mr Nikias: A free vote, the way we think about it, would not prevent you from exercising your judgement on behalf of your constituents. You will still have to decide how you vote. Most of the time you will probably vote with the party you were elected from. I do not think that is a problem. You will still vote as you choose, as to how you perceive the policy to serve your constituents or the nation or the province.

Mr Scher: Additionally, right now Canada has one of the strictest party discipline systems in the world. What a free vote system on certain matters would allow for is greater flexibility among backbench members, among those members who are not part of the inner circle of cabinet, to have a greater say in what the policies of the government actually are. Through representing their constituencies and their constituents through their own beliefs, in that sense I believe it will provide for greater democratization of our system.

Mrs Mathyssen: So you would suggest looking at the free vote on issues, rather than the general principle?

Mr Nikias: That is right. It is not our intention on budget matters, for example, that there should be a free vote.

Mrs Mathyssen: I think Mr Laughren would concur.

Ms Doucette: An example that immediately springs to my mind is the act Lynn McDonald put through the House of Commons on smoking, which was very beneficial to all our members. Many would not agree with it, but for many disabled people that was a very beneficial bill. Of course, I am speaking as an asthmatic, so I have a definite bias. But definitely we would not consider it on something like national defence or the economy.

The Chair: The last questioner is Ms Carter. We are really out of time, but you are on the list.

Ms Carter: This is really more a comment than a question. I find this a very impressive presentation, and I am particularly interested in your page 5, dealing with paragraph 16 and 17.

You make several points there which are excellent and which are not ones we have heard much or said much about; for example, the danger of co-ordinating fiscal policies between governments too much and losing some of the flexibility which our democracy as such gives us. After all, the difference between provinces at any one time is connected with how the vote went in the last elections they had, and I think that is something we should be aware of. There are also your comments about price stability, which has good things about it but also dangers connected with it -- I think those are very real -- and the effect it might have on employment. All these points are not just good for you as a group but good for all of us. Your approach does seem to be a very fruitful one that, as I say, is probably going to be good for most Canadians, not just people with disabilities.

The comment about the limit of options of governments in signing their budgets I think is correct and is a very real danger. You comment that sometimes deficit financing is required, as we had in Ontario this year, as we all know, and the possibility for flexibility in these areas should be maintained. I am really happy to see these. I do not know whether you have any further comments on it.

Mr Nikias: Only that when I was writing that part, I kept thinking, how can you ideologize the Constitution so much? It is really incredible that they would try to take one policy option of many and put it in there for 50 years. We have no problem disagreeing with it.

The Chair: I want to thank you all again for very fine work, comprehensive and stated with a great deal of clarity, which makes our job that much easier as we try to address these issues. I hope you will continue to look at how our committee is dealing with these issues. Our final report, we hope, will be out February 5; we have a number of things we are going to be doing before that time. I look forward to the continuation of the dialogue.

I now adjourn our committee meeting until 7 o'clock, and please be prompt.

The committee recessed at 1739.


The committee resumed at 1905.


The Chair: I would like to call this meeting of the select committee on Ontario in Confederation to order. It is my very great pleasure to welcome again to this committee and, of course, to the Legislature, Chief Gordon Peters from the Chiefs of Ontario, and also Chief Gary Potts from the Teme-Augama Anishnabai. It is a great pleasure and privilege to have you both before us. We look forward this evening to be able to hear what you have to say as regards the federal document, and also to have, I hope, some time to pose some questions on the comments you make to the committee.

Mr Peters: Thank you, Mr Chairman. Good evening, ladies and gentlemen. Just to share some of our analysis and our comments regarding the constitutional document on behalf of our communities and our leadership, we have had the opportunity to go through it a number of times. We have had internal discussions with ourselves and, to put it in the context of where we are in relationship to our drive for the inherent right in the implementation process and the constitutional conferences, we are back with this federal policy prior to 1982 when we first saw the proposals that were being brought out in the first rounds of discussion on the Constitution.

I say this because of a number of reasons. I guess the changing times have seen a number of elements change and what we are now dealing with are those changing items. In 1987, when we ended the first ministers' conference, what we were dealing with over the number of years was a notion that for some reason we as a people can fail to continue to exist, that we had somehow become Canadian citizens and any identity we had, had been lost.

Very quickly, to capsulize the number of years we were involved in the first ministers' conferences, I think we went from a discussion with the former Prime Minister, Pierre Elliott Trudeau, who said to us in the early rounds, "Self-government is a non-starter; don't even talk to us about it because it is not an issue that is going to be dealt with," and we went ahead in 1983 and we brought our proposals to the table and we dealt with them.

We had a couple of amendments that were dealt with in that particular year, one in particular that very few people have acknowledged but one that is very critical to us. It said that we were eliminating the process of identifying and defining our rights, that the process we were involved in and the constitutional discussions on the implementation of our rights were already embodied in section 35 of the Constitution, and those rights we were talking about were the existing rights that we had as a people from time immemorial, that were given to us by the Creator and by our occupancy of the land.

In the subsequent sessions we had, self-government became an issue, and the buzzword was "self-government." We continue to remind people that this was a buzzword that was being created by the federal government. We were still talking about our own jurisdiction and our own ability to govern ourselves and our governments, not the identification of a self-government that was going to be granted to us or given to us.

In 1985, we saw the change of government. In our conference in 1984, we had gone from talking about our right to govern ourselves, but with the addition of saying the jurisdiction we were talking about, that we had not given up our sovereignty as a people and that still existed.

Again in 1985, we were told not to use those words by the Prime Minister, the incumbent, and he said to us that talking about sovereignty was something we could not deal with. But again, we continued to talk about sovereignty at the table. We walked away in 1985 with no agreement. Subsequently, we were able to build the aboriginal wall and we were able to walk away from the conference in 1987.

Most people said the conference failed, that we as aboriginal people could not come to terms with the proposals that were being given to us. From our perspective, it was a major victory on our part, being able to walk away from that constitutional conference in 1987, because it kept our integrity as a people intact and it made it very clear not only to the government of Canada but to the citizens of Canada as well that we were embarking on a process that was going to be much different than in previous years. We were talking about jurisdiction; we were talking about the re-establishment of our nationhood. Those elements we were talking about had not been given up by consent, and there was an illegal occupation of our territories, an illegal usurpation of our jurisdiction and our territories. Our whole ability even to define for ourselves who we were as a people and our citizenship had been removed from us through the Indian Act, and those things were going to change.

From those number of conferences, I think it is clear to point out there was no process that was involved from conference to conference. We heartily rushed to try to find some ways to put things into place three or four months before each conference, and that process did not work.

In 1987, we left there with a very strong feeling that we were going to implement our rights. That year we called upon our people and we said we now had to begin the process of exercising our rights. We knew very clearly that meant we were going to come into conflict with federal and provincial governments and enforcement agencies across the land, but we also wanted to demonstrate that we were going to control the agenda from our side of what we wanted to do. The implementation process started to exercise our rights. I guess the exercise of that right is ongoing to this day, and the culmination of that resulted in the confrontation in Kanasatake and Oka last summer.

Right now that same denial is still in place. We see that from the federal government, and the elements that have changed have only made us conclude that the proposal is being updated in compliance with some of the Supreme Court decisions that have been made, in particular Sparrow. The proposition we dealt with up till 1987 was that there were no rights in the Constitution in section 35. The court said there were, in fact, rights in section 35. That is what, in our minds, precipitates the change now in the federal proposal and them being able to say, "Yes, now we're talking about the general right to be able to govern yourselves."

One of the things we are trying to stress to people is that because the times have changed, it does not mean our perspective of who we are has changed and that the direction we are travelling in has been altered in any way. We are still saying the same things we said during the 1980s. The only difference we have before us right now is the fact that we have one government that has formally recognized that the inherent right does exist and that there is a process of implementation, and that is here in the province of Ontario.

We do have difficulties yet with the understanding that we are talking about in terms of our inherent right. I guess that is something we will continue to have problems with until our education systems are able to work collectively with each other and people have a general understanding of what we are as a people.

The general right of self-government with preconditions is not something that we are amenable to. It is something that our people have rejected right across the board, not only in Ontario but Canada as well. Saying that, the other two particular items that come under that general right, the Charter of Rights and Freedoms and laws of federal and provincial general application, are also items that we have to make statements on, saying that they are not preconditions that can be put against us in any form because they are already an intrusion into the inherent right for us to be able to govern ourselves in the manner we so choose.

The Charter of Rights and Freedoms is something we have said in the past that we could negotiate and that we were willing to deal with in some manner, but we have to make it clear that first and foremost, before we begin to talk about individual rights under the charter, section 25 cannot be bypassed in the Constitution. That protects the collective rights we have as the first nations and that was built into the constitutional process explicitly for our collective protection. We think right now that when you begin to talk about the charter and laws of general application you have already gone past those provisions in the Constitution; there is a violation of the constitutional provisions again already before we get to the table.

We are certainly amenable to this forum of addressing the inherent right and the process that, I guess, could be almost said to be one of the models that we currently have in Ontario as a substitute for what is being offered in the federal proposal. Beyond that, we also have concerns in a lot of the areas we are dealing with, and the question of our being able to go to courts to enforce our right is something that we have said in the past has to be there. We need the enforceability in order to give us that protection so our rights do not get overridden by federal and provincial legislation.

There are other areas that need to be addressed. It is difficult for us to get into the internal aspects of addressing those items because the very basic premise of the proposal is wrong. If the premise is wrong, for us to begin to discuss the internal aspects of the rest of the proposal -- we do not want to get sidetracked and begin to start talking about issues like the Canada clause and how that is going to work without having to deal with the premise. We know that we will have to deal with some of those items internally, but we do not think it is part of the negotiation process at this particular time.

Another area where we wanted to ensure that people understood us was in terms of the economy. When we talk about the inherent right, we are talking about the right to have a land base that is sufficient for us to be able to support our governments and we are talking about access to our own resources. We do not think that we can be left out of any discussions that deal with the economy. The Council of the Federation, as it begins to deal with the economy in the existing system in Canada, is one place that cannot move without our participation as well, because those areas outline very clearly how governments are going to relate to each other on the economic basis.

I guess I am trying to explain this to you without getting into a hard and fast position of where we are at. It is safe to say that we are having to look at those, because we are beyond the situation of the 1980s where we only addressed aboriginal treaty rights as the one area that was allotted to us to be able to deal with. But if we are going to talk about Canada as a whole, we need to talk about Canada as a whole and about where our place is going to be. It becomes a necessity, I guess, through just the general procedures to be able to discuss those.


Another item I think we have basically come to terms with is the whole question of aboriginal representation in the Senate. We have said it in the past and we continue to say that your governments are run the way you want to run those governments, we will run our governments the way we run our governments, and we need those places of arrangements of how we are going to deal with the jurisdictional questions. We do not need that kind of participation within the process, because we see it as the vehicle to be able to deal with our rights and our jurisdictions and only have us outvoted in the process -- basically, the right to say no.

I guess that is in line with the constitutional process in the 1980s, when we were told very clearly that the only right we had in the Constitution was the right to surrender. Those two things to us are part of that surrendering process the federal proposal sees as part of what they think is good for us. The same colonial mentality is there, the same kind of process is there, and I think from our point of view, in our discussions in the last two days among ourselves, we are basically starting from scratch in terms of developing what would be an appropriate constitutional package for us. We are hoping the provincial government can be involved in this process. To date, we have not had that kind of mechanism to be able to get involved directly in that development, but the proposal for those roundtable discussions is there.

I know there are a lot of other areas the federal document talks about, and I will leave it at that, because I think it is better that we engage in a dialogue on some of the issues. I will ask Gary if he wants to make any comments at the outset and then we will be open to questions and answers.

Mr Potts: No, I have nothing to add.

The Chair: Thank you both very much. Mindful that we have with us as a member of the committee Mr Winninger, who is also the parliamentary assistant to the minister responsible for native affairs, I was wondering if perhaps you would like to start us off tonight.

Mr Winninger: This may be more of a comment than a question, actually. There are some people who suggest that native people might only have an interest in native issues outlined in the federal proposal. Is it not true, though, and I think you have suggested it tonight, that your interests go far beyond the narrow definition of native interests? Your interests are broad, because your concern is with how the future model for Confederation will affect you in every form of your lives and existence. Is that not why you are seeking to be intimately involved in all aspects of constitution-building, and not just the aboriginal issues?

Mr Potts I would like to begin answering that in this manner: We are a people that has lived here for thousands of years and over those thousands of years were self-sufficient. The Teme-Augama Anishnabai required 4,000 square miles of land to be self-sufficient, and that evolved over those thousands of years over those 4,000 square miles of land.

We have campsites that are linked to our people living today that are buried under four feet of earth, and that earth grew from trees, bushes that grew and died on our lands. So our source of authority is the land, while your source of authority is the crown, and we feel that everything you are touching in your jurisdiction affects our land directly, affects the people who use our land directly and indirectly as well.

The vision we had when the settlers first came to our lands was that co-existence was the reality. We did not require the settlers coming to our lands, when we outnumbered the settlers and had quite a superior military capability to the colonial interests coming in, whether it be French or English -- we did not demand that you learn to speak our language, dress like us, to live like us, before we considered you human beings.

Over the years we had to develop a leadership capability to deal with people who, when they became more numerous, had different visions of our land and developed laws that were being applied to our land and to us. We were not consulted on the development of those laws. The only time we were consulted was when the settler governments of the day required land to open up for sale to immigrants who were coming in from Europe. We were consulted at that point in time and treaties were made.

We find that there has been an incredible wall of ignorance, captured almost in a time capsule, because we have not been able to talk to each other. There have been no forums to talk to each other about how the country should be governed. In that process, what has been missed is the intimate knowledge we have of governance on this land with this land for thousands of years, and we feel that all elements of governance require our input, based on the reality of the all-encompassing, holistic view we hold of our place in the world.

To be relegated to an interest group in a dominant society now that is not fully aware of its own history of evolution in this country is offensive to us. We feel we can defend very adequately our legitimate right to be involved in all aspects of governance in this country.

Mr Winninger: Just one short, very practical supplementary, and that is, do you think self-government should be defined at this time?

Mr Potts: Both of us want to answer.

Mr Peters: I think we are in the process of defining that, but I do not think it should be defined in the constitutional context. Our definition is one that is evolving, and if you look at the federal document, it says we "had" existing societies. Our societies are still existing today. Our governments still exist today.

I guess for us that definition is going to come internally to our own people. It is not going to be something that is going to be set out as a model for one community or five communities. People have existing governments out there that have been there for thousands of years. Those are being revived and those are being strengthened in the way they are moving ahead.

I do not think there is any way those things can be defined, because I think what happens to us when we begin the definition process is that we begin to think all those governments we have and the jurisdictions we have and the capacities we have to govern ourselves are somehow static and they stop once that definition process comes into place. It is going to be an evolving process and it is going to be something that is going to continue to evolve. As long as we are living here together on this land, our governments are going to continue to evolve, to be shaped, to be formed, and there is not going to be one set definition you are going to have for our people.


Mr Potts: In addition to what Gord is saying, your question highlights the difficulty we had in our dialogue in the 1980s. We were constantly being asked that same question and we were constantly trying to explain that if you look at the European continent, there are many different forms of governance there. You are involved with the same thing here when you look at the size of the Canadian continent. You ask us to define. To us, it was like stopping something that was living, because we were evolving all the time with the land. The land grows; we grow as well.

I finally figured out that the problem in this cross-cultural dialogue was that we were being put through the same process the colonies went through with Mother England: You had to jump through a certain number of hoops, and then they passed more power to the colony. Now we are expected to jump through the hoops of the federal government, and the federal government will pass more powers to us.

We are saying we have had these powers, and you are suppressing these powers. What we are talking about is an exercise to define how there will be a transition where you are going to end the persecution and suppression so that we can flourish again as peoples, and how this is all going to be integrated with the fabric of provincial authority and federal authorities in the country. That is why this is a smothering question.

Mr Harnick: If we assume that a new Constitution recognizes the inherent right of aboriginal peoples to self-government, and that happens right away, what would effectively happen next?

Mr Peters: Nothing.

Mr Harnick: Let me make it a little more complicated for you then, Chief Peters. What would happen in Ontario and what would happen in terms of the Canadian perspective generally?

Mr Peters: I think what we have said, and we have said this many times, is that even if the Constitution recognized the inherent right tomorrow, you would not see a major change in society immediately. You would definitely see changes over a given period of time, but what we have been talking about is an orderly transition period so that, as we develop capacities and the capabilities to be able to deal with I guess the modernization of the world around us and make those decisions about how we are going to deal with that modernization, we would be moving those jurisdictions out of our territory.

I guess the other thing we put forward to people all the time is that, dealing with the inherent right, we are still talking about a negotiation process that has to go on. I do not think you have heard any of our leaders say: "Once the inherent right is recognized, we get all the land back; we get all the resources back. We're now going to push you off your homesteads. The towns aren't going to have any kind of control any more. We're going to move into those areas." I do not think that is what any of our people have ever said. We are talking about a transition process. That is why I say that I do not think you would see major changes tomorrow.

I think the experience is here right now in Ontario. I do not think you see dramatic changes. Last June we went through our assembly and we ratified the inherent right document, the Statement of Political Relationships, and I do not think you see a radical change in the fabric of Ontario at this point in time. Certainly we would like to see more changes. We have gone through a lot of talking, but the changes are not going to be the kind of rapid changes that people envision.

Mr Potts: I would like to add to what Gord is saying in this regard. You asked what would happen immediately. To us, what that would send out to our people is that it is the end of denial on the part of dominant society that we have even existed as a people. That would lift a huge darkness off of us, just that the spirit our ancestors showed of sharing, when we were in full control of these lands, and moving over to allow other people to live on the lands, has been acknowledged. It is still there, and our spirit of sharing is still there as well, but what it would mean is the end of the denial of us as a people who have governed ourselves for thousands of years. It is a linkage to that spirit of our ancestors that we can flourish in this country as indigenous people.

Mr Harnick: One of the things you said was that there would be a period of negotiation. I gather that would be a period of negotiation between your governments and provincial governments and the federal government, and also among aboriginal peoples alone. That is the first half of my question.

The second half of my question is, what would be the immediate economic effect in terms of the relationship of aboriginal people to the existing provincial and federal governments after the inherent right to self-government was recognized?

Mr Peters: The negotiation process I talked about earlier would have to go. It would definitely be between ourselves and the federal government as a starting point in terms of clarifying how those things were going to be developed and worked out. It would have to entail the relationship based on treaties that we currently have that are recognized in the Constitution already. People are more than prepared to look at how those mechanisms would start unfolding.

The other part of it, in terms of the economics, if the inherent right was recognized, involves the obligations that rest now in the treaties and the responsibilities that the federal government has undertaken as our trustee in those particular areas. That is only one side of the equation. That is only dealing with the obligations that are there now.

The other side of the equation is our movement towards self-sufficiency and what that would mean for us. Obviously we are talking about more land. We are talking about the development of resources as a necessity for us to have a long-term economy that would be in our control.

You would not see, in my mind anyway, the economic scenario change dramatically, but it would be that evolution again. You would begin to see the economic scenario in our communities changing.

What would that mean to federal and provincial governments? We talked about the term "certainty" before. The federal government has said to us, to ensure certainty, the question of the land had to be dealt with. Hence the policies on land claims were brought forward, but to us that was not certainty. That was a certainty that we would never have an economy of our own and a land base of our own.

When you begin to look at our development, you had people in the conference last week explain that this would be in addition to the economy as a whole, because in terms of certainty, a lot of areas right now that have the potential for our development, that would be environmentally safe for us to be able to deal with, we would be in those areas of development. We would begin those areas of development.

The only thing I have heard from our people is that they want to be involved in those areas of development, but they want to make sure it is environmentally safe. They want to make sure their guardianship and stewardship over the land is such that they can leave the lands and the availability for the generations to come.


Mrs Y. O'Neill: I want to thank both of you for the review you have given us tonight. You went back a long way. You brought it pretty close to the surface and pretty close to today and I thank you for that. I find your participation is always serious and you express respect and patience, and those are qualities I admire.

I want to thank you in particular, Chief Peters, for what you did at the constitutional conference because there were moments that I felt you were much a peacemaker. That may have even been among some of the people you work with in other arenas. I really want to recognize that because I did see it.

Thank you tonight for being so clear about the Senate because, of course, other people who come before us make a lot of suggestions about that particular part of the proposal. It is nice to hear from you so clearly what you think about that. I thought it interesting. I have not of course had a chance to hear you comment on the Council of the Federation. I am glad you are discussing that as a viable option because it may be some new slate that we can start writing on all together, in equal position.

I have a couple of questions. My first is, when you came here before, you were about to begin some extraordinary, I suppose may be the word -- or more natural for you but maybe from those of us who watch -- a little more involvement of the women, the youth and the elders in the constitutional circles, I think you were calling them. Can you tell us if that worked and is it still working? Are you working with the federal proposals now in that arena?

Mr Peters: We have had a very positive summer in that respect. For the last couple of years we have been working on a number of things that are very important to our people and bringing our people together.

The other thing we have been working on is to say, let's start dealing with the things within our communities, that we do not need federal, provincial or constitutional amendments to deal with. We are strengthening ourselves and preparing ourselves as a people to move ahead in dealing with our own implementation process, so we do not get the backlash that there has been a failure if there is no constitutional amendment on the inherent right, that we do not have anything, that we are nothing again, as a people. That is a very integral part of our movement.

The other aspect is bringing our people together, which we have been working on for a couple of years. I am saying in a very positive, optimistic way that I think we have achieved that.

We now have sitting at our table our people who live in the urban areas; we have native women sitting at our table; we have the Friendship Centre sitting at our table. We are going through the process of understanding how those institutions get mandated, that the mandate for our people living in the urban areas has to come from our existing government, that people in the urban areas have to remember that they have roots, that there is a place where they belong.

The people who have come to our table have been very positive in that way and also remind us of some of the obligations, that we have to ensure we protect our citizens wherever they are and that there is an obligation on the part of our governments to do that.

The work is going on in a very intense way. We have decided among ourselves that we need to strengthen that relationship and we are doing it through a protocol. We acknowledge that the fundamental issue is our inherent right, that the control and the jurisdictions over our lands, resources and our citizens is paramount, and that the treaties and the treaty-making process are part of our mechanism that we need to carry on our relationship.

It has been a very rewarding process we have been involved in because we even addressed some issues today dealing with finances and we walked away from those where, under normal conditions, I would say a year ago, that would have been something that would have divided us, would have split us, would have taken us back to the divisions that were there before. I think the discussions we had over the areas of money today strengthened us in our understanding that money is not an issue that is going to divide us any longer. Those areas are something we are going to set aside, and we as a people have to ensure that we are the only ones who can make this thing work and we are the only ones who are going to be responsible in the end.

That is the commitment we are making to each other now, and I feel very good that we are involved in this process.

Mrs Y. O'Neill: I am really happy to hear that. I mean that sincerely.

I would like you to comment as briefly as possible, if you could, on what the special joint committee is supposed to look at in the interests of your people; that is, the jurisdictions that your government would exercise. You have said a little bit about that. Could you be clearer so that we could understand, because people are certainly going to want to discuss this with us, and we no doubt will have to discuss it with the federal committee when we meet with them again. I just wonder if you could help us understand what, in your mind, that phrase means.

Mr Peters: We are just beginning to detail that work now about what we see as the vision of our existence here in interacting with the provincial government and the federal government on lands in Ontario.

First, when we talk about jurisdiction, it has to be clear that we are not talking about a derived jurisdiction from another government. I think people are fairly clear on that.

Second, we are not talking about the existing reserve system, because the existing reserve system does not facilitate any of the needs that we have when we are talking about the exercise of our jurisdiction.

We need to get involved in those kinds of discussions about how we are going to expand the land base, how we are going to expand our jurisdiction to those traditional areas, in that we need to be able to control those areas for our growth and our development. We also need to talk about areas of shared jurisdiction, and this is something that works two ways.

One, shared jurisdiction, because we are saying right now that there may be elements we can share, and from our perspective it would be elements that we would delegate to other governments. An example is a question that people commonly raise with us: How are you going to deal with murder in your communities and the federal Criminal Code? We are saying that until we are moving into those circles, perhaps that is a shared jurisdiction that we will have, that those things will still be utilized until the time we are prepared to deal with them. That is one aspect of shared jurisdiction.

The other aspect is the treaty areas, for example. We are saying that in the implementation of treaty, there are going to be areas out there beyond our traditional lands that we are going to want to have a shared jurisdiction in so we are able to protect our interests in those surrounding areas. It is something that is a necessity for us so that we are able to deal with the management of the land, the stewardship of the land, in those particular areas. We will be working together to protect those areas and to make sure we have economies 50 years down the road and 100 years down the road.

The other area is the exclusive jurisdiction of the provincial government and the federal government. Those are areas that are going to be exclusive, where we would hope we would have some kind of mutual way of being able to at least address each other in terms of how those jurisdictions are going to be dealt with in dealing with controversial items. That is not to say that anybody is going to interfere with those areas of exclusive jurisdiction.

Mrs Y. O'Neill: I thank you very much for the leadership you have shown tonight. I wish you my very best wishes for next week in your important meetings.


Mr Bisson: My first question was posed by Mr Winninger and my second question was posed by Mr Harnick. I reserve my questions for other members.

Mr Malkowski: That was a great presentation. When you take a look at the Canadian charter and the Constitution, clearly they have historically been a form of oppression because of course those are white laws which mirror white institutions, not native institutions. Would you like to see an amendment to that to include you or would you rather have something you could call your own? I do not know if you agree with section 25 of the Charter of Rights and Freedoms because, again, that is a white institution decided by white people. Would section 35 develop on its own or would native people need to be in control of that? Could you respond to some of those issues, please?

Mr Peters: I will take a whack at it and then let Gary take a whack at it. Section 25, which we were talking about, was a means of protecting our collectivity. You will find in our discussions and in dealing with our past traditions that we certainly do not define equality in the same way. There are a number of elements we see within our society and roles people have to play. We do not think there should be someone from another government trying to define what those equalities mean, trying to define for us what our own internal relations should be as peoples within our own nations.

The example that many people have used is that within our governments, when you talk about equality and the system of the clans that is there, that is a role reserved for the women of our communities, a very strong role where they put up the leaders based on merit, based on the fact that they have watched their children grow, based on the fact of how they demonstrate their goodness and willingness to participate, all those elements, qualities and characters. They bring that to the table as their recommendation of who the leaders in the communities should be. If the charter were to apply to us, would that mean I would now have the right to be a clan mother and could seek a remedy in the judicial process to be guaranteed that I could be a clan mother? That is the best illustration I can think of right now that shows you the differences in terms of the application of individual rights.

Our charters are already there. The unfortunate part of it is that now, in order for us to have people understand us, those charters are going to have to be written and those laws we have in place that have been given to us from the Creator are going to have to be brought out in writing so that people will understand that there is not going to be anarchy in our communities and that we have ways of being able to deal with those things.

What we are saying is that these things are going to take time, because we have come to understand that the system we have is one of the individual having rights but not responsibilities. How we move back to ourselves again to implement those things we have within our governments that outline not only the rights we have but the responsibilities that go with those will take us some time, but that is our eventual goal and those are the things we are trying to get back to.

Maybe some of the things in your charter will find their way into some of the things we will be doing in our communities, but I do not see the application of the charter to our communities when we begin to talk about the capacity of our inherent right to be able to deal with our own laws and system.

Mr Potts: In addition to what Gord was saying, I think it is very important that we not be under any illusion that the Canadian constitutional process is meant for the citizens of Canada. We thought that when we first entered the process in the late 1970s and early 1980s. What we found was that the federal government and certain governments of the day were there to entrench their authority in the Constitution. They put in section 33 to override the citizens' rights in Canada. They tried to include our rights in section 25 in that Charter of Rights and said, "Your rights are protected." Time has revealed that they knew they could override those rights at any time. That is why they wanted it in there.

The other thing that became quite clear is that they pulled out section 34 and put it back in, calling it section 35 and saying that our rights were there, and put in the qualifying word "existing." That was another means to control the interpretation of what our rights were. Professor Brian Slattery has written an article, called The Hidden Constitution, on the essence of section 35. I do not know if you have become aware of or have that document in your possession. Brian Slattery is a professor at the University of Toronto and he would be more than happy to share that with you. He has been referred to on occasion by the Supreme Court of Canada as being one of the most knowledgeable people on native history in this country.

To illustrate why, say, it is a constitutional process only to further advance and entrench the powers as they evolved from Europe, you do not see the federal government proposal, Shaping Canada's Future Together, saying to the citizens of Canada: "We've made mistakes since 1867. We started to get lost about 1895 and we're trying to recover some of the essence of the great country we have. In positive citizen forums that we are creating, we would like to put it to you, citizens of Canada, should we have provinces at all in Canada, or territories? Should we just have a generic federal government system and all of the municipalities linked in some way to this federal government system or should we eliminate the federal government and just have provinces, establish provinces that are based on watershed boundaries? We would end up with about 39 provinces in Canada. That will actually reflect the area of the country you live in; and in the provincial area you live in, this particular land mass, you will have a say in the generics of the country as well and the country will be aware of this particular watershed system you live on. Therefore, the motherland, Canada, as we are trying to grasp it, will have meaning from the ground up rather than from England down." This is what we think the federal government should have put forward.

We are talking about a people's Constitution. It is generically the same system. We cannot let these people do this on their own. Something might go wrong. We need to control the process. You will find that in the 11th hour, or maybe on the morning of the beginning of the conference, the federal government's agenda will be revealed. The draft amendments will be there for you to consider, and nine premiers, if the federal government agrees, will pass law, make constitutional law. If seven premiers want to do it and the federal government says no, there will be no constitutional amendment.

If we are going to reshape Canada, we have to start from the ground up again in a transitional period -- maybe 50 or 100 years, whatever is required, but we need the vision of Canada as citizens of Canada. It has a lot of positive things going for it. After all these years we still talk to each other about it. It is beautiful in that way, but the premise is wrong.

Mrs Mathyssen: In view of the lateness of the hour, Mr Chair, I will forgo. Chief Potts has touched on the things I wanted to know. I thank him for that.

The Chair: I want to thank you both very much for coming before our committee. Many things have been said tonight, Chief Peters, about your role at the conference. I want to give you my thanks as well because we were very conscious of trying to have as open a process as possible. By having you there speaking passionately about the things you believe in, you were able to help us to see much more clearly, in that kind of forum, the importance of the things you hold near and dear to your heart. It was a very important experience for all of us. I thank you for that and I hope we will continue the dialogue through all of these negotiations and have a chance to talk again.

The committee adjourned at 2002.