The Grand Council of the Crees

Aboriginal Peoples? Rights under Canada?s Constitution and International Law: Progressive Developments Since 1982

Aboriginal Peoples? Rights under Canada?s Constitution and International Law: Progressive Developments Since 1982

Posted: 2005-11-14

Also view:
Principle of Democracy in International Law: Potentially Favourable Uses in the Global Indigenous Context
or
Principio de Democracia en el Derecho Internacional: Usos Potencialmente Favorables en el Contexto Indígena Mundial
 
TRUDEAU FOUNDATION SCHOLARS’ WORKSHOP
Glendon College, Toronto, Canada
November 9-10, 2005

Presentation By:
Romeo Saganash
Director of Québec and International Relations
Grand Council of the Crees (Eeyou Istchee)

 
Introduction
Thank you for inviting me to make a presentation at this second Scholars’ workshop of the Trudeau Foundation that is focusing on Aboriginal Studies. It is a pleasure to participate in this forum that includes such distinguished scholars and academics.
Today, I will be discussing Aboriginal peoples’ rights under Canada’s Constitution and international law. The period that I will focus upon is post-1982. It was in April 1982 that the Constitution Act, 1982 came into force in Canada. Section 35 of the Act provided – for the first time in Canada’s history – that the “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”.
Throughout most of Canada’s history, federal and provincial governments had generally denied the very existence of Aboriginal rights. They had also repeatedly failed to respect the treaty rights of Aboriginal peoples.
Therefore, in order for justice and respect for our basic rights to be achieved, the enshrining of our rights in Canada’s Constitution was a crucial measure. This constitutional affirmation meant that these same governments could no longer simply claim that Aboriginal rights did not exist when negotiating comprehensive land claims agreements. Our treaties could no longer continue to be ignored and dishonoured with impunity. Our constitutional rights began to be enforced through judicial decisions.
These developments stood in sharp contrast to the conditions that existed when the James Bay and Northern Québec Agreement was negotiated and entered into in 1975. At that time, both the federal government and the Québec government denied the very existence of the ancestral rights of my own people, the James Bay Crees, and the Inuit of Nunavik in northern Québec. Such a lack of basic recognition perpetuated a climate of distrust and made it exceedingly difficult for us to arrive at a fair and honourable agreement.
At the international level, the year of 1982 was also highly significant. At that time, the Working Group on Indigenous Populations (WGIP) was created by the U.N. Economic and Social Council. Its mandate included reviewing national developments pertaining to the promotion and protection of the human rights of Indigenous peoples. This enabled the WGIP to learn from hundreds of Indigenous representatives each year – who traveled from all parts of the world to Geneva – about the widespread atrocities and other human rights violations affecting us.
By 1985, the WGIP had initiated the second part of its mandate. This was to develop international standards concerning the rights of Indigenous peoples, taking account of both the similarities and the differences in our situations and aspirations throughout the world.
In 1993, the Working Group agreed on a draft text entitled United Nations Declaration on the Rights of Indigenous Peoples. This draft Declaration was sent to what is now called the U.N. Sub-Commission on the Promotion and Protection of Human Rights. In 1994, the Sub-Commission unanimously approved the draft text.
In 1995, the U.N. Commission on Human Rights established an open-ended, intersessional Working Group (WGDD) to consider further the draft U.N. Declaration. The text was no longer being devised or evaluated by independent experts. States began to play a major role in the WGDD. Largely as a result of a lack of political will among States, only two of the Articles in the draft Declaration have been approved within the past ten years.
The process to achieve the adoption of a strong and uplifting U.N. Declaration is widely viewed as the most important international standard-setting process addressing the fundamental rights of Indigenous peoples. However, it is not the only one. In 1989, after a two-year revision process, the International Labour Organization adopted the Indigenous and Tribal Peoples Convention, 1989. This Convention has largely replaced the assimilationist Indigenous and Tribal Populations Convention, 1957. Yet the ILO revision process allowed for almost no direct Indigenous participation. The resulting Convention in 1989 is not viewed by many Indigenous peoples, among others, as setting adequate human rights standards.
In 1995, the Organization of American States (OAS) also began to draft a declaration on the rights of Indigenous peoples in the Americas. By 1997, the Inter-American Commission on Human Rights had approved its own Proposed American Declaration on the Rights of Indigenous Peoples. However, no such declaration has yet been adopted by the OAS General Assembly. Currently, representatives of Indigenous peoples and American States are making amendments to a Consolidated Text that has been devised by the Chair of the Working Group to Prepare the Proposed American Declaration on the Rights of Indigenous Peoples.
Since 1982, there have been both progressive developments and major challenges relating to Indigenous peoples within Canada and at the international level. As I will briefly illustrate, there still remain serious shortcomings at both levels. As a result, Indigenous peoples’ status as peoples and our most basic human rights continue to be undermined.
Nevertheless, the positive influence of international law and its progressive development on Canadian law should not be underestimated. For example, in interpreting the rights of Indigenous peoples, Canada’s courts are increasingly referring to existing or emerging standards as found in such instruments as the draft U.N. Declaration and the Indigenous and Tribal Peoples Convention, 1989.
 
1. Sections 35 and 25 of the Constitution Act, 1982
The entrenchment of our Aboriginal and treaty rights in s. 35 of the Constitution Act, 1982 is widely viewed as a far-reaching and necessary achievement. Although long overdue, it was a constitutional milestone. For the first time in Canada’s modern history, a principled legal framework was explicitly set out in Canada’s highest law. We now had a potentially just and meaningful context for the reconciliation of our sovereignty and rights with those of others.
In this regard, there are a number of positive aspects. The Supreme Court of Canada has highlighted the significance of section 35 in various ways. In the 2004 Haida Nation case, s. 35 is referred to as a “promise of rights recognition”. Consistent with the honour of the Crown and its fiduciary obligations to Aboriginal peoples, the Court has stressed in the 1996 Badger case that "[i]t is always assumed that the Crown intends to fulfil its promises". Section 35 is also repeatedly referred to as providing constitutional “guarantees”. In the 1999 Marshall case, s. 35 is called a “national commitment”.
In the Quebec Secession Reference, the protection of Aboriginal and treaty rights in s. 35 is described by the Supreme Court as an “underlying constitutional principle” and “value”. This principle is said to have equal weight with other underlying constitutional principles, such as federalism, democracy, constitutionalism and the rule of law. The Court explained that “These defining principles function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.”
According to the Supreme Court, the principle of protection of Aboriginal and treaty rights may be considered as an underlying constitutional principle in its own right. Or it may be viewed as part of the principle of protection of minorities. However, Aboriginal peoples – while often minority in number – are not simply minorities in legal or constitutional terms.
In the 1996 Van der Peet case, the Supreme Court confirmed that Aboriginal peoples have a “special legal, and now constitutional, status” that distinguishes them from minorities. Similarly, the 1996 Report of the Royal Commission on Aboriginal Peoples concluded:
For purposes of self-determination, Aboriginal peoples should be seen as organic political and cultural entities, not groups of individuals united by racial characteristics.
Section 35 is clearly the central provision in the Constitution that has been the focus of my remarks. However, our Aboriginal and treaty rights are subject to an additional safeguard.
Section 25 of the Canadian Charter of Rights and Freedoms – which is an integral part of the Constitution Act, 1982 – affirms that the guarantee of certain Charter rights “shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada”. Thus, s. 25 acts as a “shield” to safeguard our collective human rights against legal arguments by others that everyone must have the same rights. Clearly, our original occupation of what is now Canada gives rise to Aboriginal rights that minorities or others simply do not have.
Section 25 serves to reinforce both cultural diversity and substantive equality. Under Canadian and international law, the principle of “equality” does not mean that everyone is treated the same. Rather, equality includes the right to be different. In order to achieve equality, it is often necessary to treat different people differently.
This does not mean that there is gender discrimination. Section 35(4) explicitly provides that “aboriginal and treaty rights … are guaranteed equally to male and female persons”. Furthermore, the U.N. Human Rights Committee has just indicated in its October 2005 report to Canada that “balancing collective and individual interests on reserves to the sole detriment of women is not compatible with the Covenant”.
 
2. Major Challenges to be Addressed
Despite the progressive developments I have highlighted, we have not yet sufficiently safeguarded the integrity of our fundamental human rights. This is especially evident in relation to our rights to lands, territories and resources. In the absence of an adequate land and resource base, our survival and well-being as distinct peoples are seriously threatened. Moreover, the alarming levels of impoverishment among Indigenous peoples in Canada will most likely be perpetuated.
We believe that such serious challenges can and must be effectively addressed. In this regard, it is useful to first identify some of the problems.
Despite the Supreme Court of Canada’s 1997 ruling in Delgamuukw, there has not been a single case where Aboriginal title to lands or territory in Canada has been confirmed by the courts. In August 2002, the U.N. Committee on the Elimination of Racial Discrimination expressed its deep concern on this matter. It recommended that Canada “examine ways and means to facilitate the establishment of proof of Aboriginal title over land in procedures before courts.” Similarly, the Report of the Royal Commission on Aboriginal Peoples has stated that it “believes strongly that … the very exacting tests that Aboriginal people are being asked to meet in order to prove their title … are an embarrassment.”
Also, despite the constitutional entrenchment of Aboriginal and treaty rights, there is widespread and debilitating poverty in Indigenous communities across Canada. This situation, though well-known and documented, was recently brought to public attention by the crisis in Kashechewan in northern Ontario. The Cree people in this remote community had to be evacuated, as a result of rampant disease caused by sewer water coming out of their taps. At the same time, there are a host of acute socio-economic problems that impact them on a daily basis. The Prime Minister of Canada states that the federal government is now committed to devise with Aboriginal peoples a ten-year plan.
Clearly, the elimination of poverty is a human rights issue and requires a rights-based approach. In his September 2005 Report to the U.N. General Assembly, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen emphasizes:
Poverty traps indigenous people in a permanent cycle of exclusion, and is therefore one of the most serious violations of their human rights. … The persistence of poverty and extreme poverty among indigenous people reflects a history of denial of their human rights. Therefore, any national or international policy for the effective eradication of poverty must be based on recognition of and respect for human rights.
In terms of devising and implementing poverty reduction strategies from a human rights viewpoint, there are a number of measures that have merit. Rather than piecemeal approaches, comprehensive strategies are essential. For example, in March 2005, the International Labour Organization proposed the following to the U.N. Permanent Forum on Indigenous Issues:
Any poverty reduction strategy aimed at indigenous and tribal peoples should also take into account the collective aspects of their rights, and their human rights situation, with specific reference to land and resource rights, labour and employment rights, cultural rights and rights to participate in the public life of the States in which they live. It should also take into account the pervasive discrimination against these peoples … [bold in original]
An additional challenge we face is that there is insufficient recognition in Canada that Aboriginal or Indigenous rights are human rights. However, Indigenous rights are human rights and are treated as such by the United Nations and its various treaty bodies. Still, there seem to be a small number of States, including the United Kingdom, United States, France and Netherlands, which seek to exclude or segregate the collective rights of Indigenous peoples from the international human rights system.
Our fundamental rights are clearly of an economic, social, cultural, spiritual and political nature. These same classes of rights are addressed in the two international human rights Covenants. In relation to Indigenous peoples, these types of rights cannot suddenly lose their human rights quality simply because of their crucial collective dimensions.
While the international human rights Covenants confirm that natural resource rights are an integral part of the collective human right of self-determination, the United States has argued that the land rights of Indigenous peoples do not entail any human rights considerations. In the case of Mary and Carrie Dann v. United States, the Inter-American Commission on Human Rights flatly rejected the U.S. perspective and concluded that:
… international law includes the developing norms and principles governing the human rights of indigenous peoples. … [T]hese norms and principles encompass distinct human rights considerations relating to the ownership, use and occupation by indigenous communities of their traditional lands.
The Supreme Court of Canada made clear in Delgamuukw that “Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation”. Yet the Court has not generally taken a human rights approach. This major shortcoming in effect enables violations of our Aboriginal rights to be more casually treated. It also makes it easier for Canada’s highest court to continue to apply the doctrine of extinguishment to Aboriginal rights. This discriminatory doctrine is out-dated. It is the very antithesis of human rights. Human rights are generally relative in nature. They may be subject to some limitation. They are not, however, subjected to extinguishment or destruction.
Extinguishment continues to pose one of the biggest threats to the survival and ongoing development of Aboriginal rights. It especially impacts adversely on our rights to lands, territories, resources and self-government.
In its 1999 report to Canada, the U.N. Human Rights Committee “recommended that the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with article 1 of the International Covenant on Civil and Political Rights”. The Canadian government has since indicated that it is implementing alternatives to the extinguishment of Aboriginal rights. However, in its October 2005 report, the Human Rights Committee stated that “Canada’s … alternative policies to extinguishment … in modern treaties … may in practice amount to extinguishment of aboriginal rights”.
 
3. Indigenous Self-Determination and Canada’s Constitution
In regard to Aboriginal or Indigenous rights in Canada’s Constitution, it is essential that these rights be interpreted and applied in a manner consistent with the right of self-determination. As I will illustrate, both Canadian constitutional law and international law support and require such consistency. Yet, to date, the Supreme Court has rarely considered this approach in relation to section 35.
In the Québec Secession Reference, the Supreme Court emphasized the importance of Aboriginal peoples’ rights and concerns when it examined the right to self-determination under international law. In the event of any future negotiations on secession, our rights and concerns would be directly relevant “in defining the boundaries of a seceding Québec”. In this regard, the “northern lands occupied largely by aboriginal peoples” were especially highlighted by the Court.
These conclusions from Canada’s highest Court are hardly surprising. The right of self-determination is described as one of the oldest aspects of democratic entitlement. A January 2003 Report of the U.N. High Commissioner for Human Rights stresses that two of the main attributes of modern democracies are self-determination and equality.
Thus, the right of self-determination is applicable to section 35 of the Constitution Act, 1982 as part of the underlying constitutional principle of democracy. As a human right, self-determination must inform the interpretation of Canada’s Constitution. As Supreme Court Justice LeBel stated in 2003 in R. v. Demers, “a further principle underlying our constitutional arrangement is respect for human rights and freedoms”.
In the Québec Secession Reference, the Attorney General of Canada explained to the Court that
… the principles of customary law relating to the right of self-determination … do not conflict with the applicable Canadian domestic law. Since these principles of customary law can be ‘incorporated’ into domestic law by Canadian courts, it is respectfully submitted that Canadian courts unquestionably have jurisdiction to apply them. [emphasis added]
In the Report of the Royal Commission on Aboriginal Peoples, it is underlined that “Aboriginal peoples are entitled to identify their own national units for purposes of exercising their right of self-determination.” Similarly, Québec’s Commission des droits de la personne et des droits de la jeunesse has called for federal and provincial governments to apply the right of self-determination to Aboriginal peoples.
International law further reinforces the application of the right of Indigenous peoples to self-determination under Canada’s Constitution. The Purposes and Principles of the U.N. Charter require Canada and other member States to take actions “promoting and encouraging respect” for human rights and not undermining them. This State duty to promote respect for human rights is required by the Charter to be based on “respect for the principle of equal rights and self-determination of peoples”.
In addition, Canada has ratified both international human rights Covenants and these instruments make clear: “All peoples have the right of self-determination”. These Covenants also stipulate that States have affirmative obligations to “promote the realization of the right of self-determination, and … respect that right, in conformity with the provisions of the Charter of the United Nations”. This right, therefore, must be applied without discrimination to both Indigenous and non-Indigenous peoples.
Furthermore, U.N. treaty monitoring bodies, such as the Human Rights Committee and the Committee on Economic, Social and Cultural Rights, have repeatedly confirmed to Canada and other States that the right of self-determination in Art. 1 of the human rights Covenants applies to Indigenous peoples. In particular, the U.N. Human Rights Committee has clearly applied to Indigenous peoples the natural resource rights in Article 1, para. 2 of the International Covenant on Civil and Political Rights. Further, the U.N. Committee on the Elimination of Racial Discrimination has reiterated that Indigenous peoples have the “right to own, develop, control and use their communal lands, territories and resources”.
Based on the developments in Canadian and international law, the rights of Indigenous peoples under Canada’s Constitution must be interpreted and applied in a manner consistent with the right of self-determination. This would include natural resource rights, associated with self-determination under international law.
In contrast, the Supreme Court of Canada appears to be unduly hesitant in affirming the resource rights of Aboriginal peoples. Its contextual analyses have yet to incorporate any human rights perspective, despite the conclusions and recommendations of U.N. treaty monitoring bodies.
 
4. Indigenous peoples and the “federal principle”
In considering progressive developments since 1982, it is important to also refer to Indigenous peoples and the “federal principle”.
In the Québec Secession Reference, the Supreme Court identified “federalism” as one of the underlying constitutional principles. It is also said to be “a central organizational theme of our Constitution”. The Court added that “certainly of equal importance, federalism is a political and legal response to underlying social and political realities.” Clearly, these realities include Aboriginal peoples, as highlighted more recently by the entrenchment of s. 35(1) of the Constitution Act, 1982.
The federal principle is especially important since it precludes certain unilateral actions by one constituent entity against another. For example, the Supreme Court has ruled in the past that the “federal principle cannot be reconciled with a state of affairs where the modification of provincial legislative powers could be obtained by the unilateral action of the federal authorities”. We firmly believe similar safeguards must accrue to Aboriginal peoples.
From a constitutional viewpoint, the Canadian federation is not simply made up of federal and provincial governments, but also includes Aboriginal peoples and our governments. In 2001, in the Mitchell v. Canada (Minister of National Revenue), the Supreme Court of Canada referred to a “shared Canadian sovereignty”. The Court added that “Aboriginal peoples do not stand in opposition to, nor are they subjugated by, Canadian sovereignty. They are part of it.” In 2004, in Haida Nation v. British Columbia (Minister of Forests), the Court again referred to Aboriginal sovereignty in the context of section 35 of the Constitution Act, 1982:
Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982.
Thus, Aboriginal peoples are constituent elements of the “federal principle” which the Constitution of Canada enshrines. This conclusion is reinforced by the recognition and affirmation of Aboriginal and treaty rights of Aboriginal peoples under s. 35(1) of the Constitution Act, 1982 and the resulting limitation on federal and provincial legislative and executive powers.
In addition, Aboriginal peoples are the only peoples in Canada explicitly recognized in the Constitution. This recognition of distinct Aboriginal peoples further makes us a fundamental characteristic of Canada.
As stated in the 1996 Report of the Royal Commission on Aboriginal Peoples:
The enactment of section 35 of the Constitution Act, 1982 has had far-reaching significance. It serves to confirm the status of Aboriginal peoples as equal partners in the complex federal arrangements that make up Canada. It provides the basis for recognizing Aboriginal governments as one of three distinct orders of government in Canada: Aboriginal, provincial and federal.
Also, in 1991, the Québec Court of Appeal indicated in Attorney General Canada v. Coon Come that the constitutionalization of the rights of Aboriginal peoples in section 35 introduced a third element in the functioning of Canadian federalism. Madame Justice LeBel added that this third element had to be taken into account in the division of powers concerning federal and provincial governments.
Based on all of these factors, it would be wholly unjustified and discriminatory to include federal and provincial governments in the federal principle and to exclude Aboriginal peoples and our governments.
Currently, it is essential that the Supreme Court state unequivocally that Aboriginal peoples are an integral part of the federal principle. Such a step is essential, in view of our history of exclusion, marginalization and denial of our status and rights. Numerous commentators have indicated that there are three founding peoples or nations in Canada. Yet a recent controversy suggests that additional clarifications are still a necessity.
A few weeks ago, Québec poet Raymond Lévesque refused to accept a Governor-General’s Performing Arts Award. His stated reasons were in part because Michaёlle Jean renounced the idea of “two nations” in Canada [“renié l’idée de deux nations au Canada”]. The poet added that by refusing the prize, he was remaining loyal to Québec, to its people, to its laws and to its future.
I have not found any evidence to support Mr. Lévesque’s allegations that the Governor-General expressed such a position in her inaugural address. However, the poet’s statements are deeply troubling for other reasons as well.
First, Mr. Lévesque rejected the award presumably because it was denied that the Québécois are one of two nations in Canada. However, he was incorrect to suggest that there are solely two nations in Canada. In so doing, the poet unjustly denied that Aboriginal peoples constituted distinct nations as well. Second, Mr. Lévesque is incorrect in claiming that his stated position is loyal to Québec or to its laws. Québec laws and policies explicitly recognize each of the Aboriginal peoples in Québec as distinct “nations”. Moreover, in February 2002, the Québec government signed a 50-year “nation-to-nation” agreement with the James Bay Cree people. This Agreement is also known as “La Paix des Braves”.
 
5. Looking to the Future
So far in my presentation, I have highlighted some notable developments and challenges relating to Aboriginal peoples’ rights since 1982. I would now like to briefly look with you towards the future.
One of the largest challenges that the James Bay Crees and other Aboriginal peoples in Québec may face in the next few years pertains to the issue of Québec secession. In June 2005, the PQ Congress adopted a resolution calling for a unilateral declaration of independence (UDI), in the event of a YES vote in the next referendum on sovereignty. A UDI, if it occurred, would have chaotic effects. It would violate a great deal more than the most fundamental rights of Aboriginal peoples.
However, even if a UDI does not occur, there is a real possibility that the strategies that would be implemented would not respect the right of the Crees and other Indigenous peoples in Québec to determine our own future. This type of unilateralism severely threatens the human rights, values and principles that we have strived to attain both in Canada and internationally.
Quebecers are free to opt for any project they wish in any future referendum. That is their democratic right. However, the James Bay Crees and other Indigenous peoples in Québec also have equal democratic rights. The principle of equal rights and self-determination of peoples applies equally to Indigenous peoples as it does to non-Indigenous peoples.
It is also worth emphasizing that the principles of democracy, rule of law and respect for human rights are profoundly related. Virtually all truly democratic countries recognize this globally and I believe that this is the accepted view in the various parts of Canada – including Québec.
The spectre of unilateralism raises some grave questions. Throughout history, Indigenous peoples in virtually all parts of the world, including Canada, have been the victims of unilateralism to our severe detriment. Such non-consensual actions are inherently anachronistic, undemocratic and colonial in nature. They have left us with a debilitating legacy of dispossession, discrimination, marginalization and widespread violation of our human rights from which we have not yet recovered.
Unilateralism in the Québec secession context is the very opposite of democracy, respect for human rights, cooperation, tolerance, and peace and security. It would negate our right of self-determination. It would violate our Aboriginal, treaty and other human rights under Canadian constitutional and international law. It would be highly divisive and cause wounds that could take countless decades to heal.
As a distinct people and nation, we – the James Bay Crees – have fought for our human rights in Canada and internationally for the past 35 years. Increasingly, these rights are entrenched in the rule of law in Canada and at the international level. Assurances that a sovereign Québec would respect the U.N. Charter and international human rights law would be stripped of any real meaning, if the leaders and authorities in Québec were not prepared to fully recognize our rights in the process leading up to and following any future referendum.
In his new book entitled “Mémoires d’un révolutionnaire tranquille” (excerpted in La Presse, November 5, 2005), Claude Castonguay raises a similar concern. He in effect asks: If Aboriginal peoples were to opt to remain with Canada in the event of Québec secession, by virtue of which principle could Québec refuse Aboriginal peoples this right?
In October 1995, the James Bay Cree people held its own Cree referendum. Over 96% of Cree voters declared that we do not accept being separated from Canada without Cree consent. This does not necessarily mean that the Crees, as a people, would opt to stay with Canada. However, it is clear that any government that would seek to deny us our inalienable right of self-determination – and, therefore, our right to determine the future of our people and our traditional territory – would hardly persuade us to be supportive of their project.
Canada is a representative democracy. It is not simply based on “one person, one vote”. Otherwise, the majority could always oppress those who are minority in number. In a referendum context, this would mean that Quebecers could simply be out-voted by Canadians in a nation-wide vote. Similarly, the voices of Aboriginal peoples could be drowned out by Quebecers or Canadians. Thus, the right of self-determination would be unjustly repressed. In the 1991 Reference Re Provincial Electoral Boundaries (Sask.), it was concluded by the Supreme Court of Canada:
… the purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to "effective representation". Ours is a representative democracy. ...
In the Secession Reference, the Court reiterated that “Democracy … means more than simple majority rule. … [D]emocracy exists in the larger context of other constitutional values”.
In regard to the James Bay Crees, it is also important to emphasize that we have constitutionally protected treaty rights. We entered into the James Bay and Northern Québec Agreement in the context of the Canadian federation. The same is true in relation to La Paix des Braves. Any modifications of these agreements in the secession context explicitly require our free, prior and informed consent.
Clearly, any proposed secession from Canada would mean that there would need to be negotiations. There would be a lot of balancing of rights and interests of the many different parties in Canada. As the Supreme Court of Canada cautioned in the Secession Reference:
… it would be naive to expect that the substantive goal of secession could readily be distinguished from the practical details of secession. The devil would be in the details. The democracy principle … cannot be invoked to trump the principles of federalism and rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. No negotiations could be effective if their ultimate outcome, secession, is cast as an absolute legal entitlement based upon an obligation to give effect to that act of secession in the Constitution. Such a foregone conclusion would actually undermine the obligation to negotiate and render it hollow. [emphasis added]
On its web site, the Parti Québécois indicates that:
The sovereignty project is legitimate, as recognized by the Canadian Supreme Court in August 1998 and Canada has, according [to] this Court, an obligation to negotiate in good faith Quebec's accession to sovereignty.
While the PQ is selectively relying on the Supreme Court Reference, it is seriously misstating what the Court has said. The Court did not automatically legitimize any sovereignty project. Rather, the right of the Québec government to “pursue” secession could well arise under certain conditions.
The Court said that this right could not be denied by federal and provincial governments and there would be an obligation to negotiate, solely if there were a clear question and a clear result in a referendum that “chooses that goal” – and if other conditions are met. In this regard, the Supreme Court emphasized:
The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. Negotiations would be necessary to address the interests of the federal government, of Quebec and the other provinces, and other participants, as well as the rights of all Canadians both within and outside Quebec. [emphasis added]
If there is to be a truly democratic dialogue and process that pertains to Québec independence, the James Bay Crees and other Aboriginal peoples must be involved at all stages. As stated in the Québec Secession Reference, “secession of a province ‘under the Constitution’ could not be achieved unilaterally, that is, without principled negotiation with other participants in Confederation”.
We are not prepared to simply provide input in the drafting of a constitution for a new Québec State. This might wrongly suggest that the James Bay Cree people have no right to determine its own future should Quebecers wish to secede.
In terms of ensuring a constructive and harmonious dialogue, we seek a response to the following questions from those who seek to proceed with their sovereignty project:

1. Will the human right of self-determination of the James Bay Crees and other Aboriginal peoples in Québec be fully respected?

2. Will the principle of democracy be fully applied to us, without discrimination or other double standard?

3. Will the results of our own referendum be fully respected, especially when our level of Cree voter support was over 96%?

4. Will our free and informed consent be obtained prior to any proposed modification of our treaties?

5. Will we be fully and effectively included as direct participants in any future negotiations on secession?

6. Will the Québec government fully honour its fiduciary responsibilities, in particular in regard to the James Bay and Northern Québec Agreement?

All of these issues have been raised in considerable detail in the past. The Parti Québécois positions on sovereignty unequivocally state that “Québec's democratic traditions are flawless” and that it is a fundamental objective to attain Québec sovereignty “in a democratic manner”. We support a truly democratic approach. Yet we have never received a just and fair response – one that is wholly consistent with the principles of democracy, equality, non-discrimination and respect for human rights.
 
Conclusions
Since 1982, there have been numerous progressive developments that have had positive impacts on the status and rights of Indigenous peoples in Canada. In particular, the entrenchment of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982 has had a wide range of beneficial purposes and effects. These include, inter alia:

1. to guarantee constitutional protection for existing Aboriginal and treaty rights;

2. to establish the “protection of Aboriginal and treaty rights” as an underlying constitutional principle and value that may be used to interpret any part of Canada’s Constitution;

3. to impose on the Crown a fiduciary obligation of a constitutional nature in respect to Aboriginal peoples;

4. to confirm that Aboriginal peoples are constituent elements of the Constitution of Canada and the “federal principle” that the Constitution enshrines;

5. to provide the constitutional framework for reconciliation of pre-existing Aboriginal sovereignty with assumed Crown sovereignty; and

6. to confer constitutional protection on Aboriginal peoples’ treaty rights, whenever acquired or modified.

At the international level, human rights standards relating to Indigenous peoples have also advanced considerably since 1982. Evidence of such progress includes the adoption of the Indigenous and Tribal Peoples Convention, 1989, as well as the ongoing formulation of declarations on the rights of Indigenous peoples at both the U.N. and OAS. Standard-setting is also being advanced through the work of the U.N. Permanent Forum on Indigenous Issues, Special Rapporteurs, special seminars on Indigenous issues, U.N. treaty monitoring bodies and the Inter-American human rights system.
At the same time, it is important to underline that a number of basic challenges remain. In particular, we must ensure that Canadian courts and governments incorporate comprehensive human rights analyses in interpreting, respecting and enforcing our Aboriginal and treaty rights. This must be done in a context consistent with our right of self-determination. It must also be affirmed that we are constituent elements of the “federal principle”.
Such measures would do more than safeguard our human rights, as distinct Indigenous peoples and individuals. It would prevent our marginalization. It would act as a positive catalyst in transforming acute conditions of impoverishment and dependence to more healthy and productive conditions. In a world of increasing interdependence, we need cooperative processes that promote our aspirations and well-being.
In regard to the future, we recognize the possibility of another referendum on Québec secession. In the pursuit of secession or constitutional reforms, we urge that all parties concerned engage in a just and principled process that is fully inclusive of Indigenous peoples. Any forms of unilateralism should be firmly rejected.
In closing, I would like to comment briefly on the legacy of Pierre Elliot Trudeau from an Indigenous perspective. It was a major achievement – consistent with his stated goal of creating a “just society” – when Prime Minister Trudeau agreed to include the recognition of Aboriginal and treaty rights in the proposed patriation package that was to be sent to London.
However, on November 5, 1981, this historic affirmation of our most basic rights was suddenly deleted from the proposed set of constitutional amendments. At that time, removal of our rights was used as a bargaining chip to secure the agreement of most of the provincial premiers to patriation. This action was viewed as a huge betrayal by Aboriginal peoples and countless others across Canada. It caused widespread public outcry. It took many of us months to travel to provincial capitals and persuade the First Ministers to restore what later became section 35 of the Constitution Act, 1982.
At the same time, it is important to acknowledge the far-reaching significance of including the Canadian Charter of Human Rights and Freedoms and recognition of Aboriginal and treaty rights in the Constitution Act, 1982. These initiatives helped to convert Canada to a “constitutional democracy” with entrenched rights and freedoms. Canada is no longer predominantly based on the doctrine of “parliamentary sovereignty” that was too often used to seriously infringe upon Indigenous peoples’ human rights. That, in itself, is a most principled advancement for present and future generations.
Meegwetch. Merci. Thank you.
 
Selective Bibliography
Books, articles, etc.
C. Castonguay, Mémoires d’un révolutionnaire tranquille (Montreal: Éditions du Boréal, 2005)
R. Dupuis & K. McNeil, Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec (Ottawa: Minister of Supply and Services Canada, 1995), vol. 2, Domestic Dimensions
R.J. Epstein, “The Role of Extinguishment in the Cosmology of Dispossession” in G. Alfredsson & M. Stavropoulou, eds., Justice Pending: Indigenous Peoples and Other Good Causes, Essays in Honour of Erica-Irene A. Daes (The Hague: Kluwer Law International, 2002) 45
T. Franck, “The Emerging Right to Democratic Governance”, (1992) 86 Am. J. Int’l L. 46
R. Gibbins & G. Laforest, eds, Beyond the Impasse: toward reconciliation (Montreal: Institute for Research on Public Policy, 1998)
Grand Council of the Crees, Sovereign Injustice: Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Québec (Nemaska, Québec, 1995)
P. Hogg, “Principles Governing the Secession of Quebec” (1997) 8.1 N.J.C.L. 19
R. Janda, Dual Independence, The Birth of a New Quebec and the Re-birth of Lower Canada (Montreal: Varia Press, 1999)
R. Janda, La double indépendance: La naissance d’un Québec nouveau et la renaissance du Bas-Canada (Montreal: Les Éditions Varia, 1998)
P. Joffe, “Assessing the Delgamuukw Principles: National Implications and Potential Effects in Québec”, (2000) 45 McGill L.J. 155
P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, A study prepared for the Royal Commission on Aboriginal Peoples, 3 vols., 1995
G. Laforest & R. Gibbins, eds, Sortir de l’impasse: les voies de la réconciliation (Montreal: Institut de recherche en politiques publiques, 1998)
S. Lalonde, Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (Montreal/Kingston: McGill-Queen’s University Press, 2003)
P. Monahan, “The Public Policy Role of the Supreme Court of Canada in the Secession Reference” (1999) 11 N.J.C.L. 65
Parti Québécois, “Five Questions and Answers to Understand Why the Parti Québécois Wants Québec to Become a Sovereign Country”,     http://partiquebecois.org/nv/index.php?pq=57
Parti Québécois, Se donner un programme du pays, Rapport du chantier Programme, Août 2004
Parti Québécois, “Un projet de pays: Cahier d’amendements au programme en vue des congrès de circonscription”, Document de travail, Congrès 2005
P. Radan, “‘You Can’t Always Get What You Want’: The Territorial Scope of an Independent Quebec”, (2003) 41 Osgoode Hall L.J. 629
C.-A. Sheppard, “The Cree Intervention in the Canadian Supreme Court Reference on Québec Secession: A Subjective Assessment” (1999) 23 Vermont L. Rev. 845
R. Stavenhagen, The Ethnic Question: Conflicts, Development, and Human Rights (Tokyo: United Nations University Press, 1990)
J. Woehrling, “Les aspects juridiques de la redéfinition du statut politique et constitutionnel du Québec”, Document no. 10, 7 January 2002, complementary document to the study entitled “Les aspects juridiques de la redéfinition du statut politique et constitutionnel du Québec”, carried out in 1991 at the request of the Secrétariat de la Commission sur l’avenir politique et constitutionnel du Québec
 
Legislation, documents, etc.
An Act approving the Agreement concerning James Bay and Northern Quebec, S.Q., 1976, c. 46
An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State (Bill 99), S.Q. 2000, c. 46
An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference (Bill C-20), S.C. 2000, c. 26
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
Constitution Act, 1982, Schedule B to the Canada Act, 1982, (U.K.), 1982, c. 11
James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-1977, c. 32
Motion for the recognition of aboriginal rights in Québec, National Assembly of Québec, Resolution, adopted March 20, 1985
Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communication Group, 1996), 5 vols.
 
Cases
A.-G. Canada v. Coon Come, [1991] R.J.Q. 922 (C.A.)
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193, (1998) 37 I.L.M. 268
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511
Mitchell v. Canada (Minister of National Revenue) [2001] 1 S.C.R. 911, 3 C.N.L.R. 122
R. v. Badger, [1996] 1 S.C.R. 771
R. v. Marshall (No. 2), [1999] 3 S.C.R. 533
R. v. Van der Peet, [1996] 2 S.C.R. 507
Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158
Reference re Secession of Québec, [1998] 2 S.C.R. 217, (1998) 161 D.L.R. (4th) 385, 228 N.R. 203, reprinted in (1998) 37 I.L.M 1342
 
International Cases
I/A Comm. H.R., Mary and Carrie Dann v. United States, Case Nº 11.140, Report No. 113/01, 15 October 2001
 
Indigenous peoples’ treaties
Agreement Concerning a New Relationship Between Le Gouvernement du Québec and The Crees of Québec [“La Paix des Braves”], entered into in Waskaganish, Québec, 7 February 2002
James Bay and Northern Québec Agreement and Complementary Agreements, 1997 Edition (Québec: Les Publications du Québec, 1996)
 
International instruments, documents, etc.
Charter of the United Nations, Can. T.S. 1945 No. 76; [1976] Yrbk. U.N. 1043; 59 Stat. 1031, T.S. 993. Signed at San Francisco on June 26, 1945; entered into force on October 24, 1945
Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, U.N. Doc. E/C.12/1/Add.31, 10 December 1998
Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Russian Federation, U.N. Doc. E/C.12/1/Add.94, 12 December 2003
Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of Racial Discrimination: Canada, CERD/C/61/CO/3, 23 August 2002
Grand Council of the Crees (Eeyou Istchee) et al., “Assessing the International Decade: Urgent Need to Renew Mandate and Improve the U.N. Standard-Setting Process on Indigenous Peoples’ Human Rights”, Joint Submission to the Office of the High Commissioner for Human Rights, Geneva, March 2004
Grand Council of the Crees (Eeyou Istchee) et al., “Towards a U.N. Declaration on the Rights of Indigenous Peoples: Injustices and Contradictions in the Positions of the United Kingdom”, Joint Submission to Prime Minister Tony Blair, United Kingdom of Great Britain and Northern Ireland, September 10, 2004
International Covenant on Civil and Political Rights, G.A. Res 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) at 52, U.N. Doc. A/6316, Can. T.S. 1976 No. 47 (1966).  Adopted by the U.N. General Assembly on December 16, 1966 and entered into force March 23, 1976
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966); Can. T.S. 1976 No. 46 (entered into force 3 January 1976, accession by Canada 19 May 1976)
Human Rights Committee, Concluding observations of the Human Rights Committee: Canada,UN Doc. CCPR/C/CAN/CO/5, 27-28 October 2005
Human Rights Committee, Concluding observations of the Human Rights Committee: Canada,UN Doc. CCPR/C/79/Add.105, 7 April 1999
Human Rights Committee, Concluding observations of the Human Rights Committee: Mexico,UN Doc. CCPR/C/79/Add.109, 27 July 1999
Human Rights Committee, Concluding observations of the Human Rights Committee: Norway, UN Doc. CCPR/C/79/Add.112, 5 November 1999
Indigenous and Tribal Peoples Convention, 1989, I.L.O. Convention No. 169, I.L.O., 76th Sess., reprinted in (1989) 28 I.L.M. 1382
Indigenous and Tribal Populations Convention, 1957 (No. 107), entered into force June 2, 1959, 328 U.N.T.S. 247
Organization of American States (Working Group to Prepare the Proposed American Declaration on the Rights of Indigenous Peoples), Consolidated Text of the Draft Declaration Prepared by the Chair of the Working Group, OEA/Ser.K/XVI, GT/DADIN/doc.139/03, 17 June 2003
Permanent Forum on Indigenous Issues, Information received from the United Nations system, Note by the Secretariat, Addendum: International Labour Organization, E/C.19/2005/4/Add.5, 3 March 2005
Proposed American Declaration on the Rights of Indigenous Peoples, OEA/Ser/L/ V/.II.95, Doc. 6, 26 February 1997 (approved by the Inter-American Commission on Human Rights on February 26, 1997, at its 95th regular session, 1333rd meeting)
United Nations Declaration on the Rights of Indigenous Peoples (Draft), in U.N. Doc. E/CN.4/1995/2 - E/CN.4/Sub.2/1994/56 (1994)105, (1995) 34 I.L.M. 541
U.N. Commission on Human Rights, Human rights and indigenous issues: Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, Addendum: Mission to Canada, E/CN.4/2005/88/Add.3, 2 December 2004
U.N. General Assembly, The situation of human rights and fundamental freedoms of indigenous people: Note by the Secretary-General (Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people), A/60/358, 16 September 2005
 
News articles
C. Castonguay, “Désunion”, La Presse (5 November 2005), p. A28
T. Chouinard, “Option citoyenne choisit la souveraineté”, Le Devoir (13-14 November 2004), p. A1
B. Curry & G. Galloway, “PM vows to provide clean water for remote native communities”, Globe & Mail (29 October 2005), p. A4
F. David, “Être ou ne pas être … un pays”, Le Devoir (19 May 2004), p. A7
S. Dion, “Chers candidats …”, La Presse (28 October 2005), p. A15
L. Gagnon, “L’aventure”, La Presse (22 October 2005), p. A30
R. Lévesque, “Bozo les culottes ne s’inclinera pas”, Le Devoir (25 October 2005), p. A9
I. Peretz, “Insulted Quebec poet rejects G-G’s award”, Globe and Mail (25 October 2005), p. A1
A. Pratte, “Dix ans plus tard”, La Presse, editorial (30 October 2005), p. A12
R. Séguin, “Simple majority not enough, PQ candidate says”, The [Montreal] Gazette (16 June 2005), p. A6