44 - Sunday, October 4, 1992 - North Shore News

fion-derogation provisions for Aboriginal peopies set out in item 40 of
this document will apply to culture.

30. Forestry
Exclusive provincial jurisdiction over forestry should be recognized and
clarified through an explicit constitutional amendment.

Provinciai fegisiatures should have the authority to constrain
federal spending that is directly related to furestry.

This should be accomplished through justiciable intergovernmental
agreements, designed to meet the specific circumstances of each
province. The mechanism used would be the one set out in item-26
of this document, including a provision for equality of treatment with
respect to terms and conditions. Cansiderations of service to the public
in both official languages shoutd be considered a possible part of
such agreements. ("}

Such an agreement should set the terms for federat withdrawal,
including the level and form of financial resources to be transferred. In
addition, a political accord could specify the form the compensation
would take {i.e. cash transfers, tax points, or others}("). Alternatively,
such an agreement Could require the federal governmem to maintain
its spending in that province. A similar safequard should be available
to the territories. The federal government should be obliged fo negoti-
ate and conclude such an agreement within a reasonable time.

These changes and the ones set out in items 31, 32, 33, 34
« -and 35 should not alter the federal fiduciary responsibitity for ©
Aboriginal people. The provisions.set out in item 40 would apply.

31. Mining ©
Exciusive provincial jurisdiction over mining should be recognized and
clarified through an explicit constitutional amendment and the
negotiation of federal-provinciat agreements. This should be done in

_ the same manner as Set out above witti respect to forestry. (")

32. Tourism

Exclusive provincial jurisdiction over tourism should be recognized and
"clarified through an explicit constitutional amendment and the
- Negotiation of federat-provincial agreements. This should be dene in
“~ the same manner as set out above with respect to forestry. ("}

33. Housing .
Exclusive provincial jurisdiction over housing should be recognized ard
’clarified through an explicit constitutional amendment and the

Lt _, hegotiation of federal-provinciat agreements, This shauld be dane in

_ the same manner as set out above with respect to forestry. (‘)

_ 34. Recreation
_ Exclusive provincial jurisdiction over recreation should be recognized
and clarified through an explicit constitutional amendment and the
negotiation of federat-provincial agreements. This should be dane in
. the same manner. as set out above with respect to forestry. (°}

~. 35. Municipal and Urban Affairs
Exclusive provincial jurisdiction over municipal and urban affairs should
be recognized and Clarified through an explicit constitutional amendment
and the negotiatien of federal-provincial agreements. This should be
done in the same manner as set out above with respect to forestry. (*)

36. Regional Development
In addition to the commitment to regional development to be added to
Section 36 of the Constitution Act, 1982 (described in item 5 of this
documenti, a provision should be added to the Constitution that would
oblige the federal gaverrment to negotiate an agreement at the

. tequest of any province with respect to regional development. Such
agreements could be protected under the provision set out in item 26
(Protection of intergovernmental Agreements”). Regional development
should not become a separate head of power in the Constitution.

37. Telecommunications

The federal government shouive committed to negotiate agreements
-with the provincial governments to coordinate and harmonize the pro-
cedures of their respective regulatory agencies in this field. Such
agreements could be protected under the provision set out in item 26
(‘Protection of intergovernmentai Agreements”).

38. Federal Power of Disallowance and Reservation
This provision of the Constitution shoutd be repealed. Repeal
requires unanimity.

39. Federal Declaratory Power :
Section 92(10)(c) of the Constitution Act, 1867 permits the federal

government to declare a “work” to be for the general advantage

of Canada and bring it under the fegislative jurisdiction of Parliament.
This provision should be amended to ensure that the declaratory
power can only be applied to new works or rescinded with respect to
past declarations with the explicit consent of the province(s) in which
the work is situated. Existing declarations should oe teft undisturbed
untess all of the legislatures affected wish lo take action.

40. Aboriginal Peoples’ Protection Mechanism

There should be a general non-derogation clause to ensuse that division
of powers amendments will not affect the rights of the Aboriginal peoples
and the jurisdictions and powers of governments of Aboriginal peoples.

Note: References to the territories will be added to the legal text with
respect to this section, except where Clearly inappropriate. Nothing in
the amendments would extend the powers of the territorial legisla-
tures.

A. THE INHERENT RIGHT OF SELF-GOVERNMENT

41. The inherent Right of Self-Government

The Constitution should be amended to recognize that the Aboriginal
peoples of Canada have the inherent right of self-government within
Canada. This right should be placed in a new section of the
Constitution Act, 1932, Section 35.1(1).

The recognition of the inherent sight of seif-government should be ,

interpreted in light of the recognitian of Aboriginal governments as one
of three orders of government in Canada.
A contextual statement should be inserted in the Constitution, as fotkows:
“The exercise of the right of self-government includes the authority
of the duly constituted legislative bodies of Ahariginal peoples, each
within its own jurisdiction:
a) to safeguard and develop their langvages, cultures, economies,
institutions and traditions; and,
5) to develop, maintain and strengthen their relationship with their
tands, waters and environment so as te determine and contro! their
development as peoples according to their own values and priorities
and ensure the integrity of their societies.”
Before making any final determination of an issue arising from
ihe inherent right of self-government, a court or tribunal should
take into account the contextual statement referred to above, should
enquire into the efforts that have been made io resolve the issue
through negotiations and should be empowered to order the parties
to take such steps as are appropriate in the circumstances to effect
a negotiated resolution.

42, Delayed Justiciability
The inherent right of self-government should be entrenched in the
Constitution. However, its justiciability should be delayed for a five-
year period through constitutional fariquage and a political accord. (°)
Delaying the justiciability of the right should be coupled with a
Constitutional provision which would shield Aboriginal rights.
Delaying the justiciability of the right will not make the right
contingent and wil not affect existing Aboriginal and treaty rights.
The issue of speciat courts or tribunals should be on the agenda
of the First Ministers’ Conference on Aboriginal Constitutional matters
referred to in item £3. (°}

43. Charter Issues
The Canadian Charter of Rights and Freedoms should apply
immediately to governments of Aboriginal peoples.

A technical change should be made to the English text of sections
3, 4 and 5 of the Canadian Charter of Rights and Freedoms to ensure
that it corresponds to the French text. .

The legislative bodies of Aboriginal peoples should have access
to Section 33 of the Constitution Act. 1982 (the notwithstanding
Clause) under conditions that are similar to those applying to
Parliament and the provincial legislatures but which are appropriate to
the circumstances of Aboriginal peoples and their legislative bodies.

44, Land

The specific constitutional provision on the inherent right and the
specific constitutional provision on the commitment to negotiate land
should not create new Aboriginal rights to tand or derogate from
existing aboriginal or treaty rights to land, except as provided fori in
self-government agreements.

B. METHOD OF EXERCISE OF THE RIGHT

45. Commitment to Negotiate

There should be 2 constitutional commitment by the federal and
provincial governments and the Indian, Inuit and Métis peoples in
the various regions and communities of Canada to negotiate in good
faith with the objective of concluding agreements elaborating the
telationshig between Aboriginal governments and the other orders of
government. The negotiations would focus on the implementation

of the right of self-government including issues of jurisdiction, lands
and resources, and economic and fiscal arrangements.

46. The Process of Negotiation

Political Accord on Negotiation and Implementation

A political accord should be devsloped to guide the process of
self-government negotiations. {°)

Equity of Access

All Aboriginal peoples of Canada should have equitable access to the -
process of negotiation. .

Trigger for Negotiations

Self-government negotiations should be initiated by the representatives
of Aboriginal peoples when they are prepared to do so.” . :
Pravision for Non-Ethnic Governinents

Self-government agreements may provide for seff-government
institutions which are open to the participation of all residents in:
a region covered by the agreement. :
Provision for Different Circumstances

Self-government negotiations should take into consideration the -
different circumstances of the various Aboriginal peaples.

Provision fer Agreements :
Self-goverament agreements should be set out in future treaties,
including land claims agreements or amendments tc existing treaties,
including land claims agreements. In addition, self-government
agreements could be set out in other agreements which may contai
a declaration that the rights of the Aboriginal peoples are treaty sigh
within the meaning of Section 35(1) of the Constitution Act. 1982.
Ratification of Agreements

There should be an approval process for goverriments and

peoples for self-government agreements, involving Parliament, the
legislative assemblies of the relevant provinces andor tervitories and

- the legistative bodies of the Aboriginal peoples. This principte should

be expressed in the ratification procedures set out in the specific ic

. Self-government agreements.

Non-Derogation Clause ve
There should be an explicit statement in the. Constitution that the’ ey
commitment to negotiate does not make the ‘ight of self-government :
contingent on negotiations or in any way affect the justiciabity of :
the right of self-government. .

Dispute Resolution Mechanism

To assist the negotiation process, a dispute resolution mechanism
involving mediation and arbitration should be established. Details
this mechanism should be set out ina political accord 7

47. Legal Transition and Consistancy of Laws

A constitutional provision should ensure that federal and provincial
laws will continue to apply until they are displaced, by laws Passed
governments of Aboriginal peoptes pursuant to their authority.

A constitutional provision shouid ensure thai a law passed. b
government of Aboriginal peuples, or an assertion of its autho
on the inherent sight provision may not be inconsistent with t
which are essential to the preservation of peace, order and good
government in Canada. However, this provision would not extend the *
legislative authority of Parliament cr of the legislatures of the provin

48. Treaties |.

With respect to treaties with Aboriginal peoples, the Constitution

should be amended as follows:

© treaty rights should be interpreted in a just, broad and liberal manner
taking into account the spirit and intent of the treaties and the context .
in which the specific treaties were negotiated; -

© the Government of Canada should be committed to establishing and
Participating in good faith in a joint process to clarify or implement
treaty rights, or to rectify terms of treaties when agreed to by the
parties. The governments of the provinces should also be committed, -

to the extent that they have jurisdiction, to participation in the above’
treaty process when invited by the government of Canada andthe =’
Aboriginal peopies concerned or where specitied in a treaty;

© participants in this process should have regard, among other things.”
and where appropriate, to the spirit and intent of the treaties as