Hon. Serge Joyal:

Honourable senators, first, I would like to mention that I am very happy about the government's initiative in introducing Bill S-12. I will certainly give it my full support.

I would also like to mention to honourable senators that I support the amendment proposed yesterday by our colleague, Senator Watt, and I will quickly explain why.

First, in terms of the actual content of Bill S-12, I find it somewhat unacceptable that its sponsor — who proved to be a very diligent worker when this bill was studied by the Standing Senate Committee on Legal and Constitutional Affairs, and heard numerous witnesses, including experts from the University of Ottawa and representatives from the Canadian Bar Association — did not summarize the nature of the bill in this chamber. Despite the daunting, technical title, the fact remains that this bill touches on an extremely important aspect of Canada's identity — the fact that our country has different legal traditions that stem from different historical sources. And every day, when this chamber passes bills, the language of these bills draws on these different legal traditions and tries to reflect the same reality and the same content, so that litigants — that is, Canadians, the courts, lawyers and anyone who represents the country's people — interpret the same elements of the law in the same way.

Essentially, this bill aims to reconcile different legal traditions in the same legal text. There are a number of legal traditions in Canada, the first of which is the Aboriginal legal tradition.

First, there is the Aboriginal common law tradition. When the European settlers first arrived in Canada in the 17th century, Aboriginal people already existed in this country and they were ruling themselves. They had customs, and those customs were in fact recognized by the Supreme Court in 2004 in a very important and seminal judgment, Haida Nation v. British Columbia. I would like to quote what the court said in that judgment. The Supreme Court said the following:

Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered.

When the Europeans arrived here, the Aboriginal tradition already existed, and that tradition was not eclipsed by the European legal tradition because the Aboriginals were not conquered.

There were settlement arrangements in order to allow the Europeans to take root in Canada and to manage their affairs in full respect of the way Aboriginal people ruled their own family law, trade law, commercial law and political law.

When the French arrived here, they took note of the way Aboriginals organized their legal relationships and they accommodated it.

That is why Canada's French law, which was brought from the home country through French customary law, the Coutume de Paris, and imposed in 1674, was a legal tradition that existed in symbiosis with the Aboriginal legal tradition until the country was handed over in 1763, when British common law took its place alongside the French and Aboriginal legal traditions.

For over 100 years, those three sources of law have lived together, borrowing from one another but living peacefully together. Of course, with the colonialist policy of the 19th century, when Aboriginal peoples were pushed progressively onto their own reserve land, they were forced through the Indian Act to adopt more and more the British common law, but not to yield their own traditional, legal common law system.

The Supreme Court of Canada thus clearly recognized the existence of an Aboriginal legal tradition. Do honourable senators remember the Royal Commission on Aboriginal Peoples initiated by former Prime Minister Brian Mulroney?

The Royal Commission on Aboriginal Peoples was co-chaired by George Erasmus, an eminent leader of the First Nations people, and Justice René Dussault. Included among its membership were learned and distinguished Canadians, among them former Premier of Saskatchewan Allan Blakeney, former Justice of the Supreme Court of Canada Bertha Wilson, and former Aboriginal leaders Mary Sillett, Viola Robinson and Paul Chartrand.

The commission tabled its report in 1993 and came to some conclusions about the existence of Aboriginal legal tradition.

The commission had this to say:

In the Aboriginal experience "the organizing and regulating force for group orders and endeavour. . .was custom and tradition." "Customs were derived from the Creator", and because they were spiritually endowed and through history had withstood the test of time, they "represented the Creator's sacred blueprint for the survival of the tribe".

In other words, the common law legal tradition among Aboriginal peoples — what they did among themselves — was sacred, and they respected that tradition. Why? Because it was a promise they had made. We all know that the Aboriginal legal tradition was not passed down through legislation or court rulings. It was passed down from one generation to the next orally, through the clan elders. The elders were responsible for interpreting the tradition.

This is especially important, honourable senators, because Quebec francophones in particular, who had to accommodate this Aboriginal tradition in their development for more than 150 years, recognized it in 1994 when they adopted their new Civil Code, which redefined the legal tradition of civil law, the written law in Quebec.

In 2004, nearly six years ago, on the 10th anniversary of the adoption of the Civil Code in Quebec, the National Assembly presented an exhibit for which a catalogue was prepared. In that catalogue celebrating the 10th anniversary of the Civil Code, this is what was said about the Aboriginal legal tradition:

In the territory of New France, the customs of the Amerindians coexisted for a long time with the legal traditions of the mother country, each one based on centuries-old rules handed down through the generations. The Amerindian people lived according to the customs and instructions taught by their clan elders. These customs, often varying from one nation to another, constituted the legal standards applied to life in society. For instance, although monogamy was not obligatory, it was generally practised. Spouses were considered each other's equals. Women had some authority within the family and the community, and the education of children was a collective responsibility.

You will understand, honourable senators, that the Aboriginal legal tradition differed from the legal tradition of French origin, but they coexisted side by side. In 1763, another legal tradition arrived.

That one was from the common law source; however, all those traditions had to live side by side.

This bill gives the capacity to us, as legislators, to adopt a statute that will become the law of the land and will express those two legal traditions in two different languages. We adopt the principle of British common law, or English common law, expressed in both French and English. We also adopt principles and concepts of civil law in both the French language and the English language.

Besides those two main traditions expressing themselves in four different languages, we have the Aboriginal legal tradition, which might sound new to some honourable senators, but it is an element that the Law Reform Commission of Canada fully recognized in 2004 and proposed ways to manage the progressive adaptation of that Aboriginal tradition into our own linguistic and juridical reality.

In fact, in the North, in Iqaluit, Nunavut, there is a law school that teaches Inuit legal traditions, in Inuit, to the Inuit people and, of course, to others. This school is called Akitsiraq Law School in Iqaluit, and it is important because it is there that that legal tradition will be progressively expressed and integrated into our legal language. That might appear technical to honourable senators, but the process of adopting statutes and legislating for Aboriginal people in the North is the reality of today.

I especially mentioned Nunavut, where there are three official languages. My colleagues who were here last year will remember when we adopted a bill to recognize three official languages in Nunavut, namely, English, French and Inuktitut. In the Northwest Territories, there are 12 different official languages besides English and French. There are many other Aboriginal languages. In the Yukon, there are English, French and other languages that are used and promoted.

In other words, we live in a more complex reality than having only one source of law, the British common law tradition, that is expressed in the bill; hence it is the responsibility of Parliament and the government to ensure that those concepts are well reflected in its legislation.

That objective was adopted in 2001 by a bill that added to the interpretation law of Canada the responsibility of Parliament to legislate according to the expression of two main traditions in four different languages.

It is important, honourable senators, to be concerned about the progress of our initiative and efforts to reflect that reality and to keep that in mind. In this bill, the amendments of Senator Watt signal that, besides those two legal traditions, the Aboriginal peoples have their own reality. There have been the official apologies that have been given to the Aboriginal peoples through the initiative of the government, and we have commended the government for that in this chamber, so that progressively this reality is restored to its status and integrated into the juridical reality of Canada.

Among the experts we have heard at the committee, Professor Aline Grenon sent us last week — Thursday, December 9 — the introduction of her work, entitled Le droit comparé au Canada à l'aube du XXI^e siècle is a book written by Professors Aline Grenon and Louise Belanger-Hardy. In the introduction, the professors state quite rightly that comparative studies of law used to be limited to analyzing the various facets of civil law and common law, but now they have to take into account the ramifications of Aboriginal law, among others.

It is recognized among the experts and the professors in the law schools of Canada that this is the reality; and progressively, we will take steps to ensure that this reality is integrated at various levels according to the reality of the Aboriginal tradition. It is complex, because there are words in the Aboriginal Inuktitut language — although I am not an expert in Inuktitut — to express a reality that we need a long phrase or long sentence in French or English to explain.

There are concepts in our English and French languages that have to be paraphrased in Inuktitut because there are no words in that vocabulary to express this type of reality. It is complex from a legal standpoint but, honourable senators, not only is it feasible, it is desirable.

I think we have to hope for this because that is the only way that the Aboriginal people will be restored in their rights to recapture their identity, to recapture their language, to recapture the modus vivendi, to recapture the capacity to take part in the Canadian dream of making sure that, as they say in the other language, there is always a place in the sun for everyone. I believe that in order to integrate the Aboriginal peoples, we must recognize their legal traditions, their Aboriginal common law and our capacity to integrate it in our own Canadian law.

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