Madam Speaker, I will be sharing my time with another government MP. It is a pleasure to join the debate. I pick up with interest and pleasure the remarks of the very thoughtful hon. member for Vancouver East.
It is a fact that the Nisga'a treaty is not and never was a template. Government MPs spent six months telling the Premier of British Columbia that it was not a template, that it rested on its own particular historical facts. They are very warming facts. The Nisga'a paddled their own canoe a long distance to Victoria. They waited 100 years and negotiated for 20 years in goodwill and good spirit, with great patience and great dignity.
I think we have to pay tribute to the Nisga'a negotiators and Joe Gosnell, who emerges as one of the outstanding figures of our contemporary public life, but also the government negotiators. They are not the same in the case of every treaty. I met the government negotiators in this particular case and I was impressed by their dedication, their hard work and their open mindedness.
The Nisga'a treaty is a special case. It deserves in my view and it deserved in the past quicker treatment than we have given it. I think for more than a year after the signature is too long a delay considering the time that has been spent already in the past on this matter.
What are the features that are so distinctive in this treaty? One is the element of negotiation—and I have spoken on that and will have more occasion to come back to that—in good faith and in the spirit of goodwill. The phrase was borrowed from international law. The World Court used it. The Supreme Court of Canada picked it up in a recent judgment, but it is the essence of the continuing process involving 50-odd treaties still to come in British Columbia. We expect the parties, government and the Indian people, to negotiate in good faith. The Nisga'a did it.
We also expect adequate public hearings, which is a matter that relates to the time, the opportunity and the place. The member for Vancouver East has detailed far better than I could the extensive character of the hearings, having regard to the remoteness of the area involved. It is not a city where one can take a taxi from one end to another in a matter of a few minutes. A remarkable job was done by the House committee on aboriginal affairs and others.
I would also stress the fact of absence of countervailing interests properly proved and adduced before the relevant authorities who negotiated and the House committee. That is a crucial issue in it.
I would stress again the point which is in the treaty itself. The Nisga'a people here showed admirable self-restraint. They accepted and put in the text that it is subject to the Canadian constitution and to the charter of rights.
If anybody had any doubt on this particular point and to make assurance doubly sure, the government caucus from B.C., the senators and the MPs sought assurances from the then minister for aboriginal affairs and her parliamentary secretary that we would put this beyond any question by even the most unreasonable of people. That is why there is an express mention in the enacting legislation by the federal parliament. Incidentally similar guarantees were incorporated in Bill C-49, the Native Land Administration Act, as a result of the representations by B.C. MPs and senators which were gracefully accepted by the minister.
I would like to pay tribute to the former minister concerned and her parliamentary secretary who is still with us for listening and paying attention to these representations.
The constitutional issue has been raised. It is not in my view relevant as an element of criticism of the Nisga'a treaty because, as I have explained, the matter has amply been taken care of, but references were made to sections 25 and 35 of the charter of rights.
I am reminded of Chief Justice Bryan who was a medieval judge. When people asked him about a law he said “You do not have to tell me what it says. I wrote the law. I know what it is about”. It is a fact that has been noted that Senator Perrault and I, when the original draft of the charter appeared, suggested that this matter should be included.
However it should be noted that sections 25 and 35 create no new rights. They are what is called saving clauses. They save rights that already exist, whether customary or under existing treaties. No more, no less. There is a Latin phrase for it, ex abundanti cautela, but it simply means one says what already exists. One leaves it to subsequent events in a pragmatic, common law way to define the actual content and extent of those rights in concrete cases.
There has been reference to subsection 35(3) and the issue of back door amendment. It was an amendment made to the charter a year after its enactment. I was out of the country at the time, but when I returned I remember discussing it with the new justice minister who succeeded the present Prime Minister. I said “There are treaties that are unknown quantities. Is there any problem here?” We agreed as a matter of interpretation that it would be a most unreasonable interpretation to say that we could change the constitution in this way. It would be an absurd interpretation but we at least adverted to it.
It is in response to these sort of fears, unreasonable as they may be, that the B.C. caucus spent some three or four months discussing with the previous minister of Indian affairs and the parliamentary secretary the inclusion of the provisions that the treaty, notwithstanding that it already says it in terms, because of the federal enacting legislation is legally subject to the constitution and to the charter of rights.
It is there. It is part of the travaux préparatoires which courts must take into account in interpreting the treaty. It has been said in this parliamentary debate, not merely by myself but I think by all members on the government side who preceded me, members of the New Democratic Party and members of other parties, that the parliamentary intent is that it is subject to the constitution and the charter of rights. The words are clear but that it is also parliamentary intent.
Let me come back to the larger issues that are involved. It is a historic process for B.C. It is the first B.C. treaty. How fortunate that the people involved in it, the Nisga'a people, were reasonable people, and that they negotiated in good faith. I expect similar behaviour or similar conduct from those involved in the subsequent treaties. It was a model of negotiation.
Another aspect is that it is not simply a negotiation in good faith. It is also the concept of good neighbourliness. It is a phrase that the English court of appeal threw out in 1935, that one must act in relation to one's own rights as one would expect them to be applied if one were a neighbour. The World Court has picked up the concept of good neighbourliness. It is also by the way part of the French civil law, but it returns again I think in the context of the Nisga'a treaty.
There is an appreciation here that there is no such thing as absolute rights which are conceived in a vacuum. All rights exist in a social context. It is a recognition that there may need to be the balancing of rights with other rights. I think it is the core of the Nisga'a negotiation process.
We are into concepts of comparative equity when good citizens, good neighbours work together and try to work things out by negotiation if there are differences. If there are differences they cannot surmount then the effect of the application of the constitution and the charter is that the constitutional principles and due process of law including judicial review are there.
I anticipate that treaties such as this one will be before the courts over a long period of time. I do not mean by this antagonistic litigation. I mean where parties seek the advice and interpretation of the courts when we have what is at the core of the English concept of equity, a continuing process of working together by the parties, trying to interpret general principles in terms of accommodation of interests of a larger community which, in Canada, includes the so-called two founding nations that are really relatively recent arrivals, the original nations and others.
It is in this spirit that I welcome the debate as it has emerged and I welcome the assurances we have had from many people intervening in the debate that they regard this as an optimistic sign. There is no reason for fear. This is a process of full community engagement that we are entered upon.