Debates of June 3rd, 1999

Supply

[The Acting Speaker (Ms. Thibeault)]

At this point I would like to ask the hon. member for Port Moody—Coquitlam—Port Coquitlam now that he is sitting at his desk to officially withdraw his remarks.

[Lou Sekora, Liberal, Port Moody—Coquitlam, BC]

Madam Speaker, I withdraw my comments.

[The Acting Speaker (Ms. Thibeault)]

Now we can proceed.

[David Iftody, Liberal, Provencher, MB]

Madam Speaker, thank you for your ruling. I do appreciate it. I believe my colleague from Winnipeg North was engaged in a similar problem with the Reform Party this morning.

The word racist was used a number of times in the House by Reform Party members in terms of referring to the Indian Act.

[Dick Harris, Reform, Prince George—Bulkley Valley, BC]

Madam Speaker, I rise on a point of order.

During the debate there is no member of the Reform Party, the official opposition, since we came to this place in 1989, who has ever had the disrespect to call anybody in the House a racist. That is the lowest form of insult in my opinion. For the member to suggest in any way—

[The Acting Speaker (Ms. Thibeault)]

I am afraid that we are now entering debate, so we will resume debate with the parliamentary secretary.

[David Iftody, Liberal, Provencher, MB]

Madam Speaker, I did not suggest that any member from the Reform Party called any member here racist. I suggested, and the record can be checked, that Reform members referred to the Indian Act as racist. That word was used in the House. However I would prefer, if I may, to proceed with my comments.

I referred to the B.C. supreme court decision. Mr. Justice Williamson states in his reasons in paragraph 28 “It is essential that the courts respect the right of parliament to exercise unfettered freedom in the formulation, tabling, amendment and passage of legislation. This obligation is no less than that of the duty of legislative and executive branches to respect”—and I emphasize this—“the independence of the judiciary”.

Members opposite should know that the contents of legislation and indeed the entire legislative record is relative to the determination of constitutional issues in this case. It is often by this record that the judiciary deduces legislative intent. The proceedings of the House therefore will be relevant to any determination the courts are called upon to make on the Nisga'a treaty.

In addition, the debate in the House is also important to all Canadians. They deserve to know where their members of parliament stand on the issues affecting the country. For that reason alone this is and will be a historical debate indeed. Would the member for Skeena prefer that his constituents not hear the full extent of his views on an agreement which promises to change the face of the region for the better?

In the motion the member for Skeena has put before this House he implies that he is concerned that the treaty could be used to usurp, diminish or subrogate the individual rights of Nisga'a people. I would put it to the member that if he were so concerned about the rights of the Nisga'a constituents, he might visit that area more frequently. I know that he has to clarify that in the House and I appreciate that.

As I have said before, I would be prepared to offer my services to him to mediate meetings between himself and the Nisga'a people who are eager to do that. I am certain these constituents would assure the member that they no longer want the limitations of the Indian Act. Even some of his own colleagues have agreed. In fact, the Nisga'a have unequivocally said that most important of their objectives is to remove the Indian Act. They agree and we all agree.

After more than 20 years of negotiation, it is important at this time that we ask the lawyers to step aside, that we pull back from the courts, we stop the debate, we fold up the tent as it were, and all the parties that are affected come together and debate that. It is the House of Commons where we intend to do that. We want a full debate on this matter. We will have an opportunity to do that in the fall as we have talked about and promised. The due diligence process that all our constituents require from us will be exercised thoroughly in the House when we debate these motions.

I believe that history will show after the vote is taken in the House of Commons, that those who for whatever reason vote against this treaty will in 25 or 30 years from now be judged by the Canadian people, that while their opinions may have been right or wrong, they were on the wrong side in opposing this treaty.

[Roy H. Bailey, Reform, Souris—Moose Mountain, SK]

Madam Speaker, one of the biggest fallacies is that the public hear that this is just another type of municipal government. It is not. It is another level of government.

I want to ask the question that the aboriginal people in my area ask me. In this treaty will the aboriginal people be granted the same rights as other municipal governments? Will they have accountability, annual audited statements and all the other rights that we enjoy? I say it is not within the treaty. Am I correct?

[David Iftody, Liberal, Provencher, MB]

Madam Speaker, all due diligence and proper procedures in terms of accountability will apply. I remind the hon. member that the 14 points in the treaty fall within the three categories of culture, language and administration of their own assets on reserve.

We have said many times in the House that all other areas of law such as provincial and federal continue to apply, as does the charter. I assure the hon. member those guarantees and protections will be there.

If they are breached in any way there are remedies available through an appeal process to the B.C. Court of Appeal or to the federal court on those matters.

[Mike Scott, Reform, Skeena, BC]

Madam Speaker, the parliamentary secretary is professing a great concern for aboriginal people and I am sure his concern is legitimate.

Do not the Gitksan and Gitanyow count? Why was the overlap situation not addressed before this treaty was implemented? Why is the government talking about a fiduciary obligation to aboriginal people on the one hand but completely cutting out the Gitksan and Gitanyow people who claim that 85% of the land being given to the Nisga'a in this treaty is actually their traditional territory?

Let me quote for the hon. parliamentary secretary's benefit Stewart Phillip, president of the Union of B.C. Indian Chiefs, who represent a considerable number of indigenous people in British Columbia. He says:

The fastest approach that government is taking to treaty making will undoubtedly mire indigenous peoples and the province in years of court cases. Until overlap issues are dealt with and addressed among indigenous peoples, no government has the right to enter into treaties recognizing title or rights to any territory. I am outraged by these reprehensible actions. The entire B.C. treaty process is not viable, is wide open to many legal challenges.

Why does the parliamentary secretary not address that issue which is of vital concern to many aboriginal people, including people in my riding to whom I happen to talk on a regular basis?

[David Iftody, Liberal, Provencher, MB]

Mr. Speaker, I find it quite extraordinary that the hon. member opposes 2,500 Nisga'a people who are his constituents and supports the Gitksan Wet'suwet'en and the Gitanyow who are not. This is an oddity, indeed.

During the last break I took the opportunity to fly to British Columbia. I sat down with the Nisga'a and our justice lawyers to look at a mapping of the respective area. Those boundaries are protected within the Nisga'a area. We are certain that they do not violate the historical pathways, fishing or hunting territory of any of the other affected parties.

In those areas that are under question, and there is a grey area, the Nisga'a have said that they are willing to sit down with the Gitksan Wet'suwet'en and the Gitanyow to discuss it. They recognize that there are familiar relations which go back historically. They are not disputing them. They want to sit down and reasonably negotiate. Why does the hon. member want to divide those people and end up going to court again?

[Mike Scott, Reform, Skeena, BC]

Mr. Speaker, I rise on a question of privilege. I think the parliamentary secretary in his intervention has led Canadians and people in my riding to believe that the Gitksan and the Gitanyow people are not my constituents. They are very much my constituents.

It is very important that my job as a parliamentarian is accurately represented. I do represent these people.

[The Deputy Speaker]

I do not think that is a question of privilege, but on the other hand the hon. member has made his point.

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Mr. Speaker, may I make several prefatory comments to correct the record as it has emerged to date.

The Nisga'a treaty is not a template for the remaining 50 treaties in British Columbia. This point was politically made by the premier of the province and later withdrawn. We recognize the Nisga'a treaty rests on its own special historical facts. All the other treaties will have a similar factual record.

As far as the Nisga'a treaty is concerned one of the key factors in its rapid negotiation in these last few years—it had been 100 years in the making—was an essentially highly pragmatic leadership on the part of the Nisga'a people and a spirit of give and take and the absence at the time the negotiations were in full play, and I stress this, of countervailing interests concretely expressed. However it was always envisaged that this and other treaties would operate within the constitution and the rule of law and that the ordinary legal remedies apply.

I would also like to say on behalf of the very great former member for Westmount that there was nothing in Prime Minister Trudeau's approach that was incompatible with aboriginal rights. Quite the opposite. He rejected the pathological nationalism that there was in Europe between the two world wars. He was a strong believer in minority rights and in fact sections 25 and 35 of his celebrated charter of rights are as a result of his accepting that they must be there. They are provisions that preserve aboriginal rights such as they are. He envisaged also that it would left to subsequent constitutional testing to determine their precise ambit and limit in concrete cases.

Let me make some comments on judicial review. The member for Sydney—Victoria earlier in the debate made the comment that there are ironies and contradictions here. I have heard, I think, several semesters of debate on the evils of judicial review and judicial activism. I wrote my first book on judicial review and judicial activism. It is always interesting to find people converted on the road to Damascus, and I welcome that. I would not reproach that to anyone.

Let me simply say that judicial review and judicial activism do not exist in isolation. There are not very many cases in Canadian law establishing the parameters, but it is well established in the jurisprudence of the World Court. In one recent case in which I gave free advice the court quite properly said even on an advisory opinion jurisdiction that it must consider standing to sue. It rejected an intervention by the World Health Organization, although accepting one by the UN General Assembly on the issue of the legality of nuclear weapons.

More specifically and in this context even in a specific case controversy there are limits to what courts with the proper respect that they do exercise to co-ordinate arms of government, like the executive and the legislature, may do and how they may do it. In the recent ruling, admittedly by a single judge of the Supreme Court of British Columbia, the court has rightly established that the issue raised on the Nisga'a treaty was premature in legal terms, that it was not ripe for adjudication, that the issue was moot, that it should at least wait on the adoption of the relevant federal and provincial legislation.

I have not any doubt that would be the position of the Supreme Court of Canada. In fact when I looked at the motion here as it is given, with a certain degree I guess of poetic enthusiasm, I would wonder myself about any court ruling on usurping, diminishing, subrogating or other Latinisms of that sort, in the absence of a concrete factual record.

We have reached the situation of how and when native rights are defined. It is not expected that the treaties are the last word. They are the beginning of an empirical case by case development in concrete situations. What is good and sensible for the Nisga'a may need to be re-examined in the context of highly urbanized settled areas such as exist in Vancouver, Kamloops and Victoria. This will be done in the treaty making process.

Turning to the compatibility or the reconciliation of the treaties with sections 25 and 35 in which I have a special interest, Senator Perrault and I gave advice to Prime Minister Trudeau on sections 25 and 35 and suggested their inclusion in the charter. It is always envisaged that there will be in the spirit of the common law an empirical case by case development in the concrete factual record of specific problem situations.

The law is not frozen once and for all, for all time. We have gone beyond provincial-federal constitutional compartment theories. We recognize, in the spirit in which Lord Sankey established through the privy council 65 years ago, that the constitution is a living tree. It has constantly to be adjusted to changing circumstances.

However we do not do that in abstract. We do it in concrete cases. The case controversy is crucial.

A number of us were involved in a negotiation within parliament, making parliament work. New problems arose in connection with Bill C-49 that were brought to my attention after the all party committee had made its unanimous report. We have laboured with the Senate and others. The Senate has come up with a suggestion for the amendment of Bill C-49, which will be coming back to the House, that certainly renders it more compatible with common law principles and the charter of rights.

Some things were left out, for example the status of native women. It is not a concrete issue in the case of the Nisga'a but it will undoubtedly arise in the case of some treaties within the Vancouver area. I anticipate those will go to the court when particular persons and interest groups say that they are concerned about this and we will get a ruling.

The whole process of treaty making rests on Jeremy Bentham's principle that the law is not made by judge alone but that it is made by judge and company. The treaty making process involves the executive arms of government, parliament and the provincial legislature legislating to implement and the courts ruling on it when necessary.

There is nothing in the record of the negotiation of treaty rights to date that is incompatible with the constitution. It is all subject to the constitution and the charter of rights. There are sections 25 and 35. See the accommodation made by all members of parliament and in the Senate in relation to Bill C-49 after hearing representations from a very wide section of the Vancouver community. These accommodations helped to bring the general principles in a pragmatic orientation, in line with the large constitutional principles and the rule of law.

I would suggest to the members of the opposition that the motion is premature. In my view it would interrupt the principle of comity which courts and others owe to co-ordinate arms of government to the executive that is charged with the negotiation of a treaty. Let it do its work. Parliament is charged with the business of implementing the treaty in concrete legislation.

If and when in the concrete legislation it is demonstrated that there is a concrete clash of interest between persons or groups within the community, then take it to the courts. I have always argued that the justice ministry should help finance such cases that raise general constitutional issues. It was done and was dropped in budget austerity measures earlier in the term of this government and it could be revived. It is a constant, dynamic process of making law compatibly with the constitution and the charter of rights.

I invite all members of the House to co-operate in that process. I thank those who have intervened in the debate, sometimes with asperity, but I take notice of the fact that it was said on both the opposition and government side that feelings were strong. We tolerate asperity when it is in pursuit of good cause.

[John Duncan, Reform, Vancouver Island North, BC]

Mr. Speaker, I have a very quick question for the member. Why is the government prepared to give to the Nisga'a powers it is not prepared to give to the province of Quebec?

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Mr. Speaker, the hon. asks a leading question that certainly goes beyond the legislation or the treaty. The province of Quebec is in its own process through its present government of asking for certain measures which the government considers not in accordance with the constitution. I know of no parallelism between what is now being proposed under the Nisga'a treaty and what, as I understand from the record, the province of Quebec is asking for.

I have said before that the Nisga'a treaty and all subsequent treaties are subject to the constitution and to the rule of law. It was our belief in relation to Quebec proposals that they were beyond the constitution. That caused us to say that if there is any further referendum on this issue we would insist on drafting a question and on having the language corrected to show that fact, so people can determine it. If and when an affirmative referendum arises, it will be political judgment whether to respond to it.

[Jim Abbott, Reform, Kootenay—Columbia, BC]

Mr. Speaker, the Nisga'a agreement, as it is currently written, gives the Nisga'a the ability to determine their own citizenship. I assume that would be something none of us would want to give to the Bloc or to the separatist faction in Quebec.

My question is exactly the same as my colleague's. There are many aspects of the Nisga'a agreement that would be very favourably accepted by the people of Quebec who desire to see Quebec as a separate state. Let us be specific. Why would we be extending to the Nisga'a the ability to determine their own citizenship when, if we received the same request from the separatists in Quebec, and I am sure we would, we would not give it to them? What is the difference between those two things?

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Mr. Speaker, to repeat again, the Nisga'a treaty and all subsequent treaties are within the constitution and the rule of law the constitution represents. Any definition made of citizenship is subject to judicial review and subject to the constitution, as well as other constitutional provisions.

What Quebec may or may not propose is another matter. However, if proposals are made that involve a conflict with the Constitution of Canada as it exists, then our position is very clear, we would approach that as a request to depart from the constitution and we would treat it accordingly. The Prime Minister has made his views very clear on that.

[Lee Morrison, Reform, Cypress Hills—Grasslands, SK]

Mr. Speaker, I want to continue to pursue the same issue that has been raised by my colleagues. Specifically, the only power that has been asked about up to now is citizenship. However, the member knows full well that in the Nisga'a treaty there is provision for overriding power, a power superior to that held by the provinces and this government with respect to, for example, fisheries, wildlife, adoption, culture and language, expropriation powers, health services, family services and education. By any definition that is a country. Again I would ask the hon. member, why is it more acceptable or equally acceptable to have a mini-state within Canada than it would be to have Quebec as a macro-state beside Canada?

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Mr. Speaker, once again we are using coloured language, coloured words. We should stick to the text of the treaty and the basic assumption, which is not questioned, by the way, by the Nisga'a, the provincial government or the federal government, that it operates within the constitution and subject to the constitution. On the only thing remaining in relation to the Quebec government, we can consider on the merits what is being proposed, but if Quebec takes us out of the constitution, then we recognize that a fundamental change has occurred. The difference is as between night and day in the two situations.

[Randy White, Reform, Langley—Abbotsford, BC]

Mr. Speaker, it is a pleasure to be debating this issue today. Coming from British Columbia I know full well the extent of the problems that many people perceive in aboriginal land claims, in particular the Nisga'a agreement because of the precedence it will set for all of us.

My riding in particular has several small aboriginal bands, and there are land claims involved. It is not as big an issue as it is in some areas, but more and more people in my community, which is a good mix of rural and urban, are concerned about their private property and how it will be affected by aboriginal land claims, in particular the Nisga'a agreement. Many of the things my colleagues have said are very serious considerations that people in my community are wrestling with. For anybody in the House to think this is some kind of political debate to score points is very incorrect. Some of us happen to be closer to the problem than many realize.

Since I am not directly in the Nisga'a area, I am on the lower mainland of B.C., I choose to speak to this from a fiscal point of view. Being an accountant, I suppose I would revert to that in this case. I have always been interested in the consequences of the fiscal assumptions that have been made in many land claims, not just the Nisga'a. However, the Nisga'a concerns me greatly because of the enormous number of dollars and cents that are bantered around by provincial and federal governments. What scares me more than anything is that I do not think anybody really knows the exact parameters of the agreement.

How do we possibly settle an agreement with anybody in this day and age when the exact parameters of that agreement are not known financially, in particular since we are talking hundreds of millions of dollars; not $10,000 or $20,000, but hundreds of millions of dollars?

I want to talk from my perspective of the political problems in British Columbia, where we have the most unpopular NDP government in North America at the moment. It is a government which was elected by 38% of the people, much like the Liberals over there. It does not really represent the majority of the citizens in its area, whether it is the Liberals from the federal point of view or the NDP from a provincial point of view. If that is the case, the way through that to make sure that a government has a mandate from all of the people, because it has such a minority—

[Lou Sekora, Liberal, Port Moody—Coquitlam, BC]

What kind of votes did I get?

[Randy White, Reform, Langley—Abbotsford, BC]

The member for Port Moody—Coquitlam—Port Coquitlam is trying to harass me. Can hon. members imagine that? Boy, am I ever afraid of this fellow.

[Lou Sekora, Liberal, Port Moody—Coquitlam, BC]

You are talking about 38%. State the facts.

[Randy White, Reform, Langley—Abbotsford, BC]

Some loser from Coquitlam comes in because he got lucky in a byelection and he thinks that I am afraid of that.

When a government is elected with 38% of the vote, it would be well advised, whether it is federal or provincial, to go to a referendum and get a mandate.