House of Commons Hansard #31 of the 37th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was plan.

Topics

Questions on the Order Paper
Routine Proceedings

3:25 p.m.

The Speaker

The hon. Leader of the Opposition on a point of order.

Points of Order
Routine Proceedings

November 25th, 2002 / 3:25 p.m.

Calgary Southwest
Alberta

Canadian Alliance

Stephen Harper Leader of the Opposition

Mr. Speaker, this is, as I am sure members opposite will point out, my third point of order in regard to the government's motion on the Order Paper in which the House is being asked to call upon the government to ratify the Kyoto protocol.

However, unlike my two earlier points of order, one on which the Chair has reserved, my argument here is not that the motion is not properly on the Order Paper and should not be received by the Chair, but rather that even if it is properly on the Order Paper, it cannot be brought on for debate at this time.

Mr. Speaker, I know you have reserved on a previous matter, but this matter comes down to whether we can proceed at all today.

The issue on this point of order is that the government has failed to follow critical customary practices of the House. In particular, it has failed to ensure that accompanying any motion asking that the House call upon the government to ratify a treaty, that the treaty be properly laid before the House.

Professor Peter Hogg, one of the leading constitutional scholars in Canada, when speaking about the practice of government seeking parliamentary approval for ratification of a treaty, states at pages 11-4 and 11-5 in the latest edition of his Constitutional Law of Canada :

The government will lay the treaty before Parliament and move a resolution in each House approving the treaty.

The motion before us is the government's attempt to move the necessary resolution, but the government has not actually laid the treaty before the House.

As you know, Mr. Speaker, whenever Canadian rules of parliamentary procedure are silent on a matter in terms of either our standing orders or Beauchesne's and others, it is open to you to look to the authority and practices of the British House of Commons. In that regard, I would refer to page 251 of Erskine May, 18th edition, which states:

When a treaty requires ratification, the government do not usually proceed with ratification until a period of 21 days has elapsed from the date on which the text of such a treaty was laid before Parliament.

In this case, the government has not laid the text of the Kyoto protocol before the House. Therefore, I would submit that even if the government has properly placed this motion on the Order Paper, it is not open to the House to proceed to consider it until the text of the treaty is laid before us and 21 days have expired after the government has done so.

Erskine May also talks about this 21 day rule not applying in a situation where there is a national emergency concerning the ratification of a treaty, but this obviously is not the case here, notwithstanding the Prime Minister's sudden post-August rush to get ratification.

Therefore, the motion cannot be taken up for debate at this time because the government has not followed the necessary steps in order for the House to consider it.

Points of Order
Routine Proceedings

3:25 p.m.

Canadian Alliance

Bob Mills Red Deer, AB

Mr. Speaker, I would like to contribute to my leader's point of order with regard to the tabling of the Kyoto accord.

I would like to caution the government about observing procedural matters. It is our responsibility to ensure that procedural requirements are observed since the courts have the legal power to enquire into the procedural history of any matter that has been dealt with by Parliament. On page 186 of Joseph Maingot's second edition of Parliamentary Privilege in Canada it states:

It is said that “the courts might be effective in ensuring the observance of procedural requirements...”

When we knowingly cast doubt upon the legitimacy of our proceedings we place the entire institution under a cloud. As the House is aware, international co-operation was established under the 1992 United Nations framework convention on climate change and the Kyoto protocol of 1997, named after the city in Japan where the agreement was negotiated.

This all began in 1988 when the intergovernmental panel on climate change established internationally agreed upon assessments of the science of climate change, including causes, impacts and possible responses.

On September 2, 2002, the Prime Minister announced at the world summit on sustainable development that the Parliament of Canada would be asked to vote on the ratification of the Kyoto protocol before the end of the year. The Speech from the Throne on September 30, 2002, also referred to the introduction of a parliamentary resolution before the end of the year.

While the federal executive has the authority to sign or ratify any international treaty the authority to implement it must be found within domestic Canadian constitutional law.

All legislative power in Canada is divided between the federal and provincial governments. If the two levels of government agree to implement Kyoto or any other treaty, they can do so. However previous environmental treaties and agreements have generally been implemented through legitimate federal-provincial co-operation.

The government is faced with many obstacles with the Kyoto protocol: constitutional obstacles, procedural obstacles and political obstacles. We need to see the treaty before we can properly address the procedural and political obstacles. Political arguments and constitutional arguments will continue to be made in the weeks and months ahead. We need to settle the procedural requirements before proceeding with the motion to ratify the Kyoto protocol.

The procedural arguments made by the Leader of the Opposition are well taken. We must ensure that the House observe the procedural necessities involved with such a treaty.

In order to consider a treaty that must be ratified the federal government must have the domestic constitutional jurisdiction to either undertake the required actions or to pass the required legislation. The government must respect the convention that the treaty be tabled in the House so that members, as legislators, can completely consider the ratification, implementation and financial aspects of the treaty. The House is not prepared to sign a blank cheque.

It has been demonstrated that the motion to ratify the Kyoto protocol is out of order for at least two reasons: it violates a previous order of the House; and it violates the convention that requires the treaty to be tabled in the House. Our whip will rise later on a separate point of order.

Points of Order
Routine Proceedings

3:30 p.m.

Progressive Conservative

Joe Clark Calgary Centre, AB

Mr. Speaker, I want to join the discussion briefly to support the position put forward by the Leader of the Opposition and the member for Red Deer.

There is no question that the practice is well established that treaties that are to be approved by this Parliament are presented to Parliament before approval is sought. There is a reason for that and it is well worth our considering the consequences of departing from that practice.

Will the real treaty come back to this House? We know that what is being discussed now is a concept; a notion ill-defined. No one knows its impact, but presumably if a protocol were to be signed with agreement of provinces and appropriate cost estimates, there would then be a requirement for the government to bring that back to the House.

Will it be the same treaty as we are dealing with now? If it is different, then we are being asked to agree today to what becomes a nullity. We are being asked to vote in favour of something that we know will change and disappear. That shows a profound disregard for the House of Commons. It is a waste of time of the Parliament of Canada and it creates false expectations among the people of the country.

The Leader of the Opposition has raised a point that is solid on two grounds. It is solid in procedural terms, a fact which is clear. The treaty has been made available before we have been asked to vote for it and it is solid on the grounds of simple common sense. We do not want to be dealing with a nullity, with something that will change and disappear. There is every reason to believe that whatever is on the mind of the Minister of the Environment, and no one knows, will change. The minister suggests that his simple speaking will inform us. We all know better than that. We have heard the minister speak before, but whatever is on his mind will undoubtedly be different from the ultimate protocol that is approved and signed by Canada.

Points of Order
Routine Proceedings

3:30 p.m.

Halifax West
Nova Scotia

Liberal

Geoff Regan Parliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, I am sure my hon. friends will agree with the advice I received earlier today that I should rest my voice today. I am unable to do so, unfortunately, because we have so many procedural motions being brought forward. Members would not be that surprised, Mr. Speaker, if, as these went on and on, and we had more of these, that your patience for the length of the interventions might diminish.

However, in this particular instance the hon. leader of the Alliance has brought forward another attempt to derail the Kyoto debate. What he has talked about, referring to Erskine May, is in fact what in the British House is called the Ponsonby procedure. This procedure has been followed in the United Kingdom since the 1920s, but it has never been adopted in Canada. That is the point. He is trying to suggest that the procedure here is quite different from what it is. It is not the practice in the House to follow the Ponsonby procedure that was adopted in Britain. If he had done his homework, he would have known this.

He has tried to ignore a few facts. In today's issue of the Hill Times there is an article on page 2 by Paco Francoli about this matter. He suggests that the Leader of the Opposition had left out some key facts in his argument. The article says:

To build his case, he invoked Maurice Copithorne, a law professor at the University of British Columbia...stating that governments “would normally only ratify a treaty after any enabling legislation has been passed.” But in a telephone interview last Thursday, Mr. Copithorne, although admitting that the current practice is “to submit legislation where it's required before ratification”, said the trend doesn't apply when it comes to environmental treaties which are phased in over a number of years, as is the case with Kyoto whose targets won't be met until 2012.

Does he mean to tell me that he has not read this article or that he is simply ignoring the facts that are readily available to him and ignoring the statements of the very authorities that he is quoting in these spurious points of order.

Points of Order
Routine Proceedings

3:35 p.m.

The Speaker

Once again the Leader of the Opposition has raised a point. I note on both sides the dearth of citations of Canadian practice in this regard. There is nothing in the authorities or in the Standing Orders of the House, and any of the Canadian authorities that I have been able to find in the few minutes that I have been looking at this, that indicates that there was any requirement, that before debating a motion of this kind, that the document be tabled.

Certainly, were the House adopting legislation to implement a treaty, there might be an argument that the treaty itself would have to be before the House or at least on the Table of the House. Normally legislation refers to the treaty and the committee considering that legislation would naturally have a look at the treaty. But in this case the motion before the House is not to implement anything. It calls upon the government to ratify the Kyoto protocol on climate change.

In other words, it does not itself ratify the protocol. It calls upon the government to do it, which of course is why we are having this argument. I am sure we will hear later in the debate as to how the government will get authority to do this, but the position of the government has been that it has the right to do it. It is seeking parliamentary approval and this is a motion, by the House, to call upon the government to ratify.

Accordingly, I do not know why the British practice would apply since we are not by this motion implementing this accord. The government could, even after the House called upon it to ratify, refuse to do so and I am not sure what the House could do about it having made the call. The call would be made and the government could do what it likes in any event under the Constitution and under the circumstances.

While I have some sympathy with the argument advanced by the hon. Leader of the Opposition, in the circumstances I do not think that Canadian practice supports his argument that such treaties must be deposited in the House for 21 days before the House can debate a motion calling on the government to ratify the treaty. Accordingly, I do not find the point of order well taken and propose to put the motion to the House.

Kyoto Protocol
Government Orders

3:35 p.m.

Victoria
B.C.

Liberal

David Anderson Minister of the Environment

moved:

That this House call upon the government to ratify the Kyoto Protocol on climate change.

Kyoto Protocol
Government Orders

3:35 p.m.

The Speaker

Before we proceed with debate, we have a point of order from the hon. member for Wetaskiwin.

Points of Order
Government Orders

3:35 p.m.

Canadian Alliance

Dale Johnston Wetaskiwin, AB

Mr. Speaker, my point of order is in regard to the rule of anticipation with respect to the government motion on the ratification of the Kyoto protocol.

I would like to make the point of an argument made by the government House leader three weeks ago regarding a supply day motion dealing with secret ballot elections of a committee. He was arguing the rule of anticipation. It is an argument that I believe applies to the government motion asking the House to ratify Kyoto. The difference is that my points relate to the rule of anticipation and the government House leader's point dealing with the supply motion on secret ballot election at committees did not.

The government leader argued that the secret ballot motion could not be considered by the House because of the rule of anticipation. In that case we were faced with two motions dealing with secret ballot elections. In that case none of the motions had been decided yet by the House.

In the case I present to today we have a clear decision from October 24, 2002.

The government House leader quoted Marleau and Montpetit from page 476 dealing with the rule of anticipation and he said, “a motion could not anticipate a matter which was standing on the Order Paper for further discussion”. He failed to mention that at the top of page 476 it states that the rule of anticipation is no longer strictly observed with respect to two motions sitting on the order paper.

However the last paragraph on page 476 of Marleau and Montpetit states:

The rule of anticipation becomes operative only when one of two similar motions on the Order Paper is actually proceeded with. For example, two bills similar in substance will be allowed to stand on the Order Paper but only one may be moved and disposed of.

That is the difference between the government House leader's flawed argument of October 31 when he tried to derail a Canadian Alliance supply motion and the two motions dealing with Kyoto. I am referring to the supply motion from October 24 and the government motion currently on the order paper today.

The supply motion from October 24 dealing with Kyoto was moved and disposed of. The House decided that it would not ratify the Kyoto protocol until there was a plan Canadians understood and that set out the costs and the benefits. The House cannot be seized with a second motion until those two conditions have been met.

The government House leader presented a Speaker's ruling on October 31 by Speaker James Jerome from November 14, 1975. I thank him for that ruling because it substantiates the point of my argument today.

The ruling involved an opposition day motion that was similar in subject matter, only the subject matter not the same text, to a bill that had received second reading and had been referred to a committee.

As I said, the government House leader has helped demonstrate the difference between the circumstances of October 31 and today. On October 31 no decision was taken. Today's circumstances are in line with the ruling he cited from November 14, 1975. The Speaker ruled that since a bill had received second reading the supply motion was out of order.

Here we have an identical scenario but in reverse. Since the opposition motion dealing with Kyoto from October 24 was adopted, the government motion dealing with Kyoto cannot be moved. I would like to add that the motion adopted on October 24 was adopted unanimously.

The question of confidence is not an issue. The government's motion however has been designated a motion of confidence by the Prime Minister. This poses a problem for the House because the October 24 resolution reflects the true will of the House.

Members freely determined that until certain conditions were met the House would not ratify the Kyoto protocol. Notwithstanding the fact that the conditions from the October 24 resolution were not met, the government has given notice of a motion to ratify the Kyoto protocol and the Prime Minister has declared the motion a motion of confidence.

As you are no doubt aware, Mr. Speaker, the McGrath committee of 1985 studied the confidence convention and it was concluded that only explicit motions of confidence, or matters central to the government's platform, should be treated as confidence. All references to confidence were expunged from the standing orders to regulate the functioning of Parliament.

The government motion calling for the ratification of the Kyoto protocol is not worded as a motion of confidence. It is only considered confidence because of the designation the Prime Minister gave it. This designation is an admission by the Prime Minister that the conditions contained in the resolution of October 24 have not been met. If they were, he would let the House determine on its own whether the conditions have been met. The Prime Minister is using coercive tactics to try to usurp a previous decision of the House, a decision that was brought about freely.

He is threatening the Liberal Party with political suicide if he does not get his way. Going into an election under his leadership and the Kyoto protocol as an election issue would reduce the Liberal Party to a rump in the House of Commons. I am having a hard time deciding whether that is a good thing or a bad thing.

The government motion deals with the Kyoto protocol. Dealing with that protocol is out of order.

With respect to the point of order of the Leader of the Opposition and the word, “should”, the Oxford Dictionary , ninth edition, defines the word as, “to express a duty”. In other words, an obligation.

Mr. Speaker, I refer you to page 63 of the 22nd edition of Erskine May. It talks about the principles that govern the conduct of ministers of the crown in relationship to Parliament. It states, “ministers have a duty to Parliament”.

I think it is very clear that the government has a duty to Parliament. The motion of October 24 provided a duty and it failed to comply by introducing a motion to ratify the Kyoto protocol before there was a plan that Canadians understood. I do not think one Canadian in a thousand understands the Kyoto protocol. It also has not set targets, benefits and costs.

The other consideration is the fact that the motion is concerned with the House and not the government. I would think that the House would have more respect for itself than the government would care to have. The enforcer of the rights of the House is the Speaker, therefore the Speaker will have to decide if he has a duty or obligation not to allow the motion to ratify the Kyoto agreement to be put to the House.

We are talking about a resolution adopted by the House, not a shady deal written on a napkin. Mr. Speaker, I leave it with you.

Points of Order
Government Orders

3:45 p.m.

Halifax West
Nova Scotia

Liberal

Geoff Regan Parliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, I must say first that the patience you are showing with these ongoing points of order, put spuriously maybe, is truly admirable.

To begin with, I would suggest that this is really the same point of order that you dealt with earlier on the question of “should” and “ought”, and the fact that the motion of October 24 has already been dealt with.

I want to quote from Marleau and Montpetit at page 476. It says:

While the rule of anticipation is part of the Standing Orders in the British House of Commons, it has never seen so in the Canadian House of Commons. Furthermore, references to attempts made to apply this British rule to Canadian practice are not very conclusive.

My hon. friend has quoted from some other parts of the same section.

I think there is a key thing to this question, but I want to first say that the motion of October 24 has been disposed of by the House. Second, the substance of that motion was very different. The key substance of the motion really had to do with whether there ought to be an implementation plan. The motion in fact used the word, “should”, that there should be an implementation plan.

My hon. friend has quoted very selectively from the Oxford Dictionary . Let me provide a little more illumination on the definition of the word, “should”. It does not just say it is to express a duty. In defining the second definition of “should”, it says, “to express a duty, obligation, or likelihood”, and then it says equals “ought”. In other words, it means ought. It does not mean that we have to do this or that we are compelled to do this. It means that we likely or ought to do this. As you said, Mr. Speaker, it is the Oxford Dictionary .

It seems to me that they are trying to find all kinds of reasons to delay and avoid this debate.

Points of Order
Government Orders

3:50 p.m.

Canadian Alliance

Bob Mills Red Deer, AB

It's just a matter of honesty.

Points of Order
Government Orders

3:50 p.m.

Liberal

Geoff Regan Halifax West, NS

They are saying that it is just a matter of honesty. If they were really being honest about this they would stop this nonsense, stop these shananigans and let the debate go forward.

Points of Order
Government Orders

3:50 p.m.

NDP

Brian Masse Windsor West, ON

Mr. Speaker, I want to quickly comment. I think we should get on with the debate. I think parliamentarians can add to at least the understanding and both sides can contribute to something about the whole public debate that is happening. The series of procedural tactics that have been happening here with people actually having to resort to dictionaries in terms of interpretations of specific words is what makes the public skeptical about the work that we are doing in the House.

I think of Mike Harris, for example, who read off all of the names of the lakes in Ontario to filibuster at one time. That just limits debate. I for one think we could probably add more to this public issue by participating with everyone else in the community. Going through the dictionary to interpret words is not helpful to Canadians.

Points of Order
Government Orders

3:50 p.m.

The Speaker

Once again the hon. chief opposition whip has raised a point of order dealing with the admissibility of the government motion that is before the House respecting the ratification by the government of the Kyoto protocol. I appreciate the contribution made by the hon. government House leader, the hon. member for Windsor West, to the discussion.

I will ignore the arguments about the word “should”, which I dealt with earlier today. I think that matter, as far as the Chair is concerned, is res judicata and I will not get back into that argument.

However I will deal with the argument concerning the rule of anticipation, which the hon. chief opposition whip raised, of course bearing in mind a recent ruling on this very subject by the Chair in respect of an argument brought by the government House leader in respect to the admissibility of an opposition day motion on October 31.

I think it is important to note that what the Chair said that day was of some significance.

Points of Order
Government Orders

3:50 p.m.

Some hon. members

It always is.