House of Commons Hansard #19 of the 38th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was agreement.

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The House resumed from October 29 consideration of the motion that Bill C-14, an act to give effect to a land claims and self-government agreement among the Tlicho, the Government of the Northwest Territories and the Government of Canada, to make related amendments to the Mackenzie Valley Resource Management Act and to make consequential amendments to other acts, be read the second time and referred to a committee.

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11 a.m.

Conservative

Dick Harris Cariboo—Prince George, BC

Mr. Speaker, I am pleased to speak to Bill C-14, the Tlicho act, which would give the force of law to an agreement between the federal government, the Northwest Territories government and the Tlicho First Nation that was signed on August 25, 2003.

The agreement gives the Tlicho First Nation ownership of approximately 39,000 square kilometres between Great Slave Lake and the Great Bear Lake and participatory-regulatory authority over even a larger area.

The agreement is unique in that it involves both a land claims settlement and a self-government agreement. It creates a precedent for the approximately 600 first nations that may seek similar provisions in their own agreements.

Every day in our opening prayers we pray that this Parliament will be given the power and wisdom to make good laws and wise decisions. That is what we all want in the House. That is what we want for our country and for people.

While the Conservative Party of Canada supports the settlement of the Tlicho land claims and a self-government agreement, we have concerns about five issues in the agreement. I go back to the ability of Parliament to make good laws and wise decisions. I want to go over the five issues in Bill C-14 that we find of particular concern.

First, it is not a final agreement. It contains a clause to reopen negotiations if another Northwest Territories aboriginal group negotiates terms that are attractive to the Tlicho in a future agreement. It fails to do its most basic job, which is to achieve a final agreement.

The fundamental goal of any agreement should be that it has some finality. In negotiating a treaty settlement and a land claims and self-government settlement, what benefit could it be to Canada to have open-ended agreements in force that could be reopened at any time? In this case, in the event that another Northwest Territories first nation negotiated an agreement with the federal government that was seen by the Tlicho band to be better than the one it signed, under the terms of this agreement it could simply reopen negotiations. That is not the way to have a good agreement that would promote the unity and bonding of our country. An agreement must contain terms that are good for everyone involved in the agreement, not just the Tlicho First Nation, but indeed all the people of Canada.

We do not want to carry on a history that has been carried on by the Liberal government where it introduces legislation that does more to foster divisions in the country than to promote unity. That is what the Liberal government has been doing for decades. It is astounding when we hear the Liberal members talk about the mosaic of Canada and how we need to ensure that the laws we introduce are fair to everybody so that we can stand as a strong united government.

The Liberal government today and previous Liberal governments have introduced legislation again and again that promotes and fosters division, more than it tries to unify the country. They should be ashamed of their record. This is just another example.

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11:05 a.m.

Liberal

Wayne Easter Malpeque, PE

That is not correct. You know better than that.

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11:05 a.m.

Conservative

Dick Harris Cariboo—Prince George, BC

The members do not like to hear the truth. The history of Liberal legislation over the past several decades shows very clearly the fostering of divisions by the government and previous Liberal governments. They do not like it but they cannot deny it.

What is astounding is that Bill C-14 appears to recognize the right of the Tlicho First Nation to enter into international agreements and, in some cases, to stand in the way of Canada entering into international agreements. The agreement states that it does not limit the authority of the Tlicho to enter into international, national, interprovincial and interterritorial agreements. Further, it requires that the Government of Canada consult with the Tlicho First Nation before Canada enters into an international agreement that may affect the right of the Tlicho government, the Tlicho First Nation or Tlicho citizens. That is very broad and disturbing language and puts a remarkable restriction on the constitutionality reserved for a federal government.

We in the Conservative Party believe that the broad language of the agreement could impede the power of the federal government to enter into international agreements and agreements with the provinces in the event that the Tlicho First Nation were to believe that in some way it could affect its nation or one of its citizens.

We do not need agreements in this country that could be tied up in court challenges on an endless basis, which is why we must be very clear and concise with the language we use. We must do our best to ensure that words like “may, should, could, possibly, perhaps” or “maybe” cannot be applied to the language of the agreement and cause challenges to it. Our obligation to the people of Canada is to ensure that every piece of legislation or agreement that we enter into with the provinces, the first nations or any other peoples or territories do not use terms that cause doubt about the agreement that may lead to challenges on and on in the years to come.

The Conservative Party of Canada looks for agreements that have distinct language and very clear terms that should not be able to be challenged because of broad language that may cause people to believe they can interpret the language for their own terms. We have all the abilities to ensure that agreements are safe and sound and have safety nets within them for all people of Canada.

The electoral system within this agreement causes us great concern. People living in a new Tlicho First Nation government, living within those territories and under that jurisdiction, while they should still be under the jurisdiction of Canada as a whole, because all of the territories, all of the provinces and all of the first nations in our country are all part of Canada, they all must be covered and protected under the Constitution of Canada and under the Charter of Rights and Freedoms of Canada.

It appears to us that this agreement would create what could be described as a racially based electoral system. The agreement creates a category of citizen called Tlicho citizens who are the only people who may be elected as chiefs. Further, 50% of the elected council must be Tlicho citizens. This is arguably counter to our Charter of Rights and Freedoms. We must ensure that anyone living under the jurisdiction of the Tlicho self-government is treated fairly, equitably and in a manner that is governed and overseen by the Constitution of Canada and the Charter of Rights and Freedoms as it applies to every other individual in Canada.

Another point I would like to make is the agreement contains similar languages to what I believe will create a problem down the road. It appears to be giving governing powers within our country which in some respects, and even one is too many, would allow the formation of another country or nation within the Canada. It would have powers that would supersede the powers of the Government of Canada, the Constitution of Canada and the Charter of Rights and Freedoms. We are very dangerously close in the agreement to creating a country within a country as we have been dangerously close on previous agreements.

The Liberals have talked about wanting to unite and have a unified Canada. If there is any doubt they have said that, one only has to look at their attempts in the sponsorship issues going on right now. One only has to see how much money they spent, in many cases under suspicion, but that is another story. They talked about how important it was to have a total Canada, including Quebec and including every people in this country, no matter from where they came, Canadian citizens or landed immigrants, a Canada that was unified. We are in danger once again, as we have been on past agreements dealing with first nations. The terms of the agreements gave rise to fear that we could be creating a country within a country, enclaves within a country, apartheid, a partition, because of the lack of common sense and the use of broad language in the agreements that we have entered into.

When I believe a divisive type of legislation is being applied to people of the country, I am very happy to say that I have had the opportunity to speak against it. This is another example to which I am proud to speak.

The agreement is jurisdictionally confusing as well. I just talked about this. The agreement describes three different hierarchies to determine which legislation is paramount in the event of conflict: the federal legislation, the territorial legislation, Tlicho laws or the agreement. It is not clear that the Tlicho citizens will have the benefits of protection under Canada's Charter of Rights and Freedoms in the even of conflict with the Tlicho constitution.

It just amazes me how the government could allow such open-ended language in such an important document. We are trying to create a self-governing environment for the Tlicho nation, one that will give it the confidence that it can do some long terms planning and one that will give Canadians confidence that the issue will now be settled. It will be one that we will not be looking at over and over again as we go down the road into the future. It will be one that we will not be faced with constant challenges and confusion about who has the authority.

Canada has the authority. Canada is the federal authority to run the country. It creates laws. It delegates authority to provinces and to territories. Authority that the federal government delegates away must be an authority that is good for all Canadians and good for the agreement. It should not give rise to questions in the future.

I remember speaking to the dangers of Bill C-68, the infamous gun registration bill, when it came into the House in 1995. I asked then justice minister, Allan Rock, if he would tell Canadians whether Bill C-68 and the regulations contained therein would apply to every single Canadian. It was a simple question. We had been hearing from the Liberals for several weeks that Bill C-68 was a law for all Canadians and everyone would be included under the regulations. New parliamentarians in the House will hear the following type of responses from ministers. The justice minister said, “Bill C-68 is universal in its application”. That was okay because it would apply to everybody. He then said, and it is in Hansard , that it would be “flexible in its implementation”. In other words, it would apply to everyone but it really would not.

Bill C-14 is proof positive that we were getting double talk back in the days of Bill C-68. The agreement specifically gives the Tlicho first nation authority and power to make its own laws over firearms and ammunition. Therein is the comment the minister made back then, “flexible in its implementation”. It never was meant to apply to everyone. Time and time again we have seen the government delegate authority to first nations to govern their own firearms and ammunition regulations.

Bill C-68 then becomes what could be called race-based legislation because it applied to one group of Canadians but not to another. That is very dangerous. Why would we want to foster divisions rather than promote unity? Every Canadian is as valuable and equal to every other Canadian and should be treated the same under the same laws and under the same Constitution and Charter of Rights.

The Conservative Party of Canada believes that self-government must occur within the Constitution of Canada, but it must have a finality to it, it must have clear language and it must have absolute terms. We cannot have terms in broad language that would lead to interpretations down the road once the agreement was signed.

To ensure fairness and equality, a Conservative government would ensure that the principles of the Charter of Rights applied to aboriginal self-government. The least we can do for our first nations people in Canada is give them equality, protection under the Charter of Rights and the Constitution and assure them, by signing agreements with them, that they are equal and as valuable as any other citizen in the country. We are a unified Canada, not one where divisions are fostered by a government.

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11:20 a.m.

Conservative

David Tilson Dufferin—Caledon, ON

Mr. Speaker, my colleague spent a great deal of time on clause 5, which deals with the issue of paramountcy. In other words, if the Tlicho pass some legislation, it is paramount to federal, provincial and any other type of legislation.

This makes me think of that old political maxim that all people are created equal, but some people are more equal than others. Would my colleague elaborate a little more on this? Why should one group of people have more rights than another group of people?

My friend spent a great deal of time talking about the charter in which we are all supposed to be equal. Clause 5 is the most glaring of all the sections in the bill. The legislation makes one group of people more equal than others.

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11:25 a.m.

Conservative

Dick Harris Cariboo—Prince George, BC

Mr. Speaker, I go back to my earlier comments that it is historical that Liberal governments in Canada, including this one under this Prime Minister and when he was in cabinet before, have continuously introduced legislation that affected the people of Canada and fostered divisions in the country.

When the government was out on the election stump, it claimed that we were one great nation and that it wanted to ensure that people from coast to coast to coast received all the benefits and the attention of the federal government. That is just lip service when we compare it to the historical record of Liberal governments of fostering division. This is not what Canadians want.

When we sign agreements with first nations people, in my opinion and in my party's opinion, we want them to reflect the principle of equality in the country, that everyone is created equal and has an equal opportunity to create and improve a standard of life that is as good as anyone else. I believe people should not be deterred from that in any type of legislation. The job of the government is to allow Canadians the opportunity to live and prosper in safety, to raise families and to have adequate access to health care. That should apply to everyone.

In an agreement such as this those principles must apply to the agreement as to how it will affect the Tlicho first nation in the same manner that it affects every other Canadian. Provinces do not have the right to supercede the government on international decisions. Provinces are unable to successfully challenge the Constitution. There is a formula involved. Provinces cannot arbitrarily say that they have made a decision that something does not work for them and, notwithstanding the Constitution, then change it.

That is a provision in Bill C-14. In some cases it can be seen very clearly to supercede the Constitution of our country. We cannot have that. We cannot allow that to happen. Everyone must be governed by the Constitution of Canada.

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11:25 a.m.

Conservative

Art Hanger Calgary Northeast, AB

Mr. Speaker, I really appreciate that we are in the middle of this debate on the Tlicho agreement because there is so much that needs to be addressed.

I too have a constitutional question for my colleague in reference to this agreement. It does in fact seem to be creating a separate, almost sovereign, kind of region in our nation. I have always believed that self-government, when it comes to our aboriginal or native populations, would always be within the Constitution of Canada. That is the only way that fairness and equality can be ensured, and we can adhere to the principles of the charter as it applies to aboriginal self-government.

The whole issue of aboriginal government and the powers that are granted to it, if in fact it operates within the framework that it can collect its own revenues and reduce its dependency upon the federal government, is in the form of accountability. The self-government framework actually creates an accountability chain within its structure and the people all benefit from that accountability structure.

Could my colleague address that particular point? Where does the accountability factor lie within this arrangement or is there any accountability?

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11:30 a.m.

Conservative

Dick Harris Cariboo—Prince George, BC

Mr. Speaker, every agreement that the government enters into with anyone in this country, any first nation band or any province, must have terms within the agreement that certain things are going to be carried out.

There are jurisdictions that are delegated to provinces and there are jurisdictions that are delegated to first nations. In those delegations it is assumed that the terms of the agreement would be fulfilled.

I have been here since 1993 and this is one of several first nations self-government bills that have come before the House. Every time the question of accountability came up, there was the issue of accountability from the federal government as well as accountability from the first nation in order to stay within the terms of the agreement. There is a glaring lack of accountability.

In terms of self-government, we in the Conservative Party want the self-government goals to be completed with first nations across the country in respect of the Constitution of Canada.

Back in 1992, in the Charlottetown accord proposal, there was section after section that proposed to give first nations in this country powers of self-government that would supersede federal, provincial and regional authorities.

The people of Canada looked at that Charlottetown accord and they looked at that part of it. Debate after debate went all across the country. The Canadian people said no to that accord, as the House knows. They did not like the terms of it. They did not like the broad language. They did not like the further questions that it could raise in the future.

It was a good day for Canada when the Charlottetown accord was defeated. Since that day, since the Liberals were elected in 1993, slowly but surely, but invariably in every single first nations piece of legislation that has come to the House we have seen the Charlottetown accord provisions being inserted into those pieces of legislation.

The same Charlottetown accord provisions that were defeated by Canadians have been present in every single first nations legislation put before the House. The same provisions that were defeated by Canadians in a nationwide vote have surreptitiously been brought back in every piece of legislation by the Liberals.

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11:35 a.m.

Conservative

Michael Chong Wellington—Halton Hills, ON

Mr. Speaker, Bill C-14, the Tlicho land claims agreement, is worrisome. Before I get into the reasons why I believe it is worrisome let me first say that it is a generous agreement and so it should be.

It gives the Tlicho nation 39,000 square kilometres of land and grants it $152 million over 15 years. It recognizes that there has been no final agreement between the Crown and the Tlicho nation. In that respect, the fact that the government has attempted to address this inadequacy is also good.

However, there are two problems with this agreement. First, it erodes Canadian sovereignty, and second, the agreement lacks finality. Our party believes in aboriginal self-government but within the confines and framework of the Canadian Constitution. This agreement however goes well beyond that and grants self-government to the detriment of Canada.

This agreement has three chapters in it which are to the detriment of Canada's sovereignty. In this country we have two sovereign layers of government, federal and provincial, that along with the charter vest all the power in these three different areas. This agreement changes that fundamental structure of the sovereignty in this country to include a fourth level of sovereignty which is contained within this agreement.

The erosion of sovereignty has to do with two chapters in the agreement that deal with international treaties and one chapter in the agreement that creates a substantial amount of jurisdictional confusion which could potentially lead to erosion of Canadian sovereignty. The two articles in the agreement that I refer to that erode Canada's ability to be a sovereign nation have to do with international treaties. One is article 2.2.9 in the agreement which states:

Nothing in the Agreement shall be interpreted so as to limit or extend any authority of the Parties to negotiate and enter into international, national, interprovincial, and inter-territorial agreements.

This suggests by implication that the Tlicho government has the authority to enter into international agreements. Article 7.13.2 states:

Prior to consenting to be bound by an international treaty that may affect a right of the Tlicho government, the Tlicho first nation or a Tlicho citizen, flowing from the Agreement, the Government of Canada shall provide an opportunity for the Tlicho Government to make its views known with respect to the international treaty either separately or through a forum.

The right to enter into international treaties or agreements is the exclusive purview of the executive of the federal government. In this agreement, the inclusion of these clauses erodes that sovereignty and may have far-reaching and long lasting implications in decades to come.

The second area of this agreement which may erode Canada's sovereignty has to do with jurisdictional confusion that will be created because of articles 7.7.2 through 7.7.4. In these articles there is a hierarchy of authority that is prescribed, five rankings of authority which seem to conflict with each other.

We in this country, since Confederation and the Constitution Act of 1867, have had enough confusion about intra or ultra vires areas of jurisdiction when it comes to federal-provincial areas of jurisdiction. The last thing we need is to add another area of confusion into this relationship.

One of my questions for the government is, why did the government allow this erosion of Canadian sovereignty to be built into this agreement? International treaties are the exclusive jurisdiction of the federal government. Why would the federal government allow for a third party to have a say in international treaties when this authority is an exclusive area of federal jurisdiction?

I wonder whether or not this fits into the government's new framework of asymmetrical federalism where provincial cabinet ministers are allowed to speak at international conferences on behalf of the federal government. This seems to me to be playing right into that new framework.

My other question is, who speaks for Canada here? This is the federal government and it should be protecting its areas of jurisdiction and speaking on behalf of all Canadians, not slowly whittling away its authority through agreements and different approaches to international treaties.

Another area of concern in this agreement, as I mentioned before, is the absence of finality. One of the things that puzzles me about Bill C-14 and this agreement is that it is quite different from the Nisga'a final agreement that the government agreed to recently. The Nisga'a agreement was full and final. There are four sections I would like to read into the record from the Nisga'a agreement that illustrates this. Section 22 states:

This Agreement constitutes the full and final settlement in respect of the aboriginal rights, including aboriginal title, in Canada of the Nisga'a Nation.

Section 23 of the Nisga'a agreement states:

This Agreement exhaustively sets out Nisga’a section 35 rights, the geographic extent of those rights, and the limitations to those rights, to which the Parties have agreed--

Further on, in section 26, the Nisga'a agreement reads:

If, despite this Agreement and the settlement legislation, the Nisga’a Nation has an aboriginal right, including aboriginal title, in Canada, that is other than, or different in attributes or geographical extent from, the Nisga’a section 35 rights as set out in this Agreement, the Nisga’a Nation releases that aboriginal right to Canada to the extent that the aboriginal right is other than, or different in attributes or geographical extent from, the Nisga’a section 35 rights as set out in this Agreement.

Section 27 states:

The Nisga’a Nation releases Canada, British Columbia and all other persons from all claims, demands, actions, or proceedings, of whatever kind, and whether known or unknown, that the Nisga’a Nation ever had, now has or may have in the future, relating to or arising from any act, or omission, before the effective date that may have affected or infringed any aboriginal rights, including aboriginal title, in Canada of the Nisga’a Nation.

These four sections in the Nisga'a final agreement clearly indicate that the agreement was a final agreement between the Crown and the Nisga'a nation. Contrast that with the Tlicho agreement. The Tlicho agreement has quite the opposite. It has no finality built into the agreement. Article 27.6.1 of the agreement states that the Tlicho will receive equivalent benefits to those granted in the future to any other aboriginal group in the Northwest Territories whether by land claims agreement, self-government agreement, tax power exemption or legislation.

This contrasts directly with the Nisga'a land claim agreement. My question for the government is, why the change in strategy and why do one thing for one aboriginal nation and do another for another aboriginal nation?

What I find most disturbing about this whole thing is the point I first made, the absence of a strong stance from the government on its own erosion of its own sovereignty.

In reflecting on the agreement, I think the former Liberal leader, Mr. Trudeau, would be rolling around in his grave today if he were to see the type of asymmetrical federalism and the type of erosion of sovereignty that we have seen the government engage in over the last number of years.

Canada is a fragile nation with a fragile identity and the federal government must do all it can to preserve that identity and protect its own sovereignty to ensure that the nation can continue in decades and years to come. My fear is that the agreement sows the seeds of a country that will slowly but surely erode its own sovereignty, so that 50 years hence the federal government will be no greater than simply a coordinating body for different sovereign areas of jurisdiction within one geographic entity. That is my party's biggest concern about this agreement.

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11:45 a.m.

Conservative

Art Hanger Calgary Northeast, AB

Mr. Speaker, the agreement certainly has its major shortcomings. In fact, the agreement brings back some memories of mine when I think about some of the activity on one of the local reserves in Canada that is shared partly with the U.S., Kanesatake.

I drove down to Kanesatake once. In fact my colleague from Wild Rose and I drove into that particular region down by Cornwall. As we drove across the bridge we saw a huge sign which read “The laws of Canada and the United States do not apply on this reserve”. I believe the sign is still there to this day.

The RCMP were unable to patrol the St. Lawrence River for fear of getting shot. The level of crime within the reserve was far beyond anything reasonable or acceptable. Smugglers lived in huge mansions on the shoreline of the St. Lawrence River, and those who did not involve themselves in criminal activity suffered at their hands. The band police could not enforce the law because they were subject to those with more power. Sometimes the chief and the council, even though they allegedly held the power, did not enforce the law evenly.

Therefore I have a concern over where this agreement might end up going. There does not seem to be a process set up that if somebody is not happy with the way they are treated by the laws that may be established, where do they go to appeal? If we look at the power granted to the Tlicho government to enact its own laws, if somebody is not happy where do they go?

Could my colleague shed any light on that particular point?

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11:50 a.m.

Conservative

Michael Chong Wellington—Halton Hills, ON

Mr. Speaker, it is troubling to see an agreement that sets out a different layer of sovereignty for the Tlicho First Nation. I believe that as this country moves from its past history of having three founding cultures and peoples, that being the French, the English and the natives, into a country that becomes increasingly diverse and multicultural and whose urban areas are increasingly reflective of the worldwide mosaic that Canada has now become, these kinds of agreements will not stand the test of time. These kinds of agreements will not fit into what this country will look like in 50 years.

For those reasons, I think it is important for the federal government to take a leadership role in these issues. It should set out a framework of policies that state to Canadians that they all fall within the jurisdiction of the charter, that they are all equal in front of the law and that they all will be treated equally by the federal government.

There will be areas of jurisdiction that are different, certainly between the provinces and the federal government, and there will be different ways of implementing policies across such a vast geographic expanse, but at the end of the day Canadian citizens deserve to be treated equally whether they live in the Northwest Territories, British Columbia, Ontario or the maritimes.

What is lacking in the agreement and in the government's broader approach to many of the policies that it enacts today is that it does not seem to have this vision of a Canadian identity. The government does not seem to want to enact policies and legislation that would treat all Canadians equal, regardless of their racial backgrounds, their geographic locations and their languages.

I think that is what has been lacking in this agreement and it is troubling. Over time this slow erosion, this slow whittling away of Canadian sovereignty will come back to haunt, not the present government, because it will have long passed into history, but future Canadian governments.

In a country that was already so fragile and already, in so many ways, an impossibility when Confederation was formed in 1867, our country needs strong federal governments to ensure that it stays together, not simply for the sake of staying together but to ensure peace and tranquility in the land, to ensure prosperity for all its citizens and to ensure a uniform set of services, laws and rights that Canadians have come to expect from their governments.

However, over the last number of years the present government, in particular, has slowly whittled away at the idea of a Canadian identity and of a consistent set of standards across the country. It has done so through agreements like this and through the implementation of the policies it has enacted. I think this, in the long run, will come back to haunt a future government. That is why I think the government needs to answer questions as to the erosion of sovereignty and the absence of finality in this agreement.

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11:50 a.m.

London West
Ontario

Liberal

Sue Barnes Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians

Mr. Speaker, we are on our third day of speeches on the legislation and within the next half hour the time for questions and comments will be over and we will be back into giving speeches without being able to question members as they put their provisions forward. I will just say that all the arguments I have heard this morning have been rebutted in the previous days, and that is on the Hansard record.

However I do want to tell the member that I heard something that was a little disturbing this morning relating specifically to clauses 5.1 and 5.2 of Bill C-14, and that is the conflict between the agreement or the bill and other legislation. The member misstated some basic principles and I have heard them echoed in other speeches from the official opposition.

Under 2.8.4, the Tlicho agreement would be paramount over the settlement legislation, federal or territorial, to the extent of any inconsistency or conflict. Similarly, under 2.8.3, the agreement would be paramount over the provisions of any other federal or territorial legislation or Tlicho laws to the extent of any inconsistency or conflict. Also, under 2.8.3, the settlement legislation would be paramount over provisions of any other federal or territorial legislation or Tlicho laws to the extent of any inconstancy or conflict.

The point they are missing on the other side is that this does not mean that Tlicho laws will be paramount. It means the agreement will be paramount and the agreement itself, under 7.7.2, confirms that federal laws prevail. It states that to the extent of any conflict, there is no paramount authority over the federal Crown in relation to matters concerning the Tlicho.

Does the member understand that federal laws of general application prevail? Does he understand that he cannot just read the enacting legislation but actually has to go to all of the clauses? I know that there has been a misunderstanding. What I am saying is that the member must not only read his speech, he must also read the agreement and all the existing documents to understand the conflicting provisions that would lead to a miscommunication or a misunderstanding. When they are put all together they are actually very logical.

I know this will be the last time to make this point but I hope we can finally get into the details of this, not in a debating manner but at committee, which is where this type of work is usually done.

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11:55 a.m.

Conservative

Michael Chong Wellington—Halton Hills, ON

Mr. Speaker, I have read the agreement and I do understand that the agreement specifies that federal legislation, in its general application, is paramount. However what is troubling is that specific federal legislation relating to the Tlicho nation is not paramount. As a matter of fact, it is subject to Tlicho laws and to the Tlicho agreement. That is our concern.

There seems to be a potential for a very confusing set of jurisdictional questions as to whose authority is paramount. What is specific federal legislation?

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11:55 a.m.

Yukon
Yukon

Liberal

Larry Bagnell Parliamentary Secretary to the Minister of Natural Resources

Mr. Speaker, I will try to get through my speech quickly because I definitely want to be available for questions. A speech was written for me, but I am throwing it away.

I want new members from the other parties to know that not only at this time, but also in other legislation, sometimes the opposition brings up that a new law is not constitutional. People have to realize, especially new members, that every time the federal government, no matter which party, puts forward a law a whole slew of constitutional experts look at the law. A law will not be put forward in Parliament that is against the Constitution because it would end up in court through lots of constitutional challenges.

The constitutional experts look at all the laws to ensure they fall within our Constitution. It does not mean that the laws cannot be challenged, but there are very few times when they are successfully challenged for the very reason that they have been carefully viewed in the first place.

The opposition has four major points. It may be a little boring, but I am will go through the technical parts of the agreement and proposed law to show that none of these objections hold water. I will do that in four sections because most other speakers have referred to these four items. Therefore, they can refer back to the section of my speech that outlines how we have dealt with those concerns.

The first is on finality. Opposition members wants to ensure that there is finality. They question why there are provisions for changes in the future in this act.

In chapter 1 on finality, the Tlicho agreement draws the distinction between land rights and non-land rights. Certainty is achieved for both land and non-land based rights and finality is achieved for land rights. All exercisable rights must be set out in the agreement. The Tlicho agreement applies a non-assertion technique whereby the Tlicho agree not to assert any land rights other than those agreed to in the Tlicho agreement. Should the courts determine that an assertible aboriginal land right exists that is not in the Tlicho agreement, the Tlicho agree to release this right to the Crown. This fall back release ensures that the agreement achieves a final settlement of land rights.

The fall back release technique applies only to the land rights. For non-land rights, which would be various self-government rights, the Tlicho agree only to exercise those non-land rights set out in the agreement. However, the Tlicho can seek recognition of further non-land rights. If such a right is agreed to by the parties or confirmed by the courts, this right can then be added to and exercised through the Tlicho agreement.

The area where they can make improvements is related to taxation. Article 27.6.1 allows for equitable treatment among all aboriginal groups in the Northwest Territories concerning tax powers or exemptions, so that taxation regimes in the Northwest Territories would be compatible and equitable. The Tlicho agreement is the first such agreement in the Northwest Territories and may need to be revisited concerning tax powers or exemptions in the future, such as when other NWT land claim and self-government agreements are finalized.

There is a provision to change it if another first nation in its self-government agreement has a different taxation regime. I am sure members opposite would not want the people in their constituencies to unable to access a tax benefit or reduced taxation, if the rest of Canadians had access to it. All this does is allow that members in the Tlicho area to have the same provisions as all other aboriginal people in the Northwest Territories, and that members of the opposition will all be there to vote, hopefully, on any such agreement. They have total control over any changes in that.

I will be splitting my time, Mr. Speaker, with the member for Brant.

Chapter 2 is on international agreements. The opposition's concern was about the Tlicho being able to express their views on international agreements that affect them. A Tlicho government would be created with law-making powers under chapter 7. However, the Tlicho government would not have authority to enter into international agreements. The law-making powers are exclusively outlined in chapter 7, as well as the limitations and conditions concerning those powers, especially concerning international legal obligations.

The Government of Canada retains sole jurisdiction under international agreements even though some of these agreements might affect a right of the Tlicho government, the Tlicho First Nation or a Tlicho citizen, flowing from the Tlicho agreement.

However, Canada has agreed to provide an opportunity for the Tlicho government to make its views known, either separately or through a forum with respect to any future international treaty, if such a treaty might affect the Tlicho rights, article 7.13.2. It should be noted that this right is not the same as an obligation to consult. Consultation is a defined term in the agreement and a more detailed elaborate process.

Canada has agreed to consult the Tlicho First Nation government if Canada has to appear before an international tribunal concerning a law or other exercise of power of the Tlicho government that has given rise to an issue concerning the performance of an international legal obligation of Canada, article 7.13.5.

Certainly, everyone in the House would agree that if people are to be affected by the agreement, their views should be asked. If the Tlicho government passes a law or takes an action that prevents Canada from performing any international legal obligation, article 7.13 of the Tlicho agreement requires the Tlicho government to remedy its law or action to enable Canada to perform the international legal obligation consistent with the compliance of Canada.

Territorial laws would also prevail over Tlicho laws in case of a conflict between Tlicho law and a provision of the territorial legislation that implements an obligation of the Government of Canada under an international agreement. That is in article 7.7.4. As well, article 7.5.12 provides that any Tlicho law enacted concerning taxation is subject to the obligations of the Government of Canada under international treaties, conventions and protocols respecting taxation.

If the Government of Canada and the Tlicho government disagree over whether the law or exercise of power of the Tlicho causes Canada to be unable to perform an international legal obligation, the matter would go to arbitration, article 7.3.14.

The third objection is related to the confusion of jurisdiction. There is no confusion of jurisdiction. It is clearly outlined. I will just quickly go over that. The agreement states that Tlicho laws be concurrent with federal and territorial legislation. However, the Tlicho have explicitly agreed that the federal legislation would prevail over Tlicho laws, article 7.7.2, to the extent of any conflict. There is no paramount authority over the federal Crown in relation to matters concerning the Tlicho.

Tlicho law-making authority is designed to complement and coordinate with the jurisdiction of the territorial government. Tlicho laws would prevail over territorial legislation, article 7.7.3, to the extent of any conflict except for territorial legislation concerning Canada's international legal obligations, article 7.7.4.

Once given force and effect, the Tlicho agreement would be paramount over the settlement legislation, federal or territorial, article 2.8.4, to the extent of any inconsistency or conflict. Similarly, the agreement would be paramount over the provisions of any other federal or territorial legislation or Tlicho laws, article 2.8.3, to the extent of any inconsistency or conflict. Also, the settlement legislation would be paramount over the provisions of any other federal or territorial legislation or Tlicho laws, article 2.8.3, to the extent of any inconsistency or conflict. This does not mean the Tlicho laws will be paramount; it means the agreement will be paramount and the agreement says that federal laws prevail.

Article 2.10.7 of the Tlicho agreement confirms that the Tlicho agreement is based on this hierarchy. If a court confirms the existence of an aboriginal right of the Tlicho first Nation that is currently not contained in the Tlicho agreement, the parties shall enter into negotiations to incorporate the right into the agreement, article 2.10.5. If such negotiations fail within one year, then an arbitrator would decide on the text to be incorporated into the Tlicho agreement, article 2.10.6.

However, the arbitrator must respect the basic architecture and hierarchy of laws contained in the Tlicho agreement, article 2.10.7: the laws are concurrent; federal legislation prevails, including legislation concerning international legal obligations, over Tlicho laws; territorial legislation concerning international legal obligations prevails over Tlicho laws; and otherwise, Tlicho laws prevail over territorial legislation.

I hope someone asks me a question so I can go over chapter 4, which is the universal application of the Constitution and charter. That is the fourth part of my speech.

Tlicho Land Claims and Self-Government Act
Government Orders

12:05 p.m.

Conservative

Art Hanger Calgary Northeast, AB

Mr. Speaker, I certainly want to oblige the member. He wants someone to ask him a question. I will ask him a question or two.

First, I would like to make some comments about that member who so typically thinks, acts, walks and talks like a Liberal. One day I hope, and I guess I should not hold my breath, that the other side of the House will not wait any longer to hear what the experts say, when it comes to the Supreme Court and the charter, about enacting laws that are reflective of the broader consensus of residents in the country. I hope it does not have to run to the courts all the time and hear what they have to say. This in case is one of those prime examples.

I would ask the parliamentary secretary about the authority granted to the Tlicho government to enact laws that would be equivalent to our federal laws, specifically in two areas. My first question is on the control, prohibition, transport, sale, possession, manufacture and use of weapons or dangerous goods. The second question is on the control, prohibition, transport, sale, possession, manufacture or use of intoxicants.

The way I read this legislation, the Tlicho would have sole authority in those areas. They are under federal jurisdiction, yet that authority is being granted to the Tlicho government. They cannot have it both ways. In my way of thinking it puts the Tlicho government on a par, if not above, the federal jurisdiction of Canada.