Mr. Speaker, it is the second time in two days that I have had the opportunity to speak to a first nations agreement. Yesterday we voted and today I am speaking to the Westbank First Nation self-government agreement, Bill C-11, which is enabling legislation.
The bill has two main features: it gives the force of law to the Westbank First Nation self-government agreement; and it makes consequential and coordinating amendments to other federal acts.
At the outset I would like to emphasize that this agreement is not a treaty. In other words, it is very similar to what I am used to in Labrador. We have the Labrador Inuit agreement, which is going for ratification this spring and, hopefully, will become law in the next 12 months. We have the framework and the ratifications of another agreement coming forward with the Labrador Inuit Association, and we have a pending claim with the Labrador Metis nation. Therefore I am very familiar with this subject area of first nations agreements.
This agreement is the first stand-alone self-government agreement negotiated under the federal government's inherent right policy to be presented to Parliament. This policy recognizes the inherent right of self-government as an existing aboriginal right under section 35 of the Constitution Act of 1982. The policy and the agreement based on the policy do not, however, define the inherent right to self-government, as only the courts may determine its nature, scope and content.
In this regard, the Westbank First Nation self-government agreement sets aside the debate regarding who has such a right and the scope and content of such a right and focuses rather on setting forth practical arrangements for a number of jurisdictions where Westbank First Nation may exercise law-making authority.
The agreement clearly states that the parties do not consider the agreement to reflect any definitive legal views with respect to how the inherent right of self-government may be defined in law. Further, for greater certainty, section 8 of the agreement states that “nothing in the Agreement shall be construed as recognizing or denying any aboriginal right, recognized and affirmed by section 35 of the Constitution Act, 1982”.
This agreement does seek to change the relationship between Canada and the Westbank First Nation, representing a break with the existing Indian Act regime which has created a dependency relationship with first nations and has undermined the relationship between the first nation leadership and the band members. I think that is a very important point because I believe the Indian Act is greatly outdated. Putting terms into the agreement that are different from some aspects of the Indian Act shows that we are in the mode for modernization.
Under the terms of the Westbank First Nation self-government agreement, the Westbank First Nation would act as a government primarily accountable to its members. The federal government would be removed from the day to day operations of the Westbank First Nation and its reserve lands.
The agreement requires the Westbank First Nation to establish a constitution that would provide for a democratic and legitimate government and institutions that would be fully accountable to Westbank First Nation members. The Westbank First Nation constitution must provide for, among other things, democratic election of council members, conflict of interest rules and appeal mechanisms.
The Westbank First Nation developed and ratified its constitution in May 2003. Upon implementation, the constitution would be a law of Westbank First Nation and, as with any other Westbank law, would not be approved by Canada.
The agreement sets out rules applicable to the Westbank First Nation government, its constitution and the exercise of law-making powers in a number of agreed upon subject matters, including: agriculture; culture and language; education; environment; health services; lands and land management; licensing, regulation and operation of business; membership; prohibition of intoxicants; public order, peace and safety; public works; resource management; traffic and transportation; and wills and estates.
Except for membership in the Westbank First Nation, the law-making authority would only extend to matters on reserve and would not include matters that are not specifically addressed in the agreement, such as social services, child and family services, policing and creating a court. Also, the agreement specifically excludes criminal law, protection of health of all Canadians, intellectual property regarding all matters under federal jurisdiction, as well as broadcasting and telecommunications from the jurisdiction of the Westbank First Nation.
The agreement is a bilateral agreement between Canada and the Westbank First Nation that replaces most of the provisions of the Indian Act. As the Westbank First Nation exercises its law-making power over a subject matter covered by the agreement, the corresponding provision of the Indian Act will no longer apply. However, certain elements of the Indian Act, such as Indian status, taxation and certain regulation-making powers of the governor in council, were not the subject of negotiations and are therefore retained. For example, the agreement does not confer any taxation powers on the Westbank First Nation and, accordingly, existing property tax related bylaws will continue in accordance with section 83 of the Indian Act.
Upon implementation of the agreement the fiduciary relationship would be maintained but, as the Westbank First Nation exercises its jurisdiction, Canada expects that its fiduciary obligations would diminish.
Canada's full legal framework is reflected throughout the agreement, which is premised on the concurrent application of federal laws and first nation laws passed in accordance with the parameters of the agreement. Provincial laws of general application will also continue to be treated in the same fashion as they are under the Indian Act. The Westbank First Nation government will be bound by the Charter of Rights and Freedoms and the Canadian Human Rights Act.
The Westbank First Nation represents an unusual profile in that, in addition to its 386 members living on reserve, there are approximately 8,000 non-member residents living on Westbank First Nation lands. Non-members will continue to be protected by the charter and the Canadian Human Rights Act. The agreement stipulates that leases to non-members created, granted or issued pursuant to the Indian Act would continue in accordance with their terms and conditions.
The agreement also requires that, following the effective date, the first Westbank First Nation law must establish a mechanism providing non-member residents with a formal statutory right to provide input into matters that significantly and directly affect them. With this future obligation in mind, the Westbank First Nation consulted with non-members and established an interim advisory council in 1999.
Furthermore, the agreement requires that the Westbank First Nation constitution establish an appeal mechanism and provides that the Westbank First Nation may establish administrative bodies to resolve administrative disputes under Westbank law, including landlord and tenant issues.
In closing, the current Indian Act regime tends to undermine the relationship between the Westbank First Nation chief and council and band members. Implementation of the agreement would modify the relationship between Canada and the Westbank First Nation such that the Westbank First Nation would assume increased responsibilities and develop governance structures outside the Indian Act that respond to the individual needs and aspirations of the Westbank First Nation.