Ted McWhinney

[Fisheries, June 10th, 1994]

Mr. Speaker, my question is for the Minister of Fisheries and Oceans. I would like first to congratulate the minister on the action he took yesterday to safeguard Canada's west coast salmon resource.

[Bankruptcy Act, June 9th, 1994]

Mr. Speaker, on May 9, 1994 I asked the Minister of Foreign Affairs a question regarding the role of the United Nations in the continuing tragedy in Rwanda.

My question then was directed to chapter 6 of the United Nations charter which clusters together the UN processes for peaceful settlement of international disputes.

In its best known manifestation chapter 6 connotes peacekeeping in the classical form first suggested by Lester Pearson who resolved the Suez crisis of 1956 and for which he later received the Nobel Peace Prize.

That is the interposition of an unarmed international peace force between combatants who have been in direct armed conflict in order to separate them and allow a necessary cooling off period preparatory to elaboration of a formal peace accord or other formalized truce.

Peacekeeping under chapter 6 of the charter is to be distinguished from peacemaking under chapter 7 which connotes the direct interposition in military force through the medium of UN military contingents under UN command and authority and which is specifically empowered to use armed force to resolve conflicts.

It is to be noted, however, there is an increasing reluctance of UN member states to utilize the chapter 7 processes in part because of recent unhappy experiences in problem areas like Bosnia-Hercegovina and Somalia where the line between classical peacekeeping and peacemaking became increasingly blurred and confused.

It may, however, be suggested that the problems there have arisen more from lack of a clear advance definition or instructions as to the UN roles and missions in the particular cases than from any defects inherent in the chapter 6 and chapter 7 processes as such.

In the context of Rwanda my suggestion is directed to the fact that once the internal ethnic strife had transcended national frontiers with the waves of refugees from Rwanda escaping to neighbouring states and thereby imposing severe burdens on those neighbouring states' economy and health and social welfare resources and personnel, the Rwanda conflicts had ceased to be purely internal or national, if they ever were, and had taken on a larger international dimension, with major implications in the new humanitarian international law.

For this reason while noting the considerable humanitarian aid already given within Rwanda by Canadian emergency relief personnel, both civil and military, to relieve the human suffering involved in the ethnic conflicts, I would ask the Parliamentary Secretary to the Minister of Foreign Affairs what further steps, within the ambit of chapter 6 of the charter and under the UN aegis, the Canadian government might recommend to the United Nations for purposes of collective, world community action, or what action we might be prepared to take on our own initiative to save human lives and to alleviate further human suffering in Rwanda.

[Right To Self-Determination, June 9th, 1994]

Mr. Speaker, after my June 7 speech on national unity, the hon. member for Laurier-Sainte-Marie asked me a question on sovereignty and the right to self-determination.

Present-day international law recognizes the right to self-determination only for peoples. Nothing requires self-determination to occur through the break-up of an existing multinational state. This right can be exercised by staying within a pluralistic federal state like ours. In a political and non-legal sense, both Quebec francophones and Native Canadians can qualify as nations.

[Yukon First Nations Self-Government Act, June 9th, 1994]

Mr. Speaker, I am not the author of this bill and so I am not authorized to make any arrangements on behalf of the government.

I would, however, caution against the pursuit of perfectionism in its extreme and pathological form. I recollect the legislature of a province which I will not name enacting within the preamble to every law at a certain point "this statute is not subject to the Canadian Charter of Rights and Freedoms".

I do not think this is a good way to make law remembering that law is designed to be educational too. The statute states very clearly in its preamble that it is subject to the Constitution of Canada. It is quite clear. It is quite explicit and it is true in any case as a matter of general law.

To be very frank, if the member has any concrete problems they will very quickly be tested before the courts I am sure and the self-evident clearly expressed. It is not simply self-evident. It is evidenced in writing and will apply.

[Yukon First Nations Self-Government Act, June 9th, 1994]

Mr. Speaker, I would be happy to put any fears of the hon. member opposite to rest on this. It is not necessary in a law of Canada to recite, to repeat, the self-evident that the Constitution and the laws of Canada are supreme. The Constitution of Canada applies to all laws enacted by the Parliament of Canada. The source, the grundnorm in legal terms, if I can use the technical term, of this new self-government is an act of Parliament of Canada. It is subject to the Canadian Constitution. It is subject to the Canadian charter of rights. There is no room for doubt on that. I hope I can put any fears the member may have to rest on that.

I do not see here any notion of exclusiveness of rights or particularization of rights, priorization of rights in relation to other citizens. I would have thought this is an attempt to put all Canadian citizens on the same level but if there is doubt as I say this is part, this is a law enacted within the Canadian constitutional system and it is therefore subject to the Canadian Constitution and all its parts.

[Yukon First Nations Self-Government Act, June 9th, 1994]

Mr. Speaker, perhaps we should return the debate to Bill C-34. We have been all over the world. We have been to the south seas in search of some mystical blue lagoon. We have been to pre-democratic South Africa in search of a regime I would have thought was totally foreign to anything we have seen in the application of the law currently before the House.

As real Canadians, not inhabitants of some mythical isle but as native Indians, founding nations or whatever, we are dealing with Canadians getting together in a new act of law making. I thought it delightful when I read it-and I asked whether I could meet with the public servants who actively engaged in the work on the bill-that it was not an exercise in abstract law making.

To use another metaphor, one was not building castles in Spain or seeking to do so. One was not seeking the sermon on the mount which is so rarely realizable in concrete life. One was venturing on a concrete act of problem solving. One was trying to solve problems for particular people. I would have thought there was the difference. May I say it is the theatre of the absurd to compare it to apartheid, a regime of state imposed draconian police measures and enforced segregation.

Here we are dealing with a free act of consensus. The players are all coming together, not simply the government and not simply native peoples. If we look at the files we see local communities, chambers of commerce and an amazingly wide degree of consultation in the process. We see peoples coming together and freely deciding on a new system of government.

The search for constitutional absolutes, abstract principles which read very nicely in platforms but do not often correspond to reality if we examine constitutions around the world, has been avoided. One could have spent hours, days and months discussing the concept of the inherent right to self-government which so baffled the former Minister of Justice and the late Prime Minister. She never could understand it.

When it was first launched in 1980 in the Trudeau patriation round, it was a simple statement of the obvious: people have rights not because some government gives them but because of their nature and their capacity as human beings. It is what Locke said. It is what Rousseau said. It is the basis of our constitution making and our constitutional system.

What you have is a constructive involvement of native peoples by their own free consent negotiating with the federal government and reaching an agreement which might serve as a model for future agreements but which does not have to be applied rigidly, inscrutably to other problem areas in the future.

The charming thing, the wonderful thing here, is law in the making, a sense of a dynamic creation of new norms of law. The way it is done is to limit oneself to the particular problem, not to attempt to solve the problems of the day after tomorrow but to set in place a structure and process of self-government.

Self-government is not an abstract norm, it is something that happens to people as Dewey recognized in his theory of truth. You make the events happen. You work together. I look at this and I see pragmatism, I see empiricism, I see problem solving. I congratulate the players and it is not simply the federal government, it is the Yukon territorial government, it is the native Indian leaders, the people, it is the local community people. I look at the steps that are taken, the recognition that self-government without an economic base is no more than tinkling cymbals.

This is why Bills C-33 and C-34 go together. You need an economic base or self-government is meaningless.

Then you go on to the issue of self-government and what form. You can begin as so many people did between the two world wars by creating a beautiful constitution. The history books are littered with these beautiful constitutions that were enacted and were never seriously intended, or sometimes were seriously intended but the people did not bother to follow them up with the machinery necessary to implement them.

When I look here, there is the concept of incorporation of native Indian peoples to create their own companies, to create their own commercial organizations, to develop resources, to develop wealth, to share it among the population. That is something the European constitution makers between the two world wars forgot. It is present in this bill. It is a key part of it.

The Indian act will continue to apply outside Yukon. This is a special experiment. If it succeeds others will copy it. If it does not fully succeed it can be modified. The power to tax is a necessary element of self-government. You do not rush into it in the sense that we will enact an abstract law tonight and it will be in force tomorrow. It is not to apply for three years. What that envisages is a continuing process of consultation and discussions with experts and government officials, finding the correct formula for taxation before it is concretely implemented.

I was particularly impressed by the provisions on the administration of justice. I have seen in too many newly independent countries or too many countries newly freed from subjection to some form of government, communist or otherwise, not particularly constitutional, the attempt to create the blueprints before one has examined how to make them operational.

The thing that is impressive here is that the staggered stage by stage, step by step approach that the full administration of justice will occur by the year 2000. One has avoided the temptation to rush into a law that will be in force tomorrow but that does not have the concrete underpinning to sustain it operationally.

There is something very impressive in this, the recognition that there are many roads to Rome in terms of self-government. Here is a model that the native Indian leaders have worked out with federal officials and local community groups and they are going to try it out. That is very important.

The temptation, as they say, was there to go for the abstract blueprints. It has been avoided in a mature exercise in constitution making in favour of this pragmatic, empirical, problem oriented, step by step approach here, resting all the time on continuing negotiations between the parties.

There is an act of faith here, a sense of faith and trust not between parents and children, as somebody suggested in a metaphor that was ill placed, but between free citizens. The trust is very important to the further progressive development of the self-government concept.

When I look at this bill I do not see anything that changes the structure and system of government in Canada as a whole. The impressive thing is that this is achieved within the Canadian Constitution. It is within the parameters of the Canadian Constitution. It is subject to the Canadian Constitution. It is subject to the Canadian Charter of Rights and Freedoms.

Do not create imaginary scenarios, worst case scenarios that would in effect take us out of the Canadian constitutional system when neither the parties wanted it nor is it present in the act. These two acts are very well drafted. I say this without being presumptuous. I say this from an earlier free, prepolitical role. They are carefully drafted, problem oriented and there are no hidden traps here.

There is no reason for worrying about hypothetical situations that do not exist; a decision made within the Constitution, within Canadian federalism, a special approach to federalism, the concept of pluralistic federalism. We have always recognized within Canadian federalism that equality does not require a rigid, abstract application of laws identically in all situations.

It is the large concept of equality that the United States Supreme Court recognized. It has spread throughout the world. It is building people up to a level where concretely, in terms of their rights and obligation and duties, they are as one.

I commend this law. I would say to those who feel that they must search for the blue lagoon somewhere, let us come back to Canada. Let us herald this as a first step, so generous in many respects because it breaks new ground within the Constitution and subject to the Constitution. The nice thing in it is that it has its own dialectical process, the capacity for further growth. The capacity for change, for amendment is there if the parties agree to it.

That is something transcending the issues of party politics. We can say congratulations are in order to the minister, to the civil servants, to the native Indian leaders. This is good. In a certain sense when federalism is under attack for other reasons in Canada today it makes one feel very confident in the future of our federal system and its capacity, the continuing dynamic growth in relation to new problems.

[Supply, June 8th, 1994]

Mr. Speaker, I would like to ask a question to the hon. member for Richmond-Wolfe.

He has pointed out the constitutional contradictions in our era of transition. He has quoted two models, but they are completely divergent. The American model is not a House of sober second thought, like the one in Westminster. He admitted that. It operates equally as a House of sober second thought and as a body working as a constitutional check and balance vis-à-vis the executive power. In comparison, the German Bundesrat is certainly not a House of sober second thought. It is essentially an intergovernmental committee of high-ranking officials.

Is he then advocating one or the other as a model, for example, for a revision of the Canadian constitution?

[Supply, June 8th, 1994]

Mr. Speaker, I want to thank the hon. member for his question. It is important to recognize the distinction made by the renowned Austro-Hungarian jurist by the name of Ehrlich between written law and the actual practice of law. I cannot consider the Senate as it is today as representing the provinces, unless major changes are made to its make-up. You cannot really say that the Senate represents the provinces.

Under these circumstances, it is very important to change the representation system applied to the Senate so that it can play the role it was originally set up for, but which does not reflect the social reality in Canada any more. That is why I would be tempted to make these changes, even though I am not very optimistic.

[Supply, June 8th, 1994]

Mr. Speaker, I thank the hon. member for his question and I will make the following comment.

I regret that it is almost impossible to change the Constitution directly with a law, as far as the Senate is concerned. If it is possible, we can consider it, but it will take the senators' consent.

But without changing the role of Parliament, of the elected House, I do not think that we can simply abolish the Senate. Legislative committees absolutely must have an increased role and the House must have a much more sophisticated system than the Constitutional checks and balances than what we now have.

As for Senate reform, in the 1980s, we considered the possibility of a sort of Constitutional counterweight, a body that would oversee executive decisions, confirm appointments, review treaties and international agreements, things like that. We are faced with this dilemma that it is almost impossible to abolish the Senate without its consent, except as far as details and particular powers of the Senate are concerned.

I agree that we must work with the Senate and try to obtain their co-operation. If not, I am quite prepared to accept an increased role for legislative committees and even to consider the possibility of an advisory opinion from the Supreme Court of Canada.

[Supply, June 8th, 1994]

Mr. Speaker, it is my pleasure to support the motion of the President of the Treasury Board that vote 1 in the amount of $26,952,000 under the heading Parliament-The Senate be concurred in.

It would be appropriate for me, speaking on behalf of a government that is committed to fundamental institutional change and modernization designed to update our institutions for the economic and other problems at the end of the century and the beginning of the next, to comment on the role of the Senate as an institution in our governmental system. One of the first things to recognize is the antinomies presented by the Senate in its present operation.

On the one hand, and I quote from the beautiful wood carvings in the office of the president of the Senate from the Roman saga Seneca : ``Nothing is well ordered that is hasty and precipitate'' which of course indicates attention to the conventional role that senators talk of themselves today, a House of sober second thought.

It is balanced by the quote from the great Roman tribune Cicero which translated says: "It is the duty of the nobles to oppose the fickleness of the multitudes". Horace, who is a more popular poet, put it a little better when he said: "Odi profanum volgus et arceo!"I hate the profane mob, I keep aloof from them.

The Senate has always had this particular problem that you are exerting a power historically of correction and revision of a lower House that over the centuries had become increasingly more representative and fully democratized by the opening of the 20th century with the expansion of the franchise. Yet it is a House that over the centuries became increasingly more representative and fully democratized by the opening of the 20th century with the expansion of the franchise and yet the Senate has remained with a constitutional system that is wholly non-elective and that by the beginning of the 20th century had become anachronistic in historical terms. Indeed, the great House at Westminster, in light of which the Canadian Constitution Act in 1867 was framed and which members of this House refer to reverently and probably appropriately in that sense, abolished the powers of the House of Lords, the upper House, effectively in 1911.

The Parliament Act of 1911 reduced the powers of the House of Lords to a suspensive veto of two years. This was in 1911. It was a reform measure introduced by a dynamic Liberal premier, Mr. Asquith, and his lieutenant, Lloyd George. It was changed after World War II by the Attlee government through reduction of the suspensive veto to three months.

There was a recognition that the principle of constitutional legitimacy which is one of the hallmarks of western and western derived constitutional democracy requires that large discretionary powers be based on an electoral mandate or some species of electoral confirmation.

So there is the dilemma for the Senate today, one which we have lived with for a considerable number of years and for which we have not as yet made the steps taken by the House at Westminster, the model for the Canadian Parliament.

I had the pleasure of addressing a seminar of eastern European parliamentarians who were here last week seeking advice from the Canadian Parliament, seeking to benefit from our experience. One of the Polish members of Parliament, a thoughtful gentleman who is also a professor of law at the University of Warsaw, said to me: "You have unconstitutional constitutional provisions in your constitution". It sounds like an oxymoron and yet it is there. He said: "Look, I have read in the Constitution Act that to be a member of the Senate you have to have property worth $4,000". He said: "Is that democratic? It would not be constitutional in Poland".

My friend, who is a senator and whom I respect was with me, explained that in 1867, $4,000 was a fortune. You could buy a carriage with four horses and various other things. Today perhaps it buys several cups of coffee or more. The comparison was perhaps a little bit far-fetched but nevertheless the point was made to our Polish colleague. He said: "Nevertheless, it is not a healthy part of a constitutional charter to have this in. Why do you not get rid of it?" Then we had to get into the intricacies of how you change the Constitution of Canada since the time of the Constitution Act of 1982, which put us in a constitutional straitjacket in relation to direct constitutional amendment but which would leave, nevertheless, possibilities of change by more pragmatic and ingenious methods.

I would like to add something and I did this in conversation with a very thoughtful senator today. We were talking of unconstitutional constitutional norms which is a European concept really devised in the belief after World War II that there must be provisions on which you can challenge Nazi or communist constitutional provisions that are in denial of constitutional principles in the constitutional charter itself.

One of the points I raised with him, because he was approaching retiring age, was: "Do you think it is constitutional in Canadian terms to have mandatory retirement at the age of 75?" Of course the answer is that it is not. This would be another point to consider.

I would raise the basic point whether a non-elected House today is constitutionally legitimate and therefore constitutional in the large sense. Obviously I am not suggesting that we rush out to the Supreme Court to obtain a declaratory judgment or advisory opinion on this point, although I do think that the most recent ruling in 1979 by the Supreme Court of Canada on reform touching the Senate was somewhat wide of the mark even then.

Today, granted changing public opinion controls so much in public law and the evolution of the public conscience which affects the content of constitutional norms, I would wonder whether that 1979 decision is not worth re-examining. Nevertheless in the context of the Senate today, and granted the difficulties of amending the Constitution by the front door methods the Trudeau patriation project introduced-we do have to face this issue-is the fact that we have a non-elected second chamber, part of the widespread public disaffection with constitutional institutions and processes today. I think the answer is yes.

What can we and the Senate collectively do with this? By the way, one of the suggestions I have always considered is that the courts should be used more fully. Could a constitutional ruling be obtained and, following the example of litigants in far-reaching constitutional matters of this sort before the United States Supreme Court, could one not ask the court to delay application of any ruling for enough time to allow a corrective constitutional amendment or other change to be made?

Let me, however, return to the more practical and immediate issues that could control our approach to the Senate. The Senate can be changed without its own assent. This is one of the changes made by the Trudeau constitutional patriation act of 1982, the Constitutional Act, 1982. Only a certain time delay is involved.

There are areas in which change could be made without necessarily involving the provinces constitutionally and therefore touching the power of the federal Parliament alone, which then would require the Senate's assent or delay.

I hasten to say that I advanced some of these propositions in evidence as an invited expert witness before the Senate and the House in previous years. I have said in other committees on which I saw one of my learned colleagues opposite, a pox on expert witnesses or self-styled expert witnesses. I have to say with all humility that when I have been summoned as an expert witness by the Goldenberg committee, an excellent committee of the Senate, and by the Molgat-MacGuigan committee and others I offered these suggestions with all modesty.

One of the issues would be whether the Senate would not better assume a role, as the United States Senate has, in confirmation or review of executive power rather than in review of legislative power in which its lack of legitimacy through direct election limits it. The public appointing processes in the United States are subject to Senate confirmation, as to the Supreme Court, ambassadorial appointments and what we would here call crown corporations. This is an important and democratic role in the United States and one that ensures the better functioning of the public services.

The Senate role in foreign affairs, the two-thirds Senate majority necessary to confirm a treaty made by the United States, gives a role for a body removed at once from the executive power making the treaties and from a house often subject to too much sectional pressure.

These are the sorts of powers one proposed to the Goldenberg committee, to the Molgat-MacGuigan committee and to others under condition that the Senate be reformed and be elected.

One further role would be the election of the head of state, the Governor General. There is a case to be made for this and for providing a further constitutional legitimacy for that office. Once again this is a condition precedent. A condition precedent would be electing the Senate or in some way legitimating it by some other process.

In western Canada there is a strong body of opinion associated with a former Social Credit minister, Rafe Mair, known for broadcasting and other activities, that the Senate should be a states house, very much like the German Bundesrat. The Bundesrat is really a body for federal-provincial co-operation in the practical administration and application of legislation. It is not really a second chamber in the North American or British sense. It is an interesting model.

I raise these areas in which change in Senate powers, new powers, could be introduced and provide a worthwhile and valuable role, a necessary countervailing power granting conditions at the end of the century to an executive power that many feel has become presidential and therefore without the checks and balances however applied to presidential power in the United States and some other countries.

How would we change the Senate? Granted there are the difficulties of amending it and expecting that we are not going to have a fundamental act of constituent power that usually occurs only after revolutions or great military victories in other countries. Certainly some changes could be made by convention, by custom.

The Government of Alberta proceeded to elect somebody whom it designated as a candidate for appointment to the Senate. In one case the Prime Minister of Canada accepted that advice and appointed the person so elected. If that were followed it could create a general practice.

More interestingly, the Mulroney government, after the failure of the Meech Lake accord, proceeded to name four Quebec senators following the procedures outlined in the Meech Lake accord of consultation with the provincial attorney general and premier. Some would say that those are better Quebec senators than the usual type of nomination; interesting persons in any case.

In the meantime, though, the Senate itself can exercise self-restraint in its powers. Again to quote our Latin scholars, it probably would better to use the Fabian tactic of delay and conciliation without it trying directly to defeat measures.

I say this in welcoming the role of the Senate, a discreet role in relation to Bill C-18. I am not speaking of the confrontation with the House which I think would be unacceptable according to my constitutional thinking, but of the quiet conversations by individual senators with members of the House that seem to have produced a felicitous accord between the two Houses-maybe I am being premature-as to whether and how Bill C-18 should be adopted in its revised form.

This sort of process of interaction between two houses, a dialectical process, is very much in accord with the evolution of democratic constitutionalism. It produces a sensible and pragmatic approach to revising, updating and modernizing an institution that was honoured in its origins but has failed to keep pace with the changes in Canadian society, with the views on political representation and political constitutional legitimacy flowing from that and with the changes in other countries.

I commend to members, in voting on this measure which has my full support, that we keep in mind an agenda for constitutional change involving the upper house; that we keep in mind that the constitution is not simply an issue of the place of one or more provinces in Confederation, renewed or otherwise, but that there are larger issues involving the relationship between the citizen and the state; that we keep in mind that there are better functioning and more modern institutions that correspond more exactly to the main trends in democratic constitutionalism. This sort of change would do much to restore public confidence in our parliamentary institutions and in the people who serve them.

On this basis I am happy to support the motion as introduced.