Ted McWhinney

[Nisga'A Final Agreement Act, December 13th, 1999]

Madam Speaker, the hon. member for Vancouver East gave us an interesting and valuable historical record.

Would she include in that the agreement between the Prime Minister of Canada, Mr. Mulroney, and the Premier of British Columbia, Mr. Vander Zalm, in 1990 that the issue of minority rights was not an appropriate subject for referendum and the guarantee that they gave?

Would she agree that the constitutional principle of good faith, which is judicially enforceable, would require present administrations to honour their undertaking?

[Division No. 61, December 6th, 1999]

Mr. Speaker, it has been said that this treaty, this agreement, is a matter introduced overnight. I would simply remind this House that in the three year run-up to the signing of the treaty no less than 500 public meetings and consultations were held, 296 of them in the Nass Valley and 13, no less, in a row, with a group of non-aboriginal residents. If we compare this to city constituencies, it is an astonishing degree of public consultation.

In approaching this agreement we must remember that it becomes law as far as the federal government is concerned, as far as federal constitutional law is concerned, with this enabling law. The enabling law is the product of considerable discussion between members of parliament and the former minister of Indian affairs, the hon. member for Brant, who is now in another portfolio, but it does contain one very important factor which has been addressed by some people from outside and was the subject of representations which I made to the minister. It includes an express legal stipulation that the treaty is subject to the constitution and the charter of rights. That is in the treaty itself, but to make assurance doubly sure I asked the minister to include this in the federal enabling legislation. It is there.

Further, I advised the minister that I and other members would be stating that our vote is cast on that basis. We would have the third assurance, les travaux préparatoires, of which the courts must take notice of the parliamentary intent that the treaty, as enacted by parliament, is subject to the charter and to the constitution. It means that there can be no provincial status, no third order of government unless it goes through the amending procedures, part V, sections 38 to 49 of the Constitution Act, 1982.

I think these corrections were necessary because of doubts that I had in relation to section 35(3) of the charter of rights which was not in the original charter but added in 1983, 12 months after its adoption. It applied to future treaties what was clearly applied in section 35(1), the original draft to existing treaties. Those existing treaties, all of them, were a known quantity, and we had all studied them, and they were clearly within the constitution and the charter that was being adopted.

To remove uncertainty I suggested at that time to the new minister of justice, one of our most distinguished jurists, Mark MacGuigan, the need for clarification. He thought, I think correctly, that it would be an extreme interpretation to say that this was a back door way of changing the constitution, that it could be settled in the future. In my view it has been done adequately and completely with the federal enabling legislation, the federal enacting law.

Let me get back to some other points on which the minister gave assurances to members of parliament that the treaty would not be a template for the remaining 50 treaties. It rests on its own special facts, among which is the fact that the Nisga'a leaders and the federal negotiators were superbly informed, they negotiated in good faith and with restraint. These conditions might or might not be replicated in future treaties because different federal teams take part. Every future treaty will have to be defended and supported on its own special sociological facts. Nisga'a stands alone. It is not a template.

I think when we get to the cities and municipal areas where conflicts of interest might reasonably be expected between different categories of rights, such as fee simple rights and claimed historic rights, that perhaps we need different and more advanced machinery, and I will come to that in a moment.

In recommendations to the Ministry of Indian Affairs and Northern Development as to future treaties, I have made these suggestions. In respect of all future treaties, the same principles and terms should be applied and the federal enabling legislation should cite that it is subject to the supremacy of the constitution and the charter of rights. In fact, this means that the principles of procedural due process of law, judicial review and, among other things, the principle of equality before the law and equal protection of the law are applicable. They are the supreme law of the land and in cases of conflict can be raised before the courts.

In respect of future treaty negotiations we also suggested that it be understood that the parties be required to undertake negotiations in good faith, which is a legal principle in international and constitutional law. They must also apply the principle of good neighbourliness, which is one of the oldest principles of civil law. It is part of the common law. In cases of breakdown there should be resort to the principle of arbitration and third party settlement.

We need improvement of facilities for judicial review. One of the problems we have had with cognate cases, not connected with the Nisga'a but the subject of some representations in the last few days to the parliamentary committee, is with the Federal Court of Canada. As an ambulatory federal court, it is not perhaps as fully seized of local social economic facts as local courts. It may be that there should be consideration given to establishing a mixed claims tribunal with developed expertise in economic issues, or else to investing provincial supreme courts, which after all are permanent courts in the locality, with competence to adjudicate economic evidence on reference. I simply say that these are suggestions for the future treaties still remaining.

One very useful suggestion is to include representatives of municipal and other elected governments in the negotiation processes for future treaties. The Union of British Columbia Municipalities has established a list of five principles. I think it makes sense because the local bodies have special expertise in relation to local water and power supply, as well as property title issues, and their expertise can be brought to bear.

I mention all this simply to say that Bill C-9 has been adequately considered and discussed. There have been three years of public consultation. It was open at all times to the parliamentary committee, if it wished, which is an all party committee. It has a single member majority on the government side. The opposition had only to ask for more detailed hearings. There was a strange silence in some areas of the opposition over those three or four years when jurisdiction could have been exercised in relation to the treaty.

I found this again in relation to a matter to which we gave some attention, Bill C-49, the native lands administration bill. It was reported by the committee with only one minor amendment, which had the unanimous endorsement of the committee. It was only at the last minute that we realized there were problems that should be addressed. With the co-operation of members of the House and the Senate, both Conservative and government members of the Senate, changes were made to Bill C-49, the native lands administration bill, which incorporated the principles of due process and similar guarantees that are certainly part of the federal enabling law in relation to the Nisga'a treaty.

I put out four newsletters to my constituents after the signing of the treaty, perhaps about 6,000 words of detailed legal material, and asked for comments. The comments came back. They were passed on to the minister. The changes the minister of Indian affairs made to the federal enabling law, in the text of the law, were as a result of representations made by constituents.

I think this is participatory democracy in action. I think it is the way to proceed with legislation. It is the best way to ensure that in the run-up to the 50 remaining treaties in British Columbia we can produce agreements without discord. We do not want 19 long summers of discontent in British Columbia. Our economy needs help. There are other matters to attend to. In good will and in good faith I think we can proceed with the further treaties. I recommend adoption of the federal enabling law.

[Treaties Act, December 1st, 1999]

Mr. Speaker, we have some problems with this resolution and I will treat them very quickly.

There is a failure to study empirically Canadian practice and to recognize the distinction between self-executing and non-self-executing treaties. About 99% of the treaties made by Canada since the war are non-self-executing. That is to say, to be implemented in Canadian law they require laws passed by parliament.

I am amazed to hear the official opposition say they do not know anything about it. Have they been asleep? They have had a foreign affairs committee. It is competent to hear these matters. Its members are competent to raise the matters when the laws come before the House. Somebody has been playing Rip Van Winkle and it does not reflect very credibly on the opposition people to say that.

In Canada we have in a certain sense fused what used to be the highly formal act of ratification with the legislative implementation. I confirm this with the land mines treaty when there was an issue we wanted to be the first to ratify because we sponsored that treaty. However, it had to wait on our legislation by parliament and we ended up, I think, number three. But, there is the fact. Every treaty made in effect comes before parliament and before the foreign affairs committee.

The second point which I will make is I am amazed again by this study of comparative law. It is the first lesson. I am reminded of what Sir Austen Chamberlain said “Comparative law is a trap for the unwary and a signpost for the guilty”. He was saying it to something else, but there it is.

How can you compare positive law snatched from one society to another society unless they are congruent in terms of their legal systems?

The Canadian system and the German system are totally different from the British, Australian and anything else. The member who introduced this bill would be horrified if he had the American, Australian or other systems in force here. Those systems establish the supremacy of federal law implementing a treaty. By the very fact of making a treaty, one gets the power to legislate. The Canadian is in the inverse and in 1957 the German court studying our experience said it would follow the same.

So every treaty for implementation requires federal legislation and, if it touches provincial powers, provincial legislation. When one gets to issues like fisheries, it will take several years of patient negotiation, frustrating negotiation sometimes, with the provinces. Let me simply make that point.

The third position I would make is simply this. It is not a good plan to seek to do by indirection what can be done by the front door. I read this very carefully and I find that article 6 of the bill on treaties either is uttered per incuriam with a lack of knowledge of Canadian constitutional law, which I do not believe, or it is an exercise in espièglerie.

Let us face the facts. There is no such thing as a treaty made by a province under Canadian law. It just does not exist. Therefore, in the interstices of a clause buried in the middle of a projected law, how can one purport to make a constitutional amendment? It just cannot be done.

So much of this is an act of supererogation, of stating what parliament already does. I look at those several hundreds hours in the foreign affairs committees on the MAI. Backward and forward, it was exhaustively discussed. There was the landmines treaty with input from the official opposition and others, which the minister acknowledged.

I would have said that apart from clause 6, this is an example of what Quintus Horatius Flacuus said, “Parturient montes, nascetur ridiculus mus”. Briefly translated, as Shakespeare did somewhat freely, it means “Sound and fury signifying nothing new”.

I am also tempted by the suggestion that it was perhaps an interesting exercise in doing by the back door what should have been done by the front door. It is an interesting exercise.

I would advise the hon. member, whom I respect for his qualities and his sense of humour, to come back again with a better draft. I would also suggest putting students to exercises more fully rooted in sociological jurisprudence. That is to say, he should make sure the societies they study are cognate before taking away their positive law. Comparative law is not an exercise in butterfly collections as one has here, with one monster butterfly from one society and one from another. There has to be a certain relevance.

[Supply, November 30th, 1999]

Mr. Speaker, I would like to congratulate the hon. member for Rimouski—Mitis for such an interesting speech, and on her knowledge of the international scene.

It is very often easier to obtain international consensus on a criminal reform project than to obtain federal and provincial consensus.

I recall that we managed to get three international treaties on the control of international terrorism passed in a matter of mere months, going beyond the ideological and conventional borders of the day.

Has the hon. member considered making suggestions to the Minister of Foreign Affairs on the drafting of more detailed international conventions on this?

[Nancy Greene-Raine, November 23rd, 1999]

Mr. Speaker, we salute Nancy Greene-Raine who yesterday was voted by newspaper editors and broadcasters as Female Athlete of the Century, in recognition of her outstanding athletic achievements.

She focused the eyes of the skiing world on Canada when she won 17 of the 31 races she entered in 1967. She earned the silver medal in slalom and the gold medal in giant slalom in the 1968 Winter Olympics in Grenoble, France. Her athletic achievements combined with her engaging personality have made her one of most beloved and recognizable ambassadors of her sport in Canada and around the world.

[Nisga'A Final Treaty, November 22nd, 1999]

Mr. Speaker, in a three year run-up to signature of the Nisga'a treaty no fewer than 296 meetings and public consultations were held in the Nisga'a region with chambers of commerce, business people and governmental authorities. But no fewer than 13 meetings were held with a small, predominantly non-aboriginal regional committee representing Nass Valley residents. They addressed a wide range of their concerns: watershed protection, access to water, legal status of isolated fee simple titles and replacement tenures, forestry, mining, fisheries and wildlife.

The process of consultation on the Nisga'a treaty was astonishingly extensive given the remoteness of the region and its sparse population of 6,000 people. This is genuine grassroots participatory democracy in action and it is reflected in the final treaty.

[Supply, November 22nd, 1999]

Mr. Speaker, I gave a more narrowly technical legal answer to that in my opening remarks. The facts are before the Supreme Court of British Columbia. There is a challenge based on the issue that a referendum is not being held within British Columbia and it is based on the B.C. provincial constitution. My statement on that was that it was before the courts. The deference that we owe to a court as a co-ordinate institution of government does not allow us to hold a selective referendum in B.C. while that process is there.

I did pick up, though, the comments of the hon. member for Burnaby—Douglas who quite rightly raised the issue with the Leader of the Opposition about going for a nation-wide referendum, and the Leader of the Opposition retreated.

On the large issue, I have been arguing for 20 years for basic changes in the constitutional system. If we want to go the Swiss way, Switzerland is a different society from ours—what was said—the country that built cuckoo clocks but what else. If we want an analogy there, let us do it, but let us do it as part of a comprehensive constitutional reform and not just pluck it out because it happens to suit us for a passing moment.

[Supply, November 22nd, 1999]

Mr. Speaker, I would wonder whether the hon. member and his poll takers are not smoking pot when they come up with these figures. I am in constant touch with my constituents. I receive hundreds of letters every week and we answer them.

I will tell the member one thing that will restore his faith in democracy. We have only had two mean minded letters that had a John Wayne conception of the aboriginal people and wanted to chase them across the frontier with muskets. The people in my constituency are thoughtful, well educated, reasonable people. They are honest, decent people and they respond to facts.

In response to the Nisga'a treaty, when we explain the facts they come back and they accept the facts. They accept that there will be a large degree of public involvement, even larger than before in Nisga'a with their 296 public meetings. The matters will get to the city. We will have a stronger process for review of countervailing interests where there is a contest between aboriginal and non-aboriginal rights. We should have a third party process and compulsory arbitration if needed.

Those are the things my constituents work for concretely. They do not talk off the tops of their heads. They do not read Zane Grey or obscure novels from the 19th century. They are moving into the 21st century. We want a peaceful society in British Columbia. We want to get through those 50 treaties on the basis of general equity and general public consensus.

We have the process going and it is working. That is what my constituents are saying to me. They are not prophets of gloom and doom. They are not afraid of the future.

[Supply, November 22nd, 1999]

Mr. Speaker, when I approached the Nisga'a treaty I wanted to satisfy myself on one point in particular. Was it a good treaty in terms of the people it was dealing with? I went to the facts and I am astonished by the results I obtained.

This is a very remote area of British Columbia, with a very tiny population: the aboriginal and the even smaller non-aboriginal population. In a period of three years leading up to the treaty 296 public meetings and colloquia were held in that area. If one considers the problems of distance and communications, it is an astonishing record. I do not think city seats could do better.

I also found that it is not simply companies doing business. It is not simply government agencies that impinge on this, but ordinary people. There is a little group called the Nass Valley Residents Association, representing predominantly non-aboriginal people. There were 13 successive meetings with this group. It raised the issues of effect on isolated fee simple titles, continued replacement tenures, access to water, and access to forestry and firewood supplies. These sorts of issues go to grassroots concerns, grassroots democracy.

That is why there were 13 meetings in a row. The people would come back and say they wanted answers. They would get the answers. At the end of the day there were no countervailing claims in the concrete in relation to the Nisga'a treaty. That is a very important fact when we talk of democracy.

On the issue of the referendum the minister has quite properly commented on changing the rules of the game at the end of the day, but I would raise more importantly the constitutional principle that we operate within a constitutional system of government which includes the courts.

The House has had a stern rebuke. One can read the judgment carefully on the rehearing of Marshall and find that it refers to intemperate and ill-informed comments by members of the House in relation to judicial decisions.

How can it seriously be suggested that the federal government should hold a selective referendum in a province that is itself before the courts? With the Attorney General of British Columbia and Attorney General of Canada, a decision by the Supreme Court of British Columbia in the first instance still moot and under appeal, how can we possibly, with proper respect for the courts and proper respect for a constituent province, intervene and hold a selective federal referendum? It would be more consistent if the Leader of the Opposition had responded to the hon. member for Burnaby—Douglas and said “Yes, I will hold a nationwide referendum. That is what I am proposing”. However he did not do it. The inconsistencies frankly do little credit to the study of constitutional law and show a complete disrespect for the courts with a pending process.

Let me get back into the issue of participatory democracy. I issued four very well documented newsletters to my constituents since the treaty was published. Each contains a 2,000 word summary of legal issues and constitutional issues, and I have asked for responses. Over a period of six, nine and twelve months I have had 3,000 or 4,000 responses of various sorts. People are coming in, phoning me and writing thoughtful letters. As a result I was in touch with the minister, the predecessor of the present minister, to say here are some concerns. Let us take them.

Is this a template? The point we made was no. Every treaty rests on its own particular society which has its own particular social and political facts.

What is right and proper for a remote thinly populated area of the province may not work in the city where there are countervailing interests that will be presented. The template concept must be rejected. Good sociological jurisprudence is when each treaty is considered and negotiated on its own facts. That was in spite of the opposition. It would be some considerable time before the Premier of British Columbia accepted that Nisga'a was not a template but a special treaty negotiated on its own facts.

The second issue is of the so-called constitutionalizing of the treaty. There is a possibility of confusion here. I discussed this point with the then federal Minister of Justice in 1983. He was not the man who drafted the charter of rights but he was the successor. I raised the issue of the effect of applying section 35(1) to future treaties, not the known quantity of already existing treaties. I raised the issue that these were constitutionalized treaties and not in my view constitutional amendments.

Can we clarify and make this assurance clear? In the Nisga'a treaty it is made very clear that the treaty is subject to the constitution and the charter of rights. I went to the predecessor of the present minister and said that there were still concerns and could we not put it in the federal enacting legislation.

If we look at the federal enacting legislation it is clear. It establishes the supremacy of the constitution and the charter of rights. Do not be afraid of changes to sections 91 and 92. Do not be afraid of a third level of government. Do not be afraid. Due process of law applies. The principles of equality before the law and equal protection of the laws are there. They are in the charter and the courts can apply them. There is no reason for this fear which is based on misconception and lack of study. It is all there in the Nisga'a treaty.

The issue arises that it is not a template. It is still the first treaty. It is an historic event for people who negotiated in good faith and in good spirit, which shows it is in the absence of countervailing claims re the concrete. The spirit of good neighbourliness of the sort the supreme court and the world court have spoken of is basic to the common law.

What of future treaties? It is clear, and I have had discussions on this with members of the B.C. Liberal Party, which has the same name but is legally separate and distinct from the government. I have spoken to some of the critics who have appeared and attacked the Nisga'a treaty on the basis of a lack of information of the changes being made in the federal enacting legislation which are now there.

It is clear that for future treaties we will re-emphasize they are individual treaties to be negotiated on their own facts. It is also clear that all future treaties must be made expressly and in terms subject to the constitution and the charter of rights.

I believe we may need better fact finding facilities in relation to these treaties. I speak of the federal court with all respect, but I have difficulty in reconciling two judgments at two different levels of the federal court in a cognate but distinct case on the basis of the economic evidence in this area. There needs to be better lawyermanship by lawyers, the federal justice and other parties presenting the case. The supreme court made this clear at the Marshall rehearing.

There also needs to be perhaps more use of the provincial supreme courts. They are closest to the people. The federal court, and I am not speaking of the Supreme Court of Canada, is a body that often has few local roots or little access to local facts.

Those elements are there. I also think we should take up the suggestion made by members of the Vancouver city council when the treaty process approaches the city of Vancouver and involve elected municipal representatives in the negotiating process. They have a lot of knowledge and a lot of practical wisdom. They can help us in this path to what is an historic process for B.C.

All the rest of Canada has treaties. We have to begin in B.C. It is a learning process and it is a difficult process, but what is the choice? We want to live in peace in British Columbia. We want a society in which people feel safe to invest. We want a society in which people can act in good faith in relation to each other.

We have made clear to the minister that in negotiating treaties we expect good faith and good neighbourliness. If we do not find it, that treaty should put to the bottom of the pile. That is a good principle of operation. The choice is 19 long summers of discontent in British Columbia or a process in which everybody is actively engaged, and that I think is the real choice.

I welcome the fact that the predecessor of the minister of Indian affairs made these changes to the federal enacting legislation which I think settle any remaining constitutional doubts. I have no doubt the new minister accepts in full spirit the engagements made by his predecessor. We will build on what we have learned in the process to date.

[Aboriginal Affairs, November 19th, 1999]

Mr. Speaker, the Supreme Court of Canada, in refusing to rehear the Marshall case, has reminded us of the importance of actually reading court decisions before jumping to attack them.

The Marshall decision is deliberately limited to its own specific facts, narrowly defined: the closed season in the eel fishery in a part of New Brunswick. But the supreme court decision has also reminded us that aboriginal rights, customary and treaty-based, are legally subject to the constitution and the charter of rights and have always to be balanced against other competing individual or community rights.

Courts, parliamentarians, ministers and the parties themselves each have their own distinct and separate but fully complementary constitutional roles to play.

The lesson: think, instead of leaping to empty rhetoric.