Ted McWhinney

[Earthquake In Turkey, November 16th, 1999]

Mr. Speaker, last week, Turkey suffered its second earthquake in three months. Almost 3,000 people were injured and 450 died.

Can the Minister for International Cooperation tell the House whether Canada is in a position to send humanitarian aid and Canadian rescue workers to Turkey?

[Supply, November 16th, 1999]

Mr. Speaker, I will be sharing time with the hon. member for Wentworth—Burlington. I will address only the second paragraph of the motion by the member for Brandon—Souris, that is to say the issues concerning the supreme court, the Marshall decision on fishing and other rights of aboriginal people.

The member for Brandon—Souris has distinguished himself in the House as a member who has a whimsical sense of humour. It is much appreciated. I wonder if perhaps some of his polemics in the motion should not be interpreted in that light.

I would remind the hon. member concerned, however, that his party was in office during the crucial period of nine years almost immediately after the adoption of the charter of rights, which included the saving of aboriginal rights still to be defined by virtue of sections 25 and 35 of the Constitution Act, 1982. There was a wonderful opportunity in a period of historical transition to set in place sophisticated processes for the elaboration and definition of those rights and of dispute settlement and other machinery. It was an opportunity missed. Somebody was asleep. It was the Rip Van Winkle philosophy.

The process has been engaged upon and for better or worse we have to deal with it as it now arises. The motion, however, and I accept it in this spirit, is directed toward trying to establish policies, policy constructs, for the future in relation to aboriginal and other rights.

We need a debate on this issue. The last great venture was the white paper of 1969 which had many brilliant and imaginative ideas but for a number of reasons in the political climate at the time it was judged unadoptable. It just did not command the community support necessary to get it through.

In the intervening time a too pre-emptive concern with special constitutional issues thought to relate to Quebec tended to kill off discussion of other issues. I do not believe there is any incompatibility between the two.

Although his purpose was directed toward Quebec provincial politics, I signal in this regard the announcement yesterday by the member for Hochelaga—Maisonneuve of a new plan for Quebec constitutionalism. He recognized, for the first time explicitly by a member of his party, that Quebec issues cannot be divorced from issues of the aboriginal communities within Quebec. They are part of the general society and must be part of the process.

My basic comment on this general issue is that it is illusory to believe that any one federal institution, whether the courts, the legislature, the executive, the administration and the civil service separate from that, can have a monopoly of problem solving powers or can even function usefully operating in isolation from other institutions.

We are reminded of Jeremy Bentham's basic point, to which I have had occasion to refer in other debates in the House, that there is a constitutional company and that judges, cabinet ministers, parliamentarians and administrators all function together. The federal government has given an emphasis to consensual solutions of the definition, extension and concretization of aboriginal rights, and that means an emphasis on interpartes negotiations.

We have to recognize the practical limits to powers of negotiation which go to issues of expertise, time and continuity. There has always been a place for courts in the finding and limiting the constitutional parameters in which any decisions must be made.

Some issues, on examination, require very specific and detailed research and weighing of complicated economic evidence. This normally transcends the possibilities of parliamentarians, even operating in standing committees. I would note the difficulties of both the aboriginal affairs committee and the fisheries committee in handling these technical issues.

These are issues that can be well addressed and may best be addressed in courts, provided the lawyers are up to the task. We need a better standard of performance by the lawyers presenting cases before the court.

I do not see the sophistication in presentation of briefs. The Brandeis Brief, named after the great Mr. Justice Brandeis, details social and economic evidence of the implications of court decisions including the practical consequences of those decisions. If that is missing in judicial decisions, one of the points to recognize is that it is missing because it is not properly presented by the parties. The Brandeis Brief starts first of all with the lawyers before the court and the judges have to respond to that.

There is an opportunity for a more confident judicial role in these matters. It is to be noted that the judges were not called upon for advice when the adoption of the Canadian Charter of Rights and Freedoms was first considered. They were not asked about their new role. It was inevitable a species of judicial legislation would emerge, but they were not consulted. It is a learning process.

Among changes for the future that I would like my colleagues in the party opposite to address would be whether a contribution could be made by creating specialized tribunals of first instance. There is some unhappiness with the federal court in its various divisions because it is viewed as an Ottawa body composed of ex-civil servants and often ex-politicians but with an eastern Canadian orientation.

Would it be better to have special mixed claims tribunals as we have internationally? Would it be better to endow provincial supreme courts, which represent and reflect and understand local opinion and issues, with the primary authority, subject to appeals to the Supreme Court of Canada? This is where in a larger policy context we could invite and receive contributions in the debate as it continues before us.

[Madam Justice Beverley McLachlin, November 3rd, 1999]

Mr. Speaker, we welcome the announcement of the forthcoming promotion of Madam Justice Beverley McLachlin as Chief Justice of the Supreme Court of Canada. She will be the first woman to be appointed to the chief justiceship.

Her early teaching work in the law faculty of the University of British Columbia was followed by service on the County Court of Vancouver and the Court of Appeal of British Columbia. She had been Chief Justice of the B.C. Supreme Court prior to her present appointment on the Supreme Court of Canada.

We salute Madam Justice McLachlin's demonstrated qualities of classical legal analysis, coupled with a recognition of the practical possibilities and also the limitations of judicial activism in social and economic policies.

As a trained philosopher as well as a jurist, Madam Justice McLachlin offers great promise for her new role of leadership of the Supreme Court of Canada.

[Civil International Space Station Agreement Implementation Act, November 2nd, 1999]

Madam Speaker, I simply add as a matter of personal pride that I did a good deal of work on the substance of space research, not simply the law, and particularly on international telecommunications satellites. I was involved in the negotiations which were ultimately unsuccessful between Intersputnik and Intelsat.

On this particular issue, law follows the flag, and a spaceship has a nationality, in this case multinationality. There is no problem in principle in applying national law to it in the same way that one applies national law to an aircraft crossing the Atlantic. The ship's flag, the country of nationality of the aircraft applies its criminal law, and also those who have passengers of their own nationality can attach it too. Plurality of jurisdiction is not a problem. It is not novel.

[Civil International Space Station Agreement Implementation Act, November 2nd, 1999]

Madam Speaker, that is an excellent question. It directs attention to the regional character of the federal system and the fact that some regions are strong in certain areas and not in others. There is a certain balance.

On the TRIUMF project I was trying to negotiate a $167.5 million grant at a period when the inherited budget deficit we had was $42.8 billion. One canvassed all the provinces and although Manitoba was not a governing member of the TRIUMF complex, there were four universities in British Columbia and Alberta, there was a spin-off to Manitoba because the University of Manitoba had expertise in the area and was able to offer co-operation and direct benefits flowed.

On the space issue my understanding at the present time is that the concentration of work is in British Columbia and Quebec but we noted Newfoundland which has its work.

All Canadians benefit by keeping advanced skills scientists here. We find their work, for example, in osteoporosis which will be a spin-off activity, has a strong Manitoba component because the University of Manitoba is very strong in medical research.

If we do find that Manitoba is not one of the leading players here, it will be in other areas. Since I got Manitoba support for TRIUMF, I will pledge Manitoba my support in equivalent scientific projects there.

[Civil International Space Station Agreement Implementation Act, November 2nd, 1999]

Madam Speaker, I am satisfied with the process of consultation. I was not one of those who voyaged to the signing ceremony in the Nisga'a territory 15 or 16 months ago because I wanted to study the treaty in depth. I wanted to get the actual text, the 400 pages, and I did not get it until two days before the signing ceremony. I also wanted to consult.

I have spent those 15 or 16 months talking to people and consulting with people. I think there has been an astonishing amount of input into this, including potential adversary positions.

The interesting thing about Nisga'a that may not be true in subsequent treaties was the absence of countervailing interests in concrete cases proven to those investigating the matter. I get an enormous amount of mail on just about everything. On this particular issue, strangely enough, we have very little concrete opposition. In later treaties that I can see coming, I see the strong possibility of conflicts in a substantive sense between different types of rights and I may have to give a different response then.

Frankly, as the consultations developed, I felt that the treaty could have been ratified, that is to say legislated by this parliament, even 12 months ago. The government has included though, as a result of representations made by British Columbian members and senators, the special provision in the federal enacting legislation which replicates what is in the treaty itself. However, what people do not notice in 400 pages is that it is subject to the constitution and to the charter, which will allow a judicial review and, if necessary, legal challenge if further points of conflict should arise that were not for any reason foreseen in the actual treaty negotiation itself.

[Civil International Space Station Agreement Implementation Act, November 2nd, 1999]

Madam Speaker, I thank the hon. member for that extremely interesting question. I do not believe that research has any frontiers. The hon. member is, I believe, a former British Columbian. I would invite him to return and if I am in town I will take him out to the TRIUMF facility. On my first visit there six years ago I saw Russians, Israelis, Austrians, Indians and Pakistanis all working together. They share the knowledge.

Knowledge cannot be given frontiers. In my view, what is wrong with selling products that we produce or selling knowledge? We benefit from it. We get into new research. The funding we obtain from the sale enables us to take the research further.

We are ahead of most countries in space research. It is one of the astonishing achievements, the acquired achievement of Canadian science in recent years. It is not trumpeted abroad, but in British Columbia, where perhaps there has been too excessive reliance in the past on primary resource industries, it is a way into the new century. We are ahead and we have nothing to fear from other people buying our research riches. We will continue to do further work and go beyond.

[Civil International Space Station Agreement Implementation Act, November 2nd, 1999]

Madam Speaker, it is a pleasure to introduce discussion on the bill before the House, that is to say the intergovernmental agreement which is listed on the order paper.

It is a tribute to endeavours made during the cold war and which to some extent if adopted at the time might have put us another quarter century in advance of where we are now. It is often forgotten that when President Nixon and Secretary Brezhnev met in Moscow in 1972, they did initial an agreement on co-operation in space research, space exploration and space science. It was originally devoted to the development of co-operation in international telecommunications satellites and their utilization in broadcasting. The initial proposal was for co-operation between the western organization, which is essentially managed by an American consortium. INTELSAT was the western organization and Intersputnik was the Russian organization.

With President Nixon's departure and changes in the Soviet Union, to some extent those plans for co-operation and formation of a single international space agency were put on ice. What remained, however, was a tradition of co-operation. We saw that reach fruition as the cold war ebbed and détente expanded in co-operative U.S. and Soviet, or in the broader sense, western and Soviet explorations or participation in common space missions.

The spinoff from all this is of course that Canada was one of the pioneers in space research in scientific principles and in administration. I was director of a space law institute in Montreal and one could see the beginnings of what may now be the newest developments in Canadian scientific industrial partnerships to take us into the 21st century.

I could note that it is an important source of research, job creation and the development of export markets for industries in British Columbia and in other parts of Canada. I take pride in noting that in British Columbia we are at the leading edge of applied space engineering. Everybody knows about the space arm, which was developed and used in space rescue operations. But in other areas of pure science and its application in the finest forms of communication, British Columbia industry has made a major contribution.

The significance of this bill is that it heralds and institutionalizes co-operation across what used to be the old political ideological boundaries in co-operation with the countries that are most advanced in space research, space science and space engineering. We have them in the preamble to this bill and we notice the United States, Japan, Russia and Canada as key parts of that.

Our work in this area has involved allocations of 150 contracts to Canadian firms and universities since 1987 for automation and robotics technology development projects. There has been approximately $2 million invested in Canadian firms for this particular year, 1999-2000.

I would note that a B.C. firm developed the first automated robotic refuelling station in partnership with Shell. Newfoundland has done interesting work here on a sensitive skin developed for space robotic manipulators and it is being applied in the technology on prosthetics and bumpers of cars to control the deployment of air bags. We can see the spinoff from the most refined and esoteric form of engineering to common, everyday application in our society.

A Sainte-Foy, Quebec company has developed space robotic expertise to produce a digital imaging system for medical radiology. It provides real time x-ray images and eliminates the need for photographic film.

Further, Canada's participation in this venture entitles us to what is called a “one rack” or one laboratory shelf per year for science and technological experiments and this in a station that has an estimated 10 year lifespan. It will let us expand the work we are already doing in the microgravity field and it is an area for which the potential application includes direct connections to the medical relief of osteoporosis. Protein crystallisation in space provides tangible solutions for problems here on Earth. The spinoff is in the direct application to contemporary local medicine, the spinoff in terms of companies. EMS Technologies of Ottawa recently won a $9.5 million contract from Mitsubishi of Japan to supply the electronics to Japan's contribution to the international space station. It expects $24 million in additional orders.

This is the promise to invest in science, technology and pure research. It is not ivory tower work. In the end there is a concrete application in industry leading-edge technology and the spinoff is direct. There was the investment we made six years ago in TRIUMF funding at the University of British Columbia, pure research with the spinoff we noted there. In industry there has been the creation of advanced technological jobs for skilled Canadians. It is all there.

In voting on this bill we signal our co-operation and we signal that it is something in which we have as much to gain as we contribute. We can be very proud of Canada's role in contributing to the science and technology of the 21st century.

Some references have been made, in part by my good friend, the hon. member for Beauharnois—Salaberry, who raised what is a favourite constitutional project of his for reform in, as he sees it, the foreign affairs power. I think that deserves discussion at another time and in another place. I would simply note, however, that in this particular area and in this particular treaty I believe there has been exhaustive consultation with all the Canadian scientific community from Quebec, Ontario and all the other provinces. As to the umbrella agreement, which I am not sure was used in this case, the input from scientists in all Canadian universities and research centres was there. This is a non-self-executing treaty. By its nature it requires federal legislation and the opportunity there is to present contributions on the specific subject of the treaty.

Today, however, I have not heard any criticism of the substantive content of the treaty or what it proposes, which is I think a tribute to the prior extensive consultation with the scientific community. Be not afraid, I would say to members of the Bloc.

The member for Beauharnois—Salaberry conceded this in his response to my question this morning. The Australian analogy simply does not apply. Under the Australian treaty power, as interpreted, the mere fact of making a treaty gives the federal government power to implement that treaty notwithstanding provincial or state power. To the contrary, in Canada, as a result of the privy council's decision in the Labour Conventions case of 1937, which the member opposite rightly saluted, we cannot by making a federal treaty impinge on provincial law-making power under the constitution. We need to co-operate and speak to the provincial governments.

I see no conflict here. I heard none suggested by my friend the hon. member for Beauharnois—Salaberry. If it were to arise, then the courts would properly recognize, if it was challenged, the area of provincial power. However, it would necessitate what is going on anyway because the imperative of co-operation is there in the common interest, close continuing consultation between federal and provincial governments in implementing this treaty and in making sure that everybody in Canada shares from its benefits.

[Civil International Space Station Agreement Implementation Act, November 2nd, 1999]

Mr. Speaker, the member for Beauharnois—Salaberry has advocated major constitutional reform.

Constitutional changes require patience, obviously. They take a lot of time and require a lot of work.

Will he agree for the time being, according to the umbrella agreement between the Government of Quebec and the federal government—signed I believe by Paul Martin senior—to there being rules that can fill the gap he now finds in the constitutional system? That means that the federal government appoints a representative from one or all the provinces to a constitutional delegation when negotiating a treaty concerning provincial jurisdictions.

Second, it is clear that most of the treaties today are not self-executing. Federal legislation is required to establish them in Canadian municipal law.

Third, there is a distinction between Australia and Canada in jurisdiction over foreign affairs. Australian law, as interpreted by the supreme court, requires the precedence of any law incorporating an international treaty. The converse is true in Canada, according to a decision by the privy council in the matter of the 1937 conventions on labour law.

[Supply, October 28th, 1999]

Mr. Speaker, my problem is simply that we are on the eve of a great national debate and we need contributions from all sides but not to limit the modalities of our choice by focusing on a section that relates to company law which needs frankly readjustment review, in the context of the new rules of international competition.

The reality is that it is very difficult even for one Canadian airline to compete and survive in the international market acting by itself. It will need considerable government help. It will need positive intervention using international law and national law rules accordingly.