Ted McWhinney

[Supply, October 28th, 1999]

Mr. Speaker, I will be sharing my time with my colleague the hon. member for Scarborough East.

Allow me in opening my remarks to refer to some prior experience in this area. I was the director of the Air Law Institute at McGill University for a number of years, and incidentally, adviser to the premier of Quebec on air law matters at that stage. One of the recommendations was against the construction of the Mirabel airport, the second airport. I think it was correct on constitutional grounds and also on air law grounds, although the advice was not taken.

We can move on to other matters where expertise also comes into account. This is not the first time the airlines have been before this parliament. In the previous mandate of this government the issue arose, as may be remembered, of aggressive litigation between the two airlines, the result of which might have been to drive one of them out of existence. This matter was settled by the intervention of the then minister of transport and in consideration of the use, if need be, of his powers which are limited but within those limits have a considerable range.

What was essentially done was to use the federal power under international law through our membership in the International Civil Aviation Organization and our participation in the Chicago convention to grant or withhold approval of international air routes. A very felicitous solution was reached in this earlier problem in 1994 between the two airlines by opening international air routes to one as a condition of dropping the litigation. I think it was an excellent example of executive power being used imaginatively and producing a consensual solution.

However at that time I did make some points clear, as policy imperatives, certainly for me as a British Columbian but also I think for all Canadians, that we have an interest in maintaining the extraordinary investment we have in highly skilled jobs in the airline industry. In British Columbia and Alberta there are 17,000 highly skilled technical jobs with one airline alone. We want those jobs maintained throughout Canada. Therefore any approach to solutions here must bear that in mind.

We also want maintenance of reasonable air access to distant areas of our large country that might not otherwise be commercially viable in a strict market economy.

We also want reasonable prices. If competition will produce that, well and good. If it will not, obviously there has to be a degree of government regulation of prices. But the opportunity and the facility is there. And we do want safe air travel.

These were imperatives that the transport minister understood, that he conveyed to both airlines and in the solution in 1994 they were realized.

I have looked with sympathy and interest to the motion by the opposition Bloc Quebecois, as I say, granted the predisposition to examine every motion from the other side. But I do believe it does not really face the realities of the new world community of our times, the world revolution of our times which affects international commerce, international trade and international air transportation.

Most of the rules of the game that we have now are posited on an economic trade situation that no longer exists today. We do accept the maxim that small is beautiful, but in the world of international air transportation even large national airlines in middle powers no longer have the weight or the size to compete effectively in the international market without considerable assistance from the government.

This is why I welcome the intervention by the Minister of Transport. There is here no legislation. There is an opening of a debate. It is clear that we are on the edge of the necessity of examining a fundamental restructuring of the airline industry to meet the new realities of international air transportation and the cutthroat competition that exists for much larger companies outside with much heavier government investment and support.

It is on this basis that we have joined this debate. I would suggest, though, that our national rules of competition are devoted to, directed and inspired by national problems. They do not, without some further examination, meet the new realities of international air transportation.

The minister's powers are limited in the range of matters he can touch but he does have discretion, so that the issue of relaxing the national Competition Act, which was designed to meet national conditions, to meet new international conditions is one worthy of respect and consideration by the House. We need suggestions on how we would use that discretion. I invite that from the opposition.

We must recognize that the international rules, even the tidy rules of the Chicago convention, those implemented by the International Civil Aviation Organization, also need re-examination.

We have entered into an national debate. I have had visits from delegations, from Air Canada pilots, Canadian Airlines pilots, representative employees of the companies and others. I am gathering my own opinion on what needs to be done in the restructuring of the air industry. I believe, and I say this with all respect to my colleagues in the Bloc Quebecois, the motion reflects the past. It fetters and confines a necessary element of national policy making which needs to be directed toward the entirely new and revolutionary conditions in international air transportation.

It is on that basis that I would not recommend to the Bloc pursuing the particular motion, an unnecessary restriction which hinders the debate that we now need on restructuring the airline.

I return again to those imperatives. Any solution that the House may reach must maintain the investment we have in the highly skilled jobs in both airlines. It must maintain air access even to uneconomic areas of the country in strict national airline terms. It must maintain reasonable prices with competition if that is the case: two international airlines and one national or one international airline and two national ones. The modalities of development are considerable, but the goals and the imperatives remain, and I believe it is within our ability to work them out.

[Petitions, October 27th, 1999]

Mr. Speaker, pursuant to Standing Order 36 I am pleased to present a petition duly certified by the clerk of petitions and signed by some 1,200 people from across Canada, the majority being from the greater Vancouver region.

The petitioners call on the Parliament of Canada to make funding available for humanitarian assistance, emergency relief and reparation to all parts of Yugoslavia, and to urge other members of the NATO military alliance to support similar initiatives.

[Nisga'A Final Agreement Act, October 26th, 1999]

Madam Speaker, I thank the hon. member for his question. I know Mr. Smith very well and respect his quality as a constitutional adviser to two premiers of British Columbia.

The facts are that the Nisga'a treaty involves a delegation of power, but it cannot override the constitutional division of power, section 91 and section 92, and the two levels of government they have created. It does not create a third level of government. The Nisga'a never asked for this, but it does not in any case so create.

[Nisga'A Final Agreement Act, October 26th, 1999]

Madam Speaker, I am happy to give categorical assurance that the member is correct. The constitution and the charter apply and to the extent of any inconsistency would override action to the contrary.

[Nisga'A Final Agreement Act, October 26th, 1999]

Madam Speaker, I will be sharing my time with another government MP. It is a pleasure to join the debate. I pick up with interest and pleasure the remarks of the very thoughtful hon. member for Vancouver East.

It is a fact that the Nisga'a treaty is not and never was a template. Government MPs spent six months telling the Premier of British Columbia that it was not a template, that it rested on its own particular historical facts. They are very warming facts. The Nisga'a paddled their own canoe a long distance to Victoria. They waited 100 years and negotiated for 20 years in goodwill and good spirit, with great patience and great dignity.

I think we have to pay tribute to the Nisga'a negotiators and Joe Gosnell, who emerges as one of the outstanding figures of our contemporary public life, but also the government negotiators. They are not the same in the case of every treaty. I met the government negotiators in this particular case and I was impressed by their dedication, their hard work and their open mindedness.

The Nisga'a treaty is a special case. It deserves in my view and it deserved in the past quicker treatment than we have given it. I think for more than a year after the signature is too long a delay considering the time that has been spent already in the past on this matter.

What are the features that are so distinctive in this treaty? One is the element of negotiation—and I have spoken on that and will have more occasion to come back to that—in good faith and in the spirit of goodwill. The phrase was borrowed from international law. The World Court used it. The Supreme Court of Canada picked it up in a recent judgment, but it is the essence of the continuing process involving 50-odd treaties still to come in British Columbia. We expect the parties, government and the Indian people, to negotiate in good faith. The Nisga'a did it.

We also expect adequate public hearings, which is a matter that relates to the time, the opportunity and the place. The member for Vancouver East has detailed far better than I could the extensive character of the hearings, having regard to the remoteness of the area involved. It is not a city where one can take a taxi from one end to another in a matter of a few minutes. A remarkable job was done by the House committee on aboriginal affairs and others.

I would also stress the fact of absence of countervailing interests properly proved and adduced before the relevant authorities who negotiated and the House committee. That is a crucial issue in it.

I would stress again the point which is in the treaty itself. The Nisga'a people here showed admirable self-restraint. They accepted and put in the text that it is subject to the Canadian constitution and to the charter of rights.

If anybody had any doubt on this particular point and to make assurance doubly sure, the government caucus from B.C., the senators and the MPs sought assurances from the then minister for aboriginal affairs and her parliamentary secretary that we would put this beyond any question by even the most unreasonable of people. That is why there is an express mention in the enacting legislation by the federal parliament. Incidentally similar guarantees were incorporated in Bill C-49, the Native Land Administration Act, as a result of the representations by B.C. MPs and senators which were gracefully accepted by the minister.

I would like to pay tribute to the former minister concerned and her parliamentary secretary who is still with us for listening and paying attention to these representations.

The constitutional issue has been raised. It is not in my view relevant as an element of criticism of the Nisga'a treaty because, as I have explained, the matter has amply been taken care of, but references were made to sections 25 and 35 of the charter of rights.

I am reminded of Chief Justice Bryan who was a medieval judge. When people asked him about a law he said “You do not have to tell me what it says. I wrote the law. I know what it is about”. It is a fact that has been noted that Senator Perrault and I, when the original draft of the charter appeared, suggested that this matter should be included.

However it should be noted that sections 25 and 35 create no new rights. They are what is called saving clauses. They save rights that already exist, whether customary or under existing treaties. No more, no less. There is a Latin phrase for it, ex abundanti cautela, but it simply means one says what already exists. One leaves it to subsequent events in a pragmatic, common law way to define the actual content and extent of those rights in concrete cases.

There has been reference to subsection 35(3) and the issue of back door amendment. It was an amendment made to the charter a year after its enactment. I was out of the country at the time, but when I returned I remember discussing it with the new justice minister who succeeded the present Prime Minister. I said “There are treaties that are unknown quantities. Is there any problem here?” We agreed as a matter of interpretation that it would be a most unreasonable interpretation to say that we could change the constitution in this way. It would be an absurd interpretation but we at least adverted to it.

It is in response to these sort of fears, unreasonable as they may be, that the B.C. caucus spent some three or four months discussing with the previous minister of Indian affairs and the parliamentary secretary the inclusion of the provisions that the treaty, notwithstanding that it already says it in terms, because of the federal enacting legislation is legally subject to the constitution and to the charter of rights.

It is there. It is part of the travaux préparatoires which courts must take into account in interpreting the treaty. It has been said in this parliamentary debate, not merely by myself but I think by all members on the government side who preceded me, members of the New Democratic Party and members of other parties, that the parliamentary intent is that it is subject to the constitution and the charter of rights. The words are clear but that it is also parliamentary intent.

Let me come back to the larger issues that are involved. It is a historic process for B.C. It is the first B.C. treaty. How fortunate that the people involved in it, the Nisga'a people, were reasonable people, and that they negotiated in good faith. I expect similar behaviour or similar conduct from those involved in the subsequent treaties. It was a model of negotiation.

Another aspect is that it is not simply a negotiation in good faith. It is also the concept of good neighbourliness. It is a phrase that the English court of appeal threw out in 1935, that one must act in relation to one's own rights as one would expect them to be applied if one were a neighbour. The World Court has picked up the concept of good neighbourliness. It is also by the way part of the French civil law, but it returns again I think in the context of the Nisga'a treaty.

There is an appreciation here that there is no such thing as absolute rights which are conceived in a vacuum. All rights exist in a social context. It is a recognition that there may need to be the balancing of rights with other rights. I think it is the core of the Nisga'a negotiation process.

We are into concepts of comparative equity when good citizens, good neighbours work together and try to work things out by negotiation if there are differences. If there are differences they cannot surmount then the effect of the application of the constitution and the charter is that the constitutional principles and due process of law including judicial review are there.

I anticipate that treaties such as this one will be before the courts over a long period of time. I do not mean by this antagonistic litigation. I mean where parties seek the advice and interpretation of the courts when we have what is at the core of the English concept of equity, a continuing process of working together by the parties, trying to interpret general principles in terms of accommodation of interests of a larger community which, in Canada, includes the so-called two founding nations that are really relatively recent arrivals, the original nations and others.

It is in this spirit that I welcome the debate as it has emerged and I welcome the assurances we have had from many people intervening in the debate that they regard this as an optimistic sign. There is no reason for fear. This is a process of full community engagement that we are entered upon.

[East Timor, October 25th, 1999]

Mr. Speaker, for thousands of East Timorese displaced after the independence vote, the situation in East Timor is still serious. Humanitarian organizations are having trouble responding to the needs of the Timorese, who are homeless and suffering from malnutrition.

Will the minister tell the House what action is now being contemplated to respond to the humanitarian crisis in East Timor?

[Petitions, October 20th, 1999]

Mr. Speaker, I am pleased to present a petition signed by 41 residents of British Columbia, duly certified by the Clerk of Petitions, calling on the Parliament of Canada to support Taiwan's membership in the World Health Organization.

[Petitions, October 20th, 1999]

Mr. Speaker, pursuant to Standing Order 36, I am pleased to present a petition signed by 73 residents of British Columbia, duly certified by the Clerk of Petitions, on the subject of nuclear weapons, asking parliament to support the initiation and conclusion by the year 2000 of an international convention setting out a binding timetable for the abolition of nuclear weapons.

[The Late Allan Leal, October 20th, 1999]

Mr. Speaker, Allan Leal, who died in Toronto on October 12, 1999, had a distinguished career as a legal educator and civil servant. He had been named as a Rhodes scholar but because of military service never took up the appointment. He took his legal education at the Osgoode Hall Law School after the war, with a later degree from Harvard Law School. He was then Dean of Osgoode Hall and subsequently Chair of the Ontario Law Reform Commission and Deputy Attorney General of Ontario.

His deanship at Osgoode Hall came during the public controversy over the role of the legal profession in legal education. As the dispute came to a head, he proposed a union of the Osgoode Hall and University of Toronto law schools.

This was not to be. Instead, there emerged two separate university law schools with their own distinctive personalities and philosophies of legal education. The intellectual legal differences between the two schools have done much to shape Canadian jurisprudence today.

[Médecins Sans Frontières, October 18th, 1999]

Mr. Speaker, the Nobel Peace Prize for 1999 has been awarded to Médecins Sans Frontières.

Founded in 1971 by a group of French doctors and now active in 80 countries, including Canada, Médecins Sans Frontières provides direct, in the field medical help to victims of armed conflict, without regard to political allegiances.

The committee of the Norwegian parliament which chooses the laureates has normally favoured national political leaders but it has also recognized non-profit, humanitarian organizations. The International Red Cross has been honoured three times, beginning with the first award to the Swiss founder, Henri Dunant, in 1901. The Nansen committee and the later UN High Commission on Refugees have also been recognized three times. The Institut de Droit International was an early laureate in 1904. Very recent recipients have included the International Physicians for the Prevention of Nuclear War in 1985, the Pugwash Movement for Nuclear Disarmament in 1995 and the International Campaign to Ban Landmines in 1997.

The award to Médecins Sans Frontières continues this contemporary trend of recognizing the role of volunteer, grassroots, private citizens' organizations in advancing world peace today.