Bill C-11 (Historical)

Westbank First Nation Self-Government Act

An Act to give effect to the Westbank First Nation Self-Government Agreement

Westbank First Nation Self-Government Act

[Larry Bagnell, Liberal, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development]

Mr. Speaker, I must begin by saying that I disagree with the previous arguments and I will outline my position.

First of all, the first amendment to the bill is a complete deletion of clause 3. Basically, we cannot delete clause 3. We cannot delete any clause, actually, because this is an agreement between the Government of Canada and a first nation. We have negotiated this agreement for years and to remove an instrumental clause, which of course the Government of Canada has agreed to put into law and which is what we are doing in Parliament, would abrogate the whole agreement and we would be back at stage one.

The effect of this amendment would be that Canada would not ratify the Westbank first nation self-government agreement. With this amendment, members of Parliament are being asked not to approve the Westbank first nation self-government agreement in its entirety. Clause 3 would give the force of law to the Westbank first nation self-government agreement. Clause 3 is the substantive provision of Bill C-11. Without this provision, the Westbank first nation self-government agreement would not be given effect.

Both Canada and Westbank first nation must ratify the Westbank first nation self-government agreement for the agreement to come into effect. Pursuant to the Westbank first nation self-government agreement, Canada's ratification procedure requires that Canada sign the agreement and that Canada enact federal legislation giving effect to the agreement. Canada signed the Westbank first nation self-government agreement on October 3, 2003. Bill C-11, and in particular clause 3, is the proposed federal legislation that would give effect to the Westbank first nation self-government agreement.

With regard to the specific argument that we had in relation to clause 3 and the Charter of Rights and Freedoms, basically, in summary, I would say that the Charter of Rights and Freedoms will apply to the Westbank government and to the people of Westbank. The Government of Canada is committed to the principle that the Canadian Charter of Rights and Freedoms binds all governments in Canada so that aboriginal peoples and non-aboriginal Canadians alike would continue to enjoy equally the rights and freedoms guaranteed by the charter.

The charter, through section 25, is designed to ensure a sensitive balance between individual rights and freedoms, and the unique values and traditions of aboriginal people in Canada. This is stated in the Government of Canada's federal policy, “The Government of Canada's Approach to Implementationof the Inherent Right and the Negotiation of Aboriginal Self-Government”. Section 32 of the Westbank self-government agreement is in conformity with this policy.

It is the view of the Government of Canada that the Westbank first nation government and any Westbank laws passed pursuant to the Westbank first nation self-government agreement will be subject to the Canadian Charter of Rights and Freedoms in its entirety. One cannot make one provision of the charter apply more forcefully than any other.

With regard to providing Westbank with specific self-government inherent rights, this is a general right that is applied across the country. It is the same in all our self-government agreements. It is not specific to Westbank. It is not a specific right.

The references to an inherent right in the Westbank first nation self-government agreement are general in nature and do not constitute a specific recognition of any specific Westbank first nation aboriginal right to self-government. The Westbank first nation self-government agreement and its references to an inherent right of self-government are in accordance with the federal government's inherent right policy, which recognizes that the inherent right of self-government is an existing aboriginal right within section 35 of the Constitution Act.

In case the people who are watching want to know what we are debating in section 25 of the Charter, I will read it. It states:

The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

This is a general protection and reference in the bill. The Charter of Rights and Freedoms will continue to apply to aboriginal people across the country and to the people on the Westbank reserve. Of course, the sensitive clause 25 will ensure that rights are acknowledged.

I want to now talk about Motion No. 3 and the clause respecting additions to reserve. The amendment basically suggests that adding land to the Westbank First Nation reserve would require the consent of the City of Kelowna. While land has already been added to the Westbank reserve through our general policy, when additional land is added to reserves, there are consultations and agreements with the provincial and municipal governments. This is already in our policy.

The authority to add land to reserves is a federal authority and that authority is applied across the country, including the Westbank. With or without this agreement, there is authority to add to the reserve. However, the amendment would take away from the Westbank people something that would be available to all reserves across the country, and that would obviously be unfair.

We are not here today to take away or lessen one particular first nation from a power. However, we had a lengthy debate about this section in committee and at that time assurances were given, and that is Canadian policy is that when additions are made to reserve, the municipalities and provincial governments will consulted. Therefore, this should not be a concern.

The Westbank First Nation, like all other first nations in Canada, may concurrently access additions to reserve policy, which is a national policy. Upon implementation of the Westbank First Nation self-government agreement nothing would change for the Westbank First Nation with respect to the federal government's additions to reserve policy.

The additions to reserve policy requires that the first nation and the municipality in question negotiate in areas such as joint land use planning, bylaw harmonization, tax considerations, service provision and future dispute resolution. In practice Canada has insisted that these matters be dealt with to the satisfaction of all parties. As a result, in many cases lands are added to reserves only after years of negotiations. This has been demonstrated in the addition of what are known as the Gallagher Canyon lands to the Westbank First Nation reserve in 2000, 17 years after the Westbank First Nation first initiated an addition to reserve request.

Any amendment denying the Westbank First Nation the right to access the federal government's additions to reserve policy in whole or in part would set the Westbank First Nation apart from all other first nations, including those that have self-government agreements or those that have concluded treaties. This would place an undue burden on the Westbank First Nation. Further, the additions to reserve policy is within the purview of the federal government's jurisdiction to deal with all matters relating to Indian lands.

As stated above, in practice the additions to reserve policy does not permit the addition of lands to reserve without the consent of surrounding municipalities. In this regard the proposed amendment requiring the consent of the City of Kelowna prior to any further additions to Westbank First Nation reserve lands merely states what is already the case.

Nevertheless, the proposed amendment would cede the federal government's power, expressed through the granting of an order in council with respect to additions to Westbank reserve lands, to a municipal level of government. Additions to reserve, a federal jurisdiction under the Canadian constitutional framework, would no longer be entirely within the prerogative of the federal government.

The additions to reserve are granted pursuant to an order in council by the governor in council. It is recognized that additions to reserve proposals may potentially impact on provincial and municipal governments, and thus the federal government's addition to reserve policy requires that these levels of government have an opportunity to express their interests.

Provinces and municipalities must be advised in writing of an additions to reserve proposal within their jurisdiction and have three months to respond in writing to identify any issues with an additions to reserve proposal. Third party interests must be identified and dealt with before an additions to reserve proposal may proceed.

I will not have time to go any further, so I will just summarize by saying, of the two amendments, the first one basically would abrogate the whole agreement. It is the primary clause that puts it into effect. It basically is yes or no on Westbank. The last one I do not think is necessary. First, the City of Kelowna is already guaranteed under the present policy. Second, we could not take a right away from one first nation in Canada. If people want to change that, they should lobby to change the entire government policy, not just one clause in the agreement.

[John M. Cummins, Canadian Alliance, Delta—South Richmond, BC]

Mr. Speaker, simply put, the agreement gives the Westbank government an umbrella to shield itself any time a resident seeks to reign on its arbitrary actions with a challenge under the charter.

The lawyer for the Westbank, Micha Menczer, when challenged in the House of Commons committee studying the Westbank bill and agreement, claimed that critics must not believe in the charter, that their complaint was really with section 25 of the charter rather than with the agreement. He stated:

I think that's a misreading. More importantly, section 25 is part of the Charter of Rights and Freedoms. Westbank and the Government of Canada have no power to change that, either by an agreement or even by legislation. That is a matter of constitutional change.

A convenient lawyer's trick, but no, the problem is with the agreement's action to make the Westbank government an aboriginal right triggering section 25 and knocking out the protection of the charter for Westbank residents. The problem is not section 25 of the charter.

The problem is the sections in the agreement that state that the agreement is both a recognition and an implementation of the aboriginal right of self-government. It is those sections of the agreement that trigger section 25. It is the aboriginal right of self-government provisions of the agreement that effectively allow the Westbank government to shield itself from the application of the charter any time it wishes to do so.

In a paper entitled “Westbank self-government agreement will strip away fundamental Canadian rights”, Tanis Fiss, Director for the Centre for Aboriginal Policy Change of the Canadian Taxpayers' Federation, observed:

This is a disastrous piece of legislation. If Members of Parliament pass this agreement, Canada's elected officials will deny certain Canadians the right to vote in community elections and in so doing will strip the fundamental rights of Canadian citizens.

The proposed Westbank Self-Government Agreement, Bill C-11, will shield the Westbank government from application of the Charter of Rights and Freedoms. By doing so, Westbank laws would be immune from a Charter challenge. In other words, Westbank laws could discriminate between residents of Westbank based on their race, religion or gender and the victim of discrimination could not use the Charter to strike down the offence.

Once entrenched in the Constitution based on the premise of an “inherent right” to self-government, this means Section 25 of the Constitution will also apply to the Agreement. The equality rights of the Charter do not apply to Aboriginal communities under Section 25 of the Constitution. This will be the case no matter what is written in the Agreement because the Constitution is the supreme law of Canada.

The federal government plans to use the Westbank self-government agreement as a template for further negations. This piece of legislation will set a precedent which other Indian Bands will follow. Clearly, this Agreement will have national repercussions for generations of Canadians.

Incredibly, all parties in the federal parliament plan to support the measure and have supported it through the first two readings. Given the many flaws of this Agreement, Canadians can only hope their elected Members of Parliament come to their senses and vote against the Agreement.

Mark Milke, in an article in the Calgary Herald entitled “Native agreement flawed”, stated:

One significant problem with the Westbank agreement is that it will deny natives and non-natives some of their charter rights. Defenders already claim that because one section in the Westbank document references it as bound by the Charter of Rights and Freedoms that such freedoms are thus secure. No, they are not. The same section of the agreement the defenders will point to also has this caveat about such charter freedoms: “with due regard for Section 25...”

That's a tip-off. Section 25 grants aboriginal and treaty rights immunity from legal challenges launched from other charter sections.

Christopher Harvey, a lawyer who analyzed the agreement, argues that the new Westbank deal infringes on charter rights and does so through a clever (and improper) juxtaposition of aboriginal claims to self-government combined with the Section 25 rights noted above: “It amounts to an abdication of the sovereign law-making and executive authority of the Crown in Parliament. Its effect on the people residing and working in Westbank is to remove many of the fundamental political and legal safeguards that support their freedoms and security. It is surprising to see basic legal rights which have been acquired gradually over many years of political struggles being so abruptly discarded”.

If Parliament intends residents to have the right to use the charter to challenge the Westbank government, it must ensure that those sections of the agreement that refer to the aboriginal right of self-government are not brought into law. If Parliament intends to give the Westbank government an umbrella to shield itself from challenges under the charter, then it should pass Bill C-11, the Westbank law act, into law without amendment.

However, a healthier choice of action dictates that Parliament consider the serious implications of shielding the Westbank government from the charter. Westbank residents, like Canadians everywhere, deserve the protection of the charter. It is the right of Canadian citizenship, yet they will not have charter protection if this bill is approved in its present form.

[John Duncan, Canadian Alliance, Vancouver Island North, BC]

moved:

Motion No. 3

That Bill C-11 be amended by adding after line 13 on page 2 the following new clause:

“4.1 Despite section 102 of the Agreement, lands acquired by the Westbank First Nation that are contained within the limits of the city of Kelowna, British Columbia, may be transferred to Canada for the purpose of being set apart as lands reserved for Indians under subsection 91(24) of the Constitution Act, 1867, or as reserves within the meaning of the Indian Act for the use and benefit of the Westbank First Nation, only with the consent of the City of Kelowna.”

[John M. Cummins, Canadian Alliance, Delta—South Richmond, BC]

moved:

Motion No. 1

That Bill C-11 be amended by deleting Clause 3.

[The Speaker]

There are three motions in amendment standing on the Notice Paper for the report stage of Bill C-11.

Motion No. 2 will not be selected by the Chair as it could have been presented in committee.

The remaining motions have been examined and the Chair is satisfied that they meet the guidelines expressed in the note to Standing Order 76.1(5) regarding the selection of motions in amendment at the report stage.

Having heard submissions from the hon. members in respect of that matter, Motions Nos. 1 and 3 will be debated and voted upon.

I will now put Motions Nos. 1 and 3 to the House.

Business of the House

[Jacques Saada, Liberal, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform]

Mr. Speaker, this afternoon, we shall continue debate on Bill C-30, an act to implement certain provisions of the budget tabled in Parliament on March 23, 2004. If this is completed, we will commence second reading of Bill C-28, an act to amend the Canada National Parks Act.

Tomorrow, we will debate a motion to refer to committee before second reading Bill C-25, an act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings, and hopefully deal with the Senate amendments to Bill C-8, an act to establish the Library and Archives of Canada, to amend the Copyright Act and to amend certain acts in consequence.

When the House returns on April 19, any of this business that is unfinished will be taken up, along with Bill C-11, an act to give effect to the Westbank First Nation Self-Government Agreement, Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, and Bill C-10, an act to amend the Contraventions Act and the Controlled Drugs and Substances Act, Bill C-15, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, Bill C-28, an act to amend the Canada National Parks Act, Bill C-23, an act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other acts, and the bill introduced yesterday, Bill C-31, an act to give effect to a land claims and self-government agreement among the Tlicho, the Government of the Northwest Territories and the Government of Canada, to make related amendments to the Mackenzie Valley Resource Management Act and to make consequential amendments to other acts.

I should like to wish my colleagues a happy and pleasant holiday period and to express my hope that they return refreshed and ready for a full legislative agenda for the spring.

[Jacques Saada, Liberal, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform]

Mr. Speaker, I am glad to answer the Thursday question.

This afternoon, we will continue the budget debate. Tomorrow, we will begin consideration at the report and subsequent stages of Bill C-3, the Canada Elections Act, followed by a motion for referral of Bill C-25, the whistleblower bill, to a committee before second reading.

Monday and Tuesday we will continue with the budget debate. Wednesday, we will have votes on ways and means motions. We will then resume consideration of any bill that did not get finished on Friday, Bill C-11 in particular, plus of course, if possible, Bill C-9 on drugs. Next Thursday, I hope we will be able to start second reading of the budget bill.

As for the committees, all I can say is that I am pleased the Standing Committee on Public Accounts will be able to make some progress during the week we are not sitting here in the House.

Committees of the House

[Rick Laliberte, Liberal, Churchill River, SK]

[Editor's Note: Member spoke in Cree]

(English)

Mr. Speaker, I have the honour to present the first report of the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources regarding the order of reference of Thursday, February 12, Bill C-11, an act to give effect to the West Bank First Nations Self-government Agreement.

The committee has considered Bill C-11 and reports the bill with amendments.

Westbank First Nation Self-Government Act

[Andy Mitchell, Liberal, Minister of Indian Affairs and Northern Development]

moved for leave to introduce Bill C-11, an act to give effect to the Westbank First Nation Self-Government Agreement.

Mr. Speaker, pursuant to special order made earlier, I wish to inform you that this bill is in the same form as Bill C-57 at the time of prorogation of the previous session.

(Motions deemed adopted, bill read the first time and printed)