Evidence of meeting #20 for International Trade in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
Could you identify for us the later clauses in the bill that deal with breaches of the agreement, just so we know? I ask because you certainly have a good knowledge of the legislation, and that's why we bring you forward. We appreciate that.
I just ask so that we can flag these clauses later on. I have my own feelings on this, but it would be helpful to have you provide us with the clauses of Bill C-2 that deal with breaches.
Director General, Trade Law Bureau, Department of Foreign Affairs and International Trade
Maybe we could do that as we get to those clauses. I wouldn't want to overlook anything here. So maybe rather than going through all of Bill C-2 now and discussing what it does or doesn't do, it would be easier to address that when we get to a clause.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
That's a fair comment. Of course, this illegitimate process doesn't really allow us to work our way through in a way that a responsible committee normally would, but I certainly understand your point.
Conservative
Bloc
Jean-Yves Laforest Bloc Saint-Maurice—Champlain, QC
Thank you, Mr. Chairman.
In clause 5, it says “[...] nothing in this Act, by specific mention or omission, is to be construed to affect in any manner the right of Parliament to enact legislation to implement any provision of the Agreement or a related agreement [...]”.
Does that mean that Parliament can pass or conclude related agreements that are not included in this legislation? We discussed this earlier, with respect to the definitions and interpretation section. It talks about related agreements negotiated by Canada, but it does not refer to the related agreement on human rights that has just been signed with Colombia.
Does this clause mean that Parliament can adopt related agreements that contain provisions that say the opposite of what some of the clauses in this bill say? In a way, this clause says that at no time can the provisions of an act interfere with the power of Parliament, which remains sovereign in relation to its choices, decisions, and even signing related agreements that would conflict with clause 4, for example, which we were discussing earlier, and which says that “nothing in this Act applies to surface or groundwater”.
Supposing Canada signs a related agreement, that is not currently included in the legislation, that conflicts with clause 4, which we were discussing earlier. Canada could ultimately do that; Parliament could adopt a related agreement. Parliament decides to do that, and it conflicts with one or two provisions of the Act. So, what is the point of enacting legislation if a Parliament is then given the power to contradict itself by signing another agreement—in particular, a related agreement?
The perfect example was given earlier. I asked why no one had thought of immediately including the related agreement on human rights in this bill. What that means is that the entire bill was drafted on the basis of the related agreements that are mentioned—in particular, the ones dealing with labour cooperation and the environment—even though a great many witnesses told us last fall that respect for human rights is a considerable problem in Colombia. That means that this bill was drafted without any consideration being given to that issue and that a related agreement could be signed after the fact that does consider it. It looks as though it wasn't even considered, since no clause actually refers to it. That has the effect of utterly diminishing its importance.
Is that what this clause means?
Director General, Trade Law Bureau, Department of Foreign Affairs and International Trade
What this clause means is what it says. What it says is that nothing in this act, whether by mention or omission, affects in any way Parliament's power to implement legislation in respect of the agreement or related agreements, or to fulfill obligations that these agreements prescribe. It does not cover breaches of, or derogations from, obligations in those agreements. It simply doesn't address that. It is there for certainty, as a matter of construction, so that it is clear that Parliament has the authority to implement legislation to give effect to the agreement and the related agreements. The related agreements are the ones defined in the legislation.
Jean-Yves Laforest Bloc Saint-Maurice—Champlain, QC
I still find this odd. I go back to the example of a related agreement, which I cited earlier, that was not included when this bill was drafted. You have answered me, but your answer does not entirely satisfy me. The major issue is whether there will be others, whether other related agreements will be negotiated later with Colombia dealing with something that is not included here. The government could then sign an agreement that would conflict with certain aspects of this legislation. Clause 5 means that the government could ultimately conclude a related agreement which would create a conflict between this legislation and the agreement.
I may be wrong, but this provision doesn't satisfy me.
Director General, Trade Law Bureau, Department of Foreign Affairs and International Trade
This is not a conflicts clause. This is not a clause that addresses any real or perceived conflicts between different agreements the government may enter into. That's not what it's about. It's about making clear, just as a matter of construction, that Parliament has the authority, whether the act says so or doesn't say so, to implement by legislation provisions of the agreement or related agreements, or to fulfill obligations that Canada has undertaken under those agreements. That's what it says.
Conservative
The Acting Chair Conservative Larry Miller
Thank you.
All those in favour of clause 5?
You're in favour, Mr. Julian?
Conservative
The Acting Chair Conservative Larry Miller
Clerk?
(Clause 5 agreed to: yeas 6; nays 3)
(On clause 6--Binding on Her Majesty)
Conservative
The Acting Chair Conservative Larry Miller
This is a fairly complicated one.
Mr. Julian, you have a question.
NDP
Conservative
The Acting Chair Conservative Larry Miller
It's your prerogative, Mr. Julian. I like your thoroughness.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
I'm sure you're just as interested in this as I am.
If we had the time the committee should be spending on this, we could be much more thorough.
Director General, Trade Law Bureau, Department of Foreign Affairs and International Trade
I want to preface this by saying I'm not an expert in constitutional law; I'm a trade lawyer. But as the explanation says in the clause-by-clause guide, the Supreme Court of Canada has interpreted section 17 of the Interpretation Act to mean that in order for the crown to be bound by legislation, the legislation must say so expressly. That's what this provision does.
Liberal
Scott Brison Liberal Kings—Hants, NS
I have very little experience in binding queens, but I would agree with Mr. Kronby's intervention. I think that would be accurate constitutionally.
Conservative
NDP
Peter Julian NDP Burnaby—New Westminster, BC
I'd like a recorded vote.
(Clause 6 agreed to: yeas 6; nays 3)
(On clause 7--Purpose)
Conservative
The Acting Chair Conservative Larry Miller
We have--surprise--a number of proposed amendments by Mr. Julian. The first one is NDP-01, reference 4461815.
Mr. Julian, you have the floor.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
Thank you, Mr. Chair.
I'd like to start by asking our guests to explain the purpose of clause 7.
