Evidence of meeting #4 for Subcommittee on Private Members' Business in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was voted.
A recording is available from Parliament.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
If I understand correctly—and you can correct me if am wrong about what you just said, Mr. Toone—you're saying that effectively, certain of the treaty rights that are constitutionally entrenched via section 35 of the Constitution Act of 1982 are effectively repealed by virtue of certain sections of this act. I'm just trying to figure out now which....
There are certain obligations placed upon the bands that in some respects would cause a retrenchment of those treaties. Is that sort of what you're getting at, or am I missing the point?
NDP
Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC
Right. That's essentially what I'm saying: if we have treaty rights, and we create new obligations on top of those treaty rights, we're essentially abrogating those treaties or are at least fundamentally modifying them. And that can't be done, because the treaties are now entrenched in the Constitution.
We don't necessarily have to go through the amendment system of seven provinces that require 50%. It is a federal jurisdiction, so there are possibly other ways to do this. But I don't think a private member's bill is the correct vehicle.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
If I may speak to that, I have some knowledge of this subject, being the only person, as far as I know, to have actually formally submitted an amendment to the Constitution as a private member's motion. It was a 7/50 amendment—that is, requiring seven provinces and 50% of the population. That's done by motion, but amendments to the Constitution under federal jurisdiction I think are done by section 45, I think it is. Forgive me. I'm not sure which section it is.
Let's just find that out, and I'll continue my thought once we have that done. I'm not sure that it's a section 45 amendment. That really deals with the executive government.
I think it's section 44. That's done by bill. An example is the Nunavut Act, which effectively amended the Constitution to create the new territory of Nunavut. There was a bill, and part of the bill was constitutional in its implications, but not the whole thing. So it has been done. That's how it's done.
That particular kind of amendment is done through a bill as opposed to being done through a motion. Most constitutional amendments are done by means of a motion, but this is the exception.
Committee Researcher
I am going to quickly talk about the impact of section 35 of the Constitution Act, 1982. At this point, since the criterion is clearly constitutional and since we are citing a treaty, it could obviously have some impact, but that has to be claimed and demonstrated. In some cases, the legislation might not apply if they violate treaties. Requirements are already imposed on band councils, and I don't think it is unconstitutional to change those obligations.
In terms of the procedural process by which the private member's bill can amend the Constitution, there is really no constitutional constraint. A member of Parliament can introduce a bill to amend the Constitution directly because it is allowed through the amending formula, section 44, that is. In addition, the Constitution Act, 1871, allows the Parliament of Canada to explicitly legislate on territories.
When other amending formulas apply, a member of Parliament could obviously introduce a motion to amend the Constitution. In that case, the appropriate number of provinces would have to adopt the motion as well.
Liberal
Stéphane Dion Liberal Saint-Laurent—Cartierville, QC
It is possible that this bill contravenes some provisions in some treaties; it is also possible that it does not. It will be up to the committee to determine that. In my view, the bill in itself does not violate the Constitution. It has to comply with it just like any other bill. That is something the committee will have to check in order to ensure that a bill is agreed to on its substance. The only remaining problem is to make sure that it complies with the existing treaty. That could be established in the parliamentary process.
Conservative
The Chair Conservative Harold Albrecht
Okay, I'm going to say that we've had adequate debate, but I will not make that judgment. Does anyone want to comment further?
We need to move ahead with a decision on whether or not to allow this to proceed.
Mr. Toone.
Conservative
The Chair Conservative Harold Albrecht
Sure.
All in favour of allowing this to proceed?
(Motion agreed to [See Minutes of Proceedings])
Now we'll move to Bill C-429.
Committee Researcher
Bill C-429 would amend the Radiocommunication Act and the Telecommunications Act with respect to antenna system infrastructures. Basically, the bill legislatively codifies a circular policy already applied by Industry Canada.
This bill does not appear to be outside federal jurisdiction. It does not appear to violate the Constitution, including the Charter. It is not similar to a bill already voted on in the current session, be it a government bill or a private member's bill.
Conservative
The Chair Conservative Harold Albrecht
Are there any concerns or comments?
Seeing none, we will move to motion M-386.
Committee Researcher
Motion M-386 seeks the guidance of the House on the Indian Act as the embodiment of colonial and paternalistic policies, which have denied First Nations their rights and fair share in resources. It essentially asks that the act be eliminated.
This motion does not appear to violate the Constitution, including the Charter. It appears to be within federal jurisdiction. It is not similar to a motion already voted on in the current session, be it a private member's motion or a government motion.
Conservative
The Chair Conservative Harold Albrecht
Are there comments or concerns?
Seeing none, motion M-386 is considered votable.
Now we need a motion by one of our members that the subcommittee present a report listing those items which it has determined should not be designated non-votable and recommending that they be considered by the House.
That's moved by Mr. Reid.
All in favour?
(Motion agreed to)
Okay. Thank you.
I declare the meeting adjourned.