moved:
Motion No. 1
That Bill C-33 be amended by deleting Clause 5.
Mr. Speaker, as mentioned, Motion No. 1 deals with the provision for future Yukon land claim agreements to be ratified by order in council and not by Parliament.
Of course it is common for legislation to delegate to the governor in council the responsibility to implement broad legislative principles to provide the details so to speak. We have no problem with that.
Parliament should be concerned with broad matters of social policy and not the minutiae of implementation. The normal rule relating to the promulgation of regulations and other forms of subordinate legislation are very telling. Subordinate legislation is invalid unless it is specifically authorized by the act. Regulations which go beyond the scope of a provision are invalid, what the legal system calls ultra vires.
The basic ideas is that Parliament, not government, makes law and policy. Subordinate bodies may be delegated the task of implementing this law and with it the underlying social policy objectives sought to be accomplished by Parliament.
Bills C-33 and C-34 through the clever expediency of providing for final and transboundary agreements skirt around the convention and good sense of the ordinary rules of delegation to subordinate bodies. These agreements, most of which have not been negotiated and therefore are unavailable for parliamentary scrutiny and which may be amended in any event, even if existing, prevail over the provisions of Bills C-33 and C-34.
Moreover, land claim agreements and most of these have not been negotiated, can go beyond the act and its provisions may be enacted as law by the governor in council.
The result is that without Parliament's involvement, laws of great import may be formulated. For example, an agreement could provide or be amended to provide a limitation of liability for a First Nation or one of its citizens for any misconduct, default of debt, even breach of fiduciary obligation or fraud.
If this type of provision is not presently permitted, this can be altered through the amendment of the relevant agreement. There is nothing in these bills that precludes this sort of amendment.