Mr. Speaker, I will be sharing time with my distinguished colleague, the hon. member for Vancouver Centre.
The motion put forward is an interesting one and I respect the spirit in which it was put forward. It raises issues going to what is called the lame duck status of government. It is a principle of American constitutional law that I think sensibly could become part of Canadian constitution law, but it is limited in its potential application to actions taken by governments between the dropping of an electoral writ and the return of the electoral writ and the formation of a new government or the continuance of an old one.
Having said that, I would like to enter into discussion of some of the very interesting issues that have been raised. This is a subject, rightly said, of special concern to British Columbia. British Columbia, as we all recognize, is not a province like the others and in the area of land claims we do have elements of distinctiveness that separate us off from the other provinces of Canada.
The substantial absence of treaties is one very important consideration which has led to a proliferation of sometimes overlapping claims. Perhaps this is one of the reasons for the public discussion and the lack always of full understanding of how these complications can be removed.
I leave to one side the issue of the status of treaties, which is something that has always interested me professionally. Do they have international law status, as some argue, or are they simply constitutional documents within the ambit of provincial law?
Elements of concern have been expressed in this debate on which perhaps we could offer some clarification. I was, I think, the first to suggest the implications for Canadian law of the International Court's judgment in Western Sahara in 1975 and the two concurring opinions which rested very strongly on the argument
made by then counsel, Mr. Bedjaoui who is now the president of the World Court. Let me say that although I think they do raise the intellectual challenge very effectively, which the court has recognized, to the concept of acquisition of territorial title and sovereignty by European colonial powers, they do not necessarily raise any implications as to the dispositions in view of that and in substitution for that. These are issues to which a body constituted on an independent basis like the treaties commission, armed with the facilities for research and the time for thinking, can offer fresh light.
Let me say that it is a misconception to assume that automatically by querying the original basis of acquisition of sovereignty over North America one automatically displaces supervening claims. In fact, in the most recent international law act, the two-by-four treaty, the treaty between the four occupation powers of Germany and the two Germanies about to be reunited, there is a specific clause that effectively saves supervening third party rights. It leaves open the issue of how one balances the claims.
What I am saying is that one anticipates in British Columbia an orderly process of claims adjustments and settlements in which the claims of everybody can be and will be considered if properly presented by counsel as is counsel's duty. As yet no definitive answer can be given, but it should bring some satisfaction to many of the people who have raised these issues with us to know that the orderly process does allow taking into full account the acquired third party rights.
In a sense the legal problems in British Columbia are sui generis. They are peculiar to British Columbia. To a large extent we get into conflicts between different cultural conceptions of law: the European concept of fixed territorial frontiers and non-European concepts which may emphasize mobility and expression of territorial interests in which land is secondary or subordinate to the notion of ethnicity. It is an interesting example of the clash of legal concepts. It is the sort of thing I expect the commission will consider because it will have to be considered in the process of the settlement of land claims.
The issue of the participation and consent of local communities has been raised. It has been asked if there was full consultation. I cannot speak of the particular cases now being cited in the debate, but on the precedent that the federal government followed in the bill which was before the House in relation to the northern territories, there was a very substantial provision for consultation with local interests. I believe there is nothing in the implementation of the commission process which prevents local interests, local municipal authorities and others from bringing forward their views and making their arguments. It is not excluded by the act. The initiative rests with those concerned.
When an independent commission is set up, it takes on a life of its own. It develops its own precedents. It is very much dependent on intelligent lawyer-manship by those people who want to bring forward their own interests and their claims. The commission is a body which has interesting people appointed to it. They are independent in their outlook. I would suggest to hon. members that they exercise to the full the process of making known to the commission the different and sometimes conflicting interests of the different people involved.
One of the great problems in British Columbia which distinguishes it from the rest of the country is that, simply because of the absence of treaties, there has not been the process of the sorting out of claims which I encountered in my previous professional work in dealing with, for example, the province of Alberta. This accounts for the overlapping and competing claims which sometimes, in the superficial extent, exceed the total amount of land involved in a region. This can be sorted out and sensibly, this is the mandate of the commission.
Problems of this sort complicate the matter in the public perception. In terms of the commission, I believe it is an excellent step forward. I am satisfied with the independence and the quality of the people concerned.
I urge hon. members to indicate to their constituents, particularly to the very thoughtful people at the municipal level that the process is not closed. The door is open for participants to bring their interests forward. The commission itself is not in the position of deciding on a dichotomous basis all here or all there. There is room for the acceptance of third party claims. There is room for apportionment of benefits. Following the international law as it has developed since the western Sahara case, international law itself is in the making. One would expect equitable settlements in which the largest possible range of participants is involved.
It is a new approach to the pluralizing of our legal system and the participation in it. This is better than doing it through the court system as such. Of course, decisions of commissions are also subject to limitation and control by the courts in respect to ultimate constitutional principles. Everything done is under the Constitution and under the charter of rights. The charter of rights as we know is a house of very many rooms.
I compliment the speakers on both sides of the House on the fervour with which they have entered into this debate. I have taken note of the points they have raised, but I believe they can be achieved within this ambitious process that the bill the minister originally introduced involves.