Mr. Speaker, I will be sharing my time with the hon. member for Malpeque.
This has been an interesting debate, a fruitful debate. Sometimes I wondered what the debate was about. We had a lot of discussion about the Supreme Court of Canada and about judicial law making. That is a valuable subject but it might deserve an arena in its own right. It does touch on the issue of the fisheries and the issue of aboriginal rights, and I will treat it only in that context and where it does have a relevance.
The important thing to remember here is the maxim of the wisest of common law legal philosophers, Jeremy Bentham. He was saying that law was not made by any single person or institution. He used his great phrase “by judge and company”. When one asked him what he meant he said it was not simply the judges but it was the people who make the laws, the people who apply the laws and the parties who bring cases to the court. I will have something to say on that in a moment.
There has been criticism of our supreme court but I suggested at the time of the adoption of the charter of rights and freedoms in 1982 that it would effect fundamental changes in our constitutional system and it logically should be accompanied by a reform, a recasting of the supreme court and the judicial role. Not having had this advice followed, I have sympathy for judges who are under attack. What I am about to suggest is a larger role for the judiciary and for other constitutional players.
One of the most thoughtful of our members of the press gallery, Jeffrey Simpson, wrote several weeks ago in an article that reminded me of something I wrote many years ago on the discussion of Brown v Board of Education which has been much criticized in the House and elsewhere but by people who never the read the judgment. This so often happens.
Brown v Board of Education is really two cases. One is the actual judgment on school segregation.
The second is the follow-up decision in Brown v Board of Education. That is where we get the famous phrase which was borrowed directly from English law in the 17th century of moving with all deliberate speed. It is a phrase taken from equity. It was used by Mr. Justice Felix Frankfurter, the greatest of the Roosevelt appointments to the supreme court. It directed attention to the basic point that complex social problems require complex solutions which need complex evidence.
This is where the United States supreme court has perfected a role that may be helpful to us to study. The solution of fisheries problems on the east coast, the solution of logging problems on the west bank of Okanagan Lake, and the solution of other problems of aboriginal rights should be done best against a background of social economic evidence. We have in this country, because I see them consulted internationally, experts in economic resources and economic resource management. This is the sort of case for wise decision that requires taking that type of evidence into account.
The big thrust of the second decision in Brown v the Board of Education was that there was a role for a third party in monitoring the solution. The emphasis of the phrase “with all deliberate speed” was that it would not be a solution achieved in one day, or in a single ruling, but might require a number of years of supervision, monitoring, consulting with and directing the parties.
This is where a role, whether it is executive, legislative, judicial, or a combination of both, is an essential part of the problem solving. In the American context it was clearly an ample judicial role. This in the Canadian context has to be borne in mind in connection with the nature of our supreme court.
I am very much surprised and a little disturbed because I think it follows from lack of study of supreme court decisions a suggestion of class bias in the Supreme Court of Canada. I would not have found that at all. I would have suggested a highly technical approach that sometimes would benefit by more opening to sociological facts, economic facts which are the root of decision making. In this case I would call for a Brandeis brief. The whole nature of jurisprudence before the constitutional court is the adducing of evidence, social and economic evidence.
In the case of fisheries it would be the nature of the resource, how much is there, what proposals cans be made for its utilization and for its sharing. Here I take us back to one of the nicer phrases of our supreme court, one of the wiser counsels, the obligations to negotiate and to negotiate in good faith. It is a very positive factor in my approach to the Nisga'a treaty which I believe the chief and council of the Nisga'a band negotiated in good faith.
I would be less supportive of other initiatives in this area if I did not have the same feeling of satisfaction that negotiation in good faith involves a concept of recognition of good neighbourliness. These are phrases that the World Court has used but they apply equally in the common law from which the Polish judge who cited them borrowed those phrases directly.
There are important gaps in our law as to aboriginal rights and treaty rights. One of these very obviously is the meaning of aboriginal rights and treaty rights. They are in sections 25 and 35 of the charter, but they were put there as what is called saving clauses. There is a Latin phrase for them. I will simply translate it for greater caution. They are put in there because they were not there in the original charter of rights. It was correctly felt to be necessary to put them in, but it was left to later constitutional actors to define and flesh them out. Whether executive, legislative, or judicial was not made clear, but that is certainly open to development.
There are further gaps in the law in so far as section 35(1) saves existing rights, but section 35(3) which was adopted 12 months later recognizes and constitutionalizes future treaties.
I have expressed in the House some questions on this point. Could a future treaty which ran counter to the charter or the constitution proper be constitutionalized and override them? That is an error or a gap being pointed out that was carefully corrected by the then minister of Indian affairs in the Native Lands Administration Act, Bill C-49. I believe it is corrected in the federal enacting legislation for the Nisga'a treaty. I simply point out that there is the need for work to be done.
I welcome in the exchanges in this debate the recognition by the two ministers who have spoken, the Minister of Fisheries and Oceans and the Minister of Indian Affairs and Northern Development, that it is not possible to view aboriginal rights in the context of single departments isolated from each other. We are moving toward a comprehensive view, but it is an educational process that involves all the institutions of government and may, I respectfully suggest, involve all the members of Parliament. It is a learning experience for us.
In particular, one of the things I would suggest is that there is too much absolutism in this area. The original theories of acquisition of rights by European settlers, whether they were British, French, German or Danish—one can run through the list—were based on absolutist theories such as terra nullius or unoccupied land. These theories were rejected by the International Court in 1975 and, to give credit, were accepted by the early 1980s in Canadian thinking as incorrect. The evidence led to the constitution repatriation project that was accepted.
I would also suggest that it is an equal error to proceed to other absolutist views that it is one or the other, that one party wins absolutely and one loses absolutely. The wise solutions here are in the recognition of comparative rights, that original so to speak inherent rights may also be subject to being balanced by supervening rights, particularly supervening rights obtained in good faith by those exercising them.
What we are getting into is a complicated process of identifying, quantifying and balancing different competing rights. The solutions here, and there ample ways of doing it that require work, are in terms of comparative equities. Some of this work has been done in the complicated business of deciding property rights in central Europe which was originally under national territorial title, then under Soviet occupation, then under local communist governments, and then under post-communist governments. The solution is never one absolutely that these are one's rights and everybody else loses. It is a complicated process of sorting out and in a way sharing. This is where we come back to the concept of judge and company. All the players are involved.
This debate shows a recognition that some sort of long range solution is needed, but I do think we will need the courts as a part of it. I do not think executive legislative authority can do it alone. I do not think legislation can do it. I think the court can be brought into the processes more fully.
Those would be my suggestions to the House. Criticisms of the court, as such, should be saved for another occasion and we will put forward suggestions for improving the court. We may find that the judges are very well—
