Debates of Oct. 26th, 1999

Nisga'A Final Agreement Act

[Libby Davies, NDP, Vancouver East, BC]

Madam Speaker, I am honoured to speak in the House today on what is truly a very historic occasion, the first day of debate on the Nisga'a treaty.

I thank my colleague, the hon. member for Yukon, for her very thoughtful comments, particularly as they relate to the international situation concerning aboriginal land and what has taken place in other jurisdictions. She has shown us, in a very thoughtful way, that what is happening here in Canada is very much in context with what is taking place in other parts of the world.

As a person from British Columbia, I must say that the work, endurance and patience of the Nisga'a leadership and the Nisga'a people has really been outstanding. They have been negotiating the treaty for more than 20 years. For more than 100 years, they have been moving through a process, sometimes with huge conflict and huge oppression, to get to get to this point today. The leadership that has been shown and the support that has come from the grassroots of the Nisga'a people is something that really makes this a historic occasion.

I want to begin my remarks by quoting Nisga'a Tribal Council president Joseph Gosnell. Yesterday as he arrived in Ottawa he called on the Reform Party leader to ensure that the members of the Reform Party caucus stopped making incorrect allegations about the Nisga'a treaty which is currently before parliament. I thought it was very significant that the tribal council president was making this statement:

We understand that the role of the official opposition is to oppose government initiatives—

That is part of our democratic tradition. He continued:

—and we have no fear of a genuine debate in parliament. However we also believe that it is the responsibility of all members of parliament to provide accurate information, and not to attack the Nisga'a treaty on the basis of allegations that are just not accurate.

I wanted to read that into the record because I had hoped that on the opening day of debate of this historic treaty that it would be an honourable debate, that it would be a debate where yes, there would be criticisms and there would be issues, but it would be a debate based on facts and real information.

Instead, the leader of the Reform Party, the Leader of the Opposition, chose not to listen to the wise words of the Nisga'a Tribal Council president. What he and the hon. member for Skeena, the Reform Party spokesperson on aboriginal issues, chose to do less than an hour ago was to continue their campaign of misinformation and allegations of grossly inaccurate information. They chose to continue a campaign of fearmongering and divisiveness within the community.

I want to say shame on the members of the Reform Party for doing that. Shame on them for not sticking to the facts and having an honourable debate in the House. What they chose to do today is really a contempt of this process and of parliament. I wish it had not happened that way, but that is the way it seems to be going.

It is one thing to debate and have an intelligent criticism, but it is something quite different to deliberately manufacture and peddle misinformation and completely false allegations about this treaty.

I would like to go over a couple of things that were said this morning by the Leader of the Opposition. First, he said that it was their sole interest to establish a new and better relationship with the aboriginal community, among the aboriginal community. Then he went on to say that it is not in the long range interests of the Nisga'a people to have this treaty. This was repeated by the hon. member for Skeena.

Then the Leader of the Opposition characterized the treaty as being a perpetuation of a 19th century approach. I would say that it is the Indian Act that is the case and the experience of a separate law for separate people.

[Mike Scott, Reform, Skeena, BC]

Madam Speaker, I rise on a point of order. I believe I heard the hon. member in her intervention refer to me and say that I was deliberately misrepresenting or deliberately misleading. I refer you to Beauchesne's where it clearly says that hon. members cannot use that kind of language in the House of Commons. I would ask that you ask the hon. member to withdraw and apologize.

[The Acting Speaker (Ms. Thibeault)]

If indeed the hon. member for Vancouver East has said such a word, I would ask her to withdraw it.

[Libby Davies, NDP, Vancouver East, BC]

Madam Speaker, I do not believe I said such a word. If I did, I certainly did not intend to use unparliamentary language, but I do believe that inaccurate information is being presented in the House and that is a matter on the record. I certainly did not intend to use unparliamentary language and I will withdraw any language that I used that is unparliamentary.

I would like to go through some of the arguments that were used this morning by the Reform Party. One of them was that this is a perpetuation of a 19th century approach. I want to state very clearly that I think what we have seen in the past through the Indian Act would represent that.

If nothing else, this treaty represents a genuine attempt by all of the parties involved, the Nisga'a people, the provincial government and the federal government, to produce a modern day treaty within the constitution of Canada, within the laws of Canada, to provide self-determination and a sense of pride and future for the Nisga'a people. For the leader of the Reform Party to suggest otherwise, I believe, is a misrepresentation.

We also heard from the Reform Party this morning that this treaty will now become the template, the one size fits all for all future treaties, including the 50 in British Columbia and however many there are in Canada. This is completely wrong. This has not been stated anywhere.

This treaty went through a very good process. I hope it is reproduced and used as a model for other treaties. The treaty itself is something that stands on its own merit. It is not written in this treaty or in any other policy or legislation that it will be replicated. I want to put that to rest.

We also heard that the Nisga'a treaty will somehow mirror what has been a very tragic situation with the fishing industry on the east coast, that we will see a parallel with the Nisga'a treaty. Again the Reform Party is dead wrong in the line it is peddling on that. The Reform Party is misleading people and presenting information that is simply not the case. In actual fact, this treaty clearly outlines that if other groups are prevented from fishing for whatever reason, then that will also apply. It is clearly very erroneous information.

We also heard from the member for Skeena that this treaty is going to cost a huge amount of money. I think he mentioned the figure of $1.2 billion. I may have that slightly wrong but it was of that magnitude. Again I want to say that this information is inaccurate and simply not correct.

The treaty provides for a total of $253 million in a one time payment over 15 years from the federal government to the Nisga'a people. There are also contributions from the B.C. government in terms of a land value of $108.6 million and $37.5 million in forgone forestry revenues. Again, the arguments are false.

We also heard that this has been a secretive deal and a closed door process. This treaty had many public hearings and fora. More than 40 hearings alone were held by the parliamentary committee in British Columbia. Anyone who wanted to be heard could state their case and opinions on this treaty. Again, it is misinformation.

At the end of the day we do have a choice here. We have a choice to negotiate treaties in good faith in our modern day world and recognize aboriginal people as full citizens, or we can continue with chaos and litigation in the courts. I think most members of the House have made the correct decision. It is unfortunate that the Reform Party has chosen not to do the honourable thing.

[David Iftody, Liberal, Parliamentary Secretary to Minister of Indian Affairs and Northern Development]

Madam Speaker, I thank the member for her intervention and her ongoing intelligent and clear thinking on this matter and her study of the issue. She is representing an alternative view in British Columbia from the one that we have heard repeatedly from the Reform Party on this bill and a number of other bills relating to aboriginal and first nations people.

As a woman from British Columbia and a member of parliament, she is addressing issues generally from her constituents but more broadly for people from British Columbia as well. I say this to her because the Reform Party keeps alluding to the fact that it is concerned about women, that it speaks for women's issues and wants to protect women's rights. I would like to quote from some sections of the treaty with respect to women's rights and ask her if she agrees with the provisions of the charter and the treaty or the Reform Party.

The preamble of the bill states:

Whereas the Nisga'a Final Agreement states that the Canadian Charter of Rights and Freedoms applies to Nisga'a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a Government as set out in the Agreement;

Section 28 of the charter provides that notwithstanding anything in the charter, the rights and freedoms referred to are guaranteed equally to male and female persons. Likewise in section 35 of the constitution there is a provision on aboriginal treaty rights. Section 35(4) in contemplating concerns over the protection of aboriginal women's rights states:

Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Does the member believe these provisions to protect women, or does she believe the Reform Party which seems to be trying to scare aboriginal women and women in general in British Columbia?

[Libby Davies, NDP, Vancouver East, BC]

Madam Speaker, I thank the hon. member across the way for his thoughtful comments. Obviously he has done quite a lot of research on some of the questions that have been raised by members of the Reform Party. Again they are are speaking very loudly and on numerous occasions are somehow suggesting that the rights of Nisga'a women will be diminished under the treaty. Nothing could be further from the truth.

I agree entirely with the member's comments in terms of the Canadian constitution, the charter of rights and freedoms, and the treaty itself which clearly lays out an enhanced citizenship for Nisga'a men and women. This is really what the treaty is about. It is the heart and soul of the treaty to recognize full citizenship and full equality. If we cannot get that straight, then I think Reform members need to go back to their researchers or wherever they get their information and check their facts.

When I first heard them put out this line that the Nisga'a treaty was somehow denigrating the rights of women, I was really shocked. I wondered whether this could be the case. I checked to find out if that was correct and of course it was completely false.

We need to be very clear on the record that the rights of aboriginal women within the Nisga'a treaty are fully protected. The treaty itself enhances the sense of citizenship and participation for all Nisga'a people.

[Derrek Konrad, Reform, Prince Albert, SK]

Madam Speaker, the member said that she feels the debate should deal in facts. She mentioned the oppression the Nisga'a had been under. I would like her to put some factual evidence before the House to document the oppression the Nisga'a have suffered under the provincial NDP governments, the federal Liberal governments and the federal PC governments that have governed this country and that province for a number of years.

[Libby Davies, NDP, Vancouver East, BC]

Madam Speaker, we are at this point today because of what has historically happened to aboriginal people. This agreement is so historic because it is moving away from a paternal colonizing administration and legislation that did oppress aboriginal people in this country. The treaty will move us beyond that and move the Nisga'a people forward to the future.

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Madam Speaker, I will be sharing my time with another government MP. It is a pleasure to join the debate. I pick up with interest and pleasure the remarks of the very thoughtful hon. member for Vancouver East.

It is a fact that the Nisga'a treaty is not and never was a template. Government MPs spent six months telling the Premier of British Columbia that it was not a template, that it rested on its own particular historical facts. They are very warming facts. The Nisga'a paddled their own canoe a long distance to Victoria. They waited 100 years and negotiated for 20 years in goodwill and good spirit, with great patience and great dignity.

I think we have to pay tribute to the Nisga'a negotiators and Joe Gosnell, who emerges as one of the outstanding figures of our contemporary public life, but also the government negotiators. They are not the same in the case of every treaty. I met the government negotiators in this particular case and I was impressed by their dedication, their hard work and their open mindedness.

The Nisga'a treaty is a special case. It deserves in my view and it deserved in the past quicker treatment than we have given it. I think for more than a year after the signature is too long a delay considering the time that has been spent already in the past on this matter.

What are the features that are so distinctive in this treaty? One is the element of negotiation—and I have spoken on that and will have more occasion to come back to that—in good faith and in the spirit of goodwill. The phrase was borrowed from international law. The World Court used it. The Supreme Court of Canada picked it up in a recent judgment, but it is the essence of the continuing process involving 50-odd treaties still to come in British Columbia. We expect the parties, government and the Indian people, to negotiate in good faith. The Nisga'a did it.

We also expect adequate public hearings, which is a matter that relates to the time, the opportunity and the place. The member for Vancouver East has detailed far better than I could the extensive character of the hearings, having regard to the remoteness of the area involved. It is not a city where one can take a taxi from one end to another in a matter of a few minutes. A remarkable job was done by the House committee on aboriginal affairs and others.

I would also stress the fact of absence of countervailing interests properly proved and adduced before the relevant authorities who negotiated and the House committee. That is a crucial issue in it.

I would stress again the point which is in the treaty itself. The Nisga'a people here showed admirable self-restraint. They accepted and put in the text that it is subject to the Canadian constitution and to the charter of rights.

If anybody had any doubt on this particular point and to make assurance doubly sure, the government caucus from B.C., the senators and the MPs sought assurances from the then minister for aboriginal affairs and her parliamentary secretary that we would put this beyond any question by even the most unreasonable of people. That is why there is an express mention in the enacting legislation by the federal parliament. Incidentally similar guarantees were incorporated in Bill C-49, the Native Land Administration Act, as a result of the representations by B.C. MPs and senators which were gracefully accepted by the minister.

I would like to pay tribute to the former minister concerned and her parliamentary secretary who is still with us for listening and paying attention to these representations.

The constitutional issue has been raised. It is not in my view relevant as an element of criticism of the Nisga'a treaty because, as I have explained, the matter has amply been taken care of, but references were made to sections 25 and 35 of the charter of rights.

I am reminded of Chief Justice Bryan who was a medieval judge. When people asked him about a law he said “You do not have to tell me what it says. I wrote the law. I know what it is about”. It is a fact that has been noted that Senator Perrault and I, when the original draft of the charter appeared, suggested that this matter should be included.

However it should be noted that sections 25 and 35 create no new rights. They are what is called saving clauses. They save rights that already exist, whether customary or under existing treaties. No more, no less. There is a Latin phrase for it, ex abundanti cautela, but it simply means one says what already exists. One leaves it to subsequent events in a pragmatic, common law way to define the actual content and extent of those rights in concrete cases.

There has been reference to subsection 35(3) and the issue of back door amendment. It was an amendment made to the charter a year after its enactment. I was out of the country at the time, but when I returned I remember discussing it with the new justice minister who succeeded the present Prime Minister. I said “There are treaties that are unknown quantities. Is there any problem here?” We agreed as a matter of interpretation that it would be a most unreasonable interpretation to say that we could change the constitution in this way. It would be an absurd interpretation but we at least adverted to it.

It is in response to these sort of fears, unreasonable as they may be, that the B.C. caucus spent some three or four months discussing with the previous minister of Indian affairs and the parliamentary secretary the inclusion of the provisions that the treaty, notwithstanding that it already says it in terms, because of the federal enacting legislation is legally subject to the constitution and to the charter of rights.

It is there. It is part of the travaux préparatoires which courts must take into account in interpreting the treaty. It has been said in this parliamentary debate, not merely by myself but I think by all members on the government side who preceded me, members of the New Democratic Party and members of other parties, that the parliamentary intent is that it is subject to the constitution and the charter of rights. The words are clear but that it is also parliamentary intent.

Let me come back to the larger issues that are involved. It is a historic process for B.C. It is the first B.C. treaty. How fortunate that the people involved in it, the Nisga'a people, were reasonable people, and that they negotiated in good faith. I expect similar behaviour or similar conduct from those involved in the subsequent treaties. It was a model of negotiation.

Another aspect is that it is not simply a negotiation in good faith. It is also the concept of good neighbourliness. It is a phrase that the English court of appeal threw out in 1935, that one must act in relation to one's own rights as one would expect them to be applied if one were a neighbour. The World Court has picked up the concept of good neighbourliness. It is also by the way part of the French civil law, but it returns again I think in the context of the Nisga'a treaty.

There is an appreciation here that there is no such thing as absolute rights which are conceived in a vacuum. All rights exist in a social context. It is a recognition that there may need to be the balancing of rights with other rights. I think it is the core of the Nisga'a negotiation process.

We are into concepts of comparative equity when good citizens, good neighbours work together and try to work things out by negotiation if there are differences. If there are differences they cannot surmount then the effect of the application of the constitution and the charter is that the constitutional principles and due process of law including judicial review are there.

I anticipate that treaties such as this one will be before the courts over a long period of time. I do not mean by this antagonistic litigation. I mean where parties seek the advice and interpretation of the courts when we have what is at the core of the English concept of equity, a continuing process of working together by the parties, trying to interpret general principles in terms of accommodation of interests of a larger community which, in Canada, includes the so-called two founding nations that are really relatively recent arrivals, the original nations and others.

It is in this spirit that I welcome the debate as it has emerged and I welcome the assurances we have had from many people intervening in the debate that they regard this as an optimistic sign. There is no reason for fear. This is a process of full community engagement that we are entered upon.

[Gerald Keddy, Progressive Conservative, South Shore, NS]

Madam Speaker, the hon. member who just spoke referenced several issues that deal with the constitution and the charter of rights and freedoms. The Constitution Act, 1982 states very clearly in subsection 52(1):

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

It is my understanding that the constitution of Canada applies to the Nisga'a treaty and that the charter of rights and freedoms applies to the Nisga'a treaty. That can be argued in several different directions and the Reform Party has done that in several instances.

I would like the hon. member's opinion on whether or not the charter of rights and freedoms applies and whether or not the constitution of Canada applies.

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Madam Speaker, I am happy to give categorical assurance that the member is correct. The constitution and the charter apply and to the extent of any inconsistency would override action to the contrary.

[Jason Kenney, Reform, Calgary Southeast, AB]

Madam Speaker, with respect to the question just put to my hon. colleague from Vancouver Quadra I would like to quote from a article published in today's edition of the National Post by a gentleman known to the member for Vancouver Quadra, Mel Smith, former principal constitutional adviser to the Government of British Columbia for over 15 years. He referred to the deal and wrote in part:

This represents a significant diminishment of the legislative powers given to senior governments by the Canadian Constitution, to a new kind of government unknown to the Constitution.

To be specific, the Nisga'a agreement would make Nisga'a laws constitutionally paramount on at least 17 province-like subject matters. This would include Nisga'a laws on: education...higher education...the delivery of health services, child and family services; business, trades and professions...land use; land registration; laws related to Nisga'a fish, aquatic plants and wildlife entitlements. The list goes on.

Couple this diminishment and divestment of legislative powers with the fact that these aboriginal government rights cannot be retrieved in the future, and...the treaty makers have stepped beyond the bounds of the Constitution. They have, in these respects, given away forever the constitutional right of the B.C. Legislature to make laws applicable throughout the province. This they simply do not have the right to do.

How would the member for Vancouver Quadra respond to the thoughtful argument brought forward by Mr. Smith, former principal constitutional adviser to the Government of British Columbia?

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Madam Speaker, I thank the hon. member for his question. I know Mr. Smith very well and respect his quality as a constitutional adviser to two premiers of British Columbia.

The facts are that the Nisga'a treaty involves a delegation of power, but it cannot override the constitutional division of power, section 91 and section 92, and the two levels of government they have created. It does not create a third level of government. The Nisga'a never asked for this, but it does not in any case so create.

[Ethel Blondin-Andrew, Liberal, Secretary of State (Children and Youth)]

Madam Speaker, it is a great honour for me as member of parliament for Western Arctic to rise in the House to participate in the important debate on the proposed bill to ratify the Nisga'a final agreement.

We have before us for ratification an historic reconciliation between Canada and the Nisga'a people, a people whose culture, language, lands and way of life predate the creation of Canada itself. Indeed, the existence of the Nisga'a people and their rich cultures stretches back tens of thousands of years to the very beginning of human memory.

We must also acknowledge that since the first tentative intrusions by European colonists 150 years ago the Nisga'a have patiently asserted their right to have their collective existence recognized and respected. This agreement recognizes the modest yet fundamental rights necessary to secure their existence as a people: rights to land, self-government and an economic base.

Like so many other first nations, the Nisga'a have sought partnership and accommodation within the Canadian federation. It has been a long and often difficult road. The agreement symbolizes Canada's acceptance of the Nisga'a as an integral part of Canada and of the Nisga'a willingness to join Canada as partners.

For more than 100 years, the Nisga'a people have patiently and peacefully advocated their rights. While doing so, they have fought in wars on behalf of the country. They have waited for the right to vote. They have waited to have recognized their right to speak their own language and to freely practise their spiritual traditions. They have had to struggle for the right to control the education of their children. Finally, the moment has arrived for the Parliament of Canada to recognize, to accept and to welcome their existence as a people and partners in the federation by ratifying the agreement.

In other words, what the agreement represents is a recognition of the fundamental human right of the Nisga'a people to survive as a people and to continue to reflect their unique place in the human family. This is a right protected by international human rights instruments. As the nations of the world have collectively matured, we must now recognize that colonization is the fundamental violation of a people's right to exist. Today we understand that the collective rights to land and to self-government are an integral part of the right of first nations to express their collective identity and existence as a people within the constitutional framework of Canada.

These are rights that people around the world are entitled to. Each people has a right to a measure of self-government and a right to economic and social development.

In the struggle for recognition of the rights of aboriginal peoples, the Nisga'a have a unique and special place in the history of Canada. We all owe a debt of gratitude to the Nisga'a people for their courage, their persistence and their leadership in the struggle for aboriginal rights in the country. It is an important part of Canada's political development.

It is the Nisga'a people who approached the first colonial government in British Columbia in 1887 to seek recognition of their traditional land title and to suggest the negotiation of a treaty. It was the Nisga'a who petitioned the privy council in England in 1913 for a settlement of their basic rights. It was the Nisga'a who persevered through some shameful years in Canada's history when first nations were legally barred from even pursuing justice in the courts. It was the Nisga'a who seized the first opportunity to resume the quest for legal justice. When these discriminatory laws were finally repealed, it was the Nisga'a who devoted time, resources and their heart and soul to bring the Calder case finally to the Supreme Court of Canada in 1969.

I was a young girl when I was first struck by the power and the conviction of the Nisga'a people. It was a turning point in my mind that aboriginal people are not a powerless, homeless, lawless and without leadership people. I felt that power, in the words of Frank Calder, a great Nisga'a leader and great Canadian leader.

Because of the Nisga'a and the Calder case, the Canadian legal system finally recognized that the aboriginal people have aboriginal title, that is, traditional collective rights to land. It was in response to the Calder case that the federal government established a modern land claims policy to create a process to finally seek some accommodation with the first nations of this land.

There have been many successful agreements reached under federal land claims and self-government policy. This agreement addresses both issues in a fair and balanced way. Modern agreements such as this one allow first nations to participate meaningfully in the political, economic and social development of the country. These agreements allow first nations to live in Canada, not as a conquered peoples, but as true partners in Confederation.

It is finally the turn of the Nisga'a to benefit from these policies and to have recognized certain basic and fundamental rights.

I must also mention that the agreement achieves the very important objective of providing a clear and precise legal framework for the exercise of Nisga'a rights. It does so in a way that complements and respects federal and provincial jurisdiction, while allowing some space for local self-government by the Nisga'a people in matters that directly affect them. The lands of the Nisga'a will no longer be reserved under the Indian Act. The Nisga'a final agreement provides for fee simple ownership and integration of Nisga'a tenure into the provincial land registry system.

In the area of natural resources, the Nisga'a final agreement provides Nisga'a citizens with the right to harvest fish and other resources subject to conservation interests and legislation enacted to protect public health and safety.

The Nisga'a may make laws relating to environmental assessment and protection. Federal and provincial laws prevail to the extent of conflict. To avoid duplication, the agreement provides for the negotiation of a harmonization agreement. In the meantime, federal and provincial assessment processes will continue.

The Nisga'a government will have authority to make laws in areas affecting Nisga'a government, citizenship, language and culture. The Nisga'a government will be required to consult all residents within Nisga'a lands who are not Nisga'a citizens about the decisions that significantly or directly affect them.

As an example of what we have achieved, the agreement explicitly provides that it is a full and final settlement of Nisga'a aboriginal title and other rights protected under section 35 of the Constitution Act, 1982. What clearer demonstration of legal certainty and final settlement could one ask for?

As can be seen from these few examples, the Nisga'a final agreement provides a careful balancing of rights and powers. This has been achieved as a result of a thorough and detailed process of negotiation that began in 1976 when the federal government first accepted the Nisga'a claim for negotiation. Each and every aspect of the Nisga'a final agreement has been carefully considered and discussed by representatives of the Nisga'a, the province of British Columbia and the Government of Canada.

My colleagues, the former Minister of Indian Affairs and Northern Development and the current Minister of Indian Affairs and Northern Development, have each carefully considered the agreement and have recommended its ratification by parliament. As parliamentarians and as Canadians, we can all take pride in the agreement and support its ratification without hesitation.

The Nisga'a have placed their faith in the Government of Canada to respect the agreement and to open a new chapter of our history together. We must respond by ratifying the agreement and getting on with the business of faithfully implementing it in partnership with the Nisga'a people.

The agreement lays a pragmatic and solid foundation for the future. It contains the essential ingredients for a new relationship that the government committed itself to in “Gathering Strength”, our response to the report of the royal commission on aboriginal peoples.

The Nisga'a final agreement is the latest in a series of important settlements with first nations across the country.

While the situation of each first nation is unique, each successful agreement such as this one encourages first nations and governments all across the country to talk to and accommodate each other as we build the country together.

I urge all parliamentarians to support the ratification of the Nisga'a final agreement, to recognize the strength in diversity and to welcome the collective existence of the Nisga'a people within Canada. I extend my congratulations to the Nisga'a people and my best wishes for the future.

[Mike Scott, Reform, Skeena, BC]

Madam Speaker, the Reform Party is continually charged with misrepresentation of the facts. I ask the member to look at chapter 16 on taxation at page 217 of the agreement if the member has it in front of her. Maybe she does not have it in front of her or is not familiar with it, but certainly we in the Reform Party are familiar with it. Chapter 16 at page 217, paragraph 3, states:

From time to time Canada and British Columbia, together or separately, may negotiate with the Nisga'a Nation, and attempt to reach agreement on:

a. the extent, if any, to which Canada or British Columbia will provide to Nisga'a Lisims Government or a Nisga'a Village Government direct taxation authority over persons other than Nisga'a citizens, on Nisga'a Lands;

That is taxation without representation any way it is sliced. The words are in the agreement. They are not the Reform Party's interpretation. I just read it for the hon. member.

Does she agree with that concept of taxation without representation, or would she agree with us that the agreement should be amended so that condition or that clause is removed?

[Ethel Blondin-Andrew, Liberal, Western Arctic, NT]

Madam Speaker, I do not believe that the agreement should be amended. The member opposite should get a life. We could nitpick about the agreement and various aspects of the agreement. He should read the list of facts and myths. A number of things have been alleged. Anyone can read it. It involves taxation as well.

I think the hon. member, quite honestly, is not as well intended as I would like him to be. If the hon. member took some time to spend with the Nisga'a people, they could put a very convincing case to him as they have to me as an aboriginal person.

Over the years I have learned from the Nisga'a people. Many people across the country have learned from the Nisga'a people, except for the member that represents them.

[Mike Scott, Reform, Skeena, BC]

Madam Speaker, I resent the hon. member suggesting that taxation without representation is nitpicking. I suggest that the hon. member read her history with respect to the American war of independence. That is how the people who were in the colonies known as the Americas broke away from Great Britain. It was over that very issue. I can say that it is a fundamental principle of democracy to not have taxation without representation. The hon. member is not very well-schooled if she believes that is nitpicking.

Does she believe that the principle of taxation without representation incorporated into the agreement is the right way to go or not? Could she just answer the question?

[Ethel Blondin-Andrew, Liberal, Western Arctic, NT]

Madam Speaker, what I am not well-schooled in are the so-called principles and learnings of the Reform Party. I do not come from the school of Mel Smith who draws the template for all Reform's agenda on the aboriginal people. I am glad to say that I do not have that background and I never will.

I am happy to say there were numerous consultations. I am glad the government supports the Nisga'a agreement. If the member of parliament had some sense of reality, he would as well.

[Jason Kenney, Reform, Calgary Southeast, AB]

Madam Speaker, I have a lot of respect for the minister and member from the Northwest Territories, but unfortunately not in this debate because she has been asked two direct questions and has refused to answer them.

The question is very simple. Does she agree with the principle in chapter 16 of the agreement which provides for taxation without representation? Does she think that is a principle which ought to be incorporated into laws that govern Canadian citizens?

[Ethel Blondin-Andrew, Liberal, Western Arctic, NT]

Madam Speaker, the Nisga'a people have been afforded certain responsibilities and authorities. Otherwise, what would be the point? Why have an agreement if there will be no difference and it will be the status quo?

The federal and provincial taxation authorities are not affected by the Nisga'a authority and there are no other Nisga'a government taxation authorities in the final agreement. Even the municipalities and the school boards have the authority to levy taxes. Are we saying that we will diminish the document, the Nisga'a agreement, to that of a school board or a municipality? That is his opinion and one he is entitled to, but I, frankly, do not believe in that.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Madam Speaker, I am very pleased to take part in what no doubt will be perhaps a contentious but, I am hoping, a very useful and positive debate at the end of the day.

It is a pleasure for me each time I rise to speak in the House. Unfortunately, my French is not perfect.

Bill C-9 is an act to give effect to the Nisga'a final agreement. My Nova Scotian colleague from the South Shore has spoken very eloquently about our party's position regarding the legislation.

I welcome the opportunity to address some of the issues concerning this very historic Nisga'a agreement. I congratulate the last speaker, the hon. member from Yellowknife, who gave a very impassioned and informative debate. I know that she feels integrally connected to this debate and to the people through her own heritage and I have a great deal of respect for her work on this bill and for her work in this place.

The Nisga'a people have roamed over the land of North America since the mists of antiquity. The Nisga'a final agreement was ratified only this year, but the history of these people goes back for generations and centuries. The Nisga'a people approved this agreement, as did the provincial government of British Columbia, when Bill 51 completed the legislative process in April of this year.

That is not to say that this was a process that went smoothly. There was a great deal of acrimony and the debate itself was eventually brought to closure by the British Columbia government. The NDP Government of British Columbia received a great deal of criticism over its handling of the debate. Let us hope for the sake of democracy that that type of attitude is not mirrored by the current government in Ottawa.

The end of the debate on the treaty occurred in a very cursory way some would argue. We are hoping that will not be necessary here and we look forward to a detailed, informed and open debate in the House on Bill C-9.

The Nisga'a treaty, as I mentioned and as previous speakers have alluded to, is a very historic document that will be debated, and it is certainly our responsibility as parliamentarians to give an open minded approach to all the views of all the people we represent in the House. It is also our responsibility to deal with reality and not myth when it comes to a treaty of such significance. Nor should we ever in the House try to pit groups of people against one another in a debate of such importance and of such far-reaching implications.

We have seen quite recently with the decision of the Supreme Court of Canada in the Queen v Marshall case the implications of treaties that are signed. In that instance we now realize that a treaty that was signed over 230 years ago has modern application and modern impact on the people of this country in 1999. Therefore, it is not a great leap of faith to say that the Nisga'a agreement that will be signed, ratified and passed through this House will certainly have the potential to affect future generations of Canadians and certainly the Nisga'a people.

There are 5,500 Nisga'a people, with approximately 2,400 of them living in the upper Nass Valley region of British Columbia. Under the treaty they will have title to 1,930 square kilometres of land and will receive $190 million as a cash settlement to be paid over a number of years. Those are the very basic cursory points of the treaty. It is a very complicated treaty that touches on a number of elements of everyday life and human existence, but the settlement itself is a step toward independence and self-sufficiency on the part of aboriginal people in this country.

The Nisga'a final agreement will be the first modern day treaty in British Columbia, but this is certainly not the first time the Nisga'a people have been involved in groundbreaking activities. This fact was alluded to as well by the previous speaker.

It was a 1969 decision in the Queen and Calder v the Attorney General of British Columbia case, and subsequently in 1973 a ruling from the Supreme Court of Canada in that case, which opened the door to the negotiated land claims settlement for the Nisga'a. It was Frank Calder, a Nisga'a aboriginal, who initiated the court action on the basis that aboriginal title in the Nass Valley had never been extinguished. The supreme court, while not ruling that aboriginal title to the land actually existed, said that aboriginal people who had owned the land prior to European settlement and that had provided them with the basis on which to argue for land claim agreements did in fact exist.

The federal government at that time realized the implications of the ruling and initiated a comprehensive land claim policy with the intent of negotiating land claim agreements where aboriginal people claimed they had traditionally lived.

Sadly, this is often the case that we see again today in this country. It is sad that very rarely negotiations between the federal government and our first nations people result in a peaceful and equitable agreement. More often, and I am not saying this in a partisan way, governments in this country tend to litigate rather than negotiate.

Again I hearken back to previous comments and reference the Queen v Marshall, where now the country, in particular in this instance the east coast of Canada, has been thrown into a huge chasm of confusion and misunderstanding as to what rights have actually been granted by the Supreme Court of Canada. I certainly recognize that that is a debate for another time between this place and the Supreme Court of Canada as to who should be making laws in such an important area that has such broad implications and such broad effect throughout the land.

The Nisga'a final agreement will be a modern day treaty in British Columbia and will represent the 14th in Canada's history. Other modern day agreements include the James Bay and Northern Quebec agreement, the Northeastern Quebec agreement, the Inuvialuit final agreement, the Gwich'in agreement, the Nunavut land claims agreement, the Sahtu Dene and Métis agreement and the seven Yukon first nations final agreements.

I would like to reference two other pieces of legislation that have been debated recently concerning aboriginal people in Canada which share some similarities to the piece of legislation before the House today. They are Bill C-39, which was an act to amend the Nunavut Act and the Constitution Act, 1867, and Bill C-57, which was an act to amend the Nunavut Act with respect to the Nunavut court of justice and to amend other acts in consequence.

These acts were instrumental in the creation of Canada's newest territory, Nunavut. With respect to the application to today's debate, I would suggest there is a groundbreaking and very innovative approach being taken to the modern application of the Canadian justice system in this new territory. Again, although time does not permit us to get into the greatest of detail in this regard, it is a very forward looking and inclusive system of justice that blends two of these cultures into a very workable and modern approach to justice in this country. It brings about some of the concepts of restorative justice, which is a system that in many ways is borrowed from our aboriginal people, which is very inclusive and community oriented, the concentration being on including the victim and the community and having a face to face, in some instances confrontational, approach between the perpetrator of a crime and those who suffered.

We have always taken a very traditional approach to justice in this country, borrowed from the British model, that puts the state in the place of the victim, often very much to the detriment of the victim, making it a very sterile and sometimes non-inclusive approach to the healing that needs to take place. Aboriginal people have taken a much more hands on and inclusive approach that I believe is the spirit of this new justice system that will be in place in Nunavut and, to a large degree, brought about by the effect of the Nisga'a agreement.

The Nunavut land claims agreement was not a self-government agreement at all. Instead, it established a public government system that is similar to that which is in place in Nunavut today. That agreement also established a judicial system whereby the Inuit people in Nunavut could install a system that would better address the objectives of the Inuit people themselves. There is a more inclusive blend of aboriginal or Inuit justice with our modern day justice system which also includes and recognizes that all Canadians must be bound by the same laws of the land.

I think it is very encouraging and exciting from a justice perspective to look at the way we are able to blend these two cultures and make them work in a more effective way which in fact enhances all Canadians. In particular, I know that those involved in justice throughout the land will be watching very closely to see the modern application of this justice system in Nunavut.

The same can be said with respect to the establishment of this treaty, since the Nisga'a will have the opportunity to set up the Nisga'a court system. They may very much desire to watch closely the system that is just getting under way in Nunavut. The Nisga'a nation itself will no doubt benefit from that experience.

The provisions of this treaty will allow the Nisga'a government to appoint the judges of the Nisga'a court. The treaty will also provide for the means of supervision of judges of the Nisga'a court by the judicial council of the province of British Columbia or by similar means. We are seeing a very proactive and inclusive approach which will allow our current justice system to blend with this new system of justice.

Furthermore, the Nisga'a people will be provided with their own policing services. The police board of the Nisga'a government will assume this responsibility. In all of these cases, however, provincial and federal laws will continue to apply. The Nisga'a rules must comply and must work hand in hand with our existing federal laws.

I do not want to leave anyone with the impression that this will be some form of an abrogation from the law. It is simply a melding of a new system of justice that will hopefully enhance our current system. I would suspect that in the future other provinces may very well borrow some of the concepts that may come about as a result of the implementation of this new justice system.

Labour relations and industrial relations will not be governed by Nisga'a law. Instead, they will remain under the jurisdiction of provincial and federal legislation and apply evenly across the country.

I refer to the remarks of the hon. member for South Shore who alluded to the fact that there are many merits to this legislation. That is not to say that there is not room for improvement. As with all legislation that is brought through the process and brought to this House, there will be ample opportunity, even by virtue of the process that we are embarking on today by having this type of open debate, to bring forward ideas.

One would hope that the government would be open minded enough to be prepared to change the legislation through ideas that might emerge on the floor of the House of Commons, but I suspect more appropriately at the committee where members of the opposition will sit down with the government in the normal course of affairs to discuss this treaty in further detail. I know that all members of the opposition and the government are looking forward to embarking on that process.

The Nisga'a people will no longer operate under what have often been described as the onerous and even regressive rules of the Indian Act. Instead, the Nisga'a final agreement will set out in detail how the Nisga'a nation will continue to operate and the authority and accountability that the Nisga'a Lisims government will entail. This is something that the Nisga'a people have been working toward for over 100 years.

The earlier legislation that the Conservative Party supported regarding first nations land management outlined exactly why it is important for first nations to move out from under the Indian Act itself, particularly in regard to areas covered under resource management.

Under the Indian Act first nations must request authorization from the federal Minister of Indian Affairs and Northern Development to develop resources on a reserve. With the Nisga'a final agreement and the earlier First Nations Land Management Act this will no longer be the case and will no longer be necessary under the legislation. The Nisga'a people will be able to determine how, when and where they will use their resources. Not only will the Nisga'a people profit from this increased autonomy, I would suggest so too will the province of British Columbia.

Forestry and mining companies that have often been very reluctant to invest in resource activities in recent years, particularly after the Delgamuukw decision which ruled on aboriginal title, will now view doing business in this particular part of British Columbia in a different light.

With the uncertainty that existed, which continues to exist, concerning who owns land and resources in much of the province of British Columbia, the resource industry has been very slow to invest in exploration and development, costing as much as $1 billion in lost revenue because of this atmosphere of uncertainty. Stability and economic confidence will hopefully be one of the main results in this sector of resource management coming from this particular bill.

As well, the Nisga'a people will have a greater opportunity in the area of resource development, but this is only a small part of what the final agreement entails. We all know that autonomy and the ability to be the masters of their own destiny is very much the wish of not only the Nisga'a people, but Canadians from coast to coast to coast.

The province of British Columbia is subject to aboriginal land claims. This will be the first agreement to combine a land claims agreement and self-government agreements under one umbrella, one that also includes taxation. There has been much debate, as there was moments ago, over the issue of taxation. Under this agreement the Nisga'a people will begin to pay taxes over a phased in period of eight to twelve years. In the long term this should allow the Nisga'a nation to become increasingly self-reliant and less dependent on the federal government for funding and service provision. This is certainly a concept that all Canadians would embrace.

We know as well in the maritime provinces that a feeling of dependency, a feeling of being less empowered and less entitled to the future profits and profitability of this country is very intimidating and stifling. I am not drawing a direct parallel between those who live in the maritimes and those on first nations. But I can say that this feeling of uniformly sharing in the country's wealth is something we should all be very quick to encourage. I am hopeful that this agreement is a step in that direction.

I want to reference very briefly the consultation. We are embarking on an exercise in consultation simply by debating this, but I am led to believe that there were over 500 separate consultations before coming to the final draft and agreement which was inked by the Nisga'a people and the Government of British Columbia. Some would argue that that is a large number of consultations. However, an agreement that has such far reaching and important ramifications is one that requires a great deal of consultation. One only has to quickly reference the agreement itself to realize that it is a very involved and detailed agreement that speaks to many of the intricacies of the relations that will exist between the Government of Canada, the people of British Columbia and the Nisga'a people.

The Nisga'a final agreement is without a doubt a historic document that details aboriginal rights for the Nisga'a people. It is a comprehensive and extensive outline of the rights and responsibilities that the three parties will be subject to once the agreement has been ratified, which is the road we are on at the present stage.

The treaty is recognized and affirmed by section 35 of the Canadian constitution, but it does not become part of the constitution. There is need for clarity here as well. This does not exclude the Nisga'a people from the application of the constitution. This does not empower them with special rights outside of the constitution. This is simply an agreement that will be bound and subject to the application of the Canadian constitution and charter of rights.

I specifically reference sections 1, 15, 24 and 25 which speak to the general application of rights and freedoms in this country. The charter speaks of rights and freedoms not being construed so as to abrogate or derogate from any aboriginal treaty, or rights, or freedoms which pertain to aboriginal people across the country. This is not a derivation or a step away from the law of the land that applies to people throughout the country. The Constitution Act, 1982 will be in full force and effect and in the final analysis will be something that will work very much together with this agreement.

The treaty is recognized and affirmed by section 35 of our constitution. A process for amending the agreement is outlined in the treaty and requires the consent of the Nisga'a nation and the federal or provincial governments, depending on the amendment. This is an important clause. As with all agreements, we know that an evolution will occur.

Oftentimes circumstances will arise, court cases will appear on the horizon and they may exist now. It is fair to say that these court cases could have a devastating or perhaps a very positive effect on future agreements. However there is a section in the agreement which speaks to the amending formula.

For the Nisga'a nation to approve an amendment, two-thirds of the elected representatives of the Nisga'a government will have to accept the amendment. As I said earlier, the legislation represents what is, it is hoped, an open agreement at the end of the day when it comes to friendly amendments, but time will tell.

The final chapter in the long process of this agreement is before us. It is a process that began in 1887 when the Nisga'a people first travelled to Victoria to present their proposal for self-government.

The 1997 court ruling in the Delgamuukw case emphasized the need for negotiated settlements with aboriginal people. In Delgamuukw the court suggested that continued litigation was not the appropriate or most effective means of reaching an agreement.

The Nisga'a final agreement demonstrates that negotiated agreements can be reached and that negotiators deserve credit for their perseverance in continuing that long process. As a result we have an agreement that is workable and which is before the House today. It should be seen as a signal, a positive sign for Canadians, aboriginal and non-aboriginal, that we should continue on this path of co-operation in building this beautiful country our ancestors have left to us.

[Svend Robinson, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I congratulate the hon. House leader of the Progressive Conservative Party on his very eloquent remarks in support of the Nisga'a treaty.

I underline the point that he made with respect to the Delgamuukw decision. Of course when we hear representatives of the Reform Party saying to scrap this treaty and go back to the beginning, that effectively ignores the mandate we have been given as parliamentarians by the highest court of the land in Delgamuukw to honour and respect the rights of Canada's first nations.

Would the hon. member care to comment on the suggestions that have been made, particularly by the member for Skeena, the member who has not met with leaders of the Nisga'a by the way since 1995, long before the treaty was signed. He has refused to meet with the leadership of the Nisga'a for the last three or four years. It is unbelievable when he represents that community. He has said that the treaty provides for taxation without representation. He said it entrenches inequality for aboriginal women and that it provides for a race based government.

The fact is that the treaty itself states that the Nisga'a Lisims government may make laws in respect of direct taxation of Nisga'a citizens on Nisga'a land, full stop, and that there can only be taxation of non-Nisga'a citizens if the provincial or federal governments delegate that authority to the Nisga'a people.

I wonder if the hon. member would like to comment on that gross misrepresentation by the Reform Party and also on the Reform Party's suggestion that in some way this entrenches inequality for aboriginal women.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, I thank the hon. member for his question. He has a history of a long and distinguished career in this place. He comes from the province of British Columbia, so obviously he has more insights than most on this issue.

With respect to the commentary and the statement about taxation without representation, I think many will find it somewhat offensive. When they get into the nuts and bolts of the agreement they realize that there is a provision for representation. The taxation scheme that is set up is a fair one. Although there is certainly a nuance here with respect to how the taxation may differ from our current system, I would say that confrontation without consultation or information, which is at the base of some of the comments that we have heard in this Chamber, is equally offensive.

The last thing we need or that anyone should desire is to bring in any element of racism about this particular agreement. We should be concentrating on the facts, not perpetrating mistruths or exaggerating effects that this agreement will have. Let us talk in reality. Let us deal with the facts that will move this agreement forward in a positive way.

[Mike Scott, Reform, Skeena, BC]

Mr. Speaker, first of all the hon. member said that public consultation meetings were held. I do not ever recall seeing him in the northern part of British Columbia. I am not aware that he has ever made a trip there.

For his own information there were no public information meetings ever held to solicit any input from the public until the agreement was already announced. Then the provincial government had a dog and pony show that went around the province supposedly to get input from ordinary British Columbians. Subsequent to that, not one word of the agreement changed, not one word.

That public consultation was hollow. It is the kind of consultation we expect from the provincial NDP government. It is the kind of consultation we expect from the federal Liberal Party. It is interesting to see that these parties are all on the same page when it comes to public consultation. It is just a matter of putting on a show for people and saying that they have consulted but they are not interested in legitimate public input on these issues.

My question for the hon. member goes to the issue of taxation without representation. The member is a lawyer. The member knows that agreements mean what they say they mean.

On page 217, in chapter 16 of this agreement under taxation it is stated:

1. From time to time Canada and British Columbia, together or separately, may negotiate with the Nisga'a nation, and attempt to reach agreement on:

a. the extent, if any, to which Canada or British Columbia will provide to Nisga'a Lisims Government or a Nisga'a Village Government direct taxation authority over persons other than Nisga'a citizens, on Nisga'a lands;

That is absolutely a contemplation of providing the taxation authority to a Nisga'a government over non-Nisga'a residents living in the Nass Valley. That is taxation without representation as the member knows full well that the non-Nisga'a residents living in the Nass Valley will not be able to run for office. They will not be able even to vote for the representative they want.

I ask the hon. member to respond to that. Does he not agree that these words mean what they say they mean?

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, let me start off by saying that I very much enjoyed my recent trip to Castlegar just over a month ago. I had a wonderful visit in Victoria. I really enjoyed the time I spent in Prince George as a student planting trees in the beautiful province of British Columbia. I take exception to the member's suggestion that I am not familiar with area.

With respect to the specific question of representation and taxation, we do know that this process and the 500 consultations I referred to in my remarks represent time that was spent after an initial agreement had been put in place. Time was then taken to consult, to negotiate and in some instances renegotiate parts of the agreement. The agreement itself in the section to which the hon. member has referred is not fixed. It speaks of the ability for future consultation or reworking.

As for there being no representation, certainly the agreement addresses that by allowing there to be direct voting for school boards, for any kind of boards that are going to be set up within this particular region. That is a direct ability for persons to vote for whom they want to represent them.

I am not sure what the member is speaking of when he says that there will be no ability. No, a person cannot vote for the band chief. But a person is going to have input into those boards that will be regulating everyone living within that territorial area of British Columbia.

It is not correct to say that this is taxation without representation. The representation is there. The clauses of the agreement speak to future changes that might come about. This is a very workable agreement. It is pliable. It is open. It is something I am surprised the hon. member is not supporting.