Mr. Speaker, I will be sharing time with the hon. member for Wentworth—Burlington. I will address only the second paragraph of the motion by the member for Brandon—Souris, that is to say the issues concerning the supreme court, the Marshall decision on fishing and other rights of aboriginal people.
The member for Brandon—Souris has distinguished himself in the House as a member who has a whimsical sense of humour. It is much appreciated. I wonder if perhaps some of his polemics in the motion should not be interpreted in that light.
I would remind the hon. member concerned, however, that his party was in office during the crucial period of nine years almost immediately after the adoption of the charter of rights, which included the saving of aboriginal rights still to be defined by virtue of sections 25 and 35 of the Constitution Act, 1982. There was a wonderful opportunity in a period of historical transition to set in place sophisticated processes for the elaboration and definition of those rights and of dispute settlement and other machinery. It was an opportunity missed. Somebody was asleep. It was the Rip Van Winkle philosophy.
The process has been engaged upon and for better or worse we have to deal with it as it now arises. The motion, however, and I accept it in this spirit, is directed toward trying to establish policies, policy constructs, for the future in relation to aboriginal and other rights.
We need a debate on this issue. The last great venture was the white paper of 1969 which had many brilliant and imaginative ideas but for a number of reasons in the political climate at the time it was judged unadoptable. It just did not command the community support necessary to get it through.
In the intervening time a too pre-emptive concern with special constitutional issues thought to relate to Quebec tended to kill off discussion of other issues. I do not believe there is any incompatibility between the two.
Although his purpose was directed toward Quebec provincial politics, I signal in this regard the announcement yesterday by the member for Hochelaga—Maisonneuve of a new plan for Quebec constitutionalism. He recognized, for the first time explicitly by a member of his party, that Quebec issues cannot be divorced from issues of the aboriginal communities within Quebec. They are part of the general society and must be part of the process.
My basic comment on this general issue is that it is illusory to believe that any one federal institution, whether the courts, the legislature, the executive, the administration and the civil service separate from that, can have a monopoly of problem solving powers or can even function usefully operating in isolation from other institutions.
We are reminded of Jeremy Bentham's basic point, to which I have had occasion to refer in other debates in the House, that there is a constitutional company and that judges, cabinet ministers, parliamentarians and administrators all function together. The federal government has given an emphasis to consensual solutions of the definition, extension and concretization of aboriginal rights, and that means an emphasis on interpartes negotiations.
We have to recognize the practical limits to powers of negotiation which go to issues of expertise, time and continuity. There has always been a place for courts in the finding and limiting the constitutional parameters in which any decisions must be made.
Some issues, on examination, require very specific and detailed research and weighing of complicated economic evidence. This normally transcends the possibilities of parliamentarians, even operating in standing committees. I would note the difficulties of both the aboriginal affairs committee and the fisheries committee in handling these technical issues.
These are issues that can be well addressed and may best be addressed in courts, provided the lawyers are up to the task. We need a better standard of performance by the lawyers presenting cases before the court.
I do not see the sophistication in presentation of briefs. The Brandeis Brief, named after the great Mr. Justice Brandeis, details social and economic evidence of the implications of court decisions including the practical consequences of those decisions. If that is missing in judicial decisions, one of the points to recognize is that it is missing because it is not properly presented by the parties. The Brandeis Brief starts first of all with the lawyers before the court and the judges have to respond to that.
There is an opportunity for a more confident judicial role in these matters. It is to be noted that the judges were not called upon for advice when the adoption of the Canadian Charter of Rights and Freedoms was first considered. They were not asked about their new role. It was inevitable a species of judicial legislation would emerge, but they were not consulted. It is a learning process.
Among changes for the future that I would like my colleagues in the party opposite to address would be whether a contribution could be made by creating specialized tribunals of first instance. There is some unhappiness with the federal court in its various divisions because it is viewed as an Ottawa body composed of ex-civil servants and often ex-politicians but with an eastern Canadian orientation.
Would it be better to have special mixed claims tribunals as we have internationally? Would it be better to endow provincial supreme courts, which represent and reflect and understand local opinion and issues, with the primary authority, subject to appeals to the Supreme Court of Canada? This is where in a larger policy context we could invite and receive contributions in the debate as it continues before us.