Mr. Speaker, when I approached the Nisga'a treaty I wanted to satisfy myself on one point in particular. Was it a good treaty in terms of the people it was dealing with? I went to the facts and I am astonished by the results I obtained.
This is a very remote area of British Columbia, with a very tiny population: the aboriginal and the even smaller non-aboriginal population. In a period of three years leading up to the treaty 296 public meetings and colloquia were held in that area. If one considers the problems of distance and communications, it is an astonishing record. I do not think city seats could do better.
I also found that it is not simply companies doing business. It is not simply government agencies that impinge on this, but ordinary people. There is a little group called the Nass Valley Residents Association, representing predominantly non-aboriginal people. There were 13 successive meetings with this group. It raised the issues of effect on isolated fee simple titles, continued replacement tenures, access to water, and access to forestry and firewood supplies. These sorts of issues go to grassroots concerns, grassroots democracy.
That is why there were 13 meetings in a row. The people would come back and say they wanted answers. They would get the answers. At the end of the day there were no countervailing claims in the concrete in relation to the Nisga'a treaty. That is a very important fact when we talk of democracy.
On the issue of the referendum the minister has quite properly commented on changing the rules of the game at the end of the day, but I would raise more importantly the constitutional principle that we operate within a constitutional system of government which includes the courts.
The House has had a stern rebuke. One can read the judgment carefully on the rehearing of Marshall and find that it refers to intemperate and ill-informed comments by members of the House in relation to judicial decisions.
How can it seriously be suggested that the federal government should hold a selective referendum in a province that is itself before the courts? With the Attorney General of British Columbia and Attorney General of Canada, a decision by the Supreme Court of British Columbia in the first instance still moot and under appeal, how can we possibly, with proper respect for the courts and proper respect for a constituent province, intervene and hold a selective federal referendum? It would be more consistent if the Leader of the Opposition had responded to the hon. member for Burnaby—Douglas and said “Yes, I will hold a nationwide referendum. That is what I am proposing”. However he did not do it. The inconsistencies frankly do little credit to the study of constitutional law and show a complete disrespect for the courts with a pending process.
Let me get back into the issue of participatory democracy. I issued four very well documented newsletters to my constituents since the treaty was published. Each contains a 2,000 word summary of legal issues and constitutional issues, and I have asked for responses. Over a period of six, nine and twelve months I have had 3,000 or 4,000 responses of various sorts. People are coming in, phoning me and writing thoughtful letters. As a result I was in touch with the minister, the predecessor of the present minister, to say here are some concerns. Let us take them.
Is this a template? The point we made was no. Every treaty rests on its own particular society which has its own particular social and political facts.
What is right and proper for a remote thinly populated area of the province may not work in the city where there are countervailing interests that will be presented. The template concept must be rejected. Good sociological jurisprudence is when each treaty is considered and negotiated on its own facts. That was in spite of the opposition. It would be some considerable time before the Premier of British Columbia accepted that Nisga'a was not a template but a special treaty negotiated on its own facts.
The second issue is of the so-called constitutionalizing of the treaty. There is a possibility of confusion here. I discussed this point with the then federal Minister of Justice in 1983. He was not the man who drafted the charter of rights but he was the successor. I raised the issue of the effect of applying section 35(1) to future treaties, not the known quantity of already existing treaties. I raised the issue that these were constitutionalized treaties and not in my view constitutional amendments.
Can we clarify and make this assurance clear? In the Nisga'a treaty it is made very clear that the treaty is subject to the constitution and the charter of rights. I went to the predecessor of the present minister and said that there were still concerns and could we not put it in the federal enacting legislation.
If we look at the federal enacting legislation it is clear. It establishes the supremacy of the constitution and the charter of rights. Do not be afraid of changes to sections 91 and 92. Do not be afraid of a third level of government. Do not be afraid. Due process of law applies. The principles of equality before the law and equal protection of the laws are there. They are in the charter and the courts can apply them. There is no reason for this fear which is based on misconception and lack of study. It is all there in the Nisga'a treaty.
The issue arises that it is not a template. It is still the first treaty. It is an historic event for people who negotiated in good faith and in good spirit, which shows it is in the absence of countervailing claims re the concrete. The spirit of good neighbourliness of the sort the supreme court and the world court have spoken of is basic to the common law.
What of future treaties? It is clear, and I have had discussions on this with members of the B.C. Liberal Party, which has the same name but is legally separate and distinct from the government. I have spoken to some of the critics who have appeared and attacked the Nisga'a treaty on the basis of a lack of information of the changes being made in the federal enacting legislation which are now there.
It is clear that for future treaties we will re-emphasize they are individual treaties to be negotiated on their own facts. It is also clear that all future treaties must be made expressly and in terms subject to the constitution and the charter of rights.
I believe we may need better fact finding facilities in relation to these treaties. I speak of the federal court with all respect, but I have difficulty in reconciling two judgments at two different levels of the federal court in a cognate but distinct case on the basis of the economic evidence in this area. There needs to be better lawyermanship by lawyers, the federal justice and other parties presenting the case. The supreme court made this clear at the Marshall rehearing.
There also needs to be perhaps more use of the provincial supreme courts. They are closest to the people. The federal court, and I am not speaking of the Supreme Court of Canada, is a body that often has few local roots or little access to local facts.
Those elements are there. I also think we should take up the suggestion made by members of the Vancouver city council when the treaty process approaches the city of Vancouver and involve elected municipal representatives in the negotiating process. They have a lot of knowledge and a lot of practical wisdom. They can help us in this path to what is an historic process for B.C.
All the rest of Canada has treaties. We have to begin in B.C. It is a learning process and it is a difficult process, but what is the choice? We want to live in peace in British Columbia. We want a society in which people feel safe to invest. We want a society in which people can act in good faith in relation to each other.
We have made clear to the minister that in negotiating treaties we expect good faith and good neighbourliness. If we do not find it, that treaty should put to the bottom of the pile. That is a good principle of operation. The choice is 19 long summers of discontent in British Columbia or a process in which everybody is actively engaged, and that I think is the real choice.
I welcome the fact that the predecessor of the minister of Indian affairs made these changes to the federal enacting legislation which I think settle any remaining constitutional doubts. I have no doubt the new minister accepts in full spirit the engagements made by his predecessor. We will build on what we have learned in the process to date.