Debates of Dec. 6th, 1999

Nisga'A Final Agreement Act

[The Acting Speaker (Ms. Thibeault)]

The hon. member for Provencher.

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

Madam Speaker, I am pleased to join the debate prior to the final votes being taken in the House.

I want to begin with that point and advise Canadians of what we are doing this evening and will probably be doing tomorrow evening. If they tune in again to this well known and famous station, they will notice members of parliament repeatedly getting up and down, again and again, probably for hours on end, voting on 469 amendments proposed by the Reform Party to this treaty.

This is quite interesting in itself, in that it is an unusual, highly irregular practice in the House, what we tend to call the highest court in the land, where 80% of the members will vote for the treaty, but we have an obstructionist group putting forth amendments and pretending to have a legitimate debate. I think it is important to inform the Canadian people about what is happening in the House as we have this discussion.

Having said that, I want to begin by making some primary observations and I would like to go into some discussion about the applications of the charter and the constitutional implications for this particular bill.

It has been said many times that this is an historic treaty which breaks away from the confines, the handcuffs and the shackles, as members of the Reform Party would say, of the Indian Act. That is the same Indian Act that has held first nations people bound to the confines of their reserves and their lands. It is an attempt to break free from that, to move on into the 21st century and to do it with dignity which would be supported by all Canadians.

I found it quite interesting in testimony to hear from our member from Nunavut who talked about her parents not being able to vote until 1960, like Canadian first nations veterans who fought for this country. While living on reserve they nonetheless joined the forces in the second world war and made great contributions to this country. They came back home and were not able to vote. I wonder where those who are opposing the treaty now were to defend them in those important historical moments? They were not there. Their voices were conspicuously silent.

Reform Party members have talked about consultation. We know that we have had a debate in the House. We have had a week long trip in British Columbia. The provincial legislature had the longest debate in recent history in British Columbia, 116 hours of debate. Through an all-party standing committee dealing with these matters, there were 34 meetings.

There were many other meetings conducted even in places like Trinity College in British Columbia, a well known Christian college. I believe Chief Gosnell and others went at their invitation to meet with them and discuss openly with the students and staff what the treaty meant and what they were intending to do.

The Anglican church in British Columbia also invited them, as well as others. Wherever they were asked to go they willingly went to talk about these important features with all Canadians, anyone who was interested in hearing. So we have had consultations.

I want to talk about the constitutional legal framework of this agreement. What is important to understand in the debate with the Reform Party is this. We have heard a lot of this over the past number of months about the protection of women's rights, constitutional third order of government and so on. Let us set out very clearly for the Canadian people the fundamental point of the Reform Party's argument and why it would oppose the legislation.

The fundamental point, Reform Party members argue absolutely wrongly and I think they realize that as well, is that this is a constitutional amendment. In other words, the 14 areas of jurisdiction laid out in that treaty would somehow contravene or spill outside of the constitution or those protections provided in section 35 for existing treaties and new treaties that would be negotiated now, such as this one, and in the 21st century.

They argue that if that is the case this would trigger a referendum both in the House of Commons in Canada under part V of the constitution or those particular provisions in British Columbia where it would trigger a referendum there. This is absolutely not true. This is absolutely false.

The fact of the matter is that there are no powers in that treaty, in that bill that contravene the constitution. There are no new powers. The powers delegated throughout that process in that treaty, those 14 areas, are those that are normally used within the understood provisions of aboriginal self-government for first nations people and they are quite gentle in their application in terms of delivering health services, education, child welfare, to name a few. They are not the kind that are the normal cause of debate in terms of constitutional provisions in this country. These are very everyday kinds of services, such as child welfare, that in fact, quite honestly, through federal-provincial agreements many first nations have been delivering for 20 years.

What do the experts say about this? What do the experts tell the Canadian people about the debate? We have heard from the Liberal Party. The Tories are agreeing with us and the NDP and the Bloc, but the Reform Party is saying no. Let us turn to the experts for a moment and ask them. What did they say in their testimony?

Professor Scott from McGill came under questioning in one of the first rounds of questions from the Liberal side and I had the opportunity to ask him the question. Professor Scott was chosen by the Reform Party as one of the folks it would like to have testify at the committee table. What did he tell us? He said that this is no constitutional amendment. I believed him.

In that same group was Professor Brad Morse, a former vice-dean of the University of Ottawa, and still teaching there, who again reiterated that in his view this was no constitutional amendment. In fact, he went on to discuss the seven years of applications of law where the supreme court of the United States had applied these same kinds of provisions in the U.S. courts recognizing those rights of first nations people and without violating what they call the sacred constitution of the U.S. The same would hold here. This is no violation, no abrogation, no derogation of those provisions that were negotiated in 1982.

We also heard from Professor Hogg and Professor Monahan. Those who are lawyers, either watching this debate, or who might read about it after, or even here in this Chamber, will know that Professor Hogg is the dean of constitutional law in Canada. Any student will know that his written textbook is required reading in first year constitutional studies across Canada. We had him testify before our committee.

I would like to quote from some of his observations, as well as a colleague of his, Professor Monahan, another equally eminent and respected legal scholar who is called upon frequently by the media and others to give his observations on a number of issues affecting Canadians.

Professor Monahan in responding to questions said that “While I think there are some respectable arguments that can be made,”—I think he was being very generous here—“challenging the agreement on the basis of some older cases”—he is referring to the privy council which was the supreme court at the time—“in the early part of the 20th century, in my view, the better or more persuasive legal conclusion is that the agreement”—the Nisga'a Treaty, Bill C-9—“and the ratifying legislation is valid”—here we go—“and does not constitute an amendment to the Constitution of Canada”.

He also went on to talk about section 35 recognizing both existing treaties and future treaties. That is spelled out very clearly in section 35 of the constitution.

What did Professor Hogg have to say? I am quoting him in his analysis and he said:

I have very little doubt that the courts will decide that there is an aboriginal right to self-government. So the Nisga'a people have those things now whether or not the treaty is entered into.

I want to conclude by saying that there is no constitutional amendment and, therefore, no referendum. It is clearly within the boundaries of—

[The Acting Speaker (Ms. Thibeault)]

Before we resume debate and to make it clear to everybody, debate will go on until 6.27 p.m. Therefore, there are about 15 minutes left.

[Jason Kenney, Reform, Calgary Southeast, AB]

Madam Speaker, I am pleased to finally have an opportunity to debate this bill.

I am disappointed that I have had to wait until debate at report stage for this opportunity on such an important bill which can be construed as constituting a constitutional amendment, according to many of the expert constitutional presenters who appeared before the committee.

According to the official opposition in British Columbia, the Liberal Party there, this treaty constitutes a constitutional amendment. For that reason alone I find it really quite disturbing that the government has rammed the bill through the House with undue haste, with a fraction of the time taken to consider it at the provincial legislature in British Columbia.

In fact, two weeks ago, as we know, the committee studying the bill travelled through five communities in British Columbia hearing from a hand-picked witness list. Many of the organizations and individuals who applied to appear before the committee to express their concerns were refused the opportunity.

One of those organizations was the Canadian Taxpayers Federation, a large advocacy organization representing some 80,000 Canadians; representing some 20,000 of them in British Columbia.

This organization had prepared a 30-page study, including thoughtful appendices and original research by constitutional and economic experts, and yet it was denied the opportunity to present its views on behalf of its members to the committee.

I will take the opportunity to read part of its submission, which was never heard by the parliamentary committee because of the Liberals' refusal to have a full and complete debate. I will take the opportunity to read some of their analysis into the record.

Before I do so, there has been something of a debate today on whether or not the treaty constitutes a template for future land claims agreements. Indeed, it is not the official opposition in this place who originated that argument, rather it was the then British Columbia premier Glen Clark, one of the principal negotiators of this treaty, who said that it constitutes a template for future lands claims settlements. We are simply taking one of the principal negotiators at his word when he suggests that this treaty will be a template for the future. Obviously it will not be a precise template, but a very important precedent.

I hear my colleagues from the New Democratic Party speaking in caustic tones about the Reform Party's opposition to this treaty, yet they seem to ignore the fact that perhaps the most credible New Democratic attorney general in Canadian history, Alec MacDonald, the former NDP attorney general in British Columbia, has spoken out publicly and vociferously against this agreement. This opposition does, and ought to, cut across partisan lines.

One non-partisan organization that I know something about, the Canadian Taxpayers Federation, was denied a hearing on this treaty. It released a study which called on the minister of aboriginal affairs to read the fine print of the Nisga'a treaty. The Canadian Taxpayers Federation says that the $490 million cost of the Nisga'a settlement for cash, land and resource transfers, is likely understated as it does not include any estimates on mineral, water or fisheries resources to be transferred. It also says that fair party compensation is likely, significantly underestimated.

It goes on to say that “the $490 million cost quoted by the government does not include taxpayer transfers to the Nisga'a government which will cost taxpayers, according to federal negotiators, a minimum of over $400 million in additional transfers over 15 years for one settlement with one native band. The Nisga'a treaty is not final in a multitude of senses”, according to the CTF. It says that four appendices in its study from constitutional legal expert Mel Smith, a former principal constitutional adviser to three successive B.C. governments, are attached to the review and that they list 49 sections of the treaty where there are explicit requirements to consult or negotiate agreements and a further 22 sections of the agreement where paramountcy is unclear or not stated.

It says there is a ratchet up provision where any favourable tax exemptions granted to other bands over the next 20 years will need to be given to the Nisga'a as well, and that there are 17 instances where the Nisga'a treaty or future Nisga'a laws will prevail over federal or provincial laws in the event of an inconsistency. The Nisga'a government will be anything but municipal as proponents claim.

Municipal governments do not possess power over citizenship, culture, adoption and all levels of education, timber resources and court systems whereas the Nisga'a under this treaty will.

The decision on whether non-Nisga'a will be able to vote in Nisga'a elections is up to the Nisga'a government. Senior levels of government have traded away a core political right, the right of taxpayers to be represented by those who will have the power to tax them in this agreement.

The CTF's B.C. director, Mark Milke, is quoted as saying that the Nisga'a treaty “is neither fair nor final to taxpayers and it gives powers to one native band similar to powers possessed only by the federal and provincial governments”. He says that “in addition it trespasses upon the basic political right to vote for those who would set the taxes. Canadians deserve better than a document negotiated by a distrusted B.C. government and rammed through parliament by a federal government afraid of debate”. He says that “when politicians horse trade core political rights and negotiate open and financial commitments, taxpayers deserve a vote on it”. By that I infer a referendum, which I think something like 80% of British Columbians have expressed a desire for. The CTF's submission goes on to say:

—the Nisga'a treaty and the B.C. treaty process will involve a substantial reallocation of taxpayer money, Crown-owned resources, and Crown-owned land. Because of federal and British Columbia cost-sharing agreements, every Canadian from St. John's to Victoria will be affected. In addition to the costs to taxpayers, forgone tax revenues (from forestry stumpage for example) will result from land to be transferred. Such land transfers could one day also affect the public treasuries of not only Canada and British Columbia—given the lack of treaties in some provinces and the possible judicial reinterpretation of treaties already signed and thought to be final—but other provinces as well.

Moreover, municipal tax bases within British Columbia may be affected—

It goes on to detail how that is the case. In addition, the Nisga'a treaty in fact removes the long-held political right to taxation with representation, and thus runs counter to the basic principle of liberal democracy. Disenfranchisement for any reason, cultural or in pursuit of justice for past wrongs, can hardly be said to be either responsible or in taxpayers' interest. It goes on to say:

Moreover, the size and responsiveness of governments to taxpayers is directly related to the powers that such governments possess. The more portfolios that a government possesses, the higher the price tag for such a government is likely to be... The Nisga'a government will far more closely resemble provincial and federal governments than municipal governments. That is an important point to remember in the context of taxation, tax transfers, and the disbursements of such tax dollars by the proposed Nisga'a government.

It asked how much the treaty will cost. In 1995 there was $125 million in cash according to government estimates. In 1996 the agreement in principle cost $190 million in cash. At the time, the B.C. government failed to include the value of the crown land and resources transferred in the deal. When pressed, the government reported the land to be worth $107 million. Thus in 1996 government estimates totalled $297 million.

In 1998 leading up to the final agreement, the B.C. government still insisted the cost of the treaty was only $190 million according to press releases. But the opposition Liberals leaked a copy of the treaty, the official estimate jumped to $312 million. When questioned on the breakdown of the costs, Premier Clark admitted it was closer to $382 million. The premier's staff shortly thereafter added items not mentioned by the premier and the cost rose to $459 million. The next day the figure was again revised to $490 million, where it remains.

This does not include any estimate of mineral resources to be transferred, any estimate of water resources to be transferred or any estimate of fisheries resources to be transferred. There are monetary transfers to the Nisga'a of $160 million over five years after implementation of the treaty as well.

The report goes on but unfortunately I have run out of time. A serious concern is being raised by a major taxpayer group about the long term fiscal implications not just of this treaty, but of dozens of other treaties which will be negotiated with this as a template. We should pause because of these concerns rather than rush to the judgment which we see from all four other parties in this place.

On behalf of my constituents I will be voting for these amendments and against the bill.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Madam Speaker, it is a pleasure to take the opportunity to describe how the Nisga'a final agreement deals with private property and land ownership. My comments will be particularly helpful to our Reform Party colleagues. It has become painfully obvious to the rest of us in the House that they have not read the agreement and do not understand it.

Members of the official opposition have suggested that individual Nisga'a citizens will not be able to own private property on Nisga'a land. They also suggested that members of Nisga'a governments will be unable to exert undue influence over Nisga'a citizens because of lack of security over tenure to their homes. This is simply not true. Let me take the opposition through what the final agreement really says.

Through the final agreement the Nisga'a will own their lands in fee simple, the highest estate in land known in law. No longer will the crown hold the Nisga'a land in trust. No longer will the minister of Indian affairs have to approve every use made of their lands. Nisga'a lands will not be lands reserved for Indians. The reserve system and the application of the Indian Act to the Nisga'a will end.

The Nisga'a will own their land and its resources, other than water, submerged lands, and the private properties which were excepted from Nisga'a land. If they choose to do so, the Nisga'a will be able to create private parcels of Nisga'a lands and dispose of them without the consent of either Canada or British Columbia. There is the essence of private property ownership.

As long as the Nisga'a meet the requirements set out in the final agreement, they will also be able to register these parcels in the provincial land registry system. This is something that Nisga'a leaders have indicated they wish to do once they have the legal means to do so, and the political direction from their constituency, the Nisga'a people. The owners of parcels registered in the land title system would realize all the advantages and securities of the system, just as private property landowners enjoy those advantages.

None of this is available to the Nisga'a people under the Indian Act, yet some members opposite would seek to prevent this significant advancement through nonsensical amendments which they have proposed. What is the purpose of this obstructionism? These same members purport to represent the interests of grassroots Indian people. Do they not want private property ownership rights for the Nisga'a people? Do they not want to end the application of the Indian Act and the Indian reserve system for the Nisga'a people?

Maybe the Reform members opposite should take the time to talk to Nisga'a people. The Nisga'a people in a clear and substantial majority strongly supported this agreement and would stand to benefit from being treated like other Canadians for the first time.

What some members opposite have missed is that through this agreement the Nisga'a will finally have responsibility for managing their own land. If their democratically elected government decides to do so, they can create parcels of fee simple land, register them in the land titles system, sell them to anyone they choose and allow them to be mortgaged. None of those opportunities exist today under the Indian Act. That is but one of the many reasons why the Nisga'a final agreement is such a significant step forward.

The official opposition has suggested that individual Nisga'a will not have private property rights and that Nisga'a governments will own the housing communally. The opposite is true. Appendices C5 and C6 list many hundreds of individual Nisga'a, in fact all the Nisga'a, who now have homes in four villages. Appendix C5 lists those Nisga'a who now have certificates of possession. Appendix C6 lists those Nisga'a whose current band council have allocated housing.

All those names in both appendices will receive the same private property rights to their homes. Those rights will include the right to exclusively possess and use their land, in effect individual ownership of land and improvements. This ownership right can be passed down through their estates and marital property settlements. These rights cannot be expropriated by Nisga'a government.

Therefore, it is not accurate to suggest that the treaty does not provide for individual property rights or that residents will be exposed to arbitrary decisions of Nisga'a government. In fact this agreement provides a new level of security for Nisga'a families and a range of opportunities for economic development of land which are not currently available to the Nisga'a.

The members of the official opposition have their own views of what is best for the Nisga'a people. That is the old way of doing business, to arbitrarily choose for aboriginal people what we think is best for them. The Reform Party is living in the past. This is the past that they claim to condemn but for which in fact they would have future generations condemned to repeat by virtue of a lack of vision and a lack of trust and the strength, spirit and capabilities of the aboriginal people.

The Nisga'a have chosen differently. That is their right. Through peaceful negotiations, patience, dedication and a spirit of co-operation and compromise, all three parties to this agreement have chosen differently. They have chosen to move forward in a responsible positive way that will benefit the Nisga'a people and respect the interests of all other Canadians.

It is time for everyone in the House to uphold this choice for a positive future by rejecting these motions and supporting Bill C-9.

The Reform Party has tabled nearly 500 amendments to the Nisga'a treaty. It is clear that they have no interest in seeing a conclusion to this most important treaty which would allow for self-government of the Nisga'a people. The Reform Party says it wants more time so it can do consultations. Let me remind the Reform Party that the Nisga'a people have been negotiating for 130 years to have the Nisga'a agreement brought to fruition. We see the sons, the grandsons and the great grandsons of the original negotiators that first tried to get justice for their people. One hundred and thirty years is a long time.

It is time for justice to be done. Most members in the House, with the exception of those in the Reform Party, rise to support the final agreement of the Nisga'a people. We will do so with pride. I am very proud to be in the House to partake in this.

[The Acting Speaker (Ms. Thibeault)]

It being 6.27 p.m., pursuant to order made earlier today, the motions are deemed moved, the questions necessary to dispose of the report stage of Bill C-9 are deemed put and the recorded divisions are deemed requested and deferred until Tuesday, December 7, 1999, at the end of the period provided for the consideration of government orders.

[Ted White, Reform, North Vancouver, BC]

moved:

Motion No. 31

That Bill C-9 be amended by deleting Clause 2.

[Jason Kenney, Reform, Calgary Southeast, AB]

moved:

Motion No. 32

That Bill C-9, in Clause 2, be amended by deleting lines 3 to 33 on page 2.

[Peter Goldring, Reform, Edmonton East, AB]

moved:

Motion No. 33

That Bill C-9, in Clause 2, be amended by replacing lines 5 to 14 on page 2 with the following:

““Nisga'a Agreement” means the Agreement reached between the representatives of the Nisga'a people and Her Majesty in right of British Columbia on April 27, 1999 and on behalf of Her Majesty in right of Canada on May 4, 1999 and laid before the House of Commons on October 19, 1999, and as amended by the Parliament of Canada.”

[Jay Hill, Reform, Prince George—Peace River, BC]

moved:

Motion No. 34

That Bill C-9, in Clause 2, be amended

(a) by replacing line 7 on page 2 with the following:

“the Nisga'a and Her Majesty in right”

(b) by deleting the word “Nation” wherever it occurs within the Bill.

[Derrek Konrad, Reform, Prince Albert, SK]

moved:

Motion No. 35

That Bill C-9, in Clause 2, be amended

(a) by replacing line 7 on page 2 with the following:

“the Nisga'a Indian Bands and Her majesty in right”

(b) by replacing the word “Nation” by the words “Indian Bands” wherever it occurs within the Bill.

[Monte Solberg, Reform, Medicine Hat, AB]

moved:

Motion No. 36

That Bill C-9, in Clause 2, be amended by replacing lines 12 to 14 on page 2 with the following:

“cludes any amendments which may be made to that Agreement from time to time by the Parliament of Canada and the Legislature of British Columbia.”

[Deborah Grey, Reform, Edmonton North, AB]

moved:

Motion No. 37

That Bill C-9, in Clause 2, be amended by replacing line 16 on page 2 with the following:

“Parliament and the Acts of the Legislative Assembly”

[Dick Harris, Reform, Prince George—Bulkley Valley, BC]

moved:

Motion No. 38

That Bill C-9, in Clause 2, be amended by replacing line 18 on page 2 with the following:

“Act and other Acts amending the Agreement and the Nisga'a Final Agreement Act (British Columbia).”

[Garry Breitkreuz, Reform, Yorkton—Melville, SK]

moved:

Motion No. 39

That Bill C-9, in Clause 2, be amended by deleting lines 34 to 37 on page 2.

[Rob Anders, Reform, Calgary West, AB]

moved:

Motion No. 40

That Bill C-9, in Clause 2, be amended by replacing lines 36 and 37 on page 2 with the following:

“Agreement.”

[Keith Martin, Reform, Esquimalt—Juan de Fuca, BC]

moved:

Motion No. 41

That Bill C-9 be amended by adding after line 37 on page 2 the following new clause:

“2.1 The purpose of this Act is to fulfil the Federal Government's obligations under the Nisga'a Final Agreement.”

[Rahim Jaffer, Reform, Edmonton Strathcona, AB]

moved:

Motion No. 42

That Bill C-9, in Clause 2, be amended by adding after line 37 on page 2 the following:

“2.1 For greater certainty, it is declared that this Act is enacted without prejudice to the legislative authority of the Parliament of Canada, and may, accordingly be amended, repealed, or altered by the Parliament of Canada; but no such Act may take or permit the taking of, or otherwise affect title to or enjoyment of, aboriginal land, in any manner which would not have been lawful had this section not been enacted; this section is inseparable from this Act.”

[Dave Chatters, Reform, Athabasca, AB]

moved:

Motion No. 43

That Bill C-9 be amended by deleting Clause 3.

[John Reynolds, Reform, West Vancouver—Sunshine Coast, BC]

moved:

Motion No. 44

That Bill C-9, in Clause 3, be amended by replacing lines 38 to 41 on page 2 with the following:

“3. The Nisga'a Agreement is subordinate to the Constitution of Canada and to the laws and statutes of Canada and British Columbia.”

[Dave Chatters, Reform, Athabasca, AB]

moved:

Motion No. 45

That Bill C-9 be amended by deleting Clause 4.

[Derrek Konrad, Reform, Prince Albert, SK]

moved:

Motion No. 46

That Bill C-9, in Clause 4, be amended by replacing lines 2 and 3 on page 3 with the following:

“hereby ratified and brought into effect in accordance with its provisions.”

[Peter Goldring, Reform, Edmonton East, AB]

moved:

Motion No. 47

That Bill C-9, in Clause 4, be amended by replacing line 2 on page 3 with the following:

“approved and”

[Jay Hill, Reform, Prince George—Peace River, BC]

moved:

Motion No. 48

That Bill C-9, in Clause 4, be amended by replacing line 2 on page 3 with the following:

“is given effect and declared valid and”

[Chuck Strahl, Reform, Fraser Valley, BC]

moved:

Motion No. 49

That Bill C-9, in Clause 4, be amended by replacing line 3 on page 3 with the following:

“has the force of law and subject to the Constitution of Canada and to such statutes as the Parliament of Canada and the Legislature of British Columbia may from time to time enact.”