Mr. Speaker, I am pleased to speak to this very important Nisga'a treaty. It is historic and one that all Canadians will benefit from as a result of the movement of this government and I believe rightfully so.
Because the Nisga'a agreement is an important page in Canada's history, I would like to take this opportunity to set out some of the facts surrounding this very important legislation. Perhaps even in the process I will correct some of the myths perpetuated by the Reform Party, including the member for Souris—Moose Mountain.
First and foremost I must stress that the Nisga'a treaty was negotiated within the constitutional framework of Canada. Everything done in the treaty was done in keeping with the constitution just as it is.
For example, section 35 of the Constitution Act, 1982 recognizes and affirms the existing aboriginal treaty rights of the aboriginal peoples of Canada. However, we do not know precisely the nature, scope or extent of these rights. In many circumstances unresolved claims of aboriginal rights have hindered economic development. Accordingly a number of cases have been brought before the courts in Canada in an effort to define aboriginal rights.
Through these court decisions we have learned a great deal about aboriginal rights but not enough to resolve once and for all the disputes arising from continuing claims of aboriginal people. In the most recent cases for example dealing with the existence and nature of aboriginal rights in British Columbia, the Supreme Court of Canada found that in the absence of treaties, lands in that province may be subject to aboriginal title.
Most important is the fact that the courts have told us that aboriginal rights are group and site specific. That means that wherever the courts consider issues concerning aboriginal rights, the courts do so in the context of the particular facts presented and in consideration of the particular group before them. Accordingly, while some general principles can be drawn from current case law, we cannot yet rely upon court decisions to make conclusions about aboriginal rights that would apply to all locations in Canada or in British Columbia.
Given that some court cases on aboriginal rights might take as many as 10 years to resolve and that they may not resolve issues in all locations, imagine how long it would take and how expensive it would be to resolve all outstanding aboriginal issues in British Columbia in this manner. It is unthinkable quite frankly. We must all keep in mind that in all these instances, these court outcomes might not be palatable to everyone or for that matter, to anyone.
The government agrees with the courts that negotiation rather than litigation is a better way to resolve outstanding aboriginal rights issues. Besides, while litigation is adversarial and may not lead to good relationships, negotiations do lead to mutually agreeable solutions and better relationships. That is the Canadian way. Unfortunately that is something the Reform Party has yet not understood.
In Canada the historic practice of negotiation and resolution of outstanding aboriginal rights issues is called treaty making. As in the case of existing aboriginal rights, the rights contained in treaties are also recognized and affirmed under section 35 of the Constitution Act, 1982.
Although treaties covering much of Canada were concluded prior to 1927, in British Columbia this process was never completed. The Nisga'a treaty is the first modern treaty to be concluded in British Columbia. It resolves once and for all the Nisga'a outstanding claims of aboriginal rights including land and resources and self-government. This is something we truly can and will celebrate.
In 1995, Hon. Ronald Irwin made public the Government of Canada's approach to the implementation of the inherent right and the negotiation of aboriginal self-government. The approach he presented reflects an evolution in thinking that stretches over a long period of time.
For decades the citizens of Canada have been trying to find ways to reconcile the prior occupation of the country by aboriginal people with the sovereignty of the crown. Long before the arrival of Europeans, aboriginal people lived in this country and looked after their own affairs. First nations in British Columbia and elsewhere enjoyed existing governance and social systems.
Existing aboriginal rights are recognized and affirmed under section 35 of the Constitution Act, 1982. The 1995 federal inherent right policy recognizes that those section 35 rights include a right to self-government and that Canada is prepared to negotiate workable and practical self-government agreements and include them in treaties. There are different views about the scope and content of the inherent right, as in the case of other aboriginal rights, but this government has chosen to resolve self-government issues through the negotiation of practical arrangements within the context of our constitutional framework and legal framework.
Allow me to explain briefly how a negotiated resolution of claimed aboriginal rights to self-government works within the current constitutional context.
The Constitution Act, 1867 defines the lawmaking powers of federal and provincial governments. These are set out primarily in sections 91 and 92 of the Constitution Act, 1867. The scope of any aboriginal right in self-government may vary from community to community and accordingly to the circumstances of the various first nations. Consequently the aboriginal right of self-government under section 35 must be considered on a case by case basis.
That is what happened in the case of the Nisga'a. The Nisga'a final agreement does not only set out all the land and resource related rights that the Nisga'a will have under section 35 of the constitution act, it also identifies the self-government rights the Nisga'a will have under the same section of the constitution. The Nisga'a treaty will not alter the federal and provincial heads of power as set out in sections 91 and 92 of the Constitution Act, 1867.
Some have charged that the Nisga'a final agreement creates a de facto third order of government that requires a constitutional amendment. The meaning of third order of government is not clear. What is clear, however, is that the Nisga'a final agreement works and that it works within the current constitutional framework.
The protection of section 35 rights under our constitution does not mean those rights are set out in constitutional concrete as some critics claim. Although section 35 rights are protected, they are not absolute. A number of Supreme Court of Canada decisions have confirmed that governments still retain an overall authority but must justify any interference with aboriginal or treaty rights.
The Nisga'a government will clearly operate within the Canadian constitutional framework. Anyone who has read the Nisga'a final agreement knows that the charter of rights and freedoms will apply to Nisga'a government. This means the Nisga'a laws will be subject to the charter as will Nisga'a government decisions, for example, in issuing permits or selling land. The Nisga'a government will be subject to the charter just as all other governments are as well.
At the risk of repeating what has been said many times before, federal and provincial laws such as the criminal code will apply on Nisga'a lands once the treaty comes into effect. While in certain limited circumstances Nisga'a laws may prevail, there will be no exclusive Nisga'a law-making powers. This is a current model of law-making and important to note.
Nisga'a laws will only prevail for matters internal to the Nisga'a themselves, for example, laws relating to their culture, their language, the management of their land and their assets. In all other cases either federal and provincial laws prevail or the Nisga'a law must meet or exceed existing federal or provincial standards in order to be valid. It would be clear to anyone who closely examines it that the Nisga'a treaty works within the current framework of the Canadian constitution.
Perhaps those who argue that the Nisga'a final agreement cannot be given full effect without first amending the Constitution of Canada just do not understand the process and do not understand the value of a negotiated reconciliation of aboriginal rights within the Canadian federation. Perhaps they wish they could unilaterally impose their own arbitrary solutions. We on the government side prefer negotiation and reconciliation. After all, this is the Canadian way.
We all know where unilateral decisions would lead us. We have seen solutions imposed by one group on to another throughout history. Where possible lasting arrangements are best achieved when they are negotiated by all those who live by them. The Nisga'a treaty is one of these negotiated settlements.
I would urge all members of the House to leave the spurious, mean-spirited arguments behind, especially those of the Reform Party. I just do not understand why Reform insists on pitting people against people, group against group, region against region. It is not in keeping with the Canadian way. It is not what Canadians want.
I would ask that all members of the House move very expeditiously to pass this very important and historic treaty. I know that good judgment will prevail and that we will ensure the right thing is done. That is after all in keeping with what Canadians want, with what is good for Canada, and we will prevail in this matter.