Mr. Speaker, it has been said that this treaty, this agreement, is a matter introduced overnight. I would simply remind this House that in the three year run-up to the signing of the treaty no less than 500 public meetings and consultations were held, 296 of them in the Nass Valley and 13, no less, in a row, with a group of non-aboriginal residents. If we compare this to city constituencies, it is an astonishing degree of public consultation.
In approaching this agreement we must remember that it becomes law as far as the federal government is concerned, as far as federal constitutional law is concerned, with this enabling law. The enabling law is the product of considerable discussion between members of parliament and the former minister of Indian affairs, the hon. member for Brant, who is now in another portfolio, but it does contain one very important factor which has been addressed by some people from outside and was the subject of representations which I made to the minister. It includes an express legal stipulation that the treaty is subject to the constitution and the charter of rights. That is in the treaty itself, but to make assurance doubly sure I asked the minister to include this in the federal enabling legislation. It is there.
Further, I advised the minister that I and other members would be stating that our vote is cast on that basis. We would have the third assurance, les travaux préparatoires, of which the courts must take notice of the parliamentary intent that the treaty, as enacted by parliament, is subject to the charter and to the constitution. It means that there can be no provincial status, no third order of government unless it goes through the amending procedures, part V, sections 38 to 49 of the Constitution Act, 1982.
I think these corrections were necessary because of doubts that I had in relation to section 35(3) of the charter of rights which was not in the original charter but added in 1983, 12 months after its adoption. It applied to future treaties what was clearly applied in section 35(1), the original draft to existing treaties. Those existing treaties, all of them, were a known quantity, and we had all studied them, and they were clearly within the constitution and the charter that was being adopted.
To remove uncertainty I suggested at that time to the new minister of justice, one of our most distinguished jurists, Mark MacGuigan, the need for clarification. He thought, I think correctly, that it would be an extreme interpretation to say that this was a back door way of changing the constitution, that it could be settled in the future. In my view it has been done adequately and completely with the federal enabling legislation, the federal enacting law.
Let me get back to some other points on which the minister gave assurances to members of parliament that the treaty would not be a template for the remaining 50 treaties. It rests on its own special facts, among which is the fact that the Nisga'a leaders and the federal negotiators were superbly informed, they negotiated in good faith and with restraint. These conditions might or might not be replicated in future treaties because different federal teams take part. Every future treaty will have to be defended and supported on its own special sociological facts. Nisga'a stands alone. It is not a template.
I think when we get to the cities and municipal areas where conflicts of interest might reasonably be expected between different categories of rights, such as fee simple rights and claimed historic rights, that perhaps we need different and more advanced machinery, and I will come to that in a moment.
In recommendations to the Ministry of Indian Affairs and Northern Development as to future treaties, I have made these suggestions. In respect of all future treaties, the same principles and terms should be applied and the federal enabling legislation should cite that it is subject to the supremacy of the constitution and the charter of rights. In fact, this means that the principles of procedural due process of law, judicial review and, among other things, the principle of equality before the law and equal protection of the law are applicable. They are the supreme law of the land and in cases of conflict can be raised before the courts.
In respect of future treaty negotiations we also suggested that it be understood that the parties be required to undertake negotiations in good faith, which is a legal principle in international and constitutional law. They must also apply the principle of good neighbourliness, which is one of the oldest principles of civil law. It is part of the common law. In cases of breakdown there should be resort to the principle of arbitration and third party settlement.
We need improvement of facilities for judicial review. One of the problems we have had with cognate cases, not connected with the Nisga'a but the subject of some representations in the last few days to the parliamentary committee, is with the Federal Court of Canada. As an ambulatory federal court, it is not perhaps as fully seized of local social economic facts as local courts. It may be that there should be consideration given to establishing a mixed claims tribunal with developed expertise in economic issues, or else to investing provincial supreme courts, which after all are permanent courts in the locality, with competence to adjudicate economic evidence on reference. I simply say that these are suggestions for the future treaties still remaining.
One very useful suggestion is to include representatives of municipal and other elected governments in the negotiation processes for future treaties. The Union of British Columbia Municipalities has established a list of five principles. I think it makes sense because the local bodies have special expertise in relation to local water and power supply, as well as property title issues, and their expertise can be brought to bear.
I mention all this simply to say that Bill C-9 has been adequately considered and discussed. There have been three years of public consultation. It was open at all times to the parliamentary committee, if it wished, which is an all party committee. It has a single member majority on the government side. The opposition had only to ask for more detailed hearings. There was a strange silence in some areas of the opposition over those three or four years when jurisdiction could have been exercised in relation to the treaty.
I found this again in relation to a matter to which we gave some attention, Bill C-49, the native lands administration bill. It was reported by the committee with only one minor amendment, which had the unanimous endorsement of the committee. It was only at the last minute that we realized there were problems that should be addressed. With the co-operation of members of the House and the Senate, both Conservative and government members of the Senate, changes were made to Bill C-49, the native lands administration bill, which incorporated the principles of due process and similar guarantees that are certainly part of the federal enabling law in relation to the Nisga'a treaty.
I put out four newsletters to my constituents after the signing of the treaty, perhaps about 6,000 words of detailed legal material, and asked for comments. The comments came back. They were passed on to the minister. The changes the minister of Indian affairs made to the federal enabling law, in the text of the law, were as a result of representations made by constituents.
I think this is participatory democracy in action. I think it is the way to proceed with legislation. It is the best way to ensure that in the run-up to the 50 remaining treaties in British Columbia we can produce agreements without discord. We do not want 19 long summers of discontent in British Columbia. Our economy needs help. There are other matters to attend to. In good will and in good faith I think we can proceed with the further treaties. I recommend adoption of the federal enabling law.