Mr. Speaker, it is a privilege to intervene at this stage of the debate on Bill C-49. We are at report stage. I remind hon. members that third reading is still to come and after that to the Senate.
We sometimes tend to think in terms of dichotomous divisions, watertight departments and divisions between the different organs of parliament.
I would like to pay tribute to the very helpful discussions on this bill I have had with members of the Senate, both government and opposition members, and members of other parties in this House, more particularly on the larger public issues with which it is bound up. It is legally and constitutionally separate and distinct from the Nisga'a treaty to which a lot of us have given a lot of attention. It is separate and distinct from the Musqueam leaseholders issue. In the public mind it is part of the general discussion and our thoughts could never be completely divorced one from the other.
I take notice of the fact that although it is an area in which I have had some pre-parliamentary experience, there are some massive briefs by lawyers presenting arguments on this issue which I am studying in some detail; some communications by leaseholders, by both native and non-native leaseholders; some by native women. We recognize of course that no one of our legislative acts in Indian matters is a template for other matters. That was the original confusion, if I can call it that, of the provincial government of B.C. Each act is historically separate and should be seen on its merits. Nevertheless, certain points are common in respect to them.
I have advanced the view that I have problems with section 35(3) of the charter of rights, which was an amendment adopted after the charter was enacted in 1982. I have some problems with it, but nevertheless it does remain my view that the better interpretation is that all matters in this area are subject to the Constitution and to the charter of rights. This means that the larger charter principles of due process in its procedural sense and its substantive sense are applicable to all subsequent measures that may be made in this area.
In some areas, and the Nisga'a treaty is an example, it is stated explicitly, and if one wishes a subordination to the charter of rights and to the Constitution, there is the case for making assurance doubly sure and stating that in terms. But I would say again that it is not constitutionally necessary to do that.
I would also think that it is implicit in the subjection to the charter that judicial review and recourse to the Supreme Court of Canada remain an ultimate resource in every situation.
There would be merits at some stage in the proceeding—and it is a long march I think to the issue of native self-government within the Constitution—in adopting some form of general code. But the procedure that all parties have agreed on, provincial government, federal government and others, is that this would do less than justice to the special historical facts and circumstances of each of the individual agreements. But it should come and I would envisage in that case, if there were some sort of general code, that the explicitness in relation to the Constitution and the charter would be made. The provision for a dispute settlement process, some form of third party adjudication, arbitral or otherwise, a mixed commission of which there are many comparative law models, would be there apart from the court itself.
What I am saying is that we are at certain steps along the road. This particular bill is at the moment limited to 14 nations of which five are from B.C., although others can opt in. I do believe that the proceedings in this House, the further debate to occur this afternoon and at the next reading, as well as the deliberations in the Senate which could include hearings as well as study, will help take us further in the search for the best form of expression of the imperatives of giving heed to the concept of self-government within the Constitution for Indian nations, the concept of control over property, but subject again to the constitutional rights that apply to all Canadians and to rendering them uniform in some later general code.
The debate has been helpful and constructive in the general Canadian community, including, I would stress, B.C. We sometimes are more heated in our statements, but it is the way of arriving at constitutional truths and I would like to pay tribute to the thousands of people, and I stress that, who have communicated with me over the last two months on aspects of this general problem. We have tried to answer each letter individually and respond to each individual case. The message is “I am still working. I appreciate the co-operation that has been extended by everybody in this House, the Senate and those whom I have discussed it with. The book is not closed”. I believe that constructive changes can occur in the general process of self-government within the Constitution and in the control and ownership of lands which are being spelled out at the moment by several distinct and separate measures of the government and which will also be present in each of the 50 treaties still to be discussed.
This is my comment at this stage. I hope to have studied the briefs in great detail, and they do require detail. I hope to have more specific recommendations to make. But I repeat again, even in the absence of express mention and in the Latin phrase, making assurance doubly sure that we have in the Nisga'a treaty, that the general constitutional rules prevail and are paramount, including the charter of rights. And so the protections are given to all Canadian citizens, especially including the Indian communities, but they also exist in relation to the parties.