House of Commons Hansard #31 of the 37th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was nations.


Supreme Court ActPrivate Members' Business

11:05 a.m.


John Bryden Liberal Ancaster—Dundas—Flamborough—Aldershot, ON

moved that Bill C-234, an act to amend the Supreme Court Act be read the second time and referred to a committee.

Mr. Speaker, it is a pleasure to rise to speak to the bill today. I am only going to address one-half of the bill because the motion is not votable and there is only one hour of debate. So in the interests of time I am going to only look at the second clause of the bill that would limit the application of charter decisions by the supreme court. If a decision is not unanimous on the part of the supreme court judges, then the case at hand would apply only to the case at hand and would not be broadly applied as is the usual case now.

The bill arises from the fact that so often when an appeal is brought before the supreme court that has charter implications, when the supreme court rules, whether it is a unanimous decision or a majority decision, the government, Mr. Speaker, usually applies its decision universally. It takes it as a direction in law and a charter direction, and it usually has enormous impact on Canadian society.

My concern for this issue arises out of the Marshall case about two years ago. In that case, Donald Marshall and several other aboriginals were caught by fisheries officials with 464 pounds of eels that they had taken out of season and were selling. They had even used an illegal net. In other words, these individuals were poaching.

They were brought before the courts and would have been subject to a considerable fine but their defence before the lower courts was that they had a right to take the eels under a treaty of 1760 between the British crown and the Mi'kmaq. That went through two levels of courts, the provincial court and then it was appealed. Finally, it came before the supreme court.

Members must bear in mind that the convictions were upheld by the two lower courts. However, when it came before the supreme court, seven justices sat, five ruled in favour of the accused. In other words, they overturned the decisions of the lower courts. Two ruled in favour of the lower courts and upheld the conviction.

Members have to see how it works. The appeal process that goes to the supreme court chiefly consists of bringing before the court, and the court accepts the particular case at hand. The supreme court reviews all the evidence of the lower court and allows one hour for each side to present its case. There is a certain provision in time for interveners who the supreme court can decide to allow to intervene or not. All in all the entire decision making process takes less than three hours in open court and for the most part the deliberations are done in camera with the justices using their law clerks to prepare a digest of the evidence. They make their decisions based on that.

Where in this place it may take many days and many levels of debate in order to pass legislation; first reading, second reading, report stage, third reading and the Senate. In the case of the supreme court, it is a matter of only a few hours of open court and the rest by law clerks and individual justices themselves.

In the case of Marshall, this decision to uphold the rights of Mr. Marshall and others to gather the eels out of season, it is not really the problem of how the justices came to that decision which concerns us here today. If we put 100 people in a room and asked them whether they would agree with the decision in the Marshall case, I think we would probably find only 3 or 4 would.

The implications of the Marshall case were that it allowed aboriginals to not only fish out of season but to fish for commercial reasons, for sale. The five supreme court justices who upheld the appeal cited reasons that we find difficulty following. They said it was the honour of the crown. They had to read into the treaty of 1760 that which was not there because they had to put it in an historical context. They admitted that they were doing something historians were expected to do. They were at odds with historians but they took it upon themselves to be the historians and set the expert testimony aside.

The justices also admitted that while they did not hear all the particular testimony, they still felt that they could come to this conclusion regardless.

They even made a political decision. They said in their conclusion that the aboriginals were entitled to make a moderate livelihood and they said that regulations could certainly be made to make this work. Where we in the House would spend days to devise a policy with respect to the fisheries, just to devise a policy, and have extensive debate to establish the rules pertaining to the fisheries, the five judges in the Marshall case determined that it could be done just like that.

I do not want to get into questioning the decisions of the justices. The point is, Mr. Speaker, is they came down with their decision with the two judges dissenting and the two judges who were dissenting simply said that the treaty of 1760 applied to 1760 and we could not apply it to the present. We would agree with that. So they rejected it and five accepted it.

That is not the issue. What happened right after that, which concerns us here and is the reason for this legislation, is immediately the Department of Fisheries and Oceans issued an internal memo. One of the clauses of the memo about the implications of the Marshall decision, which I remind members was a split decision, said:

While the immediate focus is on access to the fishery, the judgement will have application to other resources. Development of a comprehensive response will involve many departments of the federal government, and provincial governments as Treaty beneficiaries pursue harvest of wildlife and timber.

In other words, Mr. Speaker, the federal government immediately saw in Marshall a broad application to aboriginal rights to all resources to not only gather it for sustenance, but to gather it for a moderate livelihood, in other words, for sale. It is no wonder that a few days later the Minister of Indian and Northern Affairs came out publicly and said that this was a decision that was going to entitle aboriginals across the country to have special rights to natural resources, to not only exploit natural resources but to sell them.

We know what happened. There was a terrible conflict around Burnt Church in Nova Scotia. That conflict continues. There has been a tremendous unease across the country with the thought that there could be a situation where aboriginals have rights to natural resources and rights to the exploitation of natural resources based on race alone.

It did not need to be that way. In fact, there is nothing in Canadian law anywhere that says that a decision of the supreme court, any decision for that matter, has broad application when it is a charter decision. It just does not exist. What has happened is that a myth has been created since the charter was passed in 1982 that somehow the supreme court in Canada has the same context in the interpretation of laws and the application of laws as in the United States.

In fact this is not so at all. For the supreme court, or high courts as we have, interpreting constitutional law, is basically something that has evolved since the second world war. For the most part, most countries prior to the second world war functioned on a parliamentary democracy system. What has happened since the second world war, and probably as a result of the second world war, is many countries, including Canada, felt there should be some restriction on the opportunities of the executive. Thus high courts were implemented, including our own.

Nothing in the constitution that was brought back in 1982 actually defines the role of the supreme court. There are a few passing references only, but nothing dictates that the federal government should interpret split decisions of the supreme court as being broadly applicable across the country. We do not need to go down that route. One of the sad things about this entire situation is that there has never been a serious parliamentary debate examining the role of the supreme court's decisions and its application to charter law and how charter law should be applied to Canadians. I think it is high time that this situation was brought forward.

The other classic case involving the supreme court, just to give another example of what has happened, is the charter was passed in 1982 and in 1986 a challenge was brought before the charter that led to the Singh decision. It involved seven convention refugees who were all in Canada illegally. One in fact had come in on a visa with a forged passport. The refugees were caught and the court ruled, after various levels had suggested that they should be expelled without a full hearing and according to the legislation at the time, that they were entitled to a full hearing and upset the lower courts' rulings.

What a lot of people do not realize is the Singh decision was not a unanimous decision. Three judges only found evidence in the charter that suggested that the existing immigration law was not charter compliant and was unfair to the accused. The other three justices came to their decision based on the Canadian Bill of Rights.

It is very important to understand that the Singh decision was a split decision. Indeed, the three justices who chose the Canadian Bill of Rights to argue that the seven should have a full hearing specifically said that they were not considering the charter in their decision. There we have a classic example where a split decision of the court has had manifest impact on Canadian society.

Not only has it made it very difficult for Canada to control aliens coming into the country who perhaps have criminal connections or whatever, but every one of us in the House has a problem with people seeking visas to come to visit their loved ones and relatives in the country. Every office has this problem. What we need to do is turn those people back because according to the Singh decision there is every possibility that if they decide not to return according to their visa then they have recourse to due process. Tens of thousands of people are denied entry into Canada because of the Singh decision.

It is very important to realize that the Singh decision was confusing. The three justices decided on the basis of the charter that the seven accused were entitled to an oral hearing. However it was the other three, in terms of the Canadian Bill of Rights, who cited section 2(e), which said that no law should “deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of the rights and obligations”. It was that section which led to the problem where we are turning back all these visa applications. It is not a charter problem at all. It is the problem of the interpretation of the Canadian Bill of Rights in the Singh decision.

The irony is that at the beginning of that section it says that there is a notwithstanding provision in the Canadian Bill of Rights, that the government has the choice under the Canadian Bill of Rights to suspend 2(e) in special circumstances, and yet the government has never done it.

The problem is simply that it is not the supreme court with which we have difficulty. It is not the charter with which we have difficulty. The problem is we have difficulty with successive governments that have interpreted the decisions of the courts more broadly than anything in law requires them to do, and indeed more broadly than anything in parliamentary tradition that Canada, the United States or Europe requires them to do.

We need to review the situation with respect to how government interprets the decisions of the supreme court. It is high time that parliament, both the House of Commons and the Senate, took a look at what the government is doing and set rules whereby, in my view, it should be only unanimous decisions of the supreme court that should be broadly applied, not split decisions.

Supreme Court ActPrivate Members' Business

11:20 a.m.

Canadian Alliance

Vic Toews Canadian Alliance Provencher, MB

Mr. Speaker, I commend the member for Ancaster—Dundas—Flamborough—Aldershot for bringing this matter before the House today. I will be asking for unanimous consent that this matter be deemed votable and referred to the Standing Committee on Justice and Human Rights.

The member has articulated his comments very succinctly. As he indicated, this is an issue that has not received much discussion in the House or in committees. The member, in bringing this forward, does a great public service not only for the House but for the courts and for the people of Canada.

There are a number of issues that I would like to raise. I do not necessarily agree with everything in the bill but I think that is why we need to have discussions.

This bill would amend the Supreme Court Act by adding a number of paragraphs, the first being that when the question heard by the court is of a constitutional nature that the court consider parliamentary and other extrinsic materials, such as the Debates of the House of Commons, the Senate, legislatures, and law commission reports.

The second is when the question heard by the court is of a constitutional nature and the decision of the court is not unanimous, the decision should not be considered a precedent in other circumstances in which the same constitutional issue arises.

I do have some concerns with respect to the first matter. The courts in many circumstances routinely consider this type of information when it is presented to the court by one or more of the parties. The courts hold that this type of information is admissible and then consider the weight of this evidence.

I am familiar with this evidentiary issue. In my former life I was a constitutional lawyer. I was the director of constitutional law for the province of Manitoba. The legislative evidence to which my colleague referred provides an important context in assisting with interpreting the legislation. As a director, I often referred to this type of evidence, which is important in order to give the court a clearer understanding of this legislative background. This type of evidence was called a Brandeis brief. That is an American term but is utilized quite extensively in Canada.

The bill would not only allow the introduction of Brandeis briefs by counsel but, in addition, puts a positive onus on the court to consider the intent of the legislators and not simply go off on a frolic of its own, as has often been the case with some judicial activists on the court. It is a very important and positive onus on the courts which I think should be there.

With respect to the second paragraph in my colleague's bill, there is some concern that it may cause some confusion to the principles of precedent that have been established in Great Britain, in Canada and, to a lesser extent, other Commonwealth countries, and indeed the United States.

However, I am sympathetic to this provision because the intent is clearly to get the judiciary to focus on the issues before them and to attempt to arrive at greater uniformity and clarity in the judgment. This is so important given the fact that the rights and freedoms of Canadians hang on the interpretation of these words. Multiple judgments only serve to cause confusion among those who are required to carry out, enforce and obey the laws. Again, the examples my colleague brought forward to the House are very germane to the discussion.

It is ironic that when the courts criticize legislation for being vague and over broad, the courts often do so in language that is itself vague and over broad. My colleague has brought a few examples to the attention of the House. There are many more.

We read judgments of the court where they criticize legislators' language and yet the language that they use and their conclusions are so hopelessly over broad and vague that they have done nothing to assist in the administration of justice or the enforcement of laws.

The only beneficiary of these multiple types of judgments are the legal profession. I, too, am a lawyer so I include myself in this as well. However, the only beneficiaries of these multiple judgments are the legal profession who are then free to embark on a new, fresh round of litigation involving the same issues.

This type of discussion, whether the bill is accepted as such or otherwise, is very important for us to try to have the courts focus on what is important, on the issues that are in fact before them.

Generally speaking, I would express my overall support for the bill. Despite my concerns, I think the intent of the bill is to grant elected members of parliament a greater voice in the constitutional decisions that influence the laws of Canada. I would also say that the bill is in part a reaction to the phenomena of the judiciary substituting its legal and social preferences for those made by the elected representatives of the people in parliament and the legislatures.

Decisions made by the supreme court have a tremendous impact on the principles and institutions of our democracy. We want to preserve our democracy. We want to live in harmony with the courts. We recognize the very valuable function of the courts but our respective roles as parliamentarians, as those who pass laws that implement social and legal policy are interpreted by the courts in their proper legal context. We do not want that straying of the courts into the area of social and legal policy.

There are the dangers of legal and constitutional anarchy that are reflected in some of the former judgments of the Supreme Court of Canada, and I cannot think of a better example than the Singh decision. This decision certainly created difficulties for our bureaucrats and others who want to see fair laws.

The member opposite made the point about this depriving legitimate visitors to Canada who would like to see their families but are denied access because there is now an overabundance of caution that parliamentarians have to exercise because of some very misguided and confusing decisions. Perhaps confusing is a better word than misguided. I am sure the courts, in going through these judgments, are also trying to do their best. We need to focus more clearly on the real issues.

I indicated earlier that I would ask for the unanimous consent of the House that Bill C-234 be deemed votable and referred to the Standing Committee on Justice and Human Rights. Failing that, I would move that the subject matter of the bill be referred to the Standing Committee on Justice and Human Rights.

I commend my colleague opposite for bringing the matter forward. It deserves the support of all opposition members and certainly all members from the party that the member opposite represents.

Supreme Court ActPrivate Members' Business

11:30 a.m.

The Acting Speaker (Mr. Bélair)

Does the hon. member have the unanimous consent of the House to make the bill votable?

Supreme Court ActPrivate Members' Business

11:30 a.m.

Some hon. members


Supreme Court ActPrivate Members' Business

11:30 a.m.

Some hon. members


Supreme Court ActPrivate Members' Business

11:30 a.m.


Michel Bellehumeur Bloc Berthier—Montcalm, QC

Mr. Speaker, actions such as these show us that the system has become a bit outmoded. Sometimes we get to make fine speeches here without even any chance to vote. We are not even able to really have a finger on the pulse of the government.

An additional aberration: the bill is presented by a government MP and it is the members of the government who are refusing to have it made votable. That is a pretty special situation. Independent of whether people are for or against such a bill, I believe the House should be allowed to vote on it.

A vote would allow us to make it very clear that we in the Bloc Quebecois cannot support such a bill. This would at least show the consequences of such actions and would also make the government's position known. We have a bill being presented by a member of the government side and the government is saying no to making votable. This is rather unusual.

That said, I will address the bill directly since I have only 10 minutes or so to discuss it and to tell the House what an extremely dangerous bill it is.

I cannot support such a bill since it mixes up some key principles which provide Quebec and Canada with a justice system that works overall. We agree that there is always room for improvement. Generally speaking, however, Quebec and Canada have a justice system that has developed over the years into something that in large part meets the expectations of the public.

One of the reasons it does work is that Canada has a separation of powers which and this is important for a balanced justice system. In other words, we have the legislative, the judiciary and the executive components of the one state called Canada. That is why we can end up with decisions that may not suit us, decisions from the higher courts that we might have liked to see otherwise, but when the rules and the law are being applied, the system generally works.

For those who lack familiarity with the rules I have just mentioned, the legislative system is us. People pass legislation that applies to everyone. Especially, since the arrival of the charter of rights and freedoms, the laws have applied to everyone, unless parliament decides, through the use of the notwithstanding clause, that a law does not apply to a particular category or, more specifically, to others. Let us be clear that up until now, no legislature has used the notwithstanding clause. The laws apply to everyone, as the legislative system provides.

The judicial system comprises people who apply the laws passed by the legislative system. How do they do it? By interpreting each of the sections of the law. There is a principle of law, of justice, which provides that the legislator is not deemed to speak in vain. Therefore all the clauses of a bill have significance and they are interpreted one after another by the judicial system. It is however possible to not agree with a given decision.

It would be a free for all if parliament intervened whenever the Canadian constitution was involved or whenever the rights set out in the charter were involved. In nearly all decisions the supreme court examines, one of its criteria for agreeing to examine them is that the matter involves the Canadian Charter of Rights and Freedoms or, very specifically, the interpretation of a statute of significance to Canada and a province, such as Quebec, for example, if the decision comes from Quebec.

One of the most important points the supreme court addressed in recent years was the interpretation of the Canadian Charter of Rights and Freedoms. If Bill C-234 came into effect, the House would always have to deal with issues and interpretations relating to the constitutional validity of an act. The issue is whether or not the act respects the Canadian constitution or the Canadian Charter of Rights and Freedoms. We would always be ruling on issues, thus depriving the supreme court of one of its responsibilities so as to keep us parliamentarians busy doing something. This is not how the system works.

The executive branch is the third level of power. It is the government that sets in place the judiciary and the executive branches. The separation between these three branches is extremely important and must continue to exist.

The hon. member drafted his bill in a way that would obviously jeopardize the balance that currently exists. The Bloc Quebecois cannot support that. Regardless of the fact that we are sovereignists and that we support Quebec's sovereignty—this is the best thing that could happen to Quebec in terms of the legality of the justice system—over the years, Quebecers have made major contributions to improve Canada's justice system. I want to preserve that system and I will fight to protect it.

A bill such as the one just introduced by the member for Ancaster—Dundas—Flamborough—Aldershot does not make sense. I might have understood if it had been proposed by the Canadian Alliance, but I am very surprised to see this from the Liberals. The sponsor of the bill could easily cross the floor and join the Canadian Alliance. I hope he represents only a very small minority among government members. This is dangerous legislation.

More important, did members listen to his speech? His intentions were barely veiled. He said that supreme court justices make rulings without even examining the substance of the issue and that they render repetitive judgments. We know that supreme court justices are extremely competent and they are serious when they issue rulings. They have clerks working for them. They have access to a whole staff of researchers and to libraries. The supreme court makes Canada proud, and even Quebec, as there are Quebecers who sit on the court.

The hon. member said that members should draft our laws because we review them very thoroughly. I want to give him an example. I am a member of the Standing Committee on Justice and Human Rights. There are Quebecers and members from other regions of Canada who sit on that committee.

Just to give one example of how ridiculous the member's arguments are, in the case of the young offenders bill, the committee heard from 60 or so witnesses from Quebec. No one in Quebec supports the minister's bill. During clause by clause study, all members from Quebec present voted in favour of the bill. What is the point of spending hours and hours going over something if the ultimate decision lies with the Prime Minister anyway?

In all sincerity, I would far rather have competent judges handing down rulings on a case by case basis in light of existing statutes and regulations, independently of the legislative arm. Cases such as Shaw may involve treaties and customs but we also take these into account when we pass legislation here.

As I said, decisions are, in the main, consistent with the thinking of parliament and of Quebecers and Canadians.

I could go on and on. I will discuss at length the two clauses in the bill to amend the Supreme Court Act in order to rebut, as it were, all the arguments brought in support of this bill, which does not really deserve our serious attention. We should move on to something else as quickly as possible.

Supreme Court ActPrivate Members' Business

11:40 a.m.

Progressive Conservative

Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS

Mr. Speaker, I welcome the opportunity to speak to this private member's bill, and I commend the hon. member for bringing it forward. I think we all agree that the subject matter bears consideration in the Chamber. It is an issue of critical importance to the way we do business as a nation, to the way we engage in debate, and to the role the Supreme Court of Canada would play.

Looking at the substance of the bill for a moment, it refers to the ability of legislators to demand or to mandate that the supreme court should take into consideration debates of the Chamber and debates that may transpire in committees. That is not a bad idea in and of itself. The difficulty I have is perhaps in the way it is worded, in that it would require or demand that the courts do just that.

A previous speaker, who is a former attorney general of Manitoba and a constitutional lawyer, succinctly summed up best what is currently at work: the courts, the supreme court included, have the ability to look at legislative debates. They have the ability to ponder the background of how decisions were arrived at when legislation was drafted. They have the ability to go quite far afield. It is critical to say that in that context it is up to the lawyers who may be arguing the case, or the parties to the matter before the courts, to bring the matter forward.

It is not unheard of for the supreme court or superior courts throughout the land to have researchers delve into this field. I have difficulty with the mandate to tie the hands of the courts. I understand the background reasoning, but it is basically saying that we are important and have to be considered by them in their deliberations. There are many members, myself included, who have some difficulty with imposing that upon the courts.

On issues of constitutional considerations or charter cases the bill would require, in essence, a unanimous decision. That would be required in all cases where the charter came into play. We know that charter issues seem to be predominant in the number of cases before the courts. We would very much be curtailing the way the courts function, the way the courts have independently acted since the mists of antiquity, since the times the courts were assembled to preside over and to protect citizens from an unruly or dictatorial legislator. I will refrain from making any references to the current administration.

To say that in every case there has to be a unanimous decision troubles me. There have been many instances of important dictum or comment by the court in the context of a judge who did not agree with the majority. Looking at the circumstances and the way in which decisions are arrived at by the courts, I would say that this would perhaps unduly constrain the way judges react and interact with one another.

I am reluctant to delve into the tying of the hands of judges in what some would argue is sacred ground. The impartiality of the courts would be impugned to a degree, to say they had to be unanimous in each and every case where constitutional issues were before them.

I also recognize, and as part of the debate I think it is important to recognize it, that there has been a number of decisions. The hon. member opposite referred specifically to the Marshall case. I say to him with the greatest respect that a great deal of responsibility for the way this case was decided rests in the hands of the Department of Fisheries and Oceans and in the hands of the department of aboriginal affairs.

The Marshall decision, which incidentally came from Antigonish county in Nova Scotia, dealt with native fishing rights as they pertain quite narrowly to eels. What we saw resulting from the Marshall decision has opened a huge debate in the country. An enormous chasm has occurred when it comes to natural resources, because we know this case will have application or that at least there will be an attempt to apply it to all natural resources and to land rights. We have already seen references to the case throughout the land where native rights are currently before the courts. That is not to say that because of what transpired in the Marshall case we should react quickly in somehow rejigging and reconfiguring the way the courts operate. I agree that it is an important issue that must be debated. Perhaps what we need to do as a matter of course is look at the entire Supreme Court Act.

Very much behind the sentiment of the hon. member is the idea that we should be looking at the way the courts have currently construed their powers. To a large extent we have seen instances where legislators were sidelined or completely put to one side and instances where, the Chair will recall, the supreme court has told legislators that they must come back and fix something, even within a specific time period. We have known instances where legislators did not comply, much to the chagrin I am sure of the Supreme Court of Canada.

The implications for any changes to the Supreme Court Act are long term. For that reason alone I do not think we can trundle into this exercise with any degree of levity. We must look very carefully at what we are mandating the courts to do, because again there are very distinct roles. The hon. member from the Bloc Quebecois set out quite succinctly the different roles that are to be played by legislators, the executive branch and our courts, our judiciary.

The Marshall decision is probably not the best starting point when we enter into this exercise because, for any number of reasons, emotions are certainly running high at this point. I have one correction for the record: Burnt Church is in New Brunswick, not Nova Scotia. I say that with the greatest respect.

The bands are currently facing a situation, not to get off into a separate debate, where the interim agreements will expire this month. That certainly brings a real sense of urgency to resolution of the issue of natural resources and access to them.

I also agree with the commentary in the debate about the language that is often used and the need for clarification. We saw that occur in Marshall. We know that rulings which contain specific references to things such as moderate living are open to a great deal of interpretation and misinterpretation.

Another case comes to mind where the supreme court talked about exigent circumstances in police pursuits. It resulted in a great deal of consternation in the law enforcement community. We have seen ample evidence of supreme court decisions where legislators are either implicitly or very directly called upon to come in and fix what their decisions will result in because of the confusion that can reign from what the supreme courts have handed down.

We cannot, I would suggest, take out certain sections of the Supreme Court Act and attempt to try, in what is often an old legal maxim, to do through the back door what one is prevented from doing through the front. We cannot try to somehow, in a roundabout way, get the courts to behave differently.

In a broader context, either at committee level or perhaps in some sort of broader study, we must try to examine the role of the courts vis-à-vis elected officials who, I would suggest and certainly many in this place would agree, have a much broader mandate. They have the same constituency, but a much more specific mandate as to what their role is to be.

I commend the hon. member for bringing the matter to the floor of the House. This is the proper forum for the discussion. I am reluctant to support the legislation in its current form, although I realize that it is brought forward for debate and to flesh out a problem that currently exists in the courts of Canada. We must preserve the independence and the separate roles and look at the issue again perhaps in a broader circumstance in the near future.

Supreme Court ActPrivate Members' Business

11:50 a.m.

Erie—Lincoln Ontario


John Maloney LiberalParliamentary Secretary to Minister of Justice and Attorney General of Canada

Mr. Speaker, I rise today on behalf of the Minister of Justice to address Bill C-234, an act to amend the Supreme Court Act, introduced by the hon. member for Ancaster—Dundas—Flamborough—Aldershot.

It is healthy in a democratic country such as ours to have debate about the respective roles of the judiciary and parliament and the dialogue between those institutions. I thank the member for giving us the opportunity to debate the issue before the House of Commons.

After consideration of Bill C-234 and the effect of the proposed amendments on judicial independence, it would be impossible for the minister to support the bill. Allow me to explain.

Bill C-234 proposes two amendments to the Supreme Court Act. Both amendments would apply only in constitutional cases. The first amendment, section 52.1, would require the supreme court to consider parliamentary and other extrinsic materials that deal with the purpose or intended effect of a provision or act when the constitutional validity of a statutory provision is at issue. The amendment lists commission of inquiry or law commission reports, debates of the House of Commons or Senate, and debates of the provincial legislatures as examples of the types of materials the court would consider.

The proposed amendment at best simply codifies an approach that has been adopted by the Supreme Court of Canada since at least the Anti-Inflation Act reference of 1976. In that case, Mr. Justice Ritchie wrote that it was not only permissible but essential to consider the material the legislature had before it when the statute was enacted. It is expected that parties before the court will bring evidence of the purpose and intent of the impugned legislation to the court's attention. Such materials indeed form an integral part of the government's arguments under section 1 of the Canadian Charter of Rights and Freedoms.

However, there is a danger that the provision could be more broadly interpreted as requiring the court to independently research any such evidentiary materials that have not been brought forward by the parties. Such an application of the provision would significantly increase the court's already heavy workload and could result in possible delays in the administration of justice.

Furthermore, the reading of the proposed section would run contrary to a basic tenet of our common law and adversarial system: that it is for the parties alone to decide the issues and the evidence that will be brought before the court. As a result, the Minister of Justice is unable to support the proposed introduction of section 52.1.

I now turn to the second proposed amendment in Bill C-234 which, in only a couple of sentences, would create uncertainty in the law and raise serious questions about equal access to the law.

The proposed amendment would make only unanimous supreme court decisions on constitutional matters binding on all Canadians. Where the decision was not unanimous the judgment of the court would be deemed to be only applicable to the case being heard. In other words, the decision would not be considered a precedent in relation to other circumstances in which the same constitutional issue arose.

The Minister of Justice is equally unable to support the proposed amendment. The amendment is clearly contrary to the doctrine of precedent that underlies Canadian constitutional law and that supports the need for certainty in the law. Pursuant to this doctrine, the decisions of a court are binding on courts lower in the judicial hierarchy regardless of whether the decisions are unanimous or by majority.

Not only Canada but all common law countries have accepted the doctrine of precedent which enables parties to rely on a court judgment with the knowledge that people in like circumstances will be treated alike. Adoption of the proposed amendment would result in confusion, uncertainty and increased litigation within the Canadian legal system as parties, including governments, would be required to repeatedly contest or defend the constitutional validity of legislation whenever a unanimous decision was not reached.

The enactment of section 52.2 could have the further consequence of creating an unequal application of laws. Under the proposed provision, the circumstances of individuals or organizations other than the parties before the court would not be covered by a majority decision and further litigation would be required for redress. However not all those affected by the challenge legislation have the necessary means to assert their rights in court and consequently would not enjoy the same benefits of the law. The minister cannot support such unequal application of the law.

The Minister of Justice is further compelled to oppose both of the proposed amendments to the supreme court act as they will quite likely be construed as violating the constitutional principle of judicial independence.

The amendments impinge directly on the decision making process. Judicial independence is a fundamental principle under the Canadian constitution. Its dominant requirement is that judges be completely separate in authority and function from all other participants in the judicial system, including the legislature.

One of the three essential elements of judicial independence is the constitutional independence of the court with respect to issues bearing directly on its judicial functions.

The process by the which the court reaches its decisions is clearly an integral aspect of its judicial functions. That process includes the evidence the court is required to take into consideration, as raised by the proposed section 52.1. Section 52.2 of the hon. member's bill could be seen to even more directly infringe upon judicial independence if it has the purpose or effect of forcing courts to make unanimous decisions.

The provision would contravene the individual as well as the institutional independence of judges to make their decisions impartially and free of extraneous influence. Such interference with judicial independence could only serve to erode public confidence in Canada's judiciary.

Together the two provisions raise serious concerns regarding both their constitutionality and their legal efficacy. In light of these considerations the Minister of Justice is unable to support the bill.

Supreme Court ActPrivate Members' Business

11:55 a.m.


John Bryden Liberal Ancaster—Dundas—Flamborough—Aldershot, ON

Mr. Speaker, let me sound a warning. There is a myth that exists here in this place, and perhaps in the bureaucracy as well, that our supreme court is mandated in the same way as the U.S. supreme court under the constitution.

I just heard the parliamentary secretary's remarks and I must have missed something, but in fact I do not see anything in our constitution that describes the role of the supreme court and judicial independence. It only gets a passing reference. The role of the supreme court is in fact defined under the Supreme Court Act rather than our constitution.

The warning I would like to sound is this: in fact, our supreme court has no protection from parliament. In fact, we can change the role of the supreme court. We can do whatever we want with the supreme court by changing the Supreme Court Act.

Moreover, we can basically nullify the impact of the supreme court by the use of the notwithstanding provision. We do not want to do that, but I am afraid that if the supreme court's decisions continue to be interpreted in a way that is out of sync with Canadian society the supreme court will lose its credibility. It only exists in the parliamentary system because we believe in it. I believe in it here in this legislature, but it has no protection.

If we do not do something as parliamentarians to ensure that public confidence, instead of being eroded as is the case now, is enhanced in the supreme court, then maybe another justice minister 10 years from now will act in the public interest, or as a result of public sentiment, and fall down upon the supreme court and reign it in, in ways in which we on all sides of the House would not want to see. Once public confidence in the supreme court is lost it can never be recovered.

The problem is that the supreme court, when it comes to legislation, can only make a decision based on the information presented before it. If the government lawyer or the government side, for example, does not present a full case, the justices will come to a decision that is in error because they have not heard the full case.

In Marshall, the justices said that there was no representation made by the government on whether the 1760 treaty rights had been extinguished. Had the government made that representation the court would have considered it. It did not make that representation because the government was convinced that it would win just basically because the treaty itself was not applicable.

In Singh it was a similar situation. The justices there said that had the government made an argument under the reasonable clause or the reasonable provision in section 1 of the charter of rights, that might have changed its decision with respect to the seven convention refugees, but because it was not presented it was not considered.

This is why we have to come up with some sort of plan whereby if it is a unanimous decision, it is acceptable, and that is fine. If it is unanimous, then obviously there has been sufficient evidence before the court that we as the Canadian public—not just members of parliament but the Canadian public at large, if there is unanimity—can believe or have reasonable reason to believe that the court has sufficiently considered the issue and that should be the last word.

When it is a split decision, when some of the justices in their wisdom have gone on the other side of the case, as in Marshall—if we read the two decisions they are like black and white—I would say the majority of Canadians would agree with the minority decision. So we have this terrible situation arising in which there is a split decision that has been applied to all Canadians forever and the government has interpreted it to apply to all aboriginals across the country, all natural resources.

This is an intolerable situation. The answer is not just to debate. I realize the government can never accept a change such as I was proposing. Never in a month of Sundays would it have ever accepted some radical change like that, but as the members opposite have suggested, there has to be debate. I suggest that if a debate cannot be had in the House of Commons, then this is a subject matter that should be sent to the Senate and the senators should consider this for as long as it takes.

Supreme Court ActPrivate Members' Business


The Acting Speaker (Mr. Bélair)

The time provided for the consideration of Private Members' Business has now expired. As the motion has not been designated as a votable item, the order is dropped from the order paper.

SupplyGovernment Orders


Canadian Alliance

Chuck Strahl Canadian Alliance Fraser Valley, BC

Mr. Speaker, I rise on a point of order. I think you would find unanimous consent to substitute the motion on the order paper today for the following:

That the government stipulate that in all Contribution Agreements between the Federal Government and individual Indian Bands, the use of any public funds be publicly reported and audited.

SupplyGovernment Orders


The Acting Speaker (Mr. Bélair)

Is that agreed?

SupplyGovernment Orders


Some hon. members


SupplyGovernment Orders


Canadian Alliance

Reed Elley Canadian Alliance Nanaimo—Cowichan, BC


That the government stipulate that in all contribution agreements between the federal government and individual Indian bands, the use of any public funds be publicly reported and audited.

Mr. Speaker, I will be splitting my time with my hon. colleague from Wanuskewin. In addition, all other Canadian Alliance members who will be speaking to the motion today will be splitting their time.

It is my pleasure to begin today's supply motion debate. In doing so, I say by way of preamble that as far as we on this side of the House are concerned and as part of the official opposition, we believe that over a period of time the Liberal government has a lot to explain regarding the handling of public taxpayer dollars and its very lax accounting methods toward the allocation and handling of both private and public aboriginal funds.

Once again I put the motion on the record:

That the government stipulate that in all Contribution Agreements between the Federal Government and individual Indian Bands, the use of any public funds be publicly reported and audited.

Throughout today my colleagues in the official opposition will identify many reasons why the present policy of the federal government concerning in this regard is simply not working.

As the debate develops, it will be clear that the motion is intended to speak out on behalf of all taxpaying Canadians as well as the many aboriginal Canadians who are not receiving the answers to their questions from their own chiefs and councils when it comes to matters of accountability.

At the present time aboriginal people do not have the tools to hold their chiefs and councils accountable, the tools necessary to track either public or private funds. Our motion today asks the government to bring in legislation. In so doing we hope the government will realize that there needs to be a separation of the revenue streams of public and private moneys going into the bands and the expenditures derived therefrom. This is so important so that when audits are performed they clearly track this money, how it is being spent and where it is going. In this way band chiefs and councils can be held accountable for their own spending habits.

This is all part of the kind of accountability for which people are calling, people such as the Assembly of First Nations National Chief Matthew Coon Come, the Canadian Alliance, of which I am a part, and many other Canadians.

There are accountability issues such as the monitoring of band elections by Elections Canada, self-government issues in terms of greater democracy and transparency at the band level, and even public consultation on the owning of private property on reserves. These issues continue on and on.

Let me be very clear from the outset. We on this side of the House understand fully the 1989 federal court Montana ruling. However, we believe that the federal government has fallen far short of its obligations to the Canadian taxpayers who demand full public disclosure and accounting for all of their tax dollars, not just some of them, regardless of what department they are being used in.

In addition, band revenues earned by band interests should be reported in a timely, accurate and transparent manner to all band members. I have even heard from aboriginal people who believe that these funds should also be publicly reported.

Quite frankly, the Liberal government has been derelict in its duties to the Canadian public on this matter. It has been 12 years since the Montana ruling came down and yet the federal government has not taken the necessary steps to clarify, define and separate the reporting of public and private funds. Today's motion provides a solution to the government's pathetic response to the problems of band financial accountability.

Just for the benefit of members of the House and those who may be viewing this on television, let me be clear on the scope of the budget we are talking about. The 2000-01 estimates for Indian and Northern Affairs Canada show that the department will spend $4.9 billion directly and that Health Canada, CMHC, Human Resources Development Canada and other departments will supply an additional $2.13 billion, for a total operational budget of $7.03 billion. We are not talking about change here; we are talking about huge amounts of money.

All Canadians have every right to know how one of the largest government departments not only spends its tax dollars but what kind of return it is getting on its expenditures. It is not a fiscal return necessarily. We are talking about the social return: the betterment of health for first nations and the improvement of housing conditions, levels of education and all kinds of things. These are some of the things that are really important to all Canadians.

Canadians are not blind to the plight of aboriginal people. Yet they consciously wonder why, when over $7 billion is allocated to the department and to the government, many of our aboriginal brothers and sisters live without proper housing, without running water or proper toilet facilities, without full educational opportunities, and why they live with soaring unemployment, poor health, high suicide rates and epidemic substance abuse.

These are real live flesh and blood issues which are singularly killing aboriginal people, killing the body and wounding the soul. For far too long they have been ignored by government and even by their own leadership, and this simply has to change.

The time has come for truth to be spoken in the nation in this regard. The truth very often is not politically correct. There are people who do not want to hear the truth because of their own vested interests. The truth, however, is not ambiguous. The truth is not something to be feared. The truth is clear and concise. The truth is to be embraced because it is unchanging. However the truth will do no good at all if it falls on deaf ears and is never acted upon.

Over the past several decades the Indian and Northern Affairs Canada has moved to divest itself of the direct operation of programs. To a certain extent I agree with this. All people need to be seen to be as responsible as possible for themselves, but we all know that not everyone is able to take full responsibility until one given the tools that will equip one for the job.

To ask a council at the band level to suddenly take on the housing or health care issues facing its band is irresponsible, unless that chief and council have all the tools in place to ensure that they are able to meet the needs of their people. Surely this is only common sense, but very often in the department common sense is not to be found. Time after time in report after report we hear that INAC is not ensuring that the goals are attainable by all of the bands across the nation. The department has been long on talking the talk but very short on walking it.

Small bands with limited personnel, expertise and other resources cannot be expected to meet all the immediate needs and demands placed upon them if change is to occur. Without extra assistance, it is not feasible to expect the necessary social programs will exist and be delivered to all band members efficiently and effectively to bring about the desired results for change. Yet because of the current disclosure policy concerning accountability, all we can base our opinions on are our observations and the reports that come to us from many people across the country. Unfortunately many of those reports are not very encouraging.

Consider the plight of the Dene Tha first nation of northern Alberta. Here is a band that in addition to its INAC funding has oil and gas reserves. The people should be happy. They are not. They have many concerns over the governance of their band. They are concerned about where their money has gone. They are concerned that they cannot find answers. They are concerned that their chief and council have let them down. They are concerned that the minister of Indian affairs and the Prime Minister have let them down.

How about the words of Verna Soto of the Sturgeon Lake Cree nation, also of Alberta? She wants to have better health and education opportunities. The health of her children and others on the reserve is of serious concern to her, so serious that she is willing to step forward and publicly call for change. These people have put their lives on the line for change.

We have with us today in the gallery Leona Freed, who has formed the First Nations Accountability Coalition working on behalf of grassroots aboriginal people, and I salute her. Leona is one of the many people across the nation who are calling for accountability.

The motion we present today is a small step forward to the public, transparent accountability of taxpayer money. We urge all members of the House to support it.

SupplyGovernment Orders

12:10 p.m.

Canadian Alliance

Maurice Vellacott Canadian Alliance Saskatoon—Wanuskewin, SK

Mr. Speaker, I know it is sometimes more customary to move an amendment at the end of debate, but our party would like to move that the motion be amended to read that the government immediately stipulate that in all contribution agreements between the federal government and individual Indian bands, the use of any public funds be publicly reported and audited.

That would move immediately into the mode of the motion that we anticipate or hope to have passed at the time of the vote.

There are a couple of things to which I would like to draw attention to before I move through my main thesis. What we mean by publicly reported and what we understand that to involve is being available to anyone through access to information, such as members of bands much more readily, sometimes they are stonewalled and put off from getting this information, and also to members of the general public because it involves tax dollars.

In terms of the unanimous consent to a change by our House leader at the top of the hour, and why we allow it to be stipulated in all contribution agreements that they be publicly reported and audited, is because if we just used financial transfer agreements there are seven older methods which would escape untouched. Because the government has dragged its feet for so long on moving to financial transfer agreements for all its dealings and all the mechanisms, we are quite glad to acknowledge this and consent to all contribution agreements being publicly reported and audited.

I would like to focus for the most part on the way in which the government has hindered the development of financial accountability over the years, how it has stopped that from happening, intentionally in some cases and in other cases maybe more by neglect, and how it has allowed some very poor handling of allegations.

It is the government's responsibility to ensure that there is financial accountability among Indian bands. One way this is done is by handling allegations of financial mismanagement and wrongdoing in a proper way. Yet in this area, the government and past governments have done very poorly. It has failed to address adequately allegations brought by band members in particular but others as well. I would like to address this important aspect of the government's failure to promote financial accountability, and the key word is accountability, among Indian bands.

The Department of Indian and Northern Affairs reported that it received over 300 allegations relating to 108 Indian bands during the two year period preceding the auditor general's report in 1999. Those allegations related to matters like social assistance issues, mismanagement of funds and other concerns. Because the department's data is incomplete, as found by the auditor general, there could be many more allegations. In fact I am of the strong view that there are many more.

I had people come to my office with affidavits and documented supporting evidence in what seemed to me like very clear cases of allegations, but the cases went nowhere. We will talk about that later. There are probably many more allegations which have come to various members of parliament on all sides of the House.

The question we need to address is this. What has the government been doing to address these allegations? If we ask the government, it would say that it is doing its job, maybe that it is doing a fine job.

In 1996 the Department of Indian and Northern Affairs published certain principles of accountability including principles of redress. In its guidance to Indian bands and how to complete accountability and the management self-assessments, the department elaborated on redress as a key principle of accountability in the following words:

Formalized review and appeal rules and procedures are in existence for operating programs and key governance functions that impact on the rights/entitlements of individuals and/or the community.

The auditor general noted that the government's position, as reflected in the statement, was that mechanisms already existed for objective review and resolution of allegations. However does this reflect reality? Is the government really living up to its words when it comes to appeal and review processes? The short answer is clearly it is not. On the contrary, the government deserves a failing grade.

I would like to mention three things that lie behind the government's failure in this regard which enable the government to avoid enforcing accountability measures in dealing with Indian bands.

The first way is that the government can pass off responsibility far too easily. Essentially, it can pass the buck in this way. The department said that often the proper action for it to take would be to refer the allegation to other parties and that the ultimate responsibility for addressing an allegation may lie within an Indian band.

This is bizarre. It is nonsense. To say people who have grave concerns and documentation in hand about misappropriation of moneys, wrong use of moneys and so on by band chief and council, and to be told that they have to go back to them to present that information and they will decide whether or not there is anything to pursue, is the height of ridiculousness. It is ridiculous to think that could resolve something and get redress.

The department skates around this stuff because it does not want to look silly or incompetent, and it is not doing its job. Therefore, it sloughs it off as well. In some cases the department has said that they should go to another funding agency. This other funding agency does not want to be shown up as being incompetent either. Maybe it has not vetted or screened it properly, so it passes it off and pushes to the side. Perhaps, it has said for them to take it to a law enforcement or investigative authority.

Many band members in their situations have gone with the evidence, as I see it not being a law enforcement person, which looks like pretty serious stuff. The paper trail is there. Yet these RCMP officers and so on will say that it is like nailing jello to a wall. As long as there is a resolution on the band books saying that $50,000 can be spent on the trip to Las Vegas to maybe check out casinos, or economic development or attend a meeting, then there is nothing wrong and they can do that.

It may be clearly inappropriate when we think there will be a shortfall of funds to health, education and other areas, and sometimes a very significant shortfall because of this inappropriate use of dollars. However, it is not technically an illegality. RCMP officers would say that we could not go to them because it was really difficult to nail this down. It is like nailing jello to a wall.

For those reasons, the end result is the government washes its hands of responsibility and nothing gets done. The buck gets passed and allegations disappear off into thin air.

It is not an accident. I believe the government has purposely left itself with a lot of wiggle room. Maybe its lawyers have told it to leave it loose and very broad and to leave a big escape hatch there. That is exactly what has happened. The government left this big nebulous open no man's land escape hatch for itself.

The second way in which the government avoids having to enforce accountability measures in its dealing with band members is by having no set guidelines on how to evaluate allegations. That is laid out in detail in the auditor general's 1999 report. I find this very shocking. In February 1998 the department issued a national guideline to senior officials on how to deal with allegations. The guideline defined and categorized the type of allegations, outlined the procedures to be followed, discussed the importance of departmental follow up and related matters.

The auditor general expected, he said in his report, to find in that guideline direction on the following topics, which I think are reasonable. He said he expected to find something about how to evaluate the merit of an allegation, how to decide what additional information was needed, who should collect any additional information and how to decide whether the allegation should be resolved by the department or referred to other authorities or Indian bands.

The auditor general found little or no guidance on these topics. What he found instead was instructions on how to control the flow of documents and communications. The department seemed more concerned with public relations than in taking allegations seriously and doing them justice.

The government's complete lack of substantive guidelines on how to address allegations shows that the government has intentionally, it would seem, left itself wiggle room to avoid addressing an allegation. The government does not have to ignore its own guidelines because it has no guidelines. There are none out there.

The third way in which the government avoids having to enforce accountability measures in dealing with Indian bands is by not collecting information on allegations and referring it back so it can learn from specific cases.

We find when we do not learn from history we are bound to repeat the mistakes of the past, so there is a problem there. One office said it did not know how many allegations. We have a major problem there. That is why we need to take these steps. To sum it up, we have to take steps that move us in the right direction toward greater accountability and, therefore, improvements to the lives of average Indian band members.

SupplyGovernment Orders

12:25 p.m.

The Acting Speaker (Mr. Bélair)

The hon. member for Saskatoon—Wanuskewin indicated when he started his speech that he would propose an amendment. Is it still his intention to do so?

SupplyGovernment Orders

12:25 p.m.

Canadian Alliance

Maurice Vellacott Canadian Alliance Saskatoon—Wanuskewin, SK

Mr. Speaker, I did it at the beginning of my speech. The motion on the floor earlier was put by our House leader, and we want it to be immediately stipulated that we move to that end. Therefore I move the following amendment:

That the government immediately stipulate that in all Contribution Agreements between the Federal Government and individual Indian Bands, the use of any public funds be publicly reported and audited.

SupplyGovernment Orders

12:25 p.m.

The Acting Speaker (Mr. Bélair)

I declare the amendment in order.

SupplyGovernment Orders

12:25 p.m.

Glengarry—Prescott—Russell Ontario


Don Boudria LiberalLeader of the Government in the House of Commons

Mr. Speaker, I will be sharing my time with the Parliamentary Secretary to the Minister of Indian Affairs and Northern Development.

I would also like to thank the member of the opposition who has proposed replacement of his initial motion by the following:

That the government stipulate that, in all contribution agreements between the Federal Government and individual Indian Bands, the use of any public funds be publicly reported and audited.

With this new wording, I am pleased to inform the House that the government intends to support the motion.

I must indicate, however, that another member proposed addition of the word “immediately”, which of course means that the practice would be implemented right away. With the end of the fiscal year coming up in 12 days, needless to say we cannot support this amendment. I fear the President of Treasury Board would be alarmed at a motion that would give her 12 days to put certain of these measures into place.

As far as the initial motion is concerned, we fully intend to support it.

Let me now put the discussion about first nations governance and accountability into context with a few basic facts.

All members opposite will be familiar with the budget process. The Government of Canada tables the estimates in the House and then a budget. I am sure that my colleagues realize that moneys spent by the Government of Canada are publicly disclosed and publicly audited by the auditor general. Indeed, we saw how the management of the country's finances was key to the change in government in 1993 and in the re-election of the government in 1997 and again in 2000.

We on this side of the House are fully aware of the dividends that sound fiscal management and accountability pay to any organization, and indeed to a government. We have received 98% of the audits from first nations for the year 1999-2000. The vast majority of these audits were accepted without any qualification whatsoever. This means that an independent auditor found them to be entirely acceptable according to generally accepted accounting principles.

Another fact I would like to put before the House is that only some 4% of reserves were placed under third party management last year. They require our attention and of course they are receiving it, particularly under the very able leadership of the Minister of Indian Affairs and Northern Development.

In speaking to the motion today, I would also like to pay considerable attention to those first nations people who Canadians rarely hear about. I want to talk about the vast majority whose success reflects the determination of first nations to manage their finances responsibly, to improve their accountability and increase their capacity to govern themselves responsibly.

Any changes or new initiatives will have to be developed with first nations. Notice that I said with and not for. I am proud of the degree of consultation we have had with first nations. The Indian Act never contemplated first nations managing large, sophisticated programs to the benefit of their members or that they would be owners and operators of large, successful businesses.

Many first nations have large and successful businesses which they operate to give their members a share of the Canadian economy as equals with other Canadians.

There are many examples of success, not the least of which is the Meadow Lake Tribal Council, which is a powerful economic force in northern Saskatchewan. There is the Fort McKay first nation, which is made up of important members of the Alberta tar sands development. The Dogrib first nation up in the Northwest Territories are major partners in the diamond industry, supplying services and labour to this industry.

There are three topics I would like to address in responding to the issue brought before the House by the hon. member who placed the motion before us.

First, I think it is important to look back and consider how first nations and Indian and Northern Affairs Canada have put in place funding agreements and other policies to support strong first nations governments and programs.

Second, I want to tell members of the House how Canada and first nations are working together to realize effective first nations government. I also want to explain the safeguards that we are building together to ensure the responsible use of public funds. I also want to outline how this process is leading us toward our goal of first nations self-government in Canada.

Indian and Northern Affairs Canada has looked for ways to permit more streamlined funding arrangements with greater local decision making and accountability. Further, they stressed the accountability of first nations governments to their people, while recognizing a continuing accountability due to government. These actions were taken with the full understanding that Canadians should know how these funds were spent.

Canadians, including members of the House, who want to know more about how first nations funding arrangements are conducted in Canada have opportunities to learn more. Allow me to address some of the fundamentals.

Accountability is a critical issue. First nations know that their long term interests are best served by taking firm control of their finances and continuing to improve their management and accountability practices. This was related in the document entitled “Gathering Strength—Canada's Aboriginal Action Plan”.

Regarding deficits, improvements in the quality and timeliness of first nations audits in recent years and a requirement for consolidated audits have shaped Indian Affairs and Northern Development Canada's ability to identify solutions where the debtload should cause concern.

Deficits are not unique to first nations government. Anyone sitting in the House should remember the days, particularly under a previous government that I will not name, where deficits were rampant.

Like other governments, first nations are required to prepare their audits in accordance with the public sector accounting and auditing standards of the Canadian Institute of Chartered Accountants. The results of these audits are shared with members of the community and the Government of Canada.

Today's funding arrangements between first nations and the government range from a basic model known as a comprehensive funding arrangement to the first nations funding agreement. In the latter, there is more flexibility for program and service delivery. Capacity and willingness of first nations to accept additional responsibilities is included in the agreement.

In either case, all agreements are prepared using a generic template that ensures the equitable treatment of all first nations. The general trend in transferring funds has been toward negotiated global budgets that create an incentive for sound management. The objective is to find the right mix of flexibility and accountability.

As I mentioned, agreements contain strong provisions to address the terms and conditions of funding agreements. They include requirements to maintain accounts in accordance with accepted accounting principles as set out by the Canadian Institute of Chartered Accountants.

As I pointed out, the large majority of arrangements are working as they are intended. The goal is to ensure that the band can develop the in-house capacity to manage its own finances. The auditor general has identified a need to be more proactive in addressing allegations and complaints of wrongdoing. Indeed, that is true, the auditor general is quite right in saying that the mandate of the minister's department poses a highly complex and sensitive challenge. Despite the many challenges, our resolve remains to ensure that aboriginal people in Canada attain a quality of life similar to that of other Canadians. That should be paramount for all of us.

In the Speech from the Throne our government affirmed our commitment to strengthening our relationship with aboriginal people, supporting effective and accountable governance and taking action on the basic quality of life issues.

These objectives are clearly consistent with the auditor general's observations. In our effort to continue to promote good governance for Canada's aboriginal people, we will support the new motion that was placed before the House today.

SupplyGovernment Orders

12:35 p.m.

Canadian Alliance

Maurice Vellacott Canadian Alliance Saskatoon—Wanuskewin, SK

Mr. Speaker, what does the member see the motion doing? Does he see it doing something that the government presently is not doing or is it one and the same as what the government has been doing all along?

SupplyGovernment Orders

12:35 p.m.


Don Boudria Liberal Glengarry—Prescott—Russell, ON

Mr. Speaker, as I have just indicated, the government supports the motion. Apart from the amendment the member himself proposed at the end of his speech, we are prepared to support the motion.

I indicated as well that we are aware of the comments made by the auditor general, and of the way they were presented.

That said, it is our intention to ensure an element of flexibility, naturally, in the government of native communities in Canada. I have said that there are two categories, in a way, depending on the ability of the group to manage. There are two sorts of agreements and it depends as well on the general agreement between the Government of Canada and the native community in question.

That said, we want to ensure that there is a public audit report, as well. The member opposite knows that the complication arises from the decision in Montana, which, need I remind all parliamentarians, requires that, if the government contributes to a project and a third party contributes to the same project, if I have properly understood the scope of this case, the government is bound and cannot release the audit, because it would involve making public figures belonging to a third party.

What we want is to do is release audits in all cases in which the government contributes under similar agreements. This is what the motion provides, and we support it.

SupplyGovernment Orders

12:40 p.m.

Canadian Alliance

Reed Elley Canadian Alliance Nanaimo—Cowichan, BC

Mr. Speaker, I appreciate what the hon. member said in his response and we are glad to hear that the government will be supporting us on the motion.

The member mentioned that from his perspective and the government's perspective they have indeed been good stewards of taxpayer money. There is a huge amount of money that is spent on Indian affairs at the moment.

Is the member aware that the statistics tell a different story? Unemployment rates in many bands across the country have soared to 85%. The incidence of HIV and hepatitis C on reserves, as well as diseases, like tuberculosis, which is re-emerging among native people, has increased. Diabetes has increased by four or five times the national average. The suicide rate among native people on reserves is four or five times the national average. Substance abuse among the James Bay Cree and others is rampant.

Why is all this money going toward supporting our native people not working? Could the member please enlighten us? Why are our native people still suffering?

SupplyGovernment Orders

12:40 p.m.


Don Boudria Liberal Glengarry—Prescott—Russell, ON

Mr. Speaker, I am a minister but not the minister of aboriginal affairs. He would certainly respond to this far more eloquently than I, but for the hon. member across to pretend that the entire sociological phenomenon by which some of our aboriginal people are having difficulty has something to do with accounting practices is oversimplifying a problem that is far more complex than that.

The hon. member across knows as well as I do that the destruction of the many ways of life that aboriginal people had without the replacement them with other meaningful ways of earning a livelihood and so on, has nothing to do with the issue that is before us today.

The fact that many traditional livelihoods of aboriginal people have been so badly affected by a whole series of issues that have nothing to do with this is outside. That is not an excuse for saying that we should tolerate bad accounting practices. Of course not. However it is not the same as saying that the issue of accounting practices, of disease, of unemployment and of everything else in aboriginal communities are somehow synonymous.

SupplyGovernment Orders

12:40 p.m.


John Finlay Liberal Oxford, ON

Mr. Speaker, it is my pleasure to rise today to respond to the motion put forward by my colleague from the riding of Nanaimo—Cowichan. For clarity, I am talking about the motion as it was first read and not as amended by the addition of the word “immediately”.

First, I would like to set the record straight on the accountability of first nations' governments across Canada. I want to focus on the issue of first nations governments and their accountability, both to their communities and to the House. We need to ensure that first nations citizens and all Canadians have the facts.

Like the Liberal government, or any other government for that matter, first nations chiefs and councils must be accountable to those they serve. They have primary accountability to their members for leadership decisions, sound management of council affairs and the efficient and effective delivery of programs and services. They are also accountable to Indian and Northern Affairs Canada as well as other departments for the use of public funds provided to them.

I would like to provide the House with examples of how first nations are taking hold of and driving the accountability agenda.

This discussion is one that is being played out across the country and it is being fuelled by a desire among first nations to break free of poverty and economic dependency. As the grand chief of the Assembly of First Nations put it about a week ago, the chiefs had to lead and they had to lead by example and accountability. The capacity to indicate to their people what they were doing was something else that he strongly advocated. He will lead the first nations in that direction.

The Government of Canada recognizes that paternalistic approaches in the past have done little to improve the standard of living for first nations people.

More than a few years ago, fed up with the growing perception of the media, and in certain political circles that first nations were not financially accountable, the Alberta chiefs' summit launched a solemn undertaking. Chiefs from treaties 6, 7 and 8 in Alberta began work on the financial accountability initiative. The ultimate goal of this initiative was to address honestly the legitimate concerns of first nations people in Alberta about the issue of financial accountability.

The financial accountability initiative demonstrated to the vast majority of first nations in Alberta that they already had strong financial accountability systems in place and that the summit chiefs were committed to further improvement. This meant strengthening those systems to benefit both community members and to improve relations with government.

Since then, the financial accountability initiative has produced two significant developments. First, the proposed undertakings by the chief steering committee on financial accountability which describes undertakings designed to meet or exceed the Government of Canada's own standards for financial accountability.

Second, the establishment of working groups for financial officers and trial administrators from first nations across the province of Alberta. The summit is equally committed to meeting or exceeding these standards while respecting the cultural diversity and unique needs, values and traditions of first nations.

The summit produced a newsletter called Council Fire to explain and communicate to the members of their communities important news on financial accountability. I would like to quote the editors of the inaugural edition of Council Fire .

As leaders, we—your Chiefs—must make greater efforts to communicate and demonstrate the financial accountability measures in place, and continue to work hard at improving and enhancing them. As leaders, we must also actively listen to your concerns and the wisdom of the Elders.

I will tell members about the Blood first nation. It is the largest first nation in Canada. Over a year ago it enacted the Blood financial administration act bylaw which outlines and formalizes the accountability traditions of many generations. The bylaw defines policies, procedures and structures for the prudent financial management of community funds. It codifies procedures to implement the accountability principles of disclosure, transparency and redress.

The Bigstone Cree nation of Alberta has also implemented a policy by which any community member can examine the financial books at any time and request the services of a financial officer to explain the principles and details. With more than 5,000 members living in a number of communities on the reserve, effective financial management is especially challenging.

Community meetings are held monthly at Bigstone to explain to community members the various decisions of council and to provide a forum for the discussion of any concern of the members.

Additionally, once a month council doors are wide open for any member to come in and meet on an ad hoc basis with any member of council. Far from avoiding responsibility to be accountable to membership, this first nation would like more people to come to the community meetings to learn about financial concepts and the budget allocation process.

This is all in the interest of expanding and developing the capacity for self-government and for the self-management of first nations funds and of those moneys that the public pursue provides for the basic necessities that for many years have been provided to these reserves and communities.

We know that it is not always done this well but we must build upon the good things that are going forward. We must enhance all bands' efforts and wishes to know what is going on and to involve their people in the expenditure of funds.

In recent years the Alexander first nation in Alberta, with approximately 1,300 members, made great strides in the area of financial management. In 1994 it entered into a global funding agreement with the Government of Canada, which included health funding.

The annual report has grown in that time from a letter to all members to a newspaper listing the salaries and expenses for chief, council and senior personnel, and it is hand delivered to each household. The newspaper format was so well received that it was used successfully by the chief to educate and encourage strong participation in a vote on whether to ratify a treaty land entitlement settlement.

I want to talk about the Whitefish Lake first nation. It passed a deficit bylaw calling for the removal of the chief and council for exceeding budgets approved at annual general meetings. The chief and council can also be removed from office for other reasons, including committing an indictable offence, failing to remain a resident of the reserve while in office, or inappropriately or illegally using funds. It has also appointed a senate of elders which is working well as an advisory committee.

I can point to examples of accountability in action in any number of first nations across the country. We should recognize that many first nations are making great strides to open accountability to their membership and to parliament. More and more of them are being invited to support band council resolutions and to adopt the undertakings I spoke about moments ago.

I want to point out that the government is committed to a path of partnership framed by the principles of “Gathering Strength—Canada's Aboriginal Action Plan”. I would urge all members to support the flexibility and accountability that the department is hoping for by trying to involve and to deal with our Indian communities so that they have the in-house capacity to deal openly and carefully with their money.

SupplyGovernment Orders

12:50 p.m.

Canadian Alliance

Brian Fitzpatrick Canadian Alliance Prince Albert, SK

Mr. Speaker, I would like to speak on the matter of a specific type of financial accountability that I have experienced.

As the hon. member may know, I practised law in northeast Saskatchewan for 24 years. Over the years I ran into particular difficulties with trades people and suppliers who worked in good faith with band councils and so on. However, when the job was completed and the contract fulfilled, they had problems collecting their money.

It is certainly not good for business. It sends out a message that is not good either. It is difficult to get people to participate in band related matters because of this problem. In most commercial transactions where one party defaults one can attempt to garnishee bank accounts, to enforce a sheriff's writ, seizing and selling the assets, or to register a builder's lien, but too often these folks have no remedy whatsoever.

A small plumbing operation in my constituency has finished a job and is basically out $20,000. He provided all the materials and labour on the project and I cannot see a remedy available to this gentleman. It seems to me that there is a defect in the system of accountability if this practice is still carrying on. I could see that sort of thing happening 20 years ago but this is 2001.

Does my learned colleague on the government side have any suggestions on how that sort of problem could be sorted out so that people dealing in good faith with bands will receive payment for the work performed?