Mr. Speaker, I rise on a point of order. On Monday my leader raised three points of order concerning the motion of the government on the Order Paper and now currently being debated in which the House is being asked by the government to call upon it to ratify the Kyoto protocol.
I have some new information. The last point of order raised by my leader was with regard to the customary practice of the House that when such a resolution is brought to the House seeking the House's approval to the government ratifying a treaty, the government has to lay the text of the treaty itself before the House prior to any debate commencing on such a resolution.
In your ruling you noted that there had been, from both sides of the House, a “dearth of citations of Canadian practice in this regard”. On this point of order, Mr. Speaker, I want to be able to bring those authorities to your attention. This will assist you and all hon. members in ensuring that this point of order has been fully canvassed and properly dealt with. In addition, Mr. Speaker, you indicated in your ruling that the British practice he cited to you would not apply “since we are not by this motion implementing this accord”. I would like to deal with the latter point first.
I of course agree with the Chair completely that the motion that is before us is not one to implement the treaty. Implementation can only be effected by legislation. What is being asked by this motion is that the House approve the government proceeding to ratification. However, the British practice my leader cited to you was precisely in relation to that sort of resolution: a practice in Britain whereby the executive would ask Parliament to approve the ratification of a treaty. That is precisely the type of resolution the government has brought forward by this motion on Kyoto. Such British practice is applicable, although the ultimate decision as to whether it should apply in this case, which I will deal with now, will be your decision. I did want, however, with all respect, to clarify that point.
In fact the tradition and practice of the executive bringing before the House a motion asking the House to approve the ratification of a treaty by the executive has a firm history and foundation with a precise procedure associated with it.
As you know, Mr. Speaker, up to the commencement of the first world war, in international relations Canada was less than a fully self-governing nation. Canada was still regarded as being part of the British Empire with treaty-making power continuing to vest in the British Crown on the advice of the British government and to be carried out on behalf of the entire empire. Therefore, treaty making was regarded as an empire-wide function.
Section 132 of the Constitution Act, 1867, in fact contemplated this empire treaty-making function by providing that the Parliament of Canada was given the legislative power to implement in Canada the terms of such empire treaties.
However, as a result of Canada's participation and the extreme sacrifice made by the members of the Canadian armed forces in the first world war, the then Canadian Prime Minister Robert Borden insisted that Canada sign the Versailles Treaty that ended the war as a separate signatory and not just as a colony within the British Empire. This resulted in Canada acquiring the capacity to enter into treaties in its own name. The legal power to do so became vested in the Canadian Crown acting on the advice of Canadian ministers.
Following on that development, the father of the modern Liberal Party, Prime Minister Mackenzie King, placed considerable emphasis on Parliament as the primary forum for debating and deciding on Canada's external affairs. For instance, on the question of overseas military involvement by Canada, King, in a debate in this House on February 1, 1923, declared:
It is for Parliament to decide whether or not we should participate in wars in different parts of the world, and it is neither right nor proper for any individual nor for any groups of individuals to take any step which in any way might limit the rights of Parliament in a matter which is of such great concern to all the people of our country.
This culminated in June 1926 with Prime Minister King moving a motion which was unanimously adopted by the House, the key part of which read:
--before His Majesty's Canadian minister's advise ratification of a treaty or convention affecting Canada...the approval of the parliament of Canada should be secured.
From this, the firm practice developed that major treaties before ratification were referred to Parliament with this device, the identical device being employed by the government by way of the motion before us.
In all of the cases that we have been able to ascertain so far when this practice was followed, before the House dealt with the motion the actual text of the treaty in question was tabled in the House.
This firm practice of tabling a treaty prior to debate on the motion was applied in the following cases: Treaty for the Renunciation of War in 1929; North Atlantic Treaty in 1949; Charter of the United Nations in 1945; treaties of peace with Italy, Romania, Hungary and Finland in 1947; and the Auto Pact in 1966.
I could cite more examples but this list is sufficient to show that this was the firm and customary practice of this House whenever the government sought such approval for the ratification of a treaty. It would appear that the Auto Pact I referred to was the last time a motion asking the House to call upon the government to ratify a treaty was utilized and the firm customary practice requiring that the text of the treaty be laid before the House prior to debate on the motion was followed. This clearly establishes this firm customary practice of this House when dealing with such motions as the one before us on Kyoto.
There is the other issue raised in this matter concerning the British practice that the Leader of the Opposition cited to the effect that part of the practice was to allow a period of time to expire between the time the text of the treaty was laid before the House and debate on the motion commence. In the specific cases cited, the treaty was laid before the House well in advance of the debate.
In the case of the North Atlantic treaty, it was tabled in the House by Prime Minister Louis St. Laurent, on March 18, 1949, with the debate taking place on April 4, 1949, 16 days later. In the case of the Charter of the United Nations, the text of the charter was tabled in the House on September 7, 1945, and debated in the House from October 16-19, 1945, nearly six weeks later. In the case of the peace treaties after the second world war, they were tabled February 10, 1947, and debated June 30, 1947, more than four months later. In the case of the Auto Pact, the text of the treaty was laid before the House on February 24, 1965 and not debated until May 6, 1966, a year and three months later.
The customary practice of the House has been to allow at least some reasonable period of time to occur before the debate on the motion would commence. My leader had cited the British practice of allowing 21 days and it was from this practice that the Canadian practice clearly evolved.
In any case, although perhaps no precise number of days are required to expire from the time the treaty is tabled to the time the motion on it can be debated, there is no doubt that some period of time has to expire.
The government has chosen to utilize the firm practice as originated by Prime Minister Mackenzie King in the 1920s. If it is going to utilize this procedure then it has to be required to follow the correct procedural preconditions before debate on such a motion can commence. The motion that is now being debated has not been properly brought to this House due to the failure to follow clear procedural steps governed by the customary practice of this House.
Given that debate has already commenced on the motion I would submit, Mr. Speaker, that you should accordingly suspend any further debate on the motion until the text of the Kyoto protocol has been properly laid before the House, and a reasonable time has expired between the time it is so tabled and the debate on the motion is allowed to resume.