Mr. Speaker, I rise today to speak to Bill C-14, the Tlicho land claims and self-government act.
With your permission, Mr. Speaker, I would like at the outset to join my colleagues in welcoming the Tlicho dignitaries to the House today. This is indeed a strong community, one with strong leadership. The Tlicho elders, their negotiators and council members under the leadership of Grand Chief Rabesca deserve our recognition today.
The questions which our party has spoken to with respect to this agreement concern themselves less with the future direction of the Tlicho people and more with the failure on the part of the Government of Canada to achieve with this treaty something which will be endurable and in the best interests of Canada.
I intend to place on the record particular concerns which we have, having recently come into possession of a copy of the cabinet framework within which this very agreement was negotiated. It is quite evident that the agreement as negotiated does not accord with the directions and approvals that were given by cabinet to the negotiators.
I intend to place some of that on the record in the course of my comments today. Members will see that in a number of very important respects, specifically the issues that our party has raised in the House of Commons previously, the cabinet which authorized the conduct of these negotiations was itself concerned about these very issues.
I think everyone is aware that I have had a lengthy history in this country as an outspoken advocate on fairness in the resolution of claims, both as a negotiator on the Sturgeon Lake tripartite settlement and also as a commissioner of the Indian Claims Commission where I served for some 10 years and assisted as a co-chair of that commission.
I have felt throughout that time that it is in Canada's best interests to resolve comprehensive claims and to achieve certainty through the negotiation of self-government agreements. I have also, however, for nearly 20 years been very outspoken about the need to resolve these issues and claims in a way that is in the best interests of Canada, and which ensures that Canada's international sovereignty is protected, and that our Constitution and charter are respected and that we have workable systems of government. Those are the very concerns which we have raised in the House and which I will speak to today.
Ultimately, we anticipate that the Tlicho legislation will clear Parliament because the Liberals, NDP and Bloc Québécois are supportive of this legislation. Our party is the only party that has spoken in terms of the long term governability of this country and concerns that we have with the agreement.
It warrants emphasis that this may be the most significant Indian treaty negotiated in the past 100 years. It is the first modern treaty which combines both a comprehensive claim settlement and a self-government agreement. It will create a Tlicho government in the Northwest Territories. That government will have greater jurisdiction than a municipality. It will have greater jurisdiction than a province.
The lands now owned by the Tlicho under this agreement, assuming it is approved by the House, will be the largest aboriginal land holding in North America, consisting of lands approximately half the size of New Brunswick. The Tlicho people will receive approximately $150 million. The agreement also will define a precedent for negotiations with the other Dene first nations in the Northwest Territories, specifically the Sahtu, the Gwich'in, the Akaitcho, the Deh Cho and the Inuvialuit.
The Conservative Party's opposition to the Tlicho legislation, as I say, relates not to our concerns about the Tlicho themselves, but rather to Canada's failure in the negotiating process to protect Canada's best interests on these four points: first, incursions upon Canada's sovereignty and external relations; second, concerns regarding the failure to achieve public government in the Northwest Territories; third, the absence of finality; and fourth, jurisdictional overlap and confusion.
We have consistently voiced our concerns in a principled way, but last week I came into possession of a supporting document from an unexpected source, the 1995 cabinet approval which authorized the Tlicho negotiations. This document warrants emphasis because it speaks to the very concerns which the Conservative Party has raised about this agreement.
Let me first address the matter of Canadian sovereignty. The 1995 cabinet document, which authorized the commencement of the Tlicho negotiations and other inherent self-government negotiations, could not possibly be clearer. Item number 14, on matters not for negotiation, states that there are a number of subject matters that the federal government is not prepared to negotiate with aboriginal groups in the context of implementing the inherent right of self-government. These subject matters fall into two categories: first, powers relating to Canadian sovereignty, defence and external relations; and second, other national interest powers. It states that In these areas exclusive jurisdiction must remain with the federal government.
Moreover, it states that there are no compelling reasons for aboriginal governments of institutions to exercise powers in these areas which cannot be characterized as either integral to aboriginal culture or internal to aboriginal groups. Subject matters in this category would include international diplomatic relations and foreign policy.
This is a remarkable document. We have the very cabinet approval which initiated the negotiation of this agreement. It is a substantial document, 60 to 70 pages in length, well thought out and well crafted. It recommended that Canada not compromise its external relations or its international sovereignty in any way in any of these negotiations.
One thing is perfectly clear about this agreement; and that is, in item 7.13, Canada has negotiated very specifically with respect to international legal obligations. Included in the agreement is item 7.13.2, which has been spoken to earlier. It states:
Prior to consenting to be bound by an international treaty that may affect a right of the Tlicho Government, the Tlicho First Nation or a Tlicho Citizen, flowing from the Agreement, the Government of Canada shall provide an opportunity for the Tlicho Government to make its views known with respect to the international treaty either separately or through a forum.
The minister has spoken publicly about this provision. My understanding of what he has said is not to worry about the provision because in effect Canada can do what it wants anyway. That is very interesting. However, that is not what the agreement says. Moreover, the agreement contains an arbitration provision.
If Canada can do whatever it wants at the end of the day, why does this complicated agreement entrench in the Canadian Constitution an arbitration provision that governs the relationship between the Tlicho people and the Government of Canada in respect of international matters?
Clearly what has happened is that the executive branch of the government has failed to adhere to the very terms of reference under which these negotiations were authorized, and it leads to undeniable questions. Will these benefits be extended to other aboriginal groups with which self-government negotiations are undertaken? It is worth recognizing that there will be self-government tables in 631 other situation. Are all these other communities to be accorded the same right? Are other Canadians to be accorded the same right? Will this country be governable in terms of its foreign relations and external relations and its international sovereignty in 100 years if this pattern is replicated? That is the first issue that this agreement raises.
The second matter which I wish to address relates to the very difficult question of public governance. Once again, the cabinet approval of 1995 is remarkable in its clarity. It states that in the federal government's view, the creation of separate aboriginal governments in the Northwest Territories is neither practical nor feasible, although the creation of an aboriginal institutional capacity to exercise certain authorities or govern its participation in public government may be negotiated. However, the primary approach should focus on providing aboriginal people with specific guarantees within public government institutions.
What the cabinet recommended and approved in 1995 was that the negotiations in the Northwest Territories should be conducted on the same basis as Nunavut. In Nunavut we have a public government. The different between a public government and what we have here is the difference between a government in which all citizens have the right to participate and have equal democratic status, on the one hand being a public government and a situation in which governance is based upon race and upon registration.
What happened in 1995 is the cabinet said not to go there, because the consequences were clear. We will not now have public government in the Northwest Territories in the way that cabinet recommended in 1995. Instead we will have a series of racially based states up the Mackenzie Valley in which the democratic status of individual Canadians depends upon their categorization under the Indian Act.
It is not only the Conservative Party that has recommended against this, it is the cabinet of the government in 1995 that said not to get into this kind of arrangement.
In other words, in the future in the Northwest Territories, as the government sees it, Canadian citizens will not enjoy the same democratic rights, depending upon whether they are an aboriginal person or a non-aboriginal person. In fact, an aboriginal person, such as a Métis, will not have the same democratic position as a citizen who is an Indian registered under the Indian Act.
The Tlicho government is exactly the kind of aboriginal government that the cabinet recommended against in 1995 and the difference is profound, as one can see in comparing what will happen in the Northwest Territories to what has happened in Nunavut.
Last week in the National Post the minister published a letter to the editor addressing this issue. He put forward the most remarkable proposition which I have heard in some time. He said that we should not worry about this issue because 90% of the people who comprised the local population were registered Indian citizens anyway”. That is a remarkable proposition. If that is the policy of the government with respect to democratic franchise and the advancement of the rights of Canadian citizens under the charter, then Canadians need to know. It is an incredible proposition. If it applied in this country reciprocally, we will have the sort of country in which I do not believe Canadians are interested.
All this gives rise to important charter issues. The government states that the charter applies to all Canadians and it applies to the Tlicho. Unfortunately, that response is superficial and it does not reflect a close analysis of the documents which are being approved by the House of Commons.
It ignores, firstly, the possible ramifications of section 25 of the Constitution which specifically says that the provisions of the charter do not apply to aboriginal self-government and to aboriginal Canadians in the same way that they apply to other citizens. There are differences. It also ignores the Tlicho people's own constitution, which has been created under this legislative framework, that establishes two official languages, for example, neither of which is the French language.
Most interestingly, if one examines the Tlicho constitution, one will see that decisions of the Tlicho government are not open to question or challenge in any judicial form. If the Canadian Charter does apply, that is a very remarkable application which has no other parallels in Canada of which I am aware. It is a prohibitive clause that says that government decisions cannot be taken to court.
That is what we are creating with this legislative framework. In response the government says that on a superficial basis the charter is respected because all Canadians live under the charter. The government is not looking specifically at what it is doing in this document.
The next matter in respect of which our party has spoken is the whole question of finality. I have said that the Tlicho people and the Tlicho negotiators deserve our admiration. They are credible people. They are conscientious. They have done a remarkable job in their negotiations. They have achieved a comprehensive claims settlement which is generous, and we make no criticism of the generosity of it. However, it is decidedly less final than other modern settlements. It can be, for example, compared with the Nisga'a treaty.
The Nisga'a agreement is a fair comparison because it was negotiated several years ago. The Nisga'a people signed off on their rights and entitlements under section 35 of the Constitution. They executed releases and indemnities. They ceded and surrendered their wider aboriginal title. They agreed after a transitional period to be subject to Canada income taxation.
None of those matters form part of the Tlicho agreement. One should examine other agreements such as the Labrador Inuit comprehensive claim settlement, which will be before the House after Christmas. It is an agreement that provides finality and certainty. Why does this one not? That is the question which we have raised in the House of Commons and at committee, and in respect of which we have not received an answer. There is in addition the clause contained in the agreement which allows matters of tax power, tax exemption, royalties and the like to be opened up in the future as well.
The fourth issue is the question of constitutional workability. No one need take my word on this. They need only refer to the independent examiner retained by the federal government who published the smart regulation report. This is a report of which the government is proud and of which it speaks often.
The smart regulation report says that the Northwest Territories at this point in terms of regulation is a spiderweb of complexity that it is essentially stands to threaten the Mackenzie Valley pipeline because there is a myriad of governments and legislation, federal, territorial, and aboriginal, and a myriad of boards and agencies. In that case it is will take the proponents of the pipeline over 2,000 approvals to build the Mackenzie Valley pipeline.
Now this agreement does absolutely nothing to simplify or clarify the complexity which the government has made out of the Northwest Territories. In fact, it adopts a model of federal aboriginal concurrence with Tlicho paramountcy, which will make the situation even more confusing. The provisions of this agreement are extraordinarily complex. They are sometimes inconsistent and they are extremely ambiguous in terms of the paramountcy provisions.
What is most concerning is we are taking a 208 page legal document and incorporating it into the Canadian Constitution as a treaty. The entire Canadian Constitution is only 50 pages in length. We are adopting a 208 page document, constitutionally entrenching it and doing it in a way that the Parliament of Canada can never amend it because it becomes a section 35 constitutionally entrenched document.
Other jurisdictions, such as British Columbia, have wisely said that this is not a prudent strategy. The point that I will make again is the 1995 cabinet approval says “don't do this” because we will be effectively be incorporating all the nuts and bolts of government into a constitutional document that cannot be amended.
Those are the reasons that our party has spoken against the agreement and the legislation. It is an important agreement and a precedent setting agreement for which we have grave concerns.
