Debates of Dec. 6th, 2004

Tlicho Land Claims and Self-Government Act

[Lloyd St. Amand, Liberal, Brant, ON]

Mr. Speaker, as I, hopefully, have demonstrated and others at the committee level, the hon. member across the aisle who has asked the question was likewise a diligent, responsible member of the committee that we were privileged to serve on.

As the minister of state indicated in response to the member's question earlier today, the duty to consult will by no means bind the federal government. The Tlicho people have not been provided with a veto with respect to international issues or international negotiations. There is simply, in my respectful view, an ongoing good faith negotiating process that will continue. When the rights of Tlicho peoples or their lands are in any way part of international negotiations, then the federal government will see fit to consult with them but not be bound by the result of any such discussions or consultations.

[Brian Fitzpatrick, Conservative, Prince Albert, SK]

Mr. Speaker, I am certainly not an expert on this agreement so I rely on advice from the government spokesperson.

I read the Auditor General's report about the gap between aboriginal youth on our reserves in Canada and the non-aboriginal community. From the way I read it, the gap is getting wider, not closer. Obviously, one way of improving the lives of first nations people, long term, medium term and the short term, is through education. It is very discouraging to see the gap getting worse, not better.

We can all talk about objectives and where we want to go, but obviously we have not done that in this area. The system has failed aboriginal people. The Auditor General's report confirmed that whole aspect.

What does the treaty do for the educational needs of aboriginal people in the territories? Are specifics in the agreement to ensure that objectives are met rather than just stated. Could the member enlighten me on what is innovative or different about the treaty in the delivery of educational services to aboriginal people?

[Lloyd St. Amand, Liberal, Brant, ON]

Mr.Speaker, to its credit, the Tlicho community is a relatively prosperous, well educated and advanced aboriginal community.

Comparisons can be a bit disingenuous in the area of education. How do we quantify one system with respect to another?

The federal government puts $1.2 billion annually into the education of aboriginal youth. Today's aboriginal youth is receiving a better education than his or her peer did five or ten years ago. While aboriginal education is improving, I will concede that it is improving incrementally and not as quickly as the government would like to see. Steps are being taken to ensure that the education of aboriginal youths improves at a faster rate than it has in the recent past.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Mr. Speaker, I am pleased to rise, on behalf of the constituents of Fleetwood—Port Kells, to participate in the third reading debate on Bill C-14, the Tlicho lands claims and self-government act.

The proposed bill gives effect to the Tlicho land claims, the self-government agreement and the Tlicho tax treatment agreement. It amends the Mackenzie Valley Resource Management Act and makes consequential amendments to a number of other acts. It ratifies the Tlicho agreement signed August 25, 2003, between the Tlicho and the Governments of Canada and the Northwest Territories that arose out of 12 years of negotiations.

The Tlicho, formerly the Dogrib First Nation, is one of the five tribes of the Dene people and has about 3,000 members. Band members ratified the treaty with a vote in June 2003. Of the eligible Tlicho voters, 83% supported the agreement. The agreement was approved in spring 2003 by the executive council of the government of the Northwest Territories. In August 2003 it was signed by former Prime Minister Jean Chrétien and Grand Chief Joe Rabesca.

Bill C-14 would give the Tlicho First Nation ownership of approximately 39,000 square kilometres of land between Great Slave Lake and Great Bear Lake, an area almost the size of Switzerland. The band would have the rights to both the surface and mineral resources of this land. The Tlicho would receive 2% of revenues from three existing diamond mines, but the entire royalties from any future mining or oil and gas activity within the newly created region would go to the band. In addition to resource management, the band would be given power over areas such as traditional medicine, language and culture.

The Northwest Territories, the federal government and the Tlicho will co-deliver systems for education, health and other social services for the first 10 years the agreement is in effect. Criminal law still falls under federal domain. Once the Tlicho government has been established, it will succeed the Dogrib Treaty 11 Council, the four local band councils and municipal governments.

Four community governments will be made up of a chief and a council of between 4 and 12 councillors. The chief of a community government and at least half of the council must be Tlicho. Non-Tlicho citizens may fill no more than half of the council seats. The chiefs and some of the councillors will form the government to oversee the area.

The preamble of Bill C-14 refers to the Tlicho as being “an aboriginal people of Canada that has used and occupied lands in and adjacent to the Northwest Territories from time immemorial”. The agreement is stated to be a land claims agreement within the meaning of section 35 of the Constitution Act, 1982. Bill C-14 states that in the event of conflict between the agreement or this act and other legislation, the regulations made under this act will prevail. Under the agreement, Tlicho laws will not displace federal or territorial laws but will be concurrent.

Clause 7 of the bill directs the Canadian government to meet the financial obligations of the agreement, which gives the band $152 million over 15 years. The government will make a one time only payment of $5 million to an economic development fund established by the Tlicho government, the strategic economic development investment fund. The band will also receive a share of the government's annual resource royalties from the Mackenzie Valley, which are expected to average about $3.5 million.

Bill C-14 also would give effect to the Tlicho tax treatment agreement. Under the bill, it is not considered a treaty or land claim agreement within the meaning of section 35 of the Constitution Act, 1982. It is an agreement dealing with the tax treatment of the Tlicho government, Tlicho capital trusts and Tlicho corporations. The Tlicho government would given tax collection powers and those taxes would be used to support Tlicho programs and services. The Tlicho government would be tax exempt in its government activities.

The proposed bill gives the Wekeezhii Renewable Resources Board the legal capacity, rights, powers and privileges of a person. The purpose of this board is to perform the functions of wildlife and habitat management as set out in the agreement. It will be made up of an odd number of people, not more than nine, including representatives from other aboriginal groups whose wildlife harvesting occurs in Wekeezhii, the Tlicho resource management area. The agreement gives the Tlicho full hunting and trapping rights.

The bill makes significant amendments to the Mackenzie Valley Resources Management Act to reflect the new status given the Tlicho through this agreement. Tlicho rights related to resource management are given the same footing as those of other first nations that already have resource management boards under this Act.

Bill C-14 also makes consequential amendments to other legislation: Access to Information Act, Canada Land Surveys Act, Canadian Environmental Assessment Act, Northwest Territories Act, Payment in Lieu of Taxes Act and the Privacy Act. The Payment in Lieu of Taxes Act would be amended to include the Tlicho government under the definition of “taxing authority”.

It should be noted that although the agreement states that Tlicho citizens are no longer subject to the Indian Act, it is not stated in Bill C-14.

Bill C-14 is unique in that it ratifies both land claims and self-government agreements. This agreement will serve to set precedent for all future such agreements for as many as 600 first nations. Unfortunately, however, as I outlined during debate on this legislation at second reading, the bill seriously flawed.

The agreement lacks the basis requirement for all treaties or agreements: that of finality. It contains a clause that could reopen negotiations should future aboriginal settlements be reached in the Northwest Territories. In short, this agreement fails to achieve a final settlement. Also the agreement recognizes the right of the Tlicho under certain circumstances to enter into international agreements and to force the Government of Canada to consult with the Tlicho before entering into certain international treaties.

This is an encroachment of the federal government's ability to make decisions for the country, and it will affect Canada's international autonomy. Specifically, the agreement requires the Government of Canada to consult with the Tlicho before entering into any international agreement that may affect the right of the Tlicho Government, the Tlicho First Nation or a Tlicho citizen. This is broad language and a remarkable restriction on a power constitutionally reserved for the federal government.

The agreement would effectively create a third order of government which authority would be paramount to that of the federal and the territorial governments in certain matters. The jurisdictional confusion created by this new level of government is compounded by the fact that the wording of the agreement is not clear as to which legislation, federal, territorial, Tlicho or the charter, is paramount in the event of conflict with the Tlicho Constitution.

Self-government must occur within the context of the Constitution of Canada. To ensure fairness and equality, the principles of the charter must apply to aboriginal self-government.

Time is wasting. The slowness at which negotiations have been undertaken to further define aboriginal rights to land and resources is a disgrace.

Canada is one of the richest countries in the world. Yet our aboriginal people live in third world conditions. The plight of first nations is a painful embarrassment to Canada. The life expectancy of registered Indians is seven to eight years shorter than the national average. Suicide rates are twice the national average. Aboriginal peoples have an average income 75% less than the national average. Unemployment rates are 10 times the national average. School drop-out rates are higher and educational attainment is lower than that of any other ethnic group.

First nation reserves are rife with violence, physical and sexual abuse and suicide. Unhealthy living conditions and over-crowded housing with insufficient heating and inadequate water supplies are all too often a fact of life. First nation people are caught in a cycle of dependency and poverty.

The federal government annually spends some $7 billion on aboriginal peoples, yet their living conditions fail to improve. This is completely unacceptable. For those first nations currently lacking settlement of aboriginal title, there is the hope that an agreement may bring greater prosperity. The government should undertake measures to improve the employment and health situation of aboriginal people and to speed up negotiations on aboriginal land claims.

B.C. has over 68,000 status Indians representing 17% of all status Indians living in Canada. While there are no precise figures on the exact percentage of land in dispute, one report by the Fraser Institute suggests that 95% of the land mass in British Columbia may be in dispute. British Columbia's first nations deserve a timely resolution to their comprehensive land claims.

The Conservative Party supports a settlement for the Tlicho land claim and negotiations for a self-government agreement, but this agreement is poorly drafted and deeply flawed. Our concern is the future governance of Canada and the precedent that is being set.

It is an extraordinarily generous settlement. There are 632 first nations at the negotiating table. Are they all after the same bundle of powers? If they are, we will have a very different version of Canada than most Canadian citizens currently understand. While I am for the uplift of the first nations people and a speedy settlement of their claims, the agreement reached must be fair.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Mr. Speaker, I have listened with interest to this member's speech. I have listened to members of her party make various presentations on this bill over the last number of weeks. I know that concerns are generally felt in that party; they are all the same.

I would like to ask this member to explain what concerns she has with paramountcy of laws and jurisdictional conflict in this piece of legislation. I would like her to explain the constitutionally protected rights that she seems to have problems with.

The answers have been given on this side of the House. Three parties around the chamber all agree. All the legal opinions that have been put forward by witnesses agree with the opinions of the government, the Tlicho and the territorial government, the tripartite opinions. What is it that this member does not understand?

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Mr. Speaker, my party and I support the settlement of land claims. I would like this done quickly and fairly for all Canadians.

Let us look at our first nations. They are living in poverty and very poor conditions. Their unemployment rate is high and health care is poor. There is no education. There is no infrastructure on the reserves, the rate of violence is high, and so many are suffering from substance abuse.

This government has done nothing. We want something done fairly and quickly for our first nations.

[Bill Graham, Liberal, Minister of National Defence]

Mr. Speaker, we all understand that there are problems throughout Canadian society. The specific question here is that objections are being made to Bill C-14 because it is said that jurisdiction is being transferred in circumstances which are inappropriate. As the hon. member who preceded me said, we have legal opinions that say this is in accordance with the charter of Canada. We strongly believe that by transferring jurisdictions appropriately we enable people to get on with their lives. We enable people to exercise control over their own lives and become full members of society.

It would be helpful for us on this side of the House if the members opposite could tell us clearly what areas of jurisdiction being transferred they think are improper. Then we can properly answer the objections they have.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Mr. Speaker, all we hear from that side is talk, talk, talk. The government has done nothing for our first nations and our party wants this settlement of land claims to be done quickly and fairly. That is what we want.

[Jeremy Harrison, Conservative, Churchill River, SK]

Mr. Speaker, I rise today to speak at third reading of Bill C-14, the Tlicho treaty. Bill C-14 ratifies the Tlicho agreement signed on August 25, 2003, between the Tlicho people and the Governments of the Northwest Territories, Canada and the Tlicho.

The bill would give the Tlicho First Nation ownership of 39,000 square kilometres between Great Slave Lake and Great Bear Lake, located in the Northwest Territories.

The bill is unique in that it gives effect to both a comprehensive land claims settlement and a self-government agreement.

The agreement is precedent setting in both respects and will guide future claims settlements and self-government provisions across the north. This agreement is a culmination of two separate negotiations.

First, the negotiation of the comprehensive claim has been carried out pursuant to the 1986 comprehensive claims policy, and in this respect the agreement is similar to the Nisga'a agreement.

Second, the negotiation of the self-government arrangements are based upon the 1995 inherent rights policy, and in this respect the agreement follows the path of the Westbank treaty.

It should also be noted that the bill gives force of law to the tripartite agreement of August 25, 2003, and accords the agreement paramountcy over the act itself. In other words, the approval of the act will bring into law the very complex provisions set out in the 208 page settlement agreement and the shorter tax agreement and will in essence incorporate the 208 page agreement into the Constitution of Canada through section 35.

In general terms, the agreement gives the 3,500 Tlicho people claims to subsurface resources, law-making authority, and the power to tax, levy royalties and manage resources on the 39,000 square kilometres of land laid out in the agreement. The Tlicho lands are bounded in the north by the Sahtu agreement, on the east by Nunavut, and on the south and to the west by the future Akaitcho and Deh Cho territories.

The Indian Act no longer applies to Tlicho citizens and Tlicho lands are no longer to be considered reserve lands. In terms of governance, the agreement creates four local governments consisting of a chief and council. The agreement provides that the chief must be Tlicho and further that 50% of the community council must be Tlicho citizens.

The Tlicho government consists of a grand chief elected at large by Tlicho citizens, the chief from each of the community governments and one councillor from each of the community governments. The Tlicho government has the power to enact laws in relation to things such as the use of Tlicho language and culture, traditional medicine, resources, and businesses and occupations on Tlicho land as well as taxation and enforcement powers.

When I first spoke on Bill C-14 during second reading, I pointed out a number of areas that I had concerns with. These concerns centred around a few specific issues, namely, the absence of finality in the agreement, problems with sections relating to the interrelationship of Canadian and international sovereignty and provisions of the agreement, and jurisdictional confusion within the agreement.

As you know, Mr. Speaker, I serve on the Standing Committee on Aboriginal Affairs and Northern Development. Indeed, I serve as the vice-chair. I sincerely had hoped that once we had Bill C-14 at the committee perhaps some of the concerns enunciated during second reading debate could be alleviated. Unfortunately, they were not.

Regarding concerns about the absence of finality in the agreement, I pointed to article 27.6.1 of the agreement. The article reads, under the heading “Agreements for Equivalent Benefits”, as follows:

Where government provides, in legislation or in or under a land claims agreement or a self-government agreement, tax powers or exemptions to another aboriginal group in the Northwest Territories that are of greater benefit to that group than those provided to the Tlicho First Nation or the Tlicho Government...at the request of the Tlicho Government, will negotiate and make best efforts to reach an agreement with the Tlicho Government to provide equivalent benefits for the Tlicho First Nation....

In other words, this agreement can be reopened if greater benefits are conferred upon another group in later negotiations or if the Supreme Court or other court of competent jurisdiction discovers new tax benefit rights for particular groups of first nations in the Northwest Territories.

The second area that my party and I expressed our concerns about during second reading debate and in committee is with regard to the issues of jurisdictional confusion within the agreement and between the agreement and powers granted the federal government by the Constitution Act in 1982.

Without getting into great detail on the subject, I will refer hon. members to the second reading debate in which members of my party very eloquently and clearly laid out their concerns on this issue.

Broadly speaking, the agreement addresses inter-jurisdictional issues in three different areas and lays out potentially problematic hierarchies of authority. The general intent of the legislative scheme is that the powers of the Tlicho government are to be concurrent with those of the Government of Canada and the Government of the Northwest Territories.

The problem is that there are multiple definitions of how to determine paramountcy in the event of conflict. The one area that I believe should be highlighted in this area is the hierarchy of authority as laid out in articles 7.7.2 through to 7.7.4.

These sections provide for the following hierarchy of authority: one, federal legislation of general application; two, territorial legislation implementing Canadian international agreements; three, Tlicho laws; four, territorial legislation of general application; and five, specific federal legislation relating to the Tlicho.

In other words, Tlicho laws prevail over territorial laws and over federal laws relating to the Tlicho, specific federal laws. Hence, after the passage of Bill C-14, the House will no longer have the constitutional jurisdiction to pass laws of specific application relating to the 39,000 square kilometre area described in the agreement.

A third area that I have very specific concerns with, and about which I worked hard in committee to extract answers from the government and the INAC bureaucracy, is with regard to article 7.13.2 of the agreement. This provision reads as follows:

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.

At this point, I would like to make clear that I intend to split my time with the hon. member for Blackstrap.

As the Hansard record of the Bill C-14 committee hearing will bear witness to, I pressed very hard to get some answers as to what this provision would mean in practice and what the rationale was for including it in the agreement in the first place. I have further pressed on this today in the chamber during debate. I have asked the minister. Again we have had no answer to this question.

As to what the provision would mean in practice, I have some very serious concerns. The government itself does not seem to know what the provision means. My fear is that when it comes time for this section to be judicially interpreted, and that time will come, given the jurisprudential direction of the Canadian courts on these issues we will find ourselves in a situation whereby our nation's ability to enter into international treaties and agreements will be compromised; that we will in fact have given a de facto veto over our international sovereignty on certain issues to the Tlicho government.

To be blunt, this is a ridiculous state of affairs. The impression I have is that the government and bureaucracy have not fully thought through the implications of this section.

Even more strange, we discovered during questioning in committee that this section was included not at the insistence of the Tlicho negotiators but at the direction of the Department of Foreign Affairs. Why was it included? We did not get a straight answer.

Today we came into possession of the cabinet framework document governing this negotiation, from back in 1995, a document that was accepted by cabinet in 1995 and which made it very clear that there was not to be any abdication of Canadian international sovereignty in the process of negotiating these agreements. That does not seem to have been followed with this treaty.

For these reasons I have enumerated, I will not be supporting this agreement. My party has also made clear the reasons that our party will not be supporting this agreement. I thank hon. members for their time and their attention.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I congratulate my colleague for his work on the committee as vice-chair and as one who is very much involved with it.

I was interested in the fact that he raised the issue of having to deal with different groups within the water boundaries of our country on a sort of country-to-country basis, setting these people up as individual nations. If Bill C-14 passes, does he anticipate that we will have delegations to these different nations? Will we have ambassadors there? How will we actually manage the intergovernmental affairs vis-à-vis these individual groups as compared to the provinces and territories that we have now?

[Jeremy Harrison, Conservative, Churchill River, SK]

Mr. Speaker, I would like to take this opportunity to congratulate the Tlicho people and the Tlicho negotiators on the work they have done. They obviously did a good job.

The issues our party have are not with the Tlicho people. Our issues are with the agreement that the government negotiated and the concessions that were made. The Tlicho negotiators did a good job.

With regard to the member's question, we do run the risk of creating a situation where we would have a patchwork of legal regimes across the country, particularly a patchwork of legal regimes in the Northwest Territories. It was made clear by my colleague from Calgary Centre-North this morning, and we have seen it just recently in the government report on smart regulations, that the situation in the Northwest Territories is confusing right now for all involved. Before we can move forward on the construction of the Mackenzie Valley pipeline, 2,000 approvals are needed.

We do run the risk of having overlapping and confusing jurisdictional areas, and that is a very legitimate concern.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Mr. Speaker, when the three parties came together, all three parties had very knowledgeable negotiators. The three parties worked very hard and they all agreed. How would the hon. member separate the parties from their agreement?

When the member says that he supports the Tlicho people but not what was ratified in the agreement, that gives me cause for concern. I do not think I am the only one who does not understand this distinction. I think the Tlicho people would have a problem understanding why the member thinks the agreement they ratified so well is not be acceptable to them. They did not negotiate this agreement without knowledge or without an understanding of what they wanted. They signed on to the agreement and ratified it in very great numbers.

How does the member make that distinction?

[Jeremy Harrison, Conservative, Churchill River, SK]

Mr. Speaker, we have a problem with the government putting a provision in the agreement that could literally sign away our ability to enter into international agreements and its refusal to answer why it was put there in the first place. I asked the minister this question this morning. I asked this question numerous times in committee. We have not received an answer. Why is this provision in the agreement? What is the answer? Why would this have been included at the request of DFAIT

This provision could hamper the ability of this country to enter into international agreements. We have not received an answer as to why that provision is in there. The government insisted upon it. Government members have been asking why we take issue with the government's negotiating position, that is an example of it.

[The Acting Speaker (Mr. Marcel Proulx)]

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Kootenay—Columbia, Canada Border Services Agency; the hon. member for Cariboo—Prince George, forestry industry; and the hon. member for Renfrew—Nipissing—Pembroke, the environment.

[Lynne Yelich, Conservative, Blackstrap, SK]

Mr. Speaker, I am pleased to speak today to Bill C-14, the Tlicho treaty. The bill is important to Canadians for many reasons but particularly for the precedent it sets for other groups seeking land claim settlements and/or the power to self-govern.

It is necessary and right to be fair in such negotiating agreements, but it is also necessary to be accountable and to be practical. That is the only one way to ensure that the rights of all Canadians are respected and considered.

Bill C-14 would fix in law the Tlicho land claims and self-government agreement made more than a year ago between the federal government, the Government of the Northwest Territories and the Tlicho First Nation.

Ownership of land between Great Slave Lake and Great Bear Lake, about 39,000 square kilometres, would be transferred to the Tlicho First Nation and participatory regulatory authority would be given for an even larger area. This land agreement is combined with provisions for self-government.

To be clear, under Bill C-14 the Indian Act would no longer apply to Tlicho citizens and Tlicho lands would not be considered reserve lands. Tlicho citizens would have continued access to all federal programs for status and non-status Indians and Métis, and the Criminal Code would continue to apply.

It seems the Charter of Rights and Freedoms would apply to the Tlicho government. However, even though the Tlicho constitution is intended to be consistent with the charter, it is in law the paramount authority.

The agreement does state that the citizens or persons to whom Tlicho laws apply will have rights and freedoms “no less than those set out in the Canadian Charter of Rights and Freedoms”.

I have a number of concerns about this agreement. For example, the preamble to the annotated agreement states:

Whereas the Parties have negotiated this Agreement in order to define and provide certainty in respect of rights of the Tlicho relating to land, resources and self-government...

This agreement provides neither definition nor certainty to a number of issues. It contains a clause to reopen negotiations if another Northwest Territories aboriginal group negotiates terms that are attractive to the Tlicho in a future agreement. It fails to do its most basic job: achieve a final settlement.

Looking to the future, there are literally hundreds of other native groups that could seek similar agreements. If none of these arrangements are finalized, it puts Canada in a position of confusion and uncertainty.

This is also an issue of particular concern and interest in my home province of Saskatchewan where natives make up an ever increasing portion of its population. By not limiting the authority of the Tlicho to enter into “international, national, interprovincial and inter-territorial agreements”, it appears the agreement recognizes the right of the Tlicho to enter into international agreements.

In addition, it puts the onus on the Government of Canada to consult with the Tlicho First Nation before Canada enters into an international agreement that “may affect a right of the Tlicho government, the Tlicho First Nation or a Tlicho citizen”. I am concerned about this very broad, vague language and how it constrains power constitutionally reserved for the federal government. By allowing this, the Canadian government would, in essence, be compromising its own sovereignty.

In a country where we already have a bloated administration, I do not believe additional levels of government are necessary or desirable. Yet that seems to be what is created in this agreement.

There is jurisdictional confusion in that the agreement describes three different hierarchies to determine which legislation is paramount in the event of conflict: federal legislation, territorial legislation, Tlicho laws or the agreement.

We must also consider that it is not clear that Tlicho citizens will have the benefits of protection under Canada's Charter of Rights in the event of conflict with the Tlicho constitution. This is the kind of clarification that I would have like to have seen come out of committee discussion so that we could avoid the future intervention of the courts, which will likely come about if this bill passes and the agreement comes into effect.

Self-government is a serious issue and it must be considered in a thoughtful way. When a country is divided into essentially sovereign groups, it affects not only the group in question but all Canadians.

I would like to quote from an author who wrote First Nations? Second Thoughts . Mr. Flanagan wrote that he holds certain core beliefs, including the following:

Society is a spontaneous order that emerges from the choices of individual human beings. The indispensable role of government is to make and enforce rules of conduct that allow society to function.... When government sorts people into categories with different legal rights, especially when those categories are based on immutable characteristics such as race and sex, it interferes with the social processes based on free association.

The Tlicho agreement does in fact divide people by race, even within the population it affects.

The agreement creates a category of citizens called Tlicho citizens who are the only people who may be elected as chiefs. Further, 50% of the elected councillors must be Tlicho citizens.

This racially based governance goes against fundamental Canadian values and would likely not withstand a Charter of Rights challenge, that is if the charter was not negated by Tlicho law. Again, the uncertainty is tremendous and I cannot in good conscience allow myself to support the bill.

Any other outstanding claims for land and self-government must be pursued on the basis of a clear framework which balances the rights of aboriginal claimants with those of this country. Such a framework does not exist in the context of the Tlicho agreement.

Ways and Means

[Bill Graham, Liberal, Minister of National Defence]

Mr. Speaker, pursuant to Standing Order 83(1) I wish to table a notice of ways and means motion respecting an act to implement certain provisions of the budget tabled in Parliament on March 23, 2004, as well as explanatory notes.

I ask that an order of the day be designated for consideration of this motion.

The House resumed consideration of the motion that Bill C-14, an act to give effect to a land claims and self-government agreement among the Tlicho, the Government of the Northwest Territories and the Government of Canada, to make related amendments to the Mackenzie Valley Resource Management Act and to make consequential amendments to other Acts, be read the third time and passed.

Tlicho Land Claims and Self-Government Act

[Jeremy Harrison, Conservative, Churchill River, SK]

Mr. Speaker, I thank the member for Blackstrap for her intervention on this subject. I know this is an area in which she has a great deal of interest and on which she spoke very eloquently.

My question for the hon. member has to do with the international component of this agreement, which she touched on in her speech and which has been an issue we have spoken about today in the House.

A cabinet document about 70 pages long has come into our possession, a document that was approved by cabinet. We read in the document the direction in which the federal government would be going in the negotiation of treaties. This document made it very clear that there was to be no provisions in any agreement that would be negotiated by the federal government. There would be nothing to do with Canada's international sovereignty or commitments. However this was not followed. It was included in the agreement in violation of the cabinet's own approved policy on the issue.

I must say that this particular provision is very worrisome. I pointed out a couple of reasons in my speech as to why I think it is worrisome. I have asked members of the government whether there had been any jurisprudence on the issue in the past or whether it was an unprecedented provision in that treaty. It is an unprecedented provision. The provision, I believe, could lead to some serious consequences for this country, particularly considering the jurisprudential direction that we have seen the courts move in on these issues. I would like to have the hon. member for Blackstrap add her comments to those I just made.

[Lynne Yelich, Conservative, Blackstrap, SK]

Mr. Speaker, there is cause for concern. I sit on the status of women committee. Last Thursday many groups came forward and talked about how the government had failed the aboriginal people. The Métis people have come forward. They have not been recognized. They were concerned about the government and how it had not even acknowledged some of their problems. This has been ongoing for over 10 years. They have been recognized as a peoples, but they are not treated as Métis people.

As these women spoke, I wondered what the government had done for the aboriginal women in the Tlicho agreement. I had asked the minister, who said that we did not have to worry about it, that it would take care of this. However, according to the aboriginal groups that spoke to the committee last week, the government failed miserably. It has not helped the Métis people to be recognized nor has it helped with violence against women. In the Amnesty International report about violence against women, the government has not even paid its bill on that agreement.

That is my concern when it comes to any of this because of the government's record and past history in these agreements. The people themselves wonder if the government will come clean with what this agreement means to aboriginal women and to aboriginals as a whole. Will they have a conclusive agreement? It is important that it be conclusive.

[Leon Benoit, Conservative, Vegreville—Wainwright, AB]

Mr. Speaker, the constituency I represented before the boundaries changed included eight Indian reserves. I believe people from every one of those reserves came to me often to express their concerns on two area.

The first area was about elections on reserves. Often they pointed to instances where the elections had been improperly held. Even during a federal election, improprieties happened on two of the reserves. In fact the deputy returning officer for the area was called in because of some gross improprieties. Thankfully, they were fixed. However, a common problem is elections on reserves.

Another area where there have been some serious problems in the past is accountability of spending. Again, so often groups of women come to me to say that the money is not being spent properly and they ask what they can do about it, desperate for some real accountability on reserves.

I would like to ask the member this. Does the legislation appropriately deal with the issue of fair elections and accountability if spending on reserve?

[Sue Barnes, Liberal, London West, ON]

The answer is yes.

[Lynne Yelich, Conservative, Blackstrap, SK]

Mr. Speaker, the member across says yes. Of course, they agree that they are. I again have to refer to history, and history tells us that these things probably are not addressed.

We just went through a real schmozzle in Saskatchewan again with a Métis election. They are asking the federal government to intervene. By the past actions of the government, it has not dealt well with that. Going back over 100 years, it has been unable to do some of the simple things like fair elections and accountability. The province of Saskatchewan probably has example after example.

Again, I sat as a member on the status of women committee. We can ask the aboriginal groups have come forward. The parliamentary secretary has suggested that the agreement is well thought out and will serve the people well. I invite her to come to the status of women committee to listen to the women who would challenge her greatly. They have asked about their status. A royal commission studied this 10 years ago. They have asked why that has never been implemented? They have asked how the government has addressed the Amnesty International report on violence against aboriginal women?

Just by its mere history, it will tell us that I do not think there is much hope that accountability or fair elections will be addressed.

[John Cummins, Conservative, Delta—Richmond East, BC]

Mr. Speaker, I would like to say that it gives me a great deal of pleasure to address this bill today, but I am sorry I cannot. I am troubled by the bill. It is deeply perplexing. The bill in a sense is probably one of the first of over 600 bills which will be like this.

Before I embark on a critique of the bill and the problems that I see in it, I want to lay before the House the Conservative Party position on these issues because it is important. Our position on these bills is reasonable and shows an understanding of the problems that face native people in the country. If the positions we have taken were followed in the document we are debating today, there would be a glimmer of hope.

The Conservative Party of Canada believes that self-government must occur within the Constitution of Canada. That is an important point and one which I will address later in my speech.

We believe that the settlement of all outstanding comprehensive claims must be pursued on the basis of a clear framework that balances the rights of aboriginal claimants with those of Canada, and I might add with Canadians. The Supreme Court itself has stated that in any agreement reached with native people there has to be an understanding that others have acquired rights and there has to be a balance between the aboriginal right and the rights of other Canadians. I do not see that in the bill.

The Conservative Party believes that self-government agreements must be structured to ensure constitutional harmony so as not to impede the overall governance of Canada, which is another point that I will address more fully later.

To ensure fairness and equality, a Conservative government would ensure that the principles of the charter applied to aboriginal self-government, which is almost an impossibility as the House will see.

The Conservative Party believes in giving aboriginal governments the power to raise their own revenues. Aboriginal agreements reached with the federal government must represent a final agreement in the same manner as was achieved in Nisga'a. Let me correct that. Aboriginal agreements reached with the federal government must represent a final agreement, and I will stop there.

We are told the agreement is a culmination of two separate negotiations. The first was the negotiation of a comprehensive claim, which has been carried out pursuant to the 1986 comprehensive claims policy. In this respect, the agreement is similar to the Nisga'a agreement. Secondly, the negotiation of self-government arrangements are based upon the 1995 inherent right policy. In this respect, the agreement follows the Westbank agreement.

Before I go on with my comments, I want to bring to the attention of the House something that I think is critically wrong with the process that we are engaged in today. The bill and the agreement are being put before Parliament on an all or nothing basis. We are told that the government has received advice that Parliament lacks the capacity to amend the provisions of the agreement. It is for this reason that the legislation was introduced by way of a notice of ways and means motion on October 19.

To suggest that the agreement is beyond the capacity of Parliament to amend is a serious flaw in the process. Who negotiated the agreement? Who and what authority was given those negotiators? That is not clear. I am not aware of it. I do not know and I do not think there is a member in the House right now who could tell us who the individuals were that negotiated the agreement, what relationship they had with the area under discussion and what relationship they may or may not have had with the native bands involved prior to the negotiations. Who are they?

In my own riding, the Tsawwassen agreement will be coming forward for signing shortly. The negotiators are not familiar with my community. They regularly ignore the wishes of the local community, the Delta Council and others. They are just grey bureaucrats.

These grey and unseen bureaucrats have negotiated an agreement which in a sense is binding on all of us. Today we are either going to accept the total package or reject it. We have no right to say that we like a part of it, but ask people to go back to the table to some changes because this or that aspect of it may be unworkable. That is what we should be doing. We are here to represent the people of Canada, yet we do not have a say. Who gave the instructions and who detailed and told the negotiators what was on the table?

We are told that there are 39,000 square kilometres of land. That is half the size of New Brunswick. To put it in a way that people in British Columbia understand, that is 25% larger than Vancouver Island, and 3,000 people are involved. What were the instructions? Was the negotiator prepared to give away 60,000 square kilometres of land if the demand had been made? Nobody knows and in fact there are conflicting demands for the land.

That is a serious problem with the whole process. When these sorts of agreements come before the House, the House should debate them thoroughly, especially these first agreements, and establish guidelines that can give some direction to negotiators in these agreements and to negotiations that are ongoing. Instead, we are here to rubber stamp it, and we know that will happen. The government members will rubber stamp the bill and others, because they do not want to cause any kerfuffle, will agree with this as well. Many may do it thinking that this is the best way to go.

I do not. I oppose the legislation and I do so for a variety of reasons.

In the first instance, the bill lacks finality. In agreements signed in days gone by, the language was at the end of the bill: cede, release and surrender. In other words, the band which received its reserve lands and its governance, whatever way or nature that may have taken, signed off and said that it ceded, released and surrendered any further claims. That is not the way this bill goes. In fact, this is not the final draft.

If another band gets more, these folks can come back to the table and demand more. In other words, we are committing the Government of Canada, and Canadians, to continue this process for decades because there will be no end. There will always be that juggling to try to get a little more.

If anybody wonders how that works, just think back in British Columbia, for example, and the teachers' negotiations. Board A would come in and would be in negotiations. The smaller board would sit back, let the other guys go first and see what happened. Everybody would wait for the wealthy board to sign off, and it would become the benchmark. Everybody else then tried to reach it.

I guess that is collective bargaining rights, but does it really work? Does it deal with the marketplace in any way, shape or form? No. Yet that is what we face when the language is not final. All it means is that some day down the line, when somebody else comes up with a better deal, there will be a request to reopen the negotiations.

I mentioned in the beginning that there were two areas from which this agreement flowed, or two separate sets of negotiations, one being based on the 1995 inherent rights policy of the Liberal government.

This is a policy which has not really had the benefit of the scrutiny of Parliament. It is a policy which was created by the government but was not openly debated in this place. In fact, when the first bill that was negotiated on this came through this House last fall, the government tried to rush this thing through in one day. When it did return, there was not much in the way of discussion to really create an understanding of what was meant by this bill. That is the problem with everything that seems to be going on here.

What does this inherent right policy mean? How is it going to impact not only the governance in native lands but on other Canadians living in that particular area covered by the treaty?

Let us back up for a minute and put the notion of inherent right into perspective. Section 91 of the Constitution, if my memory serves me correct, lists the powers of the federal government. Section 92 lists all the powers of the provincial government.

The Constitution says quite clearly that there are no other powers available. The powers that are vested in the provincial government and in the federal government cover the spectrum of powers that are available. There is no room in the Constitution for other powers. Some may ask about municipal government, where does it fit in?

Municipal governments are a delegated form of government. Their authority flows from the provincial government. The provincial government gives municipalities certain powers which actually belong to it. It says these are local powers. These powers are better managed by local government than they are from Victoria, in the case of British Columbia, or from Edmonton, in the case of Alberta, to mention two of the finer provinces.

If the federal government takes all its powers from section 91, the province takes all its powers from section 92, and municipal governments derive their powers or operate with a delegated form of authority from the provincial government, where then does this inherent right power flow from?

When the government recognizes inherent right to self-government, it is saying that right flows from section 35 of the Charter of Rights and Freedoms. In other words, the inherent right to self-government is not one which is delegated by either the federal or provincial government, but in fact it has equal footing. It flows from section 35 of the of the charter and that gives it the ability to trump federal or provincial law. It is as simple as that. This is not complex. This is simple stuff that is quite easy to understand for anyone who takes the time to think it through. How then does the charter apply? Government would tell us that the charter will apply. But how can it?

If the Tlicho government were operating because it has an inherent right, how then can we say that the charter would apply? That is an intrusion on the inherent authority of the Tlicho government. Therefore, it will likely be rejected in the courts.

The court will say, how on one hand can it be said that these folks have an inherent right to self-government and on the other hand say that they are constrained by the charter? It does not follow. It cannot be had both ways. We cannot say they have an inherent right and then at the same time turn around and say that their rights are constrained.

In fact, if we look at Bill C-14, it recognizes that very point. The bill says and contains this remarkable section relating to international matters. In article 2.2.9 of the agreement, it states:

Nothing in the Agreement shall be interpreted so as to limit or extend the authority of the Parties to negotiate and enter into international, national, interprovincial, and interterritorial agreements--

By implication this suggests that the Tlicho government has the authority to enter into international agreements.

In fact, if that authority does not exist in that manner, the Government of Canada is required to consult with the Tlicho when international treaties are going to impact on them. That is clear from reading the agreement. If an international agreement is going to impact on the Tlicho people, then they have a right to be consulted and to have their concerns addressed. However, how far does it go? That is not clearly defined.

Will the Tlicho people have the right to veto an agreement because it somehow impinges on their right? I think the whole issue is very confusing. However, the very broad language that is contained in this treaty puts a remarkable restriction on power that is constitutionally reserved for the federal government.

This is one agreement in over 600 that we are going to enter into in this country. I look at the Tsawwassen Indian Band, in my own neighbourhood, located a mile or so north of the international boundary at Point Roberts. There are ongoing issues between the province of British Columbia and the state of Washington, or in essence between Canada and the United States. There are fisheries issues there.

If we were to go right along the coast then, any band that says it has an interest in fish on the west coast of Canada, any band from Alaska down to the border at Washington state, would have an interest in fish, sign an agreement, and demand the same right that the Tlicho First Nation has. How do we manage this? Every band has a right to veto. Every band has a right to be consulted on a matter which affects all Canadians.

The Magna Carta was signed in 1200. Essentially, the signing was to limit the authority of the lords. It has grown from that point to the point where we are sitting here in this House of Commons, as members of Parliament, representing the people of Canada. The Government of Canada is supposed to be the authority over the lands of Canada and sharing that responsibility with a province.

This agreement sets up one group of Canadians and says that this group will have the final say on a lot of legislation that will be introduced in this place.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Madam Speaker, this gives me an opportunity to correct some of the things that were said in the last few minutes.

By way of information to the member, a ways and means motion is required for any bill involving new taxes, an increase of an existing tax, or extension of a tax to a new class of taxpayers. Bills requiring such a motion must be introduced in the House of Commons under the Constitution Act, 1867, and Standing Order 80(1) of the rules of the House. The Nisga'a Final Agreement Act had a ways and means motion. In fact, in a prior debate on this bill in the House, I read that into the record so there would be no confusion. I had hoped we had put that argument to rest.

I will go now to matrimonial real property because this is a critically important issue on reserves which has not been solved. However, the Tlicho people live in public communities, not on reserves, and as a result they are subject to territorial law regarding matrimonial property in the same manner as any other NWT resident. Under the Tlicho agreement the Tlicho will not own lands in the communities and these lands will not be reserves. Instead, local community governments will own the fee simple lands, and territorial laws relating to matrimonial property will therefore continue to apply on those lands.

These are the basics that people will understand if they read the agreement. However, it is very difficult to combat these 12 issues. There have been 12 issues over the last number of weeks that the Conservative Party has put forward time and time again. Just because it is repeated, does not make it right.

We have a situation where the Tlicho agreement draws a distinction between land rights and non-land rights. Certainty is achieved both for land rights and non-land based rights, and finality is achieved for the land rights. This is a progressive modern treaty. It is all well and good to be against this piece of legislation. We have worked on this bill in committee and there has been a respect for the people who have worked hard on this agreement.

In fact, the members of the Conservative Party made a good point in committee. They said they were not trying to delay the implementation of this bill. I have sat here all afternoon and listened to the same points even when they were answered two hours previously. There is a time and a place, and there is a vote. We want to get to the vote.

I am going to say to the hon. member that we can agree to disagree. He is entitled to his differing opinion. Hopefully, it is an informed opinion, but at the end of the day, these people have waited longer in negotiating this agreement than many of the members in the House have terms in Parliament.

Is it the proposition of this hon. member that, like every parliamentarian who might come and go because of maybe losing an election or two, we re-ratify these agreements every time? It is very clear that every Parliament has a new crop of MPs. If we were to go with the suggestion that was laid on the table about the role of parliamentarians with respect to ratification, there would never be a ratification in the House.

[John Cummins, Conservative, Delta—Richmond East, BC]

Madam Speaker, the parliamentary secretary is somewhat confused. The effect of the bill is to create a third order of aboriginal government.

Article 7.7.2 and article 7.7.4 prescribe the following hierarchy of government: one, federal legislation of general application; two, territorial legislation implementing Canadian international agreements; three, Tlicho laws; four, territorial legislation of general application; and five, specific federal legislation relating to the Tlicho. In other words, Tlicho laws prevail over territorial laws and also over federal laws relating to the Tlicho. My friends from Quebec would love to have an agreement like this, I am sure.

On taxation and royalties, the Tlicho get about 2% of the royalties of the two existing diamond mines in their area. Any future mineral or subsurface development on Tlicho lands would result in a payment of the royalties to them.

Premier Williams of Newfoundland and Labrador would love to get this agreement. He would love to get 100% of the royalties that accrued and should be accruing to Newfoundland and Labrador from the oil resources off that shore. He cannot get it. These folks can.