Mr. Speaker, simply put, the agreement gives the Westbank government an umbrella to shield itself any time a resident seeks to reign on its arbitrary actions with a challenge under the charter.
The lawyer for the Westbank, Micha Menczer, when challenged in the House of Commons committee studying the Westbank bill and agreement, claimed that critics must not believe in the charter, that their complaint was really with section 25 of the charter rather than with the agreement. He stated:
I think that's a misreading. More importantly, section 25 is part of the Charter of Rights and Freedoms. Westbank and the Government of Canada have no power to change that, either by an agreement or even by legislation. That is a matter of constitutional change.
A convenient lawyer's trick, but no, the problem is with the agreement's action to make the Westbank government an aboriginal right triggering section 25 and knocking out the protection of the charter for Westbank residents. The problem is not section 25 of the charter.
The problem is the sections in the agreement that state that the agreement is both a recognition and an implementation of the aboriginal right of self-government. It is those sections of the agreement that trigger section 25. It is the aboriginal right of self-government provisions of the agreement that effectively allow the Westbank government to shield itself from the application of the charter any time it wishes to do so.
In a paper entitled “Westbank self-government agreement will strip away fundamental Canadian rights”, Tanis Fiss, Director for the Centre for Aboriginal Policy Change of the Canadian Taxpayers' Federation, observed:
This is a disastrous piece of legislation. If Members of Parliament pass this agreement, Canada's elected officials will deny certain Canadians the right to vote in community elections and in so doing will strip the fundamental rights of Canadian citizens.
The proposed Westbank Self-Government Agreement, Bill C-11, will shield the Westbank government from application of the Charter of Rights and Freedoms. By doing so, Westbank laws would be immune from a Charter challenge. In other words, Westbank laws could discriminate between residents of Westbank based on their race, religion or gender and the victim of discrimination could not use the Charter to strike down the offence.
Once entrenched in the Constitution based on the premise of an “inherent right” to self-government, this means Section 25 of the Constitution will also apply to the Agreement. The equality rights of the Charter do not apply to Aboriginal communities under Section 25 of the Constitution. This will be the case no matter what is written in the Agreement because the Constitution is the supreme law of Canada.
The federal government plans to use the Westbank self-government agreement as a template for further negations. This piece of legislation will set a precedent which other Indian Bands will follow. Clearly, this Agreement will have national repercussions for generations of Canadians.
Incredibly, all parties in the federal parliament plan to support the measure and have supported it through the first two readings. Given the many flaws of this Agreement, Canadians can only hope their elected Members of Parliament come to their senses and vote against the Agreement.
Mark Milke, in an article in the Calgary Herald entitled “Native agreement flawed”, stated:
One significant problem with the Westbank agreement is that it will deny natives and non-natives some of their charter rights. Defenders already claim that because one section in the Westbank document references it as bound by the Charter of Rights and Freedoms that such freedoms are thus secure. No, they are not. The same section of the agreement the defenders will point to also has this caveat about such charter freedoms: “with due regard for Section 25...”
That's a tip-off. Section 25 grants aboriginal and treaty rights immunity from legal challenges launched from other charter sections.
Christopher Harvey, a lawyer who analyzed the agreement, argues that the new Westbank deal infringes on charter rights and does so through a clever (and improper) juxtaposition of aboriginal claims to self-government combined with the Section 25 rights noted above: “It amounts to an abdication of the sovereign law-making and executive authority of the Crown in Parliament. Its effect on the people residing and working in Westbank is to remove many of the fundamental political and legal safeguards that support their freedoms and security. It is surprising to see basic legal rights which have been acquired gradually over many years of political struggles being so abruptly discarded”.
If Parliament intends residents to have the right to use the charter to challenge the Westbank government, it must ensure that those sections of the agreement that refer to the aboriginal right of self-government are not brought into law. If Parliament intends to give the Westbank government an umbrella to shield itself from challenges under the charter, then it should pass Bill C-11, the Westbank law act, into law without amendment.
However, a healthier choice of action dictates that Parliament consider the serious implications of shielding the Westbank government from the charter. Westbank residents, like Canadians everywhere, deserve the protection of the charter. It is the right of Canadian citizenship, yet they will not have charter protection if this bill is approved in its present form.