Mr. Speaker, I must begin by saying that I disagree with the previous arguments and I will outline my position.
First of all, the first amendment to the bill is a complete deletion of clause 3. Basically, we cannot delete clause 3. We cannot delete any clause, actually, because this is an agreement between the Government of Canada and a first nation. We have negotiated this agreement for years and to remove an instrumental clause, which of course the Government of Canada has agreed to put into law and which is what we are doing in Parliament, would abrogate the whole agreement and we would be back at stage one.
The effect of this amendment would be that Canada would not ratify the Westbank first nation self-government agreement. With this amendment, members of Parliament are being asked not to approve the Westbank first nation self-government agreement in its entirety. Clause 3 would give the force of law to the Westbank first nation self-government agreement. Clause 3 is the substantive provision of Bill C-11. Without this provision, the Westbank first nation self-government agreement would not be given effect.
Both Canada and Westbank first nation must ratify the Westbank first nation self-government agreement for the agreement to come into effect. Pursuant to the Westbank first nation self-government agreement, Canada's ratification procedure requires that Canada sign the agreement and that Canada enact federal legislation giving effect to the agreement. Canada signed the Westbank first nation self-government agreement on October 3, 2003. Bill C-11, and in particular clause 3, is the proposed federal legislation that would give effect to the Westbank first nation self-government agreement.
With regard to the specific argument that we had in relation to clause 3 and the Charter of Rights and Freedoms, basically, in summary, I would say that the Charter of Rights and Freedoms will apply to the Westbank government and to the people of Westbank. The Government of Canada is committed to the principle that the Canadian Charter of Rights and Freedoms binds all governments in Canada so that aboriginal peoples and non-aboriginal Canadians alike would continue to enjoy equally the rights and freedoms guaranteed by the charter.
The charter, through section 25, is designed to ensure a sensitive balance between individual rights and freedoms, and the unique values and traditions of aboriginal people in Canada. This is stated in the Government of Canada's federal policy, “The Government of Canada's Approach to Implementationof the Inherent Right and the Negotiation of Aboriginal Self-Government”. Section 32 of the Westbank self-government agreement is in conformity with this policy.
It is the view of the Government of Canada that the Westbank first nation government and any Westbank laws passed pursuant to the Westbank first nation self-government agreement will be subject to the Canadian Charter of Rights and Freedoms in its entirety. One cannot make one provision of the charter apply more forcefully than any other.
With regard to providing Westbank with specific self-government inherent rights, this is a general right that is applied across the country. It is the same in all our self-government agreements. It is not specific to Westbank. It is not a specific right.
The references to an inherent right in the Westbank first nation self-government agreement are general in nature and do not constitute a specific recognition of any specific Westbank first nation aboriginal right to self-government. The Westbank first nation self-government agreement and its references to an inherent right of self-government are in accordance with the federal government's inherent right policy, which recognizes that the inherent right of self-government is an existing aboriginal right within section 35 of the Constitution Act.
In case the people who are watching want to know what we are debating in section 25 of the Charter, I will read it. It states:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
This is a general protection and reference in the bill. The Charter of Rights and Freedoms will continue to apply to aboriginal people across the country and to the people on the Westbank reserve. Of course, the sensitive clause 25 will ensure that rights are acknowledged.
I want to now talk about Motion No. 3 and the clause respecting additions to reserve. The amendment basically suggests that adding land to the Westbank First Nation reserve would require the consent of the City of Kelowna. While land has already been added to the Westbank reserve through our general policy, when additional land is added to reserves, there are consultations and agreements with the provincial and municipal governments. This is already in our policy.
The authority to add land to reserves is a federal authority and that authority is applied across the country, including the Westbank. With or without this agreement, there is authority to add to the reserve. However, the amendment would take away from the Westbank people something that would be available to all reserves across the country, and that would obviously be unfair.
We are not here today to take away or lessen one particular first nation from a power. However, we had a lengthy debate about this section in committee and at that time assurances were given, and that is Canadian policy is that when additions are made to reserve, the municipalities and provincial governments will consulted. Therefore, this should not be a concern.
The Westbank First Nation, like all other first nations in Canada, may concurrently access additions to reserve policy, which is a national policy. Upon implementation of the Westbank First Nation self-government agreement nothing would change for the Westbank First Nation with respect to the federal government's additions to reserve policy.
The additions to reserve policy requires that the first nation and the municipality in question negotiate in areas such as joint land use planning, bylaw harmonization, tax considerations, service provision and future dispute resolution. In practice Canada has insisted that these matters be dealt with to the satisfaction of all parties. As a result, in many cases lands are added to reserves only after years of negotiations. This has been demonstrated in the addition of what are known as the Gallagher Canyon lands to the Westbank First Nation reserve in 2000, 17 years after the Westbank First Nation first initiated an addition to reserve request.
Any amendment denying the Westbank First Nation the right to access the federal government's additions to reserve policy in whole or in part would set the Westbank First Nation apart from all other first nations, including those that have self-government agreements or those that have concluded treaties. This would place an undue burden on the Westbank First Nation. Further, the additions to reserve policy is within the purview of the federal government's jurisdiction to deal with all matters relating to Indian lands.
As stated above, in practice the additions to reserve policy does not permit the addition of lands to reserve without the consent of surrounding municipalities. In this regard the proposed amendment requiring the consent of the City of Kelowna prior to any further additions to Westbank First Nation reserve lands merely states what is already the case.
Nevertheless, the proposed amendment would cede the federal government's power, expressed through the granting of an order in council with respect to additions to Westbank reserve lands, to a municipal level of government. Additions to reserve, a federal jurisdiction under the Canadian constitutional framework, would no longer be entirely within the prerogative of the federal government.
The additions to reserve are granted pursuant to an order in council by the governor in council. It is recognized that additions to reserve proposals may potentially impact on provincial and municipal governments, and thus the federal government's addition to reserve policy requires that these levels of government have an opportunity to express their interests.
Provinces and municipalities must be advised in writing of an additions to reserve proposal within their jurisdiction and have three months to respond in writing to identify any issues with an additions to reserve proposal. Third party interests must be identified and dealt with before an additions to reserve proposal may proceed.
I will not have time to go any further, so I will just summarize by saying, of the two amendments, the first one basically would abrogate the whole agreement. It is the primary clause that puts it into effect. It basically is yes or no on Westbank. The last one I do not think is necessary. First, the City of Kelowna is already guaranteed under the present policy. Second, we could not take a right away from one first nation in Canada. If people want to change that, they should lobby to change the entire government policy, not just one clause in the agreement.