One of the government members yelled out that Gordon Gibson is not a layperson. I agree. That is correct and my comment could have been interpreted incorrectly. What I meant was that for a layperson to read this article, that layperson would get a really good feel for what this whole thing is all about. Mr. Gibson wrote, and I agree with his first line wholeheartedly:
Ottawa continues to blunder its way into the future in its British Columbia operations.
There is absolutely no sensitivity whatsoever to the fact that in British Columbia we have more native Indian bands than anywhere else in the entire country. We have a huge issue in the settlement of land claims and treaties here. It is simply not good enough to do this one by one, with different procedures creating different governments.
A study that was released yesterday by the Canadian Taxpayers' Federation described the problems on reserves despite the huge amounts of money that have been pumped into the system. In the decade since I have been here, I have heard so many promises from that side of the House, from the members sitting opposite, about how things will be improved, that we just need more money, we need another program, and we need to do more of this. The problems have gotten worse. The things we have done have made it get worse.
Australia has just abandoned part of its aboriginal strategy. It is cancelling the commission on aboriginal affairs in Australia, after spending billions of dollars and having the problems get worse. We should be learning from these examples in other countries and from our own example. It is a disgrace that in Canada, right in my own riding in the third largest city in all of Canada, the living conditions on reserves are disgraceful. It is not for lack of money because the band earns more than $30 million a year from its investments, right in the third largest city in Canada.
By passing this type of legislation, all we do is perpetuate the problems. We do not fix them. We do not help people get jobs on the reserves. We do not help them be part of Canadian society. We cause them to live separately and to perpetuate the problems.
I had my own little rant there, but I am going to return now to Mr. Gibson's article. The latest example of blundering, according to Mr. Gibson, is the Westbank first nation government act. He states:
At first glance, this is a minor piece of legislation for a small community outside Kelowna. But in fact it cements the legal basis for a constitutionalized parallel system of Indian governments across the country. It also means that much of [the Prime Minister's] promised fundamental review of Indian policy is dead on arrival.
The legislation also has important negative implications for the democratic and Charter rights of the 8,000 non-Indian citizens of Westbank who, voteless and denied self-government for themselves in this allegedly “Self-Government Act,” will be ruled by the roughly 400 members of the band.
In the agreement implemented by this bill, Ottawa, for the first time, explicitly “recognizes that the inherent right of self-government is an existing right within section 35 of the Constitution Act, 1982”.
Then, astonishingly, the legislation declines to define what the “inherent right” means or contains, and indeed states that “the parties to this agreement acknowledge that they may have different legal views as to the scope and content of an inherent right of self-government”.
That was the point I made right at the beginning. This is fodder for lawyers for decades to come. We will not know where we stand on this agreement for decades because of the disagreement of what it truly means in terms of charter rights. He goes on to state:
Think about it. We all have an “inherent right” to govern ourselves, each of us. But to collectivize this on the basis of ancestry?
That is what this bill does.
Section 35 is the part of the Constitution which protects aboriginal rights.
By virtue of section 35, the Supreme Court of Canada has displaced Parliament as the final maker of Indian law in Canada. The word “displaced” is used intentionally. The framers of the 1982 constitutional amendments avowedly intended nothing like the judicial adventurism which the courts have shown in making Indian law since then.
But most unusually in this Westbank agreement, Ottawa has moved farther out into left field than the Supremes have yet dreamed.
He goes on to describe a single court case in British Columbia where Justice Paul Williamson of the B.C. Supreme Court found, and he is the only person, any basis for a third order of government of the kind stipulated in this agreement.
That particular judgment involved a case that was brought by the Liberal Party of British Columbia prior to it becoming the government in British Columbia. It was related to the Nisga’a agreement under which the Liberal Party was challenging the constitutionality of that agreement. Unfortunately, when the Liberal government was elected in British Columbia, it decided not to appeal this rather unusual and alarming ruling. The unusual finding was never appealed, but no other court in Canadian history has found anything like this. Indeed, a century of jurisprudence disagrees, including the B.C. Court of Appeal, which in the Delgamuukw decision found exactly the opposite concerning a third order of government.
As I started out saying at the beginning, the real problem with this bill is the third order of government. The establishment of an order of government that can set its own legislation and regulations, which are not open to scrutiny, and extrapolating that to the total number of Indian bands in British Columbia and giving them all the same structure would be a nightmare in British Columbia. There would be multiple governments all operating independently with their own sets of regulations, uncoordinated in any way and not open to any scrutiny or challenge by anyone.
It is wrong. We should not be passing a law like this. We should be concentrating our efforts on improving the living conditions for aboriginals on reserves by helping them become part of Canadian society, not by isolating them and consistently making them different from mainstream Canada. It is unacceptable to me and I could never vote for a bill like this.