Mr. Speaker, I thank the members who are here today engaging in this debate. Also, I extend appreciation and acknowledgement to the people who have been working toward this particular agreement related to the Westbank First Nation for some 14 years. People on all sides have been involved. The various chiefs and councils and non-natives involved are all to be congratulated.
It certainly has been a long process and not one that has not been charged with emotion. There has been much emotion through the process. A lot of rational thought has gone into this, but there have been times when bridges of trust have had to be built because people on all sides have had experiences which might hinder the ability for them to really trust each other.
Certainly when a person like myself is looking at an agreement like this, I have a very strong focus on individual freedoms and individual rights. There have been times when I have said that certain aboriginal claims have been unwarranted because they have infringed in serious ways on those individual freedoms. I take these situations on a case by case basis, as others do.
At times debates like this have been charged with accusations. If one tends to vote for, or wants to see agreement for an aboriginal request, that person is seen as selling out to unrealistic demands. If one opposes certain things related to aboriginal treaties or claims, that person is accused of being anti-aboriginal, or even worse accusations.
The debate on this over the last couple of days has been fairly civil and I appreciate that. It helps us to get down to the actual words of the agreement itself. Without the focus on what is actually written and proposed, words and labels can kind of hang out there and distort what is being proposed and cause knee-jerk reactions on either side. Therefore, I want to address specifically what is in this agreement and the legislation.
I have had to challenge myself with my own positions related to broad terms. We talk about labels like “inherent right” as in the inherent right to self-government. Is that something in which I believe?
As elected people, words, once we speak them in a place like this are there forever to haunt us or to prod us onward. If people were to look back to my days at the Alberta legislature, they would see that when I was minister responsible for aboriginal affairs, one of the things I said related to inherent rights was that we all have an inherent right to self-government, but those rights must be defined. I said that I could not accept either an aboriginal claim or a non-aboriginal claim to an absolute inherent right of self-government--it is all about me self-government--with no reflection on the implications for the people in the world around me. It must be defined. I said we must have some clear definition before I could support it. My own words hold me to account over all these years.
I remember one of the first meetings I had with a former chief of Westbank First Nation. It is unique to be discussing legislation with all my colleagues here, legislation which I think will have some national impact. The entire Westbank First Nation sits on federal constitutional borders that form the constituency of the people whom I represent.
One of the first meetings I had with a WFN chief was in the run-up to the federal leadership campaign. I was taking quite a bit of flack at that point, for reasons I do not fully understand--well I do, knowing where some of the national media lies--for being “anti-aboriginal” whatever that was supposed to mean. I met with that chief and he said that one thing he knew about me was I was not inherently against them as aboriginal people. I said of course I was not, and asked how he knew that, what caused him to say that in spite of all the national media he was reading. He said he had talked with chiefs in Alberta who had dealt with me and they had told him I was honest and straightforward, that I did not always agree, but that I could be trusted and was straightforward and not against them as people. I said I appreciated that because it happened to be true.
My words have come back to haunt me in a way with this particular agreement, because I said I was open to the inherent right to self-government but that we should have it defined.
There are a lot of definitions in this agreement. I want to walk through some of them because I approach this agreement somewhat as a skeptic. I have said publicly in the media and in meetings with our aboriginal friends and non-native friends that I have some problems with what I am hearing about this agreement and I need to have those problems addressed before I can support it.
Let us look at some specifics. Clearly, lawyers have come out with opinions on both sides of this issue, as they can and do on every issue. If someone says, “Well, the lawyers say”, that is one group of lawyers. As we know, and I say this with respect, lawyers have the capability and the great expertise to come up with a variety of positions on one particular issue. Let us look at the words that are here.
Skeptics and those who are opposed to this agreement have said that the Charter of Rights and Freedoms does not apply and that is why they do not support this agreement. The charter does in fact apply. I will read the words of the agreement:
The Government of Westbank First Nation and Council in respect of all matters under its authority are bound by provisions of the Canadian Charter of Rights and Freedoms.
That is fairly straightforward. We may like or dislike the words, but it is fairly straightforward. What does it mean when a group says that it is bound by the Canadian Charter of Rights and Freedoms? Section 52 of the Constitution Act states:
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
That is fairly clear language on the issue of charter application.
Some people have said that there is this little thing in our Constitution, section 25 it is called, that says there must be due regard to aboriginal rights. That exists in the Constitution. We may like that it is there; we may not like that it is there. We may want to change that. If we think we could ever effect a constitutional change in this country, that may be something we would want to change.
Section 25 is in our Constitution and the Westbank First Nation reflects that in its agreement. It says that section 25 still applies with due regard to aboriginal rights. That is there whether we like it or not. What we have to say again is what is defined here. How broad a brush would that section 25 application be?
One of the reasons I am supporting this agreement is that when this agreement should come into law and effect when we vote on this, it would not become automatically constitutionalized as some aboriginal agreements do. Once they are voted into effect they automatically become part of the Constitution of Canada and they are very difficult to change. That is the not the case with this agreement. It will be and can be subject to change. It is not constitutionalized.
Let us look at some of the other definitions. We have dealt with the one in terms of the charter not applying. Section 25 certainly is in this agreement. We ask ourselves, has the Westbank First Nation defined and been specific on areas where it agrees, where there is no discussion virtually, that federal law applies? Let us look at that. What does the agreement actually say? It is one thing to say that nothing applies here. Let us take a look at the agreement itself.
Not only does the agreement set out minimum standards for Westbank First Nation laws, but it clearly indicates where federal application shall apply and prevail. It also lays out rules to deal with areas where conflict may arise.
For those who want specificity, as I do, I will read into the record where federal laws will apply. Part V of the agreement specifically states that federal laws dealing with peace, order and government, section 31; endangered species and fish and fish habitat, section 37; and collection of statistics and reporting on natural resources, section 38, always apply.
WFN's jurisdiction does not extend to criminal law. That is a very key point. Some critics of this have said, “There goes criminal law”. It does not apply to criminal law. It is very clear if one reads the agreement.
It does not apply to areas of protection of the health and safety of all Canadians. It does not apply to intellectual property, and broadcasting and telecommunications. Federal provisions still apply. Maybe that is too bad. I might have said to the Westbank First Nation that it should put in something that protects it from the CBC, but it is still going to be open to that exposure. The laws here still do apply.
It goes on to state that nothing in the agreement will affect, and this is very important, national defence, security and public safety, the application of crown prerogatives, under section 40. Westbank is required to take all necessary measures to ensure compliance of its laws and actions with Canada's international obligations. Westbank First Nation's jurisdiction does not apply and interfere in the area of agriculture, under section 141, dealing with interprovincial and international trade, commerce and agriculture.
It is very specific. If there is a chance that a conflict exists, each part of the agreement lays out rules that could deal with that eventuality. In many areas, such as environmental protection, section 150; environmental assessment, section 166; agriculture, section 144; traffic and transportation, section 211; certification of trades and professions, section 289; federal laws prevail in the event of a conflict. They have also imposed upon themselves a standard that if they are putting standards in place on the first nations regarding any of these areas, they have to at least meet or beat federal standards. That applies in all of these areas. It is very clear when it comes to provincial law, section 34 addresses the fact that provincial jurisdiction applies. The charter applies. Section 24(1) of the charter states:
Anyone whose rights or freedoms, as guaranteed by this charter, have been infringed or denied may apply to a court or competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances
In addition to the charter protection which it speaks to very specifically, the agreement provides that prosecutions of Westbank law will be heard in the provincial court of British Columbia. Some people are going around saying that if there is a prosecution on the Westbank First Nation, it will never get to appeal in the courts if one is a non-native. That simply is not true. All of the same protections and procedures that are available for non-natives off reserve are there for non-natives on reserve.
Section 48(a) of the agreement states that the judicial review procedures act of British Columbia applies to Westbank First Nation and application for judicial review will be heard in the Supreme Court of British Columbia under that act. The provisions are there also regarding provincial jurisdiction.
Are there some other areas where they are very specific? I ask myself a question when it comes to legislation. Are things going to be generally better in terms of rights and responsibilities for natives and non-natives on that particular reserve, or are they going to be worse? Let us look at some of the areas where there is improvement.
Matrimonial law up to this point in time across the nation on aboriginal reserves is not defined. We have heard from many people upon dissolution of a marriage, which is an unfortunate time and not an easy time, many times the women on reserves have no resource in law to go to in terms of assessing where assets will be applied and who will get the house or the property.
Matrimonial application upon dissolution regulations are going to be entrenched. That puts them in a better situation. That brings them to our level in terms of non-native laws.
A groundbreaking area is property rights, and it is a bit of a double entendre in saying that property rights is a groundbreaking area. This is very exciting for me. Fundamentally we cannot have prosperity in a country or jurisdiction unless there are property rights. That is fundamental to prosperity. Property rights are being written into this agreement in a way that has never been there before. If one could establish that one owned a home or property, one was subject to either ministerial whim or, and these council members will admit this, the whim of a chief or council. They might decide on whether one would get to keep a house or whether one would get to have a lot or land.
Now there will be a land registry system. Normal rules for acquisition of property are going to be put into place. Property rights are going to be entrenched in the Westbank First Nation agreement. There is going to be a codified land registry system. Mortgage values will apply. That native person will have that land and will not have to worry that if the council changes or someone on council or the chief is upset with that person, he is not going to lose the land.
I find that somewhat ironic. The Westbank First Nation wants to write in property rights. Communist China did it several months ago and our own federal government will not do it. If the federal government is listening, it could look at codifying our property rights also.
There are other areas where there is considerable improvement. Some people have thought that before they codify the land and the property rights that there will be a rush for people in power on Westbank First Nation to grab land. No. There is a freeze on any new allotments of land until the land registry system is in place on the reserve.
Taxation without representation has been an issue, especially for non-natives. It is very clear that non-natives now or at any time in Canada living on reserve land, they move on to that land accepting whatever lease agreement they are given. They also have to accept the fact that they do not have direct representation in terms of taxation. That has been the case since 1867. We say somewhat ruefully to our non-native friends on reserves that they have taxation without representation, but they should try taxation with representation and then see if they like it. It is not always that wonderful.
My wife and I live in a small condominium. A couple of weeks ago at a meeting of our condominium association the owners of the units developed a budget. We talked to the people who rent the units in our condominium development and told them that the fees might be going up. We told them what we were going to do, but they did not have the option of having a vote because they were renters. They did not own or have title to that land. They did not have taxation with representation. They had to take the chance and trust that we the owners would treat them well, and I think we did. But they did not have taxation with representation.
Aboriginals do not have that right on aboriginal land, but there is an improvement in this particular agreement for them. It is written in the agreement that there shall be an advisory council made up of non-natives who will elect among themselves, not be appointed, their appointees to the advisory council who will work with the band in terms of consultation and input. They will have no final say. They have never had it since 1867. We can try to change that if we want to wait another 100 years and try to change the Constitution. This agreement gives added ability for non-natives to have a say on issues relating to taxation.
There are provisions in this new agreement that do not exist now for non-natives that are similar to what we call landlord and tenant provisions. Non-natives will have a clearer sense of where they are going.
The Westbank first nation has a proven record of financial and fiscal accountability. Two hundred non-native businesses would not be registered and working on that reserve land unless they had a sense of financial accountability. WFN has established its credibility in the area.
Business people, on or off that reserve, have a high degree of respect for the business acumen and the accountability of bands in the Westbank first nation. In spite of that, provisions are written in relation to fiscal accountability, transparency, how funds are handled, where they go, and total availability and access of records.
A recall provision has been included in their election process. If their own members are deemed not be handling finances correctly, they can be recalled after being elected. I would like the federal government to listen to that. Our party has long been calling for recall provisions. The Westbank first nation has put in provisions to give its members the ability to recall. They have also included fixed date elections which is a great idea. The Westbank first nation is putting them in place along with all of the other things, and yet our own federal government will not do that.
Just as there are non-natives who like this deal, there are natives who are opposed to it. There are those who simply and sincerely do not agree with the provisions. There are some natives on reserve who have said to the Westbank first nation chief and council that they feel everything is being given away and they do not like that. They feel they are being left with nothing and all their powers are being taken away. There are some who say they want to stay under the Indian Act and do not want any powers at all except for the federal government to kick them around.
I met with some natives who had an important concern. They recognize aboriginal culture and tradition, but they also want assurances that there will be respect for a diversity of spiritual belief on reserves. There are many people on the WFN and other reserves who have been Christians for generations and some who are new Christians. They want to ensure that tradition is respected as well as other traditions. The charter and our Constitution applies. The preamble of our Canadian Constitution recognizes the supremacy of God and that applies as does the charter of rights. We cannot discriminate against people based on their particular beliefs
I will say again, virtually every time I have had a meeting on a first nations reserve, that meeting has started in prayer, sometimes a very distinct Christian prayer; other times it might be one where the prayer was directed toward a creator or a spirit. There is a variety, but they are respected, more so than we see in a non-native society. I just want to ensure that those provisions are there.
The last point here--and something that really shows the lack of trust that sometimes exists--is that there is a provision about intoxicants on reserve, giving the Westbank first nation the ability to deal and ban certain substances which we, in our society, might not even consider banning, but that are a threat on the reserve.
My wife and I have worked in the past with organizations dealing with people, mainly non-natives but sometimes natives, dealing with substance abuse. It is a very painful thing for an individual or a group to stand up and say that we have some problems in that area. This is a very transparent recognition on the part of the Westbank first nation people. They have brought in some ability to help them deal with that if they have to. Some members in the House have said “Do you know why they want to do that? It is because secretly they want to sell marijuana”. That must be painful to members of the Westbank first nation who admit that they want to protect their own people.
As I close, on these and all provisions, I will say this, is the situation better for natives now with this agreement? Yes, it is. Is it better for non-natives? Yes, it is. Is it perfect? No, it is not, nor are any of the other laws that are constituted in this place, but it is a hallmark of responsibility. It is a hallmark of those who want to move ahead and pursue their hopes and dreams under transparency and responsibility, and I support that.