Mr. Speaker, it is an honour to speak to the bill. I certainly agree with many of the points my hon. colleague just made. One point we would have complete agreement on is the status and respect that the Westbank Indian band has in the community.
Westbank First Nation has had the fortune of having been managed by a council that has done extremely well in its economic development policies and its administrative practices. It has been forward looking in terms of community involvement. It has done excellent work.
I really want to echo again the point made about the contribution that the Westbank First Nation has made to the recreational complex. I know I am getting into my hon. member's constituency when I say that because that complex is not in my area, it is in his. However, the Westbank First Nation at this point is in my constituency of Kelowna. That will change with the new boundary change.
I would like to begin my remarks by referring back to the formation of the advisory council. The agreement quite clearly indicates that such an advisory council shall be created. The point has been made that the agreement indicates the members of this council will be elected. I have the official document which contains the agreement. I would like to read into the record the exact statements with regard to non-member representation. Section 54 contains four paragraphs, and states:
a) Non-Members living on Westbank Lands or having an interest in Westbank Lands shall be provided in Westbank Law with mechanisms through which they may have input into proposed Westbank Law and proposed amendments to Westbank Law that directly and significantly affect such non-Members.
There will be an advisory council. It goes on to state:
b) Westbank Law providing the mechanisms required under subsection 54(a) shall be enacted prior to any new Westbank Law being enacted by Council after the Effective Date, or within 30 days of the Effective Date, whichever is sooner.
That suggests that within 30 days of this particular agreement coming into effect, there will be created an advisory council. It goes on to state:
c) Westbank Law enacted to meet the obligation referred to in subsection 54(a) shall only be amended or replaced with the consent of the non-Members living on Westbank Lands or having an interest in Westbank Lands.
Again, that is a very commendatory kind of provision. Finally, it states:
d) Westbank Law enacted to meet the obligations under subsection 54(a) shall provide for the process by which the consent of the non-Members shall be obtained for the purposes in subsection 54(c).
The point I want to make is that within the agreement there is a provision for the advisory council. While some people might argue that it is not a very important detail, to me, and I think to the non-members, it is a very important detail as to how the members of this advisory council will in be determined.
The point has been made that the agreement states they shall be elected. The points I have read do not in any way say that. I have been given a copy of the proposed law that is being drafted by the Westbank Nation. Clause 3 in the agreement clearly indicates that it is the intention of the Westbank First Nation, commencing on whatever day it will be, that members will serve a three year term. Clause 3 states:
Commencing on... and every 3 years after that, an election shall be conducted in accordance with Part...of the Election Code of the Westbank First Nation for the 5 members of the Advisory Council, who shall take office for a 3 year term commencing at the end of the term of the members appointed by the Chief and Council of the Westbank First Nation.
This is the first indication that these people will be elected, and that is good. They absolutely should be elected. However, this is not part of the agreement itself.
The agreement says that there shall be such a council. This is law made by first nations which says how members shall be elected. It is a useful distinction to be clear that this law can be changed whereas the agreement now becomes entrenched in the legislation of the Parliament of Canada. It is an important point to recognize.
I also want to indicate that I have tremendous respect and confidence that the Westbank First Nation will expand and develop further its proposed draft law in terms of the function and operation of the advisory council.
The fact remains, however, that this is a document that can be changed at the wishes of the band council and is not part of the agreement itself. That is a technical point, but it is a significant one.
This is an old chestnut that has been around for a long time, but I would also like to go one step further and read into the record the provision of section 25 of the Charter of Rights and Freedoms. 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.
While section 25 clearly indicates these rights and freedoms exist, it also provides a look forward into the future. Any rights or freedoms that will be granted through a land claims agreement will now be protected under section 25 of the charter.
Some people have argued that it means the charter does not apply. It is quite to the contrary. I think it does apply. However, what this does is create rights and freedoms for one group of citizens that may or may not be the same as those accorded to other citizens of Canada. This is a significant point that needs to be registered.
I want to move on to further point that has to do with the creation of a third order of government. Some people will debate this point. The very fact that there is a debate about whether it does create a third order of government will be fodder for many court decisions and many lawyers will make a lot of money trying to interpret this section.
I would like to place my particular interpretation on this in the context of the Constitution of Canada. The Constitution of Canada clearly has within its confines, because that is how we run our country, all the powers that exist in Canada for any government. It clearly divides it into two parts. First, the federal Government of Canada and second, the provinces.
All the powers are contained within the constitution. Those powers that now exist for the federal and provincial governments are interpreted in terms of the exclusionary principle, or the doctrine of exclusivity. It says very clearly that the authority given to make legislation to one level of government cannot then be taken by another level or order of government. It is pretty clear in a variety of instances here that the law of Canada and the law of the provinces will be subject to the laws of the Westbank Nation.
There will be an endless argument about this. It seems to me that what will happen is the people will argue that Parliament has clearly delineated in the agreement that there will be these kinds of powers for the provinces, these kinds of powers for the federal government and then there will be these powers for the Westbank First Nation.
This suggests to me that a new order or level of government has been created. I am sure there are those who will disagree with this and I guess we will just have to have that disagreement. However, this will probably be the fodder for a number of court cases in the future.
I also would like to briefly refer to the financial accountability and transparency. There is no question that within the context of this Westbank First Nation agreement there is the apparent structure to create transparency and accountability. There is no doubt in my mind that the practice of the Westbank First Nation has been to be accountable and to be transparent, and it has done a very fine job of that.
However, there are certain elements here that are not quite clear. I think it is the lack of clarity that causes me to have very serious concerns about this particular section. First, it divides the revenues and the expenditures of the band into two sections or two silos. The first one is local revenues and expenditures and the second is non-local revenues and expenditures. They are consolidated into a budget document, but the effect of certain provisions creates this very distinct silo. Number one is the provision on capital expenditures. The funds that are collected locally come from two sources. It could be argued that they are all the same, but they are not because the distinction is made in terms of capital expenditures.
First of all, there are those local revenues that come from the members of the first nation, and then there are those revenues that come from those who are not members of the first nation, and these are separate. As for the capital expenditures with the money that is collected from the first nation, if the capital expenditure exceeds $500,000 it requires a special meeting and a referendum in order for that proposed expenditure to go through.
When it comes to the capital expenditure of moneys that are collected from non-first nation members, then the $500,000 cap does not exist. In fact, there is no cap. This is why the advisory council becomes so very significant. Admittedly the advisory council has no direct input; it has an advisory function only. The Westbank law should, and must in my opinion, clearly identify what the relationship will be between the advisory council and non-members. The bulk of this local revenue will come from non-first nation members. Therefore, it is really important that these people be consulted and have significant input into the decisions that affect them directly.
My concern here is not so much that they have a vote on the council. The significance here is that there must be realistic and reasonable democratic participation and representation. That becomes the issue. It is going to be a real challenge for the Westbank First Nation to develop this law so that in fact there can be reasonable democratic representation.
I would suggest, then, that it is a fact that there are some very significant omissions which need to be brought to our attention and developed before we agree to this bill in its entirety. Once again, I want to repeat that the opposition here is not to the functioning of or the operation of or the work that has been done by the Westbank First Nation. Rather, it is to criticize this particular bill from two perspectives. Number one, it is being pushed with undue haste, I think, and I do not know why that is the case. The other perspective is that it is not complete enough in order for us to have confidence that it can in fact form the template for future self-government agreements that might be modelled after this one. That is my concern.