Mr. Speaker, it is an honour to rise to speak to this motion today and to apprise the House of the seriousness of the nature of this motion and why Reform has advanced it.
First, I would like to say that after 130 years of waiting this should be a great time of celebration for the Nisga'a people. It should be a time of putting history behind us, for the Nisga'a people to put their history behind them and to step forward with the new arrangement with the Government of Canada and the province of British Columbia.
This treaty is also the source of much controversy in British Columbia because both the provincial government and the federal government have not bothered to listen to the people of British Columbia and the other people of Canada.
As a matter of fact there is another modern treaty in British Columbia known as the Sechelt agreement. It is very instructive to note that the Sechelt agreement does not generate nearly the same controversy as the Nisga'a agreement because of the self-government provisions in the Nisga'a treaty.
In 1987 the Sechelt people entered into a self-government arrangement with the province of British Columbia and the federal government. It was done through an act of legislation, but it is specifically not included as an aboriginal right within section 35 of the constitution. Therefore it is not protected by the constitution. It is not a constitutionalized third order of government.
The Nisga'a treaty, or the Nisga'a final agreement as it is known, is primarily a self-government deal. This is interesting when we take it against the backdrop of other treaties, the numbered treaties as they are called or the historical treaties, because those treaties are not about self-government at all. They are about the exchange of land, resources, cash consideration and other considerations in return for the surrender of lands for the benefit of all Canadians. That is the history of the numbered treaties in Canada.
The Nisga'a treaty is not about that. It is primarily a self-government arrangement. It is a relatively new initiative, this self-government initiative. The concept of it has been around for about two decades now. It came to flower in the Charlottetown accord in 1992. It was one of the five key components of the Charlottetown accord.
The people of Canada, and I might add the people of British Columbia, defeated the Charlottetown accord. In British Columbia, members might be interested to know, it was defeated by almost 70%. It is also instructive to note that aboriginal people in British Columbia defeated it at about the same percentage level. This was not an aboriginal-non-aboriginal divergence of views. This was a common view that was held in British Columbia.
One of Canada's most pre-eminent scholars or experts on the constitution, a man who was well known to this side of the House, had some very instructive points to make about the Charlottetown accord and about the aboriginal governance provisions in that accord in 1992 in a speech to Cité Libre in Montreal, and that man was Pierre Elliott Trudeau.
He warned of the dangers of unfettered aboriginal self-government where there was no provision for charter rights for aboriginal people and where there would be such a division of powers between governments and the creation of a new third order of government that we would eventually end up with a chaotic system of governance right across Canada.
This was a man who was leader of the Liberal Party for almost two decades. Whether or not people on this side of the House agreed with all of his policies, we certainly respected his ability to understand, discern and speak about the constitution. He made that his life's work. He was a professor of law and a constitutional expert before he ever became a parliamentarian and before he became prime minister.
After the defeat of the Charlottetown accord we would think that the Liberals and other political parties in Canada would have understood that Canadians did not agree with this concept because they specifically voted no.
The government does not get it. It immediately adopted an inherent right policy. It was in its red book. Everybody remembers the infamous red book in 1993: 200 pages of small print that very few Canadians actually ever read. The Liberals have used that red book to justify an inherent right policy. That inherent right policy means that it has adopted a policy of recognizing an aboriginal inherent right to self-government. Until Nisga'a came along we really did not know what it meant.
I recall writing letters to the Minister of Justice and the Minister of Indian Affairs and Northern Development back in 1993, 1994 and 1995 asking what was meant. We never got an answer. We got a bunch of mumbo-jumbo, airy-fairy, pie in the sky motherhood answers, but we did not get a specific answer as to what they had in mind. Now we see it in the Nisga'a agreement and what we see goes against the express wishes of Canadians including aboriginal people from coast to coast and for what they voted in 1992 on the Charlottetown accord.
I want to get into some of the specifics. The federal and provincial governments in the Nisga'a treaty have agreed to cede legislative authority in at least 14 specific areas for all times. I remind the House that the Supreme Court of Canada in 1950 in the Lord Nelson Hotel case had the following to say about the division of powers in Canada's constitution vis-à-vis legislative authority of the provincial and federal governments. I quote Chief Justice Rinfret:
The Parliament of Canada and the Legislatures of the several Provinces are sovereign within their sphere defined by the British North America Act, but none of them has the unlimited capacity of an individual. They can exercise only the legislative powers respectively given to them by sections 91 and 92 of the Act, and these powers must be found in either of these sections.
The constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled.
Chief Justice Kerwin further wrote:
The British North America Act divides legislative jurisdiction between the Parliament of Canada and the Legislatures of the Provinces and there is no way in which these bodies may agree to a different division...To permit such an agreement would be inserting into the Act a power that is certainly not stated and one that should not be inferred.
The Supreme Court of Canada's ruling, which was unanimous and unequivocal, says one order of government could neither give away to nor receive from another order of government its rights and jurisdictions as defined under sections 91 and 92 of the constitution.
The federal government did not consult Canadians on this matter. It did once in 1992 but it did not listen to the answer. British Columbia as a result of the federal government's unilateral decision has agreed to give up this legislative jurisdiction and authority, going precisely against what the Supreme Court of Canada said in 1950 in the Lord Nelson Hotel case that it was not permitted to do.
How does this affect real people on the ground in British Columbia and in the rest of Canada? This will have implications. This will reverberate back and forth across the country before all is said and done.
The charter rights of Nisga'a people have been put in peril as a result. Even though it says in the agreement that the charter applies, it also says in the charter when speaking about rights and freedom, that the guarantee shall not be construed as to abrogate or derogate from any aboriginal treaty or other rights or freedoms.
By constitutionalizing the self-government arrangements the government has made the Nisga'a treaty an aboriginal right. It has therefore put the aboriginal right ahead of the charter rights of Nisga'a individuals. There is no doubt about that whatsoever and there will be profound implications for Nisga'a people down the road.
We will be talking about this subject more today, but our concern is the unconstitutional initiative the government has taken against the Supreme Court of Canada ruling in 1950 and the diminishing of the charter rights of Nisga'a people.
