Mr. Speaker, I am pleased to address this very important issue.
I come from British Columbia and probably have a different view on the whole situation with regard to treaties, land claims and agreements. The B.C. situation is quite different from that in the rest of Canada. Elsewhere treaties have been in place for a lot of years. In B.C. there were only two very small treaty areas prior to the Nisga'a agreement of some years ago. B.C. is wide open and subject to setting a lot of precedents for the future perceivably right across Canada.
I want to say right off the bat that I am very much in favour of resolving this whole land claim and native agreement issue. It is something that is seriously impeding progress especially in British Columbia where any project now has to be vetted by the local aboriginal group. I do not have a big problem with that, except that the vetting process should not be a veto process, which it tends to become from time to time. Resource development projects, which is usually what they are in my part of the world, affect people who live in the area and it is only right that they should have input. I am very concerned when that input for all intents and purposes becomes a veto. This is a huge concern.
Bill C-11 is intended as an act of Parliament to give effect to the Westbank First Nation self-government agreement. The Westbank First Nation is an Indian band within the meaning of the Indian Act. Its principal reserves, IR 9 and IR 10, are located in an area known as Westside adjacent to the city of Kelowna and the unincorporated community of Westbank. The population of the band is 594, 383 of whom lived on the land as of December 2002 but there may be a few more now.
The land is about 24 acres and is partially developed prime residential and industrial land. There are about, and I think this is a really important matter, 7,500 non-Westbank First Nation people who either live or own businesses on the land.
The purpose of the bill is to incorporate by reference the agreement, approve it and give it the effect of law. The agreement is defined as including any future amendments to the agreement. Thus, the bill incorporates by reference and gives the force of law to a document, part of which is not yet in existence. That has to be a major concern. How can we put something into force of law when we do not know how it will be worded or implemented?
This is known as Westbank law. It is to be enacted from time to time by the Westbank council. Westbank law on numerous subjects may be inconsistent with and will prevail over laws passed by Parliament.
The Westbank First Nation has all the attributes of a self-governing enclave. Canadian citizens, both aboriginal and non-aboriginal, living or working there will be subject to a form of government that for most of them is not elected by them and is unrestrained by any of the checks, balances and safeguards that apply to other governmental institutions in Canada.
I quote lawyer Mr. Chris Harvey, who did a fairly significant indepth review of this agreement:
The substance of the act is contained in the agreement of some 84 pages which is referentially incorporated in the act. This is a remarkable piece of legislation. It amounts to an abdication of the sovereign law-making and executive authority of the Crown in Parliament. Its effect on the people residing and working in Westbank is to remove many of the fundamental political and legal safeguards that support their freedoms and security. This is completely out of character in a modern liberal democracy committed to equality of opportunity and individual rights. It is surprising to see basic legal rights which have been acquired gradually over many years of political struggles being so abruptly discarded.
Many of the provisions of this legislation are contrary to accepted norms of parliamentary practice in Canada. Some of the provisions are so clearly inconsistent with such norms that they may be said to be unconstitutional in law.
Every citizen of Canada, aboriginal and non-aboriginal alike, is entitled to be governed by laws which are passed or authorized by a democratically elected parliament, provincial legislature, or town council for that matter. Law-making authority may be delegated down to subordinate institutions, but it is not acceptable in such an arrangement that the subordinate institutions be authorized to supplant Parliament and Parliament's laws by passing laws that are inconsistent with the laws of Canada and prevail over them.
The municipal style government is obviously very successful and is the closest form of government to the citizens of Canada. I was the mayor of a small town for a number of years and was on council for 24 years. I certainly understand how answerable to the people municipal style government is. It is the most direct and closest form of government. It is still delegated down from the province and the federal government.
It has long been held by the highest court in Canadian law that constitutional powers in Canada are wholly and exhaustively distributed between the federal and provincial governments. The concept of a third order of government, though much discussed in economic and political circles, has never gained recognition in Canadian constitutional law.
The academic debate as to whether there exists in law an inherent right of self-government is reflected in section 1(a) of the agreement which provides:
The purpose of this agreement is to implement aspects of the inherent right of self-government by Westbank First Nation on Westbank lands based on the recognition that the inherent right of self-government is an existing aboriginal right within section 35 of the Constitution Act, 1982.
The inference in this statement is that such a right was an existing aboriginal right when the Constitution was passed and that Parliament has been asked merely to recognize that fact in this section of the agreement. This is plainly incorrect.
In a recent case the Newfoundland Court of Appeal again affirmed the sovereignty of Parliament. In Dawe v. the Town of Conception Bay South, the judge stated that Parliament and the provincial legislature are established by the Constitution as the supreme and only legislative bodies and given that all power must be founded on the Constitution there is no remaining room for inherent powers of government.
A concern with the Westbank agreement is the protection under the inherent clause that basically would set aside any right for non-aboriginals to make any sort of claim or go to court based on a constitutional matter. That is a big concern.
Although the agreement is expressly not a treaty, it is brought within section 35 of the Constitution Act by the government's recognition of the inherent right of self-government, as I have already said.
It must be remembered that all those living and working on Westbank lands, approximately 90% of whom are not aboriginal or members of the WFN at present, have their full rights and freedoms guaranteed under the charter. Section 15 of the charter provides:
Every individual is equal before and under the law and has the right to the equal protection and the equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability.
The charter further provides:
Notwithstanding anything in this charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
Without altering the legislative authority of Parliament or the provincial legislatures or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the Government of Canada and the provincial governments are committed to promoting equal opportunities for the well-being of Canadians.
Although I have a lot more to say on this issue and hopefully will have the chance, I will close by saying that these fundamental rights which have been developed in Anglo-Canadian law and reach back to the Magna Carta are today more or less all grouped together in the charter. Rightly or wrongly, they are referred to as charter rights.
This is why Bill C-11 and the agreement need careful scrutiny. A simple amendment is needed to remove reference to the inherent right of the aboriginal right of self-government and to section 25 of the charter, so that all citizens would have unimpeded access to the Charter of Rights and Freedoms.