Madam Speaker, we have repeatedly heard the arguments of our esteemed colleagues in the Reform Party. They have repeatedly been shown that their allegations run totally contrary to fact.
The Nisga'a final agreement represents an important page in Canadian history. That is why I want to take this opportunity to set out a number of these facts, once again.
First and foremost, I must point out that the Nisga'a treaty was negotiated within the context of the Constitution of Canada. All of the provisions set out in the treaty may be realized within the scope of the Constitution as it stands. I hope members will allow me to elaborate.
Section 35 of the Constitution Act, 1982, recognizes and confirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada. However, we do not know specifically the nature and scope of these rights.
Unsettled claims involving ancestral rights, have, in many instances, slowed economic development. Accordingly, in an effort to define ancestral rights, a number of issues have been put before Canadian courts.
We have learned a lot about ancestral rights through the decisions of these courts, but this new knowledge was not enough to resolve once and for all the disputes arising from the claims that are still being made in this regard.
In the most recent cases relating to the existence and nature of ancestral rights in British Columbia, the Supreme Court of Canada concluded that, if there were no treaties, provincial lands could be subject to ancestral rights.
On the other hand—and this is more important still—the courts declared that ancestral rights are group and region specific. In other words, when the courts examine questions relating to ancestral rights, they do so according to the specific facts presented to them, and in relation to the specific group involved.
Consequently, if certain general principles arise out of the current case law, we still cannot count on court decisions to reach conclusions on ancestral rights which could be applicable to all regions of Canada or of British Columbia.
It can take up to ten years for a decision to be brought down in certain cases relating to ancestral rights. What is more, a specific decision might not settle issues applicable to other regions. Let us imagine then, how long it will take and how costly it will be to settle the issues that are still outstanding in British Columbia. It is inconceivable. We also need to keep in mind that, in certain cases, general acceptance of the outcome is not likely to be easy.
Like the courts, the present government agrees that the best way of settling outstanding issues relating to ancestral rights is to take the negotiation route rather than the legal one. Litigation involves conflict and can damage good relations, while negotiation involves reaching mutually acceptable solutions and establishing better relations. This is the approach favoured by Canada.
In Canada, treaties are the traditional method of negotiating solutions to outstanding ancestral rights issues. As with existing ancestral rights, treaty rights are also recognized and confirmed under section 35 of the Constitution Act, 1982.
The treaties covering most of Canada were signed prior to 1927. However, this process was never carried through to completion in British Columbia. The Nisga'a treaty is the first modern treaty to be signed in British Columbia. It definitively resolves the outstanding ancestral claims of the Nisga'a. These concern primarily rights to land and resources, and the right to self-government.
In 1995, the Hon. Ronald A. Irwin published a guide entitled “The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government”.
This approach signals an evolution in the long established thinking on this issue. For decades, Canadians looked for ways of reconciling the prior presence of aboriginals in this country with the sovereignty of the state.
Long before the arrival of the Europeans, aboriginals lived in this country and managed their own affairs. In British Columbia, and in other regions, the First Nations had well established social systems and forms of government.
Under section 35 of the Constitution Act, 1982, existing ancestral rights are recognized and confirmed. The federal policy on the inherent right of self-government adopted in 1995 recognized that the rights provided for under section 35 included the right to self-government. This shows that Canada is prepared to negotiate concrete and attainable agreements in this regard and to include them in treaties.
There are differing opinions on the scope of inherent rights, as there are on other ancestral rights. The present government, however, has chosen to resolve self-government issues by negotiating concrete agreements according to the Canadian constitutional and legal framework.
If I may, I would like to give a brief explanation of how a negotiated agreement works in the current constitutional context in relation to ancestral rights to self-government.
The Constitution Act of 1867 determines the legislative jurisdictions of the federal and provincial governments. These are defined primarily in sections 91 and 92 of that Act.
The scope of ancestral right to self-government may vary according to the specific situation of the first nations community involved. Consequently, under section 35, the ancestral right to self-government must be considered on a case-by-case basis.
That is what happened with the Nisga'a. The Nisga'a final agreement does not merely define all rights relating to lands and resources to be enjoyed by the Nisga'a according to section 35 of the Constitution Act, 1982, it also identifies the rights to self-government they will have under that same section. The Nisga'a treaty makes no change to the federal and provincial areas of jurisdiction defined in sections 91 and 92 of the Constitution Act of 1867.
According to some, the Nisga'a final agreement created, de facto, a third level of government and this would require a constitutional amendment. The significance of a third level of government is not clear; what is clear is that the Nisga'a final agreement works well within the present constitutional context.
The protection of rights under section 35 of our Constitution does not mean that these rights are inflexible, as some critics would have us believe. Although protected under section 35, they are not absolute.
A number of Supreme Court of Canada decisions have confirmed that governments still exercise a general power, but have to justify any interference into ancestral or treaty rights. The Nisga'a government will evidently carry out its activities within the Canadian constitutional context.
Anyone who has consulted the final agreement knows that the Canadian Charter of Rights and Freedoms will apply to the Nisga'a government. This means that Nisga'a laws will be subject to the charter, like the entire decision making process of the Nisga'a government with respect to such things as licensing or the sale of lands. The Nisga'a government will have to comply with the charter like any other government.
At the risk of repeating what has been said over and over again, federal and provincial laws, including the Criminal Code, will apply on Nisga'a land once the treaty takes effect. Although in certain isolated instances, Nisga'a law may prevail, the Nisga'a will have no exclusive legislative powers. Theirs will be a parallel legislative model.
The Nisga'a laws will take precedence in issues of internal management exclusive to the Nisga'a only. They may be, for example, laws concerning their culture, their language or the management of their land or their assets.
In all other instances, federal and provincial legislation will take precedence, otherwise the Nisga'a laws will have to meet federal or provincial standards or exceed them to be enforceable.
It should be clear to all those carefully examining the Nisga'a treaty that it falls perfectly within the scope of the Canadian Constitution.
Perhaps those who claim that the Nisga'a final agreement is unenforceable without an amendment to the Constitution of Canada simply do not understand the importance of negotiating the reconciliation of ancestral rights within the Canadian federation. Do these people perhaps want to be able to impose arbitrary solutions unilaterally? For our part, we are in favour of negotiation and reconciliation.
We all know where unilateral decisions might lead. History is full of examples of solutions imposed by one group on another. Where feasible, lasting agreements are more easily reached when they have the support of all those to whom they apply.
To conclude, the Nisga'a final agreement is a solution that has been negotiated within the Canadian confederation. It reconciles the rights of the Nisga'a with the sovereign rights of the government, as well as respecting the interests of other Canadians.
I strongly urge all members to put behind them the erroneous and petty arguments advanced by Reform Party members and to support the implementation of the necessary legislation.
In ratifying this treaty and giving it effect through this bill, we will be welcoming the Nisga'a into the Canadian family, while at the same time respecting their dignity and giving them the means to protect their culture and their language.
