John M. Cummins

[Avian Flu, April 20th, 2004]

Madam Speaker, I am pleased to be able to address this very important issue this evening. As we all know, this virus, as we are told, is probably spread by wild birds and has struck chicken and turkey operations in British Columbia's Fraser Valley. I think the Fraser Valley alone represents 84% of B.C.'s $1 billion poultry industry. That is a huge industry. The impact on our communities in the Fraser Valley at large will be significant.

We should emphasize that this virus is not the same strain as the influenza that jumped the species barrier in Southeast Asia and infected 34 people, killing 23. There is some comfort to be taken from that particular fact.

We are told that on Monday, April 5, the Canadian Food Inspection Agency ordered a cull of the 19 million birds to determine the bird-to-bird vector of the disease. Visitors, workers and vehicles from farm sites are being disinfected as a result. Warning notices are being posted throughout the region. Farms that have been depopulated and disinfected will then have sentry birds posted in them for 21 days. Those birds will then be tested. If they are found to be clean, the farmer may begin to rebuild his operation. Poultry industry officials are in agreement with these actions.

To date, we are told, 13 commercial barns have been infected. It is suggested that there are 10 backyard flocks infected as well. We are not too sure of the definition of “backyard flocks”. We are told, for example, that in Cloverdale a barn was shut down but there were some 10,000 birds in there. This farmer apparently did not have a commercial quota. He dealt with a specialty product so he was not considered a commercial operation.

The concern for the commercial operations in British Columbia cannot be overemphasized, as I mentioned just a moment ago. We are talking about a $1 billion industry here. But there are other concerns as well, which I think are equally important, and they have to do with many of the small operators and collectors, for example, who have birds in backyard operations, some exotic species and so on.

Just as an example to show how significant this problem is, I would like to bring to members' attention the issue of Clayton Botkin. Clayton is a young man who lives in my riding on his dad's acreage. Back in 2002, he was a recipient of one of the millennium scholarships. He was a local excellence award winner. This is a young man who is a good scholar and, as members will see, he is a very enterprising young man as well.

Clayton is an avid aviculturist. He has a collection of over 200 birds, including many endangered and threatened species. Since 1999 he has been the junior director of the Fraser Valley Poultry Fanciers Association, and from 1999 to 2000 he was junior director of the Vancouver Poultry and Fancy Pigeon Association. Under his leadership, the number of active members in the Fraser Valley Poultry Fanciers Association has tripled.

I have visited this young man's facility and I have seen the birds he has. They are absolutely amazing to see. Obviously I am not an expert in these matters, but it is quite intriguing to take a look at the variety of birds that he has. He has birds from around the world there. Essentially, these birds are irreplaceable. They are expensive.

He has managed to gather this collection there, yet he is concerned because since this outbreak of avian flu nobody has contacted him. Nobody has given him any specific instructions on what he should do to protect these unusual birds he has. He attended an information night about a week ago at the Seventh Day Adventist Church in Abbotsford, but that was of his own volition. He has searched the net for any information he can find that would protect him and his flock, yet that information is not being made readily available to him.

I think there is a real concern here. This is tragic. In many respects, these birds are pets. They certainly are exotic species. Whether or not this flu is transferable to them no one knows, but the sad story is that Clayton has received no instruction from the government, no directions on what he can do to ensure the survival of his birds. Certainly there is no indication from the government that if his birds are to be culled he is going to receive compensation. I have heard estimates that the 200 birds he has in his backyard may be worth in the neighbourhood of $50,000, so this is not a trifling matter.

This is a young man in his early twenties. He is a very enterprising young man and, I might add, a good scientist as well, because he is very knowledgeable in these matters. His only asset is at risk and he has received no help and no instructions at all from the government.

There is another organization in my riding that again is not a commercial operation but is an operation that is at risk. For all intents and purposes it has received no instructions from the government on what to do. I am speaking of a woman by the name of Bev Day who runs the Orphaned Wildlife Rehabilitation Society in Delta, or OWL as it is commonly known.

OWL is a non-profit organization that operates in Delta. It is a rescue organization. At any one time OWL will have any number of eagles and owls and other birds that have been injured and brought to the centre for rehabilitation and a return to health. It is an amazing operation and a great concern because it has great support not only in my community of Delta but throughout the lower mainland. Many school groups visit to be educated about the birds and the importance of maintaining a habitat for the birds. It is a remarkable operation.

Bev has a couple of birds that I think are rather interesting. There is a barn owl, two bald eagles with some disabilities, two snowy owls, and other birds that are actually permanent fixtures at the OWL rehabilitation centre, because due to their injuries they are not able to survive in the wild any longer. They are maintained at OWL and are there for the public to view and to help us learn more about our feathered friends.

The problem is that Day has contacted one veterinary official who was unable to provide her with any answers as to what she can do to protect the birds. It is a tragedy, because there are wild species, some of which are at risk in some parts of the world, such as the bald eagles, and this is the refuge for these birds. Because of this outbreak there is uncertainty. It has also interfered tragically with the fundraising. For example, Bev had to cancel the open house fundraiser this year, which is OWL's largest fundraiser. Ordinarily they would collect about $10,000. They had to cancel school tours and so on because of the fear of what may happen to the rest of the flock.

It is really upsetting to people that the government has not been a little more forthcoming in giving direction and in assisting these people. Not only are we concerned for the commercial producers who have a significant effect on our community, but we are also concerned about the smaller flocks, the specialty flocks like Clayton Botkin's or the OWL rehabilitation birds at Bev Day's facility and other backyard and small time hobby farmers who have flocks they would like to protect. I think the onus is on the government to give these people some clear direction on what they can do to protect their flocks and protect the public.

[Budget Implementation Act, 2004, April 20th, 2004]

Madam Speaker, it is a pleasure for me to speak to the budget debate here today. The issues I would like to address are issues related to the Department of Fisheries and Oceans and the Coast Guard, which is part of that organization.

In the event that a large aircraft comes up short in the tidal flats off Vancouver International Airport, the emergency plan for the Vancouver airport requires that two hovercraft be dispensed to bring rescue craft and provide rescue services to that downed aircraft. Hovercraft are the only vessels capable of entering on the tidal flats and of course their presence is almost mandatory, or required, I should say, to effect a rescue.

In the past, we did have two hovercraft available at the Sea Island Coast Guard base. In October 2002, one of those hovercraft was taken out of service due to old age. We were promised a replacement by December of that year. We are still waiting for that replacement. The latest estimate is that it will not be ready until June of this year.

The remaining hovercraft was taken out of service about a month ago due to a serious mechanical problem. It will not be available for service again for probably up to three months. This means that there is no hovercraft available to effect a rescue in the tidal flats off Vancouver, either for an accident at the airport or for any other tragedy that could occur on that very large expanse of water.

Plan B of the rescue plan in the tidal flats called for Department of National Defence search and rescue to provide a Cormorant helicopter to bring rescue rafts to the downed aircraft, but those same planes, those Cormorants, have now been taken out of service and are available to fly only for emergency or rescue services because of their mechanical problems.

So the fact of the matter is that there is no Coast Guard availability for the tidal flats off Vancouver. Absolutely no rescue service whatsoever is available. That, I think, is a very real condemnation of the government's failure in this regard.

I have a copy of the minister's briefing book, which was prepared for the new fisheries minister, the minister responsible for the Coast Guard, and it confirms what I have said. In that briefing note, the minister is told:

The Canadian Coast Guard's on the water capacity to support the government's marine priorities and programs, and marine security, is eroding rapidly. A strong government commitment is needed to reverse this.

The briefing note goes on to state:

...the state of the large vessels in the Coast Guard fleet requires an immediate investment decision by the government--

Thus, the minister has been advised by his own department of the lack of readiness of the Coast Guard due to funding cuts.

However, the funding cuts are not restricted to the Coast Guard. John Fraser, the head of the Pacific Fisheries Resource Conservation Council, noted recently in an annual report that:

Further reductions...fundamentally undermine the capacity to monitor salmon stocks and identify those in need of conservation measures.

Of course in this report we are talking about the west coast fisheries, particularly the salmon fishery. Fraser goes on to say:

The effective management of the salmon resource is confounded and undermined by the downsizing of staff and budgets by both levels of government at the same time.

He goes on to state:

The prospect of even larger reductions in 2004 makes it likely that effective management of Pacific salmon stocks will be further diminished.

The briefing book the minister received on becoming minister gave him ample warning about the problems that John Fraser is now warning us about, another reason why we needed the departmental spending plans, which should have been provided in a more timely fashion. However, let us see how the minister was advised.

The briefing book stated that several internal challenges “threatened the long-term sustainability of DFO's services”.

The notes claim “chronic financial pressures”, some of which date back to program review and “budget shortfalls” in recent years. The notes state “growing program and workload pressures to deliver an increasing range of services”.

The briefing notes go on to say that there were established plans to reduce DFO's staffing by “not filling 15 percent of the positions that will be vacant over the next two years”.

All of that underscores the comments made by Mr. Fraser that the funding cuts by the government will undermine the department's ability to manage and protect the salmon resource on the west coast.

That is further illustrated by the point that DFO was identified as being part of the first round of Treasury Board Secretariat led expenditure and management reviews and was required to contribute $9 million to the $1 billion federal reallocation exercises in the year 2003-04.

DFO will be required again to cut further to support the government spending cuts. I think it has already been cut to the bone as we have illustrated here with a report from the Coast Guard and from the minister's briefing notes on the state of the salmon fishery on the west coast.

These cuts are not restricted to the west coast. The briefing notes prepared for the minister state:

Overfishing and the increasing trend of non-compliance with NAFO measures by foreign fishing vessels outside Canadian waters is a serious concern to the Government. They are threats to conservation and jeopardize the rebuilding of important straddling fish stocks.

These briefing notes also state:

Directed fishing for fish stocks under moratoria (e.g. Grand Banks American plaice), the use of small mesh gear, misreporting of catches, and the use of non-impartial observers are the main areas of non-compliance.

The non-compliance can be attributed in part to the current declining level of detection that in turn contributes to a decreasing deterrent effect.

In other words, the fisheries department is not out on the water, is not monitoring these foreign fishing fleets and that is leading to the increased pressure in the catching of fish stocks that are under moratoria.

The briefing notes state further:

While there is 100% observer coverage on foreign fishing vessels, it has lost its deterrent effect, particularly on EU vessels because observer reports are not regarded as evidence of violations by the EU.

There is also inconsistent and inadequate follow-up to infringements of the NAFO measures by flag States.

Many see this as the result of an ineffective governance regime in the NAFO Regulatory Area.

The fisheries committee warned the government of these ongoing problems and encouraged the federal government to exert some control over these fishery problems on the east coast but to no avail.

What is also very interesting is that cuts are ongoing in the fisheries department of British Columbia. The briefing notes to the minister note that as a result of the core services review conducted by the provincial government, the minister of agriculture, food and fisheries resources have been “reduced by 45%”.

It goes on to say that MAFF is expected to seek greater support from DFO programs which will likely “create funding pressures for DFO”. Provincial cuts are simply being matched by federal cuts which further put the fishery stocks at risk.

I am not very encouraged by what I read in the budget because essentially no mention is made of the problems facing the fishing industry and the Canadian government's ability to fulfill its constitutional mandate, which is to protect these fishery stocks.

I am disturbed by that and I know that fishermen on both coasts will be very upset to learn of the minister's knowledge of the impact of these cuts and yet has failed to ensure that the government addressed these very real concerns.

[Westbank First Nation Self-Government Act, April 20th, 2004]

Explain what it means. You don't have a clue.

[Westbank First Nation Self-Government Act, April 20th, 2004]

Explain. What does it mean?

[Westbank First Nation Self-Government Act, April 20th, 2004]

Mr. Speaker, simply put, the agreement gives the Westbank government an umbrella to shield itself any time a resident seeks to reign on its arbitrary actions with a challenge under the charter.

The lawyer for the Westbank, Micha Menczer, when challenged in the House of Commons committee studying the Westbank bill and agreement, claimed that critics must not believe in the charter, that their complaint was really with section 25 of the charter rather than with the agreement. He stated:

I think that's a misreading. More importantly, section 25 is part of the Charter of Rights and Freedoms. Westbank and the Government of Canada have no power to change that, either by an agreement or even by legislation. That is a matter of constitutional change.

A convenient lawyer's trick, but no, the problem is with the agreement's action to make the Westbank government an aboriginal right triggering section 25 and knocking out the protection of the charter for Westbank residents. The problem is not section 25 of the charter.

The problem is the sections in the agreement that state that the agreement is both a recognition and an implementation of the aboriginal right of self-government. It is those sections of the agreement that trigger section 25. It is the aboriginal right of self-government provisions of the agreement that effectively allow the Westbank government to shield itself from the application of the charter any time it wishes to do so.

In a paper entitled “Westbank self-government agreement will strip away fundamental Canadian rights”, Tanis Fiss, Director for the Centre for Aboriginal Policy Change of the Canadian Taxpayers' Federation, observed:

This is a disastrous piece of legislation. If Members of Parliament pass this agreement, Canada's elected officials will deny certain Canadians the right to vote in community elections and in so doing will strip the fundamental rights of Canadian citizens.

The proposed Westbank Self-Government Agreement, Bill C-11, will shield the Westbank government from application of the Charter of Rights and Freedoms. By doing so, Westbank laws would be immune from a Charter challenge. In other words, Westbank laws could discriminate between residents of Westbank based on their race, religion or gender and the victim of discrimination could not use the Charter to strike down the offence.

Once entrenched in the Constitution based on the premise of an “inherent right” to self-government, this means Section 25 of the Constitution will also apply to the Agreement. The equality rights of the Charter do not apply to Aboriginal communities under Section 25 of the Constitution. This will be the case no matter what is written in the Agreement because the Constitution is the supreme law of Canada.

The federal government plans to use the Westbank self-government agreement as a template for further negations. This piece of legislation will set a precedent which other Indian Bands will follow. Clearly, this Agreement will have national repercussions for generations of Canadians.

Incredibly, all parties in the federal parliament plan to support the measure and have supported it through the first two readings. Given the many flaws of this Agreement, Canadians can only hope their elected Members of Parliament come to their senses and vote against the Agreement.

Mark Milke, in an article in the Calgary Herald entitled “Native agreement flawed”, stated:

One significant problem with the Westbank agreement is that it will deny natives and non-natives some of their charter rights. Defenders already claim that because one section in the Westbank document references it as bound by the Charter of Rights and Freedoms that such freedoms are thus secure. No, they are not. The same section of the agreement the defenders will point to also has this caveat about such charter freedoms: “with due regard for Section 25...”

That's a tip-off. Section 25 grants aboriginal and treaty rights immunity from legal challenges launched from other charter sections.

Christopher Harvey, a lawyer who analyzed the agreement, argues that the new Westbank deal infringes on charter rights and does so through a clever (and improper) juxtaposition of aboriginal claims to self-government combined with the Section 25 rights noted above: “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. It is surprising to see basic legal rights which have been acquired gradually over many years of political struggles being so abruptly discarded”.

If Parliament intends residents to have the right to use the charter to challenge the Westbank government, it must ensure that those sections of the agreement that refer to the aboriginal right of self-government are not brought into law. If Parliament intends to give the Westbank government an umbrella to shield itself from challenges under the charter, then it should pass Bill C-11, the Westbank law act, into law without amendment.

However, a healthier choice of action dictates that Parliament consider the serious implications of shielding the Westbank government from the charter. Westbank residents, like Canadians everywhere, deserve the protection of the charter. It is the right of Canadian citizenship, yet they will not have charter protection if this bill is approved in its present form.

[Westbank First Nation Self-Government Act, April 20th, 2004]

Probably less than five, Mr. Speaker.

[Westbank First Nation Self-Government Act, April 20th, 2004]

Mr. Speaker, the issue here is the application of the Charter of Rights and Freedoms or the failure of the Charter of Rights and Freedoms to apply here, and it is to that issue that I would like to address my comments.

The Charter of Rights and Freedoms is designed to shield individuals from the arbitrary actions of their government. The charter provides individuals with a tool to challenge their government. All Canadians are covered by the charter.

Yet, while all Canadians are covered by the charter, all Canadians are not equally protected by the charter. Some government actions are shielded from the application of the charter.

Section 25 of the charter acts to shield government actions involving aboriginal rights from challenges under the charter; that is, if an individual challenges a government action involving the exercise of aboriginal rights, the government can shield itself from the challenge by claiming that the arbitrary government action involves aboriginal rights.

Charter challenges involving aboriginal rights trigger the section 25 shield.

What has section 25 got to do with the right of Westbank residents to use the charter to challenge arbitrary rights of the Westbank government?

Section 25 has everything to do with the right of Westbank residents to use the charter to challenge the Westbank government. Section 25 will only be available to the Westbank government to shield itself from a challenge under the charter if it can claim that its actions involve the exercise of an aboriginal right. The Westbank agreement makes invoking the section 25 shield very easy.

The Westbank agreement states throughout that the purpose of the agreement is to “recognize” and “implement” an aboriginal right of self-government.

In establishing the Westbank government as an aboriginal right, the agreement triggers section 25 of the charter. This gives the Westbank government the power to shield itself from the challenges of its own residents. All the Westbank government needs to do when challenged is to point out that it is exercising an aboriginal right. End of story.

That is the problem in a nutshell.

For those who think this is a pipe dream, they should give their heads a shake. In Nova Scotia an appeal was made under the Canadian Human Rights Act that a band government was discriminating against a non-native husband. On appeal to the Federal Court of Appeal, the band argued that it had an inherent right to govern and as such it could invoke section 25 of the charter to shield itself from the prohibition against discrimination found in the Canadian Human Rights Act.

The court said:

...[the band] acted pursuant to its inherent powers of self government...this inherent power...is one of the 'rights or freedoms that pertains to the aboriginal peoples of Canada' shielded from erosion by the Charter through s. 25

That was the band's opinion.

The Federal Court of Appeal rejected the band's argument holding that the band government had not been charged under the section 15 equality rights provision of the charter and therefore it could not invoke section 25 as a shield against the equality provisions of the Canadian Human Rights Act.

The court said:

...the answer to the [the band's] contention is three-fold. First, section 25 of the Charter has been held to be a shield which protects [aboriginal] rights...

Second, the named respondents have complained that the appellant's refusal to pay social assistance to them is a contravention of section 5 of the CHRA. Since they did not allege that the appellant had violated section 15 of the Charter, section 25 of the Charter has no application here. Third, the appellant has not established by evidence the unique right which they are asserting and which they say is included in section 25

Second...Since [the respondents] did not allege that the appellant had violated section 15 of the Charter, section 25 of the Charter has no application here.

Third, [the band] has not established by evidence the unique right which they are asserting and which they say is included in section 25

The Westbank government has a step up on the Nova Scotia band. It will never have to make the argument that it has an aboriginal right of self-government and as such that its actions are shielded from charter challenge. The Westbank agreement does all that. It states clearly and unequivocally that the Westbank government is a representation of the aboriginal right of self-government. Any time it faces a charter challenge it need only point to the agreement with the crown that will have been ratified by Parliament. Its actions will automatically be shielded from charter challenges.

In a recent decision, the British Columbia Supreme Court has ruled that section 25 offers a complete defence, or what it called a “complete answer”, to challenges under the charter involving section 7, legal rights of life, liberty and security of person; section 15, equality rights; and section 3, democratic rights of citizenship. It stated:

...Section 25 of the Charter is a complete answer to this argument.

In any case, s. 25 of the Charter itself is as much an answer to a submission concerning sections 7 and 15(1) as it is an answer to the s. 3 submission.

The challenges based upon the Canadian Charter of Rights and Freedoms are answered by s. 25 of the Charter.

Based upon the dangerous wording of the Westbank agreement, it will always be open to the Westbank government to affirm that its arbitrary actions against its own residents are merely an exercise of its aboriginal right to govern and therefore is shielded from a resident's challenge under the charter.

Do members of Parliament really want to create the Westbank government as a charter-free zone where residents will have lost their rights to challenge their own government?

Do members of Parliament really intend to give the Westbank government a shield to protect itself from any and every challenge, no matter how arbitrary its actions have been and how legitimate the challenge might be?

Do members of Parliament really want to create a Westbank government that will have free rein to mistreat its residents and to have that government's actions shielded from any and all challenges under the charter?

The Minister of Indian Affairs acknowledged in the Senate Committee on Human Rights on March 22 that the real and growing conflict between the protection of what he called the “individual rights” identified in the charter, equality rights, political rights and the legal rights to life, liberty and security of person, and what he called the “collective rights” protected by section 25. It acknowledged:

...there is the necessity to reconcile the principles contained in...the Charter of Rights and Freedoms with those contained in section 25, which protects Aboriginal rights....

The Minister of Indian Affairs' acknowledgment of the conflict between the charter rights and section 25, aboriginal rights, differs considerably from his statement on March 10 before the House of Commons committee studying the Westbank bill and agreement. There he said that:

The agreement...recognizes that all first nation members, like all Canadians everywhere, are subject to...the charter.

His statement is patently untrue when an aboriginal right is involved and he acknowledged as much in the Senate Committee on Human Rights on March 22.

All problems in aboriginal governance will not be cured by merely ensuring that everyone has, without question, the right to challenge their government if they believe their fundamental rights enumerated in the charter have been impaired but all problems will be demonstratively worse at Westbank if Westbank government becomes a charter-free zone simply because Parliament has ratified an agreement that expressly identifies the Westbank government as an aboriginal right.

By expressly identifying Westbank government as an aboriginal right, members of Parliament will have, whether intentionally or inadvertently, shielded Westbank government from challenge under the charter and left Westbank residents stripped of their basic constitutional rights, rights that have developed in Anglo-Canadian law beginning with the Magna Carta.

Section 91(24) of the Constitution makes what happens on Indian lands the responsibility of Parliament. Washing their hands, like Pilate, of what happens on Indian lands and at the same time blocking access to the charter by making Westbank government an aboriginal right, will not make members of Parliament less guilty but it will make them impotent to act when problems occur.

Senator Beaudoin, a recognized expert on the Constitution and human rights, said as much to the Minister of Indian Affairs when he chastized the minister on March 22 in the Senate human rights committee stating:

You say that it is up to the Aboriginals to do this. I do not agree. It is our duty here to do that. There are two orders of government in this country—the federal and the provincial. The Aboriginal people have collective rights, but the power to improve the situation is within the Parliament of Canada and I do not think that we should wait for the existence of a third order of government because the power is with the Senate and the House of Commons

Our esteemed colleague in the other place got it right as he so often does. Let us not get is wrong by establishing the Westbank government as an aboriginal right and therefore outside of and shielded from charter challenge. It would be wrong to strip Westbank residents of their charter rights. Let us not do it.

The agreement never claims that the charter of rights fully applies to the Westbank government. Section 32 of the agreement makes it very clear that the charter has limited application to the Westbank government. It states:

The government of Westbank First Nation and Council in respect of all matters under its authority are bound by the provisions of the Canadian Charter of Rights and Freedoms with due regard for section 25 of the Charter--

More accurately, the government of Westbank and its council are effectively bound by the charter when they choose to be bound. When the Westbank government wants to opt out of the charter, it can use the aboriginal rights defence. It need only assert that its actions are merely an exercise of an aboriginal right to govern, as set out in the agreement and put in force by Parliament.

Mr. Speaker, I am aware that my time has expired, but if there was unanimous consent, I would like to continue. It should not take me too much longer.

[Westbank First Nation Self-Government Act, April 20th, 2004]

moved:

Motion No. 1

That Bill C-11 be amended by deleting Clause 3.

[Questions on the Order Paper, March 31st, 2004]

Mr. Speaker, I rise on a point of order. Time may be running out. I asked Question No. 11 on February 2 of this year. It was a question that I first asked on October 28, 2003.

I asked Question No. 13 on February 2 of this year, a question that I first asked on September 24, 2003.

Since that time I have gone through access to information, which tells me that the question has already been answered. The government has had the answer to question but has refused to supply it.

On February 3 of this year I asked Question No. 17 and again there has been no answer.

Two of the questions that are outstanding were asked over six months ago. I think it is time that those questions were answered, Mr. Speaker.

[Petitions, March 31st, 2004]

Mr. Speaker, I have a petition from folks in Swift Current, Saskatchewan, Trail, British Columbia, and Walkerton, Ontario. There are almost 350 signatures. The petitioners note that marriage is the lasting union of a man and woman to the exclusion of all others. They call upon Parliament to maintain the current definition of marriage and prevent any court from overturning that definition.