Ted McWhinney

[Petitions, March 15th, 1999]

Mr. Speaker, pursuant to Standing Order 36, I have the pleasure to present a petition on behalf of the Oakridge Lutheran Church of Vancouver, calling on parliament to review the mandate of the CRTC and asking for a new policy encouraging the licensing of single faith broadcasters.

[The Late Jack Webster, March 4th, 1999]

Mr. Speaker, Jack Webster, who died on March 2 of heart disease at the age of 80, immigrated to Canada from Scotland in 1949.

He first worked as a reporter for the Vancouver Sun , but it was later as a radio and television broadcaster that he really left his mark, pioneering the open line show format and inspiring a generation of broadcasters.

Ferociously combative but with a colourful imagination and robust sense of humour, he liked to tilt at windmills and challenge the status quo. In a real sense he anticipated the new people's power, the late 20th century emphasis on direct public participation in community decision making.

[Petitions, March 4th, 1999]

Mr. Speaker, I have the pleasure to present a petition with 318 signatures on the subject of genetically engineered foods. The petitioners ask for parliament to legislate clear labelling on all genetically engineered foods as well as testing these products to ensure they are safe for human consumption.

[Foreign Affairs, March 3rd, 1999]

Mr. Speaker, my question is for the Minister of Foreign Affairs.

Last December the International Court of Justice rejected Spain's suit against Canada in the fisheries jurisdiction case. The verdict removed earlier questions as to the effect of the 1982 UN convention on the law of the sea on Canada's legal case before the court.

Will the minister consider proceeding now to ratification of the convention?

[First Nations Land Management Act, March 1st, 1999]

Mr. Speaker, it is a privilege to intervene at this stage of the debate on Bill C-49. We are at report stage. I remind hon. members that third reading is still to come and after that to the Senate.

We sometimes tend to think in terms of dichotomous divisions, watertight departments and divisions between the different organs of parliament.

I would like to pay tribute to the very helpful discussions on this bill I have had with members of the Senate, both government and opposition members, and members of other parties in this House, more particularly on the larger public issues with which it is bound up. It is legally and constitutionally separate and distinct from the Nisga'a treaty to which a lot of us have given a lot of attention. It is separate and distinct from the Musqueam leaseholders issue. In the public mind it is part of the general discussion and our thoughts could never be completely divorced one from the other.

I take notice of the fact that although it is an area in which I have had some pre-parliamentary experience, there are some massive briefs by lawyers presenting arguments on this issue which I am studying in some detail; some communications by leaseholders, by both native and non-native leaseholders; some by native women. We recognize of course that no one of our legislative acts in Indian matters is a template for other matters. That was the original confusion, if I can call it that, of the provincial government of B.C. Each act is historically separate and should be seen on its merits. Nevertheless, certain points are common in respect to them.

I have advanced the view that I have problems with section 35(3) of the charter of rights, which was an amendment adopted after the charter was enacted in 1982. I have some problems with it, but nevertheless it does remain my view that the better interpretation is that all matters in this area are subject to the Constitution and to the charter of rights. This means that the larger charter principles of due process in its procedural sense and its substantive sense are applicable to all subsequent measures that may be made in this area.

In some areas, and the Nisga'a treaty is an example, it is stated explicitly, and if one wishes a subordination to the charter of rights and to the Constitution, there is the case for making assurance doubly sure and stating that in terms. But I would say again that it is not constitutionally necessary to do that.

I would also think that it is implicit in the subjection to the charter that judicial review and recourse to the Supreme Court of Canada remain an ultimate resource in every situation.

There would be merits at some stage in the proceeding—and it is a long march I think to the issue of native self-government within the Constitution—in adopting some form of general code. But the procedure that all parties have agreed on, provincial government, federal government and others, is that this would do less than justice to the special historical facts and circumstances of each of the individual agreements. But it should come and I would envisage in that case, if there were some sort of general code, that the explicitness in relation to the Constitution and the charter would be made. The provision for a dispute settlement process, some form of third party adjudication, arbitral or otherwise, a mixed commission of which there are many comparative law models, would be there apart from the court itself.

What I am saying is that we are at certain steps along the road. This particular bill is at the moment limited to 14 nations of which five are from B.C., although others can opt in. I do believe that the proceedings in this House, the further debate to occur this afternoon and at the next reading, as well as the deliberations in the Senate which could include hearings as well as study, will help take us further in the search for the best form of expression of the imperatives of giving heed to the concept of self-government within the Constitution for Indian nations, the concept of control over property, but subject again to the constitutional rights that apply to all Canadians and to rendering them uniform in some later general code.

The debate has been helpful and constructive in the general Canadian community, including, I would stress, B.C. We sometimes are more heated in our statements, but it is the way of arriving at constitutional truths and I would like to pay tribute to the thousands of people, and I stress that, who have communicated with me over the last two months on aspects of this general problem. We have tried to answer each letter individually and respond to each individual case. The message is “I am still working. I appreciate the co-operation that has been extended by everybody in this House, the Senate and those whom I have discussed it with. The book is not closed”. I believe that constructive changes can occur in the general process of self-government within the Constitution and in the control and ownership of lands which are being spelled out at the moment by several distinct and separate measures of the government and which will also be present in each of the 50 treaties still to be discussed.

This is my comment at this stage. I hope to have studied the briefs in great detail, and they do require detail. I hope to have more specific recommendations to make. But I repeat again, even in the absence of express mention and in the Latin phrase, making assurance doubly sure that we have in the Nisga'a treaty, that the general constitutional rules prevail and are paramount, including the charter of rights. And so the protections are given to all Canadian citizens, especially including the Indian communities, but they also exist in relation to the parties.

[Land Mines, March 1st, 1999]

Mr. Speaker, the land mines treaty enters into legal force today, a scant 15 months after it was opened for signature in Ottawa on December 1, 1997. It has already been signed by 134 states.

While attention focuses on the few holdout states, which include key permanent members of the security council, it may be argued that because of the wide representation, among its signatories, of all main political, ideological, cultural and regional groupings of the world community, the treaty has already entered into general customary international law and has become legally binding as such on signatory and non-signatory states alike. Dicta in recent jurisprudence of the World Court confirms such a legal thesis.

[Peacekeeping, February 17th, 1999]

Mr. Speaker, I will be sharing my time with the hon. member for Mississauga South.

This debate is in many respects a reprise of the debate we had in the House on October 7, 1998 on the peacekeeping issue. It enables us to reiterate some points in the evolving constitutional law of parliament.

This government is not the Government of the United States. We are not bound by the United States constitution. The power to make war, to declare war, is within the prerogative power of the executive alone here. Even in the United States undeclared wars, which are the phenomena of our times, are a different constitutional system.

What our government has done is to engage, to submit to the House of Commons any question of the involvement of Canadian Armed Forces in service outside Canada. That is to say, when parliament is in session, we will allow a House debate. When parliament is not in session, a practice which I in fact was the instrument of in the last parliament when I was parliamentary secretary, we will inform the leaders or the porte-parole of the opposition parties of our intention. That is the constitutional law of parliament today. It is part of our conventions and I welcome its reiteration in this case.

The issue that I am addressing myself to is really the issue of international law, the technical base of our involvement, because many of the high policy aspects, the political foreign policy aspects have been already covered.

There are others like Dean Acheson, President Truman's secretary of state, who said that survival of the state is not a matter of law; it is a matter of power. I think most of us would prefer President Kennedy's point that a great state wishes its actions to be in conformity with international law, not merely in terms of the substantive principles but also in terms of the manner of exercise, that the more moderate controls less than force are controlling when they are available.

Our approach to involvement in military operations abroad has without exception been with the United Nations under the United Nations charter. It is our great foreign minister and later Prime Minister Lester Pearson who developed the concept of UN peacekeeping. It was a notion implicit in chapter 6 of the charter as drafted, but until the Suez war it was not an actuality. As has been said in this debate, it involves the interposition of unarmed forces between combatants who normally have already agreed to cease hostilities and want a face-saving way out of that.

The gap between peacekeeping in chapters 6 and 7 of the charter is a very large one. Chapter 7, the imposition of force, gets into the areas that are under interdiction in the United Nations charter itself. The principle of the non-use of force, which is one of the imperative principles of the United Nations enshrined in one of the opening sections, article 2(4) of the charter, is also the key to chapter 7 of the charter. The use of force is outlawed except in the limited situation of self-defence which is strictly defined and in accordance with United Nations practice must be authorized by UN Security Council resolutions.

It is a fact that even in operations that have been strictly chapter 7 operations, for example the original gulf war in 1990-91 where the authority was security council umbrella resolutions, some very general and very many of them under which the United Nations command force operated, there was no direct involvement of Canadian forces in armed military offensive action. Ours was an ancillary role.

This was true again in the activities in 1996 in which we committed ourselves but in which we were not directly engaged. Ours was an ancillary, supporting role. We ourselves have been aware of the difficulty of legal definition and of establishing a legal base when we get into offensive armed military operations.

The issue of regional organizations has been raised. It is true that the legal justification or raison d'être of regional military organizations today comes from the United Nations today and only from the United Nations charter. They cannot exceed the mandate of the United Nations charter. They cannot exceed or transgress the stipulations limiting the use of force which are established in the charter.

In a discussion with a European diplomat in recent days I talked about the issue of whether NATO itself, as a regional security organization, could not give a contractual style legal justification within its region. The problem with that would be within Europe itself. This would exclude the strangers to Europe, and I use that in the geographical sense, Canada and the United States. For our purposes the security council is our source of power.

We are aware of the limitations in article 27(3), the veto power given to the big powers. We are aware of the possibility of a wilful or intemperate use of the veto power to obstruct the primary peacekeeping role of the United Nations. As the member for Beauharnois—Salaberry reminded himself, that was overcome by the uniting for peace resolution in which it was established quite clearly that the UN general assembly could fill the gap.

The case of Nicaragua and the United States establishes that the United Nations does not cover the whole field of international law. There remains the area of customary international law. This is perhaps the most interesting area of international law because it is in the new concept of international humanitarian law. Humanitarian intervention is given a role more noble and more altruistic than its 19th century essentially colonialist application by European and other powers.

It is in this area in which there is not much doctrine—there is certainly no jurisprudence constante in the sense of court decisions—that I think the future lies. It is perhaps best there. If we have reached a situation where common humanity cries out for intervention, that is where the direction for support should be placed.

My advice is to rely on the security council resolution and a recent one where possible, but the new norms of the new international law are there and they have a habit, the new customary law, of galloping along to meet new realities.

[Peacekeeping, February 17th, 1999]

Mr. Speaker, the hon. member for Beauharnois—Salaberry stressed very appropriately the difference between chapter 6 and chapter 7 of the UN charter. There is a huge legal gap between the two concepts.

Did he consider the fact that international common law prevails? That was the ruling made by the international court, in the case of Nicaragua versus the United States.

I support the principle of humanitarian intervention, which was so abused by colonial powers during the 19th century and even at the beginning of the 20th century. Some have raised that possibility. Does the hon. member think this could provide a legal basis for the actions contemplated by the hon. member for Red Deer?

[Public Complaints Commission, February 16th, 1999]

Mr. Speaker, the solicitor general has now approved funding for counsel for those complainants appearing before the RCMP public complaints commission who were directly involved in confrontations with police at the APEC leaders meeting held at the University of British Columbia in November 1997. This follows a request by new commission head Ted Hughes based on unique elements in the APEC hearing as they had developed.

The minister's decision was made after receiving representations from several government MPs. It is an exercise in good faith and good constitutionalism.

[Donald Calne, February 11th, 1999]

Mr. Speaker, Dr. Donald Calne, who received his arts, science and doctor of medicine degrees from Oxford University, is director of the neuro degenerative disorders centre at the University of British Columbia.

He has achieved international stature for his work on Parkinsonism. He introduced bromocriptine as a treatment for Parkinson's disease. He has demonstrated that latent damage occurs in the brain even before the symptoms of Parkinsonism appear. He was recently named Officer of the Order of Canada for his research, writings and contributions to international medicine.