Ted McWhinney

[United Nations Universal Declaration Of Human Rights, December 10th, 1996]

Madam Speaker, I would like to congratulate the hon. member for his speech, which is as well informed and well researched as usual.

He pointed out the lack of an international criminal court with a general jurisdiction. We have only ad hoc courts, special courts such as the tribunal on war crimes in the former Yugoslavia and Somalia.

But does he consider that creation of a criminal court with overall jurisdiction would be enough to guarantee application of the Universal Declaration of Human Rights? Is it not possible to also consider creating a United Nations court mandated to implement human rights?

The European charter has its own special court, the European court of human rights. The great German and French charters both have their special, constitutional courts. In Germany and France, when a constitutional matter is involved, there is the special jurisdiction of the council of state and even the appeal court, the court of cassation. May I ask these questions of my colleague?

[United Nations Universal Declaration Of Human Rights, December 10th, 1996]

Madam Speaker, I would like to ask the hon. member a question but before doing so I thank him for an interesting address.

Has he considered the relationship between human rights under the universal declaration and under national constitutional law.

He will know of course that in the actual drafting of the UN document Canadians played a very large role, but still it is a different document from the charters we have been used to in the common law world. It is designed for legislators. Ours is designed, the American bill is designed and western bills are generally designed for judges and judge made law. Still our own charter of rights and freedoms borrowed from the universal declaration in its drafting.

Has he considered the correlation between the universal declaration and its enforcement and a national charter such as ours and its enforcement? Is it the obligation, in his view, of national legislators to bring national law in line with the universal declaration?

[Research And Development, December 10th, 1996]

Mr. Speaker, British Columbia is taking the lead in the research of new forms of transportation fueled by battery power.

We welcome the recent federal investment in fuel cell research in co-operation with Ballard Industries. It will help to prepare Canada for the transportation challenges of the future. Research and development of new technologies will be essential as Canada and British Columbia take a leadership role in trading organizations like APEC.

As evidence of the important role played by the federal government in B.C., it now funds 30 per cent of the research in British Columbia.

Research builds new links between industries. Shared research can help to build a strong country from coast to coast. New job opportunities will be created if we work together to transfer the research into new products and services.

These are the challenges we face and the opportunities we have in Canada. Let's take advantage of them.

[Questions On The Order Paper, December 6th, 1996]

According to the Department of Fisheries and Oceans DFO, records, there are at present 33 existing dams and diversions built and operated by B.C. Hydro in the province. These are as follows. In the Columbia Region: Mica Project, Revelstoke Project, Keenleyside Project, Seven Mile Project, Walter Hardman Project, Whatshan Project, Spillimacheen Project, Aberfeldie Project, Elko Project, Duncan Project, Kootenay Canal Project.

Northern B.C.: WAC Bennett Dam and GM Shrum Generating Stations, Peace Canyon Project, Falls River Project, Clayton Falls Project.

Fraser River and Lower Mainland: Shuswap Falls Project, LaJoie Project, Bridge River Project, Seton Project, Wahleach Project, Stave Falls Project, Ruskin Project, Coquitlam Project, Buntzen Project, Alouette Project, Cheakamus Project, Clowhom Project.

Vancouver Island: Strathcona Project, Ladore Project, John Hart Project, Puntledge Project, Ash River Project, Jordan River Project.

The potential effects of flow control on fish and fish habitat include effects on productivity and water quality in reservoirs and effects on habitat quantity and quality, benthic productivity, water quality and fish behaviour downstream of release facilities. A list of the potential impacts of hydro dams and diversions on salmon is given below.

Physical Change

Upstream

Drawdown -reduced littoral productivity -reduced littoral spawning success -reduced tributary access -reduced water quality

Impoundment -reduced dissolved oxygen -settling of suspended sediment

Downstream

Reduced flow -reduced habitat quantity -altered water temperature

Inadequate flushing flow -accumulation of fine sediments in gravel substrate -changes in stream morphology

Increased flows -scouring of substrates -physical displacement of fish -destabilization of stream banks

Rapid flow fluctuation -displacement and stranding of fish and exposure of eggs

Flow diversion -disruption of fish homing to natal streams

Altered temperature -altered habitat quality regime -altered benthic productivity

Altered water quality -altered benthic productivity

Elevated total gas -injury or death of fish due to gaspressure bubble disease

The majority of B.C. Hydro projects were undertaken many years ago. At that time, potential impacts of facility operations on fish and fish habitat at a specific site were often not fully known owing to limited knowledge of the fisheries resources at risk at that site. Furthermore, in today's context, fish and fish habitat are often impacted by B.C. Hydro's management of its day to day operations. For example, flow constraints imposed at one plant for fisheries protection may have a system-wide effect, for example, block loading at one plant may increase load fluctuations at another plant, or result in even greater impacts at another facility. This is why it is important for DFO to work with B.C. Hydro to attempt to maximize benefits to fisheries from hydro operations.

In June 1993, the B.C. government directed B.C. Hydro to undertake a review to determine the feasibility of altering its electric generation system, operations to increase net social and environmental benefits to the province. The provincial government liaison committee, responsible for implementing the recommendations stemming from this review, established a fish power issue management committee on which DFO has representation. This committee in turn has established a technical working group which is reviewing B.C. Hydro water licences for facilities located on 10 priority watersheds in coastal and southern interior B.C., all of which support salmon. All 88 B.C. Hydro water licences will be reviewed within the next 3 years.

Through its participation on these committees and working groups, DFO is working to have fisheries protection measures incorporated into B.C. Hydro water licences. An example of recent fisheries/hydro interactions was the resolution of the low flow issue on Alouette River. Stakeholder negotiations involving federal and provincial agencies, First Nations, B.C. Hydro and public advisory groups resulted in a flow agreement based on scientifically defensible information and a socioeconomic model.

Despite such co-operative work, fish-power conflicts continue to arise in B.C. DFO will continue to work with B.C. Hydro to minimize these events but will nevertheless take action where appropriate, as is evident with the current Fisheries Act prosecutions for events occurring on the Bridge River in 1992 and 1993.

[Canada Elections Act, November 26th, 1996]

Madam Speaker, I thank the hon. member for Bourassa for his comments, which were, as usual, well-documented, This man truly understands the constitutional process. I respect his knowledge.

When I expressed surprise that this bill had been rushed through, I was referring to the proceedings of the Standing Committee on Procedure and House Affairs. Lengthy, in-depth studies were done in this committee, of which I was a member for two years. For these reasons, I will limit my comments to the committee.

Concerning the appointment of officials to supervise the voting, some changes could surely be made. As I made recommendations myself, I will point out that I was asked for very specific information about experience, expertise, technical training, etc. I am satisfied with the process as it stands, but I will take the hon. member's proposals under consideration.

[Canada Elections Act, November 26th, 1996]

Madam Speaker, it is a pleasure to rise in support of this bill, an act to amend the Canada Elections Act and the Referendum Act. I hope I will be allowed to put into perspective the addresses from two colleagues from the other side whom I respect very much for their work on constitutional matters, the hon. member for Bellechasse and the hon. member for Calgary West.

I am a little surprised to hear suggestions that this bill has been rushed through or that not adequate time has been allowed for consideration.

I am reminded of the experience of Lord Eldon who was lord chancellor for 21 years, broken by several periods only when his party was in opposition. He began sitting on a case at the beginning of his tenure and it was still there 21 years later.

I sat on the committee on procedure and House affairs and I remember considering this bill. Then I was moved on to another office and I ceased to be a member of that committee. I returned as a guest two weeks ago when the bill of the hon. member for Vancouver East was being considered.

What we see here is not undue and indecent haste but what Mr. Justice Frankfurter of the United States Supreme Court has called moving with all deliberate speed. This is a relatively modest measure which covers the two issues.

On the establishment of a permanent register, I would have thought there was no room for doubt or argument. Anybody who has experienced permanent registers in other democratic countries comparable to our own will know that it operates easily and effectively. Changes can be made easily enough. It is a much better system than the ad hoc arrangement we go through every time we have an election.

The second issue covered is the shortening of the election campaign period. The minimum period which has been shortened from 47 days to 36 days is surely a self-evident proposition. I say this simply because we do not have, in contrast to other constitutions, much in the way of a statement in our Constitution of the necessary and vital elements in the constitutional processes, that is, on the system of elections and the system of political parties.

As a result of the civil war amendments, the 13th, 14th and 15th amendments were adopted into the United States constitution. This has given rise not only to federal legislation in the implementation of those constitutional amendments, but also to a a massive system of court based jurisprudence, a development on a step by step basis of principles of law fleshing out the large motor principles of the constitution.

It is a fact that the paradigm of modern constitutions, Germany, has been borrowed by the new Russian constitution, the new Republic of South Africa constitution and indeed has been borrowed around the world. The original West German constitution of 1949 has detailed provisions on the constitutional processes, electoral processes, parties and again a very substantial system of court jurisprudence.

By way of comparison, our Constitution only has the section on democratic rights in section three of the charter of rights. I suppose we could also include the preamble to the original Constitution Act, 1867, a designation too particularistic today, a constitution similar in principle to that of the United Kingdom but which was used by the Supreme Court of Canada in one of its most imaginative judgments, the Alberta press case, to develop a constitutional system of civil liberties before we had a charter of rights or even the statutory bill of rights which was Mr. Diefenbaker's later bill.

I am suggesting that this is a measure which perhaps has taken more time than it has needed, I would have said an undue amount of time for the matters covered. However it is an important first step and we welcome it on that basis. It is inevitable that the courts will build on this. They have already begun to so do on a somewhat piecemeal basis in two decisions, one in which I participated as an expert adviser to the court and another more recent case before the Supreme Court of Alberta, which have entered into general jurisprudence in so far as neither the first one nor the second one were appealed by the Attorney General of Canada.

I anticipate that we will develop as vital to the political processes what U.S. Chief Justice Stone called the constituent processes, the starting point of any constitutional system of government. We will develop more legislation in this field. We will have more work before more committees. As Jeremy Bentham has reminded us, we will develop to a very considerable extent the concept of judge and company, of legislators and courts working together to develop in the interstices of specific cases and with regard to specific problems as they arise, new and growing principles of constitutional law on elections.

It is on that basis we should approach the deliberation of this particular amendment. I welcome in that sense the constructive contribution made by my colleague the member for Vancouver East, who against all odds moved to redress what is a matter of considerable grievance to citizens in western Canada and one knows also to those in the western United States.

[Canadian Volunteer Service Medal For United Nations Peacekeeping Act, November 25th, 1996]

Mr. Speaker, I compliment the member for Saanich-Gulf Islands on his initiative. The member is well known to us on this side of the House. He has had a very distinguished career as a jet fighter pilot in the Canadian Armed Forces. It is a reminder, because of age and other factors, of the very few members of Parliament who have served in the armed forces and the special contribution that they make. He is, I think, for this reason appreciated on matters that go to the core of our armed forces.

All of us on both sides of the House are concerned about the reputation of our armed forces. We have great reason to be proud of their contributions in two world wars and their contributions to UN operations. It should not be forgotten of course that Canada devised UN peacekeeping. It was the idea whose time was right, of our then foreign minister, Lester Pearson. He recognized, at a certain point in history that when you have combatants who fought themselves to a stand still that sometimes a third party, offering grace under fire and interposing themselves can allow both sides to retreat without intolerable loss of political face.

That was the genius of Mr. Pearson's suggestion for the original UN peacekeeping force, for which he won a Nobel prize. It is also the result of the characteristics that Canadians represent-I speak of our whole country-decency and tolerance of others and moderation in action. We are always sought by the United Nations' secretary-general when it is a matter of a peacekeeping operation.

We should pay tribute to the service given by the Canadian Armed Forces as part of various UN missions. It is right to remind us, of course, as my hon. colleague from my party said earlier, that there have been other UN operations to which Canadian forces have contributed and which are not covered by the term UN peacekeeping. Therefore, it would be within the spirit if not the actual wording of the bill as proposed by the hon. member for Saanich-Gulf Islands that any new decoration would be extended to cover them too.

UN peacekeeping, as we know, is limited to operations under chapter VI of the United Nations charter. Other operations before that time, before Mr. Pearson's suggestion adopted in 1956 for the Suez war and also subsequent operations should also be covered.

Part of the difficulty that our armed forces have been meeting is due to the confusion, or better still, the blurring of the line of demarcation between a chapter VI and a chapter VII operation under the charter. People start off with a mandate and a specific function but then, operationally, other exigencies emerge and they are asked to move from one role to another. It is not really fair for the people taking part because peacekeepers, as such, are trained for this mission which is 50 per cent to 60 per cent diplomatic and perhaps only 30 per cent to 40 per cent military in operation with the peacekeepers involved interposing themselves without weapons and without the ability to use armed force between combatants who have privately agreed to separate if somebody will allow them to do so without loss of face.

Chapter VII operations involve a totally different style of military engagement and they require special troops. I would add the further category which some countries have developed, the sort of SWAT team operation which sometimes is entrusted to civilian police and sometimes to the military. I suppose its apogée was in the German venture in Mogadishu a number of years ago which liberated hostages held by terrorists in a civilian passenger aircraft and achieved it with minimal loss of life or casualties.

However, it is unfair to the troops to blur these distinctions even if for high reasons of policy it may be necessary to ask them to move from one role to the other. A good deal of the problems of perception of the operation of our Canadian Armed Forces, encountered in recent months, stems from this fact. I think we have placed on record our great pride in the achievement of our armed forces and a great pride in what they have done in UN peacekeeping. Therefore, the suggestion for a medal to recognize this is something we all endorse and agree with. It is something we can all support.

There are some matters and I would simply take the liberty of suggesting them to the hon. member for Saanich-Gulf Islands because I do not think they are opposed to the spirit of what he is suggesting. It is perhaps an error to get too many specifics in a bill of this nature: the coloration, the arrangement one might say of a medal. These are issues of design which on the whole have been handled very well by the Canadian and Commonwealth military. I suppose most of the medals we have are from that. I think that is probably best left to them.

There could have been more deference given to the role of the governor general in the awards. It may not be a function that any governor general has sought, but the source of the medals historically is from the sovereign, from the king, and the governor general vestigially holds this office. In the formulation or concretization of

these proposals the role of the governor general and established committees could be recognized.

On the main principle, this is a timely gesture. It is something Canadians would certainly endorse. I believe medals awarded by the UN properly qualify as Canadian medals. Although I do not know the exact ruling made by our order of precedence it seems they would be entitled to precedence in medal ribbon rows ahead of any foreign or other decorations that might be integrated into the Canadian system.

There may be an issue of duplication of awards should a UN medal and a Canadian medal for a UN operation be held simultaneously. It is understood that Canadian medals are viewed as area medals. With the specific location I do not see any problem with duplication.

My compliments to the hon. member for Saanich-Gulf Islands for a measure that clearly stemmed from the heart in his case. It reflects the great pride that all members of the House take in the achievements of our armed forces, in the special contributions the forces have made since 1956 when Mr. Pearson's idea was adopted of UN peacekeeping operations.

[Smokey Smith, November 6th, 1996]

Mr. Speaker, this is Veterans Week, from November 3 to 11. It is a fitting time to pay tribute to one of Canada's veterans, who is also one of my constituents, Smokey Smith.

Born in New Westminister, B.C. and enlisting in the Seaforth Highlanders Regiment in March of 1940, Smokey Smith is one of only two living Canadians who have received Canada's and the Commonwealth's highest decoration for bravery in action, the Victoria Cross.

Fifty-two years ago Private Smith's regiment headed an attack across the Savio River in Italy. It is here Private Smith earned his Victoria Cross, almost single-handedly turning back an enemy counter attack. As a result, his battalion was able to consolidate a bridgehead, vital to the success of the overall Canadian military operations in the region.

This House and its members salute Smokey Smith today. We cherish the uncommon valour and the personal commitment and sacrifice of Private Smith and of all our veterans who served Canada in two world wars and also in the United Nations military operations and peacekeeping missions around the world.

[Fisheries Act, November 5th, 1996]

Mr. Speaker, may I take us back to the subject of the debate. We began with King John, wicked King John. We have referred to Queen Victoria and she of course is dead. I seemed to be coming back to Henry VIII when I heard the hon. member speak.

Let me remind the House that this bill is an act of codification and rationalization. All countries do that with their laws. They bring them up to date, 1868 to the present. The co-partnering arrangements are a response to the requests and demands by stakeholders, fisher people, for more effective participation in government decision making. This is the new pluralism to which we have referred. Also, we seek to complement the Oceans Act by incorporating the implementing sections of the international law that Canadian diplomats fought for and won in the new Law of the Sea developments.

My I suggest some clarification. The rules of interpretation have been thrown around. Common law yields to statute law. It is elementary. The Magna Carta has been incorporated into Canadian law in its due process section. It is part of the charter of rights. I feel the hon. members opposite should have a look at the Magna Carta. Do they really suggest, for example, that sections 10 and 11 are part of Canadian law? They are the most viciously, religiously discriminatory features of the Magna Carta which was, of course, a medieval document with all the prejudice of the medieval age.

Let us come up to the present. Common law yields to statute law. Magna Carta is only part of Canadian law so far as we have adopted it. We have adopted the best parts for our charter. Delegation of powers is responsible to the ultimate principle, respondeat superior; that is to say the delegation is controlled by the law itself. The minister when he delegates power is ultimately responsible under the act.

On constitution and statute law, section 35 of the charter is not abrogated or changed in any way by this act. Statute law cannot prevail over the Constitution.

If we get back to some elementary rules of interpretation it may guide us to a more relevant debate in which we do not have to quote ourselves when we run out of inspiration.

[Fisheries Act, November 5th, 1996]

Mr. Speaker, I thank the hon. member for her very interesting speech. I think she understands the major historical trends in international laws and municipal bylaws on environmental protection and pollution control. She agrees that the federal government and the provinces can negotiate in good faith. So why does she conclude there will be a conflict between the two levels of government? We share the same goals.

In this case, I have a question for her: In order to reduce the possibility of conflict, should Quebec not follow in British Columbia's footsteps and negotiate an agreement on fisheries with the federal government? Why not? This might resolve the problems she raised with respect to the administration and purpose of this bill.