Ted McWhinney

[Speech From The Throne, October 14th, 1999]

Mr. Speaker, I had essentially completed my remarks which were on the knowledge century in the new millennium, the 21st century professorships. I had also made some brief remarks on several other matters. I think we could take questions at this stage if there are any questions from hon. members.

[Speech From The Throne, October 14th, 1999]

Mr. Speaker, I understand the impatience of some hon. members with antique customs. The speech from the throne is a remnant of the 17th century constitutional struggles, down to that knocking on the door by an official to demand that the commons come to the lords and hear the speech from the throne. Antique customs are preserved, and you know this very well, Mr. Speaker. You sit in that very uncomfortable chair which you have inherited from many generations of people overgrown on roast beef and port wine and various other things.

Let us face it, there are traditions. The value of the speech from the throne today is simply that it gives a larger vision of a governmental program that necessarily will be computized when we have those financial figures, when we know how much of a surplus there is and the battle over the distribution of it can be carried down to the details.

This could be upset, but it is generally agreed that if there is a surplus, and we think there will be a very considerable surplus, as a result, as hon. members might say on this side, of government policies, it will be split at a principle of 50% for tax reductions and amortization of the external debt, and 50% for social programs.

This is something that my constituents have strongly favoured. They have also asked that tax reductions extend to the working middle class who are very capable of creating the jobs, more perhaps than any other section of the community. That is something I will be working on for my constituents. I think it is a necessary part of our program of creating jobs.

The Speech from the Throne outlined the three main areas of our policies on the government side as we go into the new century. One is, as I say, the work on tax reduction and the amortization of the debt. The second is spending on health and social programs. The third, and I will say a few more words on this, is the investment in knowledge as the key to the next century.

My first assignment as a member when I was elected was to get $167.5 million from the finance minister, who had just inherited in 1993 a $42.8 billion budget deficit. How does one make the argument? I had to go to the rounds of my colleagues and ministers and explain that there was a thing called pure research, that it did not necessarily bring results tomorrow, but five or ten years down the line it opened jobs and industry. Pure knowledge can be translated concretely into factories, into production and into the creation of skilled jobs. We won that particular battle.

It was easier to do it than in relation to some of the things we are doing now because, of course, education, research in a strict sense, on old fashioned constitutional views, is outside federal power. However, once we made the case and demonstrated that the federal government would provide the leadership, I think we were on our way. We were very tired of giving money to provinces for education and research and finding it being used to build highways into the never never land that had no ending and no beginning.

Education is our investment in the future. I take great pride in the achievements, in the centres for excellence, in the centres for innovation and in the culmination of scholarships for the 21st century. Of the professorships there will be 1,200 immediately and 2,000 afterward.

The actual idea was put forward by the president of the University of British Columbia and by the recteur de l'Université de Montréal. The idea was “arrest the brain drain”. In certain areas like biochemistry, particle physics, pharmacology, and I could go on, we lead North America. We have world standards, but we run the risk of losing our best and our brightest. These two university presidents put forward the idea of linking this to the centres for innovation that would be presided over by the former president of the University of British Columbia, Dr. Strangway.

This is the idea. Look at the rave headlines from around the country with the president of the University of British Columbia saying it is the answer to the drift in science; it makes us world leaders in science. I see the president of the University of Toronto saying that it is clearly a magnificent blow in favour of science, in favour of research and a recognition of the fact that knowledge is the key to the next century and it is the key to creating jobs, creating skilled jobs for young Canadians. We are very proud of this.

I would pay tribute to caucus, my own and those of opposition parties. I did an informal poll in the last parliament and found that 50 MPs had colleges or universities in their constituencies and 18 or 20 had been professors or teachers. That is a powerful lobby and a group that has brought this emphasis on knowledge, on the investment in knowledge as the key to the new century.

The Speech from the Throne covers many things. I have highlighted the quest for knowledge and the investment in learning as the key to the next century. There are several other matters that I will touch on very briefly, such as hands across the border. I had a letter today from American Senator Voinovich. We are moving more and more to removing that barrier with the United States, those irritating delays in customs and elsewhere for Canadian citizens. This in spite of some pressures put on us in terms of problems in controlling our own entry to Canada from elsewhere. The movement is there. It is part of the Speech from the Throne. It is part of the exchanges between the Prime Minister and President Clinton.

We have built on the record in the difficult area of reconciling our tradition as a country that receives people who want a better life. There are the boat people we have taken in the past. There are the Vietnamese admitted by a decision of a Conservative government. That community is one of the best communities in terms of low rates of unemployment and investment in new job creation.

I look at the Ismailis who came here in 1971 under Prime Minister Trudeau, and the people who came from Cyprus when it broke up. We have a commitment to receiving people who have the talent and the will to make a better life.

There are aspects here that are in terms of our international obligations. There is nothing inhibiting the Canadian government under international law from applying appropriate controls to our immigration for speeding up the process of determination of refugee claimants. These are in part touched on in the Speech from the Throne. They will be fleshed out in concrete legislation. I ask all members to address that in the future.

[Special Debate, October 13th, 1999]

Mr. Speaker, I would not put words into the mouth of the courts as to what they want and do not want. I would simply say, though, that this sort of solution when we are dealing with sharing a scarce resource does not allow for quick judgments by executive or legislative authority. It is better done by a third party that can examine evidence and weigh it.

That seems to me to be best done by a court. I envisage a process where evidence is led to the court and where it is reasoned over and argued over. If we go that way we are into comparative equities. That is what I was talking about.

[Special Debate, October 13th, 1999]

Mr. Speaker, that was the question of the hon. member opposite and we answered it on the general point.

What Mr. Simpson is referring to is what in fact followed with Brown v the Board of Education No. 2. It was a process that was before the courts over a considerable number of years, not just a one shot return. I have nothing against the one shot return, but I would envisage the solution of this problem, west coast logging and similar problems, a process that involves court and executive power working together, the parties constantly before the courts and over a period of years. In my view that would be a sophisticated solution.

[Special Debate, October 13th, 1999]

Mr. Speaker, I suggested earlier a much more complex process involving the co-operation of three institutions, that is the supreme court, the executive and the parliament. I think that with such a process, it would take years to work out solutions to problems like the one on the east coast.

Could the hon. member repeat his second question?

[Special Debate, October 13th, 1999]

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

This has been an interesting debate, a fruitful debate. Sometimes I wondered what the debate was about. We had a lot of discussion about the Supreme Court of Canada and about judicial law making. That is a valuable subject but it might deserve an arena in its own right. It does touch on the issue of the fisheries and the issue of aboriginal rights, and I will treat it only in that context and where it does have a relevance.

The important thing to remember here is the maxim of the wisest of common law legal philosophers, Jeremy Bentham. He was saying that law was not made by any single person or institution. He used his great phrase “by judge and company”. When one asked him what he meant he said it was not simply the judges but it was the people who make the laws, the people who apply the laws and the parties who bring cases to the court. I will have something to say on that in a moment.

There has been criticism of our supreme court but I suggested at the time of the adoption of the charter of rights and freedoms in 1982 that it would effect fundamental changes in our constitutional system and it logically should be accompanied by a reform, a recasting of the supreme court and the judicial role. Not having had this advice followed, I have sympathy for judges who are under attack. What I am about to suggest is a larger role for the judiciary and for other constitutional players.

One of the most thoughtful of our members of the press gallery, Jeffrey Simpson, wrote several weeks ago in an article that reminded me of something I wrote many years ago on the discussion of Brown v Board of Education which has been much criticized in the House and elsewhere but by people who never the read the judgment. This so often happens.

Brown v Board of Education is really two cases. One is the actual judgment on school segregation.

The second is the follow-up decision in Brown v Board of Education. That is where we get the famous phrase which was borrowed directly from English law in the 17th century of moving with all deliberate speed. It is a phrase taken from equity. It was used by Mr. Justice Felix Frankfurter, the greatest of the Roosevelt appointments to the supreme court. It directed attention to the basic point that complex social problems require complex solutions which need complex evidence.

This is where the United States supreme court has perfected a role that may be helpful to us to study. The solution of fisheries problems on the east coast, the solution of logging problems on the west bank of Okanagan Lake, and the solution of other problems of aboriginal rights should be done best against a background of social economic evidence. We have in this country, because I see them consulted internationally, experts in economic resources and economic resource management. This is the sort of case for wise decision that requires taking that type of evidence into account.

The big thrust of the second decision in Brown v the Board of Education was that there was a role for a third party in monitoring the solution. The emphasis of the phrase “with all deliberate speed” was that it would not be a solution achieved in one day, or in a single ruling, but might require a number of years of supervision, monitoring, consulting with and directing the parties.

This is where a role, whether it is executive, legislative, judicial, or a combination of both, is an essential part of the problem solving. In the American context it was clearly an ample judicial role. This in the Canadian context has to be borne in mind in connection with the nature of our supreme court.

I am very much surprised and a little disturbed because I think it follows from lack of study of supreme court decisions a suggestion of class bias in the Supreme Court of Canada. I would not have found that at all. I would have suggested a highly technical approach that sometimes would benefit by more opening to sociological facts, economic facts which are the root of decision making. In this case I would call for a Brandeis brief. The whole nature of jurisprudence before the constitutional court is the adducing of evidence, social and economic evidence.

In the case of fisheries it would be the nature of the resource, how much is there, what proposals cans be made for its utilization and for its sharing. Here I take us back to one of the nicer phrases of our supreme court, one of the wiser counsels, the obligations to negotiate and to negotiate in good faith. It is a very positive factor in my approach to the Nisga'a treaty which I believe the chief and council of the Nisga'a band negotiated in good faith.

I would be less supportive of other initiatives in this area if I did not have the same feeling of satisfaction that negotiation in good faith involves a concept of recognition of good neighbourliness. These are phrases that the World Court has used but they apply equally in the common law from which the Polish judge who cited them borrowed those phrases directly.

There are important gaps in our law as to aboriginal rights and treaty rights. One of these very obviously is the meaning of aboriginal rights and treaty rights. They are in sections 25 and 35 of the charter, but they were put there as what is called saving clauses. There is a Latin phrase for them. I will simply translate it for greater caution. They are put in there because they were not there in the original charter of rights. It was correctly felt to be necessary to put them in, but it was left to later constitutional actors to define and flesh them out. Whether executive, legislative, or judicial was not made clear, but that is certainly open to development.

There are further gaps in the law in so far as section 35(1) saves existing rights, but section 35(3) which was adopted 12 months later recognizes and constitutionalizes future treaties.

I have expressed in the House some questions on this point. Could a future treaty which ran counter to the charter or the constitution proper be constitutionalized and override them? That is an error or a gap being pointed out that was carefully corrected by the then minister of Indian affairs in the Native Lands Administration Act, Bill C-49. I believe it is corrected in the federal enacting legislation for the Nisga'a treaty. I simply point out that there is the need for work to be done.

I welcome in the exchanges in this debate the recognition by the two ministers who have spoken, the Minister of Fisheries and Oceans and the Minister of Indian Affairs and Northern Development, that it is not possible to view aboriginal rights in the context of single departments isolated from each other. We are moving toward a comprehensive view, but it is an educational process that involves all the institutions of government and may, I respectfully suggest, involve all the members of Parliament. It is a learning experience for us.

In particular, one of the things I would suggest is that there is too much absolutism in this area. The original theories of acquisition of rights by European settlers, whether they were British, French, German or Danish—one can run through the list—were based on absolutist theories such as terra nullius or unoccupied land. These theories were rejected by the International Court in 1975 and, to give credit, were accepted by the early 1980s in Canadian thinking as incorrect. The evidence led to the constitution repatriation project that was accepted.

I would also suggest that it is an equal error to proceed to other absolutist views that it is one or the other, that one party wins absolutely and one loses absolutely. The wise solutions here are in the recognition of comparative rights, that original so to speak inherent rights may also be subject to being balanced by supervening rights, particularly supervening rights obtained in good faith by those exercising them.

What we are getting into is a complicated process of identifying, quantifying and balancing different competing rights. The solutions here, and there ample ways of doing it that require work, are in terms of comparative equities. Some of this work has been done in the complicated business of deciding property rights in central Europe which was originally under national territorial title, then under Soviet occupation, then under local communist governments, and then under post-communist governments. The solution is never one absolutely that these are one's rights and everybody else loses. It is a complicated process of sorting out and in a way sharing. This is where we come back to the concept of judge and company. All the players are involved.

This debate shows a recognition that some sort of long range solution is needed, but I do think we will need the courts as a part of it. I do not think executive legislative authority can do it alone. I do not think legislation can do it. I think the court can be brought into the processes more fully.

Those would be my suggestions to the House. Criticisms of the court, as such, should be saved for another occasion and we will put forward suggestions for improving the court. We may find that the judges are very well—

[Dr. Robert Mundell, October 13th, 1999]

Mr. Speaker, Canadian economist Robert Mundell has won the Nobel Prize for economic sciences for his analysis of exchange rates and their effect on monetary policies.

Professor Mundell graduated from the University of British Columbia in 1953 and received his Ph.D. from the Massachusetts Institute of Technology in 1956. He has taught at Stanford, Johns Hopkins, McGill and Waterloo. In the 1960s he published a pioneering study on the short term effects of monetary and fiscal policy in an open economy. His theoretical constructs were studied by the European Union's leaders and were influential in developing plans for a single Eurocurrency. They should also be influential in future discussions on currency relations under the North American—Canada-U.S.-Mexico—Free Trade Agreement.

[Yugoslavia, June 10th, 1999]

Mr. Speaker, we welcome the military ceasefire in Yugoslavia on the basis of the G-8 countries' recent peace proposals.

We welcome the UN security council's vote today by 14 to nil with one abstention, authorizing immediate peacekeeping and peacemaking activities under the aegis of the United Nations and in full compliance with the United Nations charter.

These are objectives which the Canadian government had actively pursued from the beginning of the conflict.

Our Canadian Armed Forces should become fully engaged in the specialist peacekeeping activities, including clearance of landmines, in which they have excelled in past UN missions.

Canadian involvement in the return of refugees, in rebuilding infrastructure destroyed or damaged in recent military operations and in restoration of economic and social stability on a larger regional basis should follow.

[Main Estimates, 1999-2000, June 8th, 1999]

Mr. Speaker, I think it has been already established that it was Dr. Randolph White, Jr. who is the author of these well known remarks. It may present him with some problems of explanation to his colleagues. I think honour is due where it falls.

He is known for his ways of eloquence in support of a chamber which Plato said should be reserved for those who made their mark in life, who gained the top of their professions and who are prepared to serve without salary. That is the Platonic conception and Dr. Randolph White has made this a leitmotiv to his own career, which has brought us all waves of brilliant oratory and an example that stands out to this country in a period of cynicism and despair, leading the charge to the new world and the new world order.

[Main Estimates, 1999-2000, June 8th, 1999]

Mr. Speaker, very briefly, I wish to remind the hon. member that the best idea to come out of the quiet revolution advocated by the great Jacques-Yvan Morin and a few other scholars was the recommendation for a reformed Senate on condition that it be divided 50:50 between francophone and anglophone regions, but the idea of a second chamber had the approval of intellectuals during the quiet revolution.

I might also refer my friend to my most recent book, Constitution-making .