Craig Scott

[Petitions, December 9th, 2013]

Mr. Speaker, it is my privilege to rise to present a petition to the House calling for the creation of a legislated ombudsman mechanism for responsible mining. The petition, with over 150 signatories from Toronto—Danforth, was put together by the St. Ann's Roman Catholic Church development and peace chapter.

I am extremely grateful. They point out the problems with the existing office of the extractive sector for corporate and social responsibility and the fact that many Canadians, and many communities in the south, are concerned about the activities of Canadian mining companies.

[Business of Supply, December 9th, 2013]

Mr. Speaker, I would like to first make a comment before asking my Liberal friend a question. My hon. friend castigated the Conservatives from the last election for misrepresentations and I would appreciate it if he does not say that we are supporting a doubling. We have never said that. What we have said is that we are looking at a range of plans. We are committed to an increase, but please do not put words in our mouths.

Second, the finance critic for the Liberal Party only a few weeks ago said that no increase at all can be afforded. Therefore, is this a change over the last few weeks, especially since we heard in the speech that maybe the Liberal Party convention is only the point at which we are going to hear what your final position is? Are you indeed going to be voting with us and therefore is the Liberal Party changing its position?

[Northwest Territories Devolution Act, December 5th, 2013]

Mr. Speaker, I thank my colleague for her question.

All that I will say is that, yes, the partnership is really important for the reasons I gave in my speech. It is also important that we commend the Premier of the Northwest Territories for the partnership regarding devolution. However, the problem with the bill now before us is that there is no partnership with regard to the boards that deal with water. That is the problem.

[Northwest Territories Devolution Act, December 5th, 2013]

Mr. Speaker, as our hon. colleague across the way just said, it may well be that my colleagues would prefer to hear your views on this matter.

However, quite seriously, I think the short answer is—to the extent that, after more study and the committee process, it turns out that environmental protection is enhanced in ways that are mutually agreeable to all parties and that there is not an element of the bill that ties into the problems I just discussed in my speech—where there may be a higher level of environmental protection but it has been imposed, in terms of the system by which it will occur, there has to be some kind of give-and-take between higher protection and imposition.

Section 57 is very important to know, because it says:

The Governor in Council may, by order and on the Minister’s recommendation, prohibit any use of waters that is specified in the order...if the Governor in Council considers

It may well be that this is well-intentioned, but it is also impositional coming from the federal level. We have to see what the balance yields here.

[Northwest Territories Devolution Act, December 5th, 2013]

I understand the rule, Mr. Speaker. The minister:

...rejected without reasons the Framework and Canada has refused to engage in the collaborative process. By letter dated April 5, 2012 I wrote to...[the minister] to set up a meeting to deal with the lack of a mandate for the Chief Negotiator to deal substantively with our draft Framework and I requested that “we meet as soon as possible on a government to government basis, so as to resolve this issue”. [The minister]...by letter dated June 5, 2012, refused to meet with us by saying “I do not believe that an additional meeting is required at this time”. We have not been provided a means to participate meaningfully in this process.

The Tlicho Government then goes on to say it has three major concerns. One is the fact of extinguishing the land and water boards and merging everything into the superboard proposal. Second is expanding the federal minister's role and authority with relation to that board; and the third is mandating statutory time limits on both the superboard and another board.

What is important to note here—and this goes to the heart of the question that was legitimately asked, I believe, by the colleague across the way—is on the issue of extinguishing:

To put it plainly, 22.4.1 of the Tlicho Agreement is the “finish line” and not the “starting gate” for this process. The Wek'èezhìi Land and Water Board plays a fundamental role in the environmental security of the Tlicho and in our having a say about what developments can happen in the Wek'èezhìi and our ability to maintain our way of life. The Tlicho agreement cannot be interpreted to say that Canada, on its own volition, can force the larger board into existence. Any amendment of such a nature must be part of a process that reflects the interests of all the parties to the Tlicho Agreement and respects the decade's long negotiated compromises that are currently reflected in Chapter 22. If there was an agreed to legitimate reason for the establishment of the larger board, then that is a matter that needs to be negotiated between the parties with the same solemnity as the negotiations that created the Treaty provision.

So it is that this letter is a very good example of why there is concern that there is nothing wrong at all with the devolution part of the act in question, but the tacking on to it of these new provisions turning Mackenzie Valley resources and water management into a superboard is definitely something that is causing concern.

Everybody has said that therefore the committee process—not the committee process that is going on right now, but the committee process after second reading—will be crucial. I just urge all concerned to actually listen to the concerns being presented and see whether or not there is some way to make sure that whatever emerges is something that can be said to be an extension of the partnership that these prior land claims agreements represent and the co-management regime they instituted, which is now being, frankly, yanked away semi-unilaterally.

I would end by saying that the letter very eloquently said:

The honour of the Crown cannot be found in Canada's proposed imposition of its will in its “Action Plan” in respect to regulatory reform and the deepening of its powers in the legislated proposal.

...Canada can expand the role of the federal Minister, obliterate the Wek'èezhìi Land and Water Board and then impose arbitrary and unneeded time limits on decisions on development in the Wek'èezhìi region.... The entire way in which Canada is purporting to impose its Action Plan assumes that the regulatory regime is a federal enterprise that can be interpreted and modified by Canada alone.

The whole point is that it is a mistaken perspective. We need partnership and we need a return to a co-management philosophy.

[Northwest Territories Devolution Act, December 5th, 2013]

Mr. Speaker, I would like to continue along the same lines as my hon. colleague and indeed as the questions that just came from across the aisle. The questions were well formulated from a certain perspective, but they miss out on a very important point.

It is indeed the case that the regional water and surface water boards would be extinguished by the act and that a certain provision of the land claims agreements would be used as the government's justification for its unilateral right to change those regional boards into a larger superboard. That is where the real issue is. It is being done in a way that steps out of the partnership or the co-management arrangement set up by the land claims agreements, to unilaterally move away from that toward a new structure that does not have the agreement of all the first nations involved. That is the issue. The issue is a fine interpretation of everything in section 22.4.1 of these land claims agreements. It is somehow saying that yes, there can be a larger board. It then goes from that to the idea that this means that the federal government, through Parliament, can be the one to determine what that larger board would look like, with the resistance of certain first nations.

What I would like to do, and what I would like to spend some time on, is relatively unusual. It is important to voice the documented concerns from several first nations governments in the Northwest Territories on precisely this issue. I want to put it in the context of two things before I actually quote from two letters.

Keep in mind that Canada has supported the United Nations Declaration on the Rights of Indigenous Peoples. In 2010, we issued a statement of support after some initial reluctance to support the declaration.

Article 19 states:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

My hon. colleague, the member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou, has tabled Bill C-469, an act to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples. It is in that spirit and context that I believe this legislation and the attempt to move to the superboard, without bringing along first nations partners in the previous regional boards that are going to be extinguished, has to be looked at.

Keep in mind that some of this discussion has to be about section 35 of our own Constitution. The Constitution Act of 1982 enshrined, constitutionally, aboriginal rights and the treaty rights of aboriginal peoples. The whole question of consultation, which has to be at least meaningful consultation, whether or not that is evolving into a situation, where in certain contexts the consent of involved first nations peoples is needed, also has to be taken into account.

I have a letter dated July 12, when early drafts of the legislation before us, that is, the sections that do not deal directly with devolution but the sections that deal with amending the Mackenzie Valley Resource Management Act, was sent to the hon. Minister of Aboriginal Affairs and Northern Development. It is from the Tlicho government. I would like to read from certain portions of this letter:

Failure to Engage: From the beginning of the discussion about amendments to the MVRMA, the Tlicho position has been the same—All Aboriginal peoples of the Mackenzie Valley desire a system for regulating the use of land and water and resources that is in partnership between themselves and the Governments of Canada and the NWT. Further, an appropriate process for identifying and implementing changes the MVRMA and regulatory system must be a partnership process designed by consensus agreement of the partners. Finally, the objective of this process should be to strengthen the resource management system for the Mackenzie Valley in order to protect the lands, waters and resources on which the Tlicho rely for the traditional economies, customs, values and way of life as well as to promote sustainable development.

The letter goes on to discuss how, as far back as the fall of 2011, two years ago, aboriginal peoples in the north presented the government with a draft framework for a process respecting changes to the MVRMA and the regulatory system in the Northwest Territories. In the letter, they refer to that as the framework. They attached the document to the letter, so it can be made available. Then they go on to say:

It sets out a good faith process to collaborate and negotiate a new co-management regime that respects the interests of all the parties. We did not get any initial response. In January 2012, at the Crown-First Nations Gathering in Ottawa, we hand-delivered this Framework to the Prime Minister. We finally received a reaction. Minister Duncan rejected without reasons the Framework—

[Northwest Territories Devolution Act, December 5th, 2013]

Mr. Speaker, as a follow-up to the question that was just put, I wonder if my hon. colleague can address the following issue. It may well be that there is some kind of process for the integration of region-specific analysis in the new superboard, as it is being called. It is also the case that what is being extinguished are existing boards that have been negotiated with first nations communities as part of creating those regional boards. Their role in both the co-management regime under those regional boards and in the appointment process to those regional boards is now gone. Does that cause the member some concern?

[Access to Information, December 3rd, 2013]

Mr. Speaker, the reality is that the New Democrats want binding rules for all members of the House, and the Liberals and Conservatives joined forces to block access to information and to continue to police themselves.

My hon. colleague from Wellington—Halton Hills has put forward very promising legislation for parliamentary reform. I personally will be supporting this legislation at second reading, and the leader of my party has said this will be a free vote.

My question is for the Chief Government Whip. Will the members of the Conservative Party have a free vote on this bill?

[Committees of the House, December 2nd, 2013]

Mr. Speaker, I would like to clarify that our separate report is a supplementary opinion, not a dissenting one, so the final words of my hon. friend were exactly right in that this is building on a very good committee process.

I rise today as the member of Parliament for Toronto—Danforth and as the official opposition critic for democratic and parliamentary reform to speak on the study by Standing Committee on Procedure and House Affairs regarding parliamentary privilege and how access to information requests should be handled.

Access to information is a crucial aspect of a well-functioning democracy. That is rather obvious. This spring, the Standing Committee on Procedure and House Affairs, known as PROC, studied how to proceed with the disclosure of parliamentary documents under the Access to Information Act. During the study, the NDP members of PROC sought to ensure that parliamentary privilege would not be used as a kind of cloak, ultimately, for government secrecy.

My NDP colleagues and I felt that the committee report should go just a bit further than it did. We are concurring in the report, but this is a supplementary opinion. We felt it should go a bit further than just defining Parliament's constitutional privilege and prescribing administrative solutions for the House's voluntary disclosure of documents. Rather, we thought it necessary to supplement the report by outlining the options to improve the interaction of parliamentary privilege and access to information as presented to us by various witnesses during the study, including the Information Commissioner.

In our supplementary opinion, we stressed that the exercise of Parliament's discretion to disclose documents should be weighted in favour of disclosure to the public. We clearly indicated that while we recognized that there is indeed a constitutional protection for the privileges of the House of Commons, we also believe this does not mean that the House or the Senate should automatically assert itself over another quasi-constitutional right, namely that of access to information.

It is no doubt partly because of freedom of information's connections to the Charter of Rights and Freedoms and perhaps also the fact that international human rights treaties applicable to Canada protect freedom of information as part of the right to freedom of expression—for example, article 19 of the International Covenant on Civil and Political Rights—that Parliament ascribed certain characteristics to the Access to Information Act that led the Supreme Court of Canada to determine that the act is a quasi-constitutional statute.

Therefore, while the constitutional right of the House and its committees over their parliamentary proceedings is unquestionable, the NDP believes that a more transparent and functional approach could be taken by parliamentary committees in their dealings with third party notices, as they are called, under the Access to Information Act without compromising parliamentary privilege.

We also indicated in our supplementary opinion that the House should pursue, as a matter of some priority, amendments to the Access to Information Act to more clearly set out what documents are encompassed by privilege and what definition of parliamentary privilege or elements of parliamentary privilege should be added to statute law, ideally to the Parliament of Canada Act.

With respect to amendments to the Access to Information Act, New Democrats believe that due to the differing interpretations of existing law and constitutional norms presented by witnesses for the study—in particular, how they interact—the House should consider amending the Access to Information Act to include a new discretionary exemption for parliamentary privilege. This would be consistent with the recommendations of the 1987 report of the Standing Committee on Justice and Solicitor General entitled “Open and Shut: Enhancing the Right to Know and the Right to Privacy” as well as the 2002 task force report entitled “Access to Information: Making it Work for Canadians”.

Other Westminster systems, it is important to note, have similar exemptions in place where such an amendment would prevent costly legal battles and provide a statutory basis for the House of Commons to act. Such an exemption would also prevent government institutions from using parliamentary privilege in a way that would exclude their own documents. Without a statutory provision and with an overly broad interpretation of privilege, government departments may try to exempt or exclude information that relates to Parliament. This could include, as small examples, the question period cards, the ministers' briefing notes for officials who have been asked to appear before committees, or even observations about what has happened in Parliament.

The history of the Access to Information Act in Canada shows that even minor exceptions or exclusions will be interpreted in an overly broad way without clear language in the statute and without political leadership that favours disclosure over secrecy. It would be important that such an exemption be discretionary, meaning that access could be granted by the House. Most important, as I have already said, is that the exercise of discretion should be weighted in favour of disclosure to the public.

In conclusion, let me comment that the study was indeed illuminating and educational for all members of the committee. As our chair noted on several occasions, every point brought up by witnesses seemed to raise more questions. We certainly agree.

As we stated in our supplementary opinion last spring, we considered the study to be only the beginning of a discussion on the subject of access to information and the Parliament of Canada. There must be ways for Parliament to modernize and provide greater transparency to the public.

The opposition also has a responsibility to suggest remedies, and people know that they can count on us to propose practical solutions.That is why, just a few weeks ago, the NDP announced a practical plan in regard to the Access to Information Act with respect to protecting Canadians' right to know. We understand that comprehensive reforms are needed, so we are asking the government to agree to table immediately, or at least as soon as possible, changes to the Access to Information Act to accomplish three things.

First, Parliament must give the commissioner order-making powers to make sure that the commissioner has real teeth to enforce the act.

Second, the Access to Information Act should allow the Information Commissioner to look at cabinet documents so that this cannot be used to shield documents that should be released. The current blanket exclusion of cabinet confidences is being abused. Evidence suggests that any document the government does not want released is all too often classified as a cabinet confidence, whether it is truly so or not.

Under current legislation, the Information Commissioner does not have the power to review these documents to determine whether that classification is justified. Making cabinet confidences exempt rather than excluded from the act would allow the commissioner to verify that the requested documents truly are cabinet confidences and to order their release if they are not.

Third, Parliament should extend the Access to Information Act to cover the administration of the House of Commons and the Senate. This was recommended in many past reviews of the act and is one of the core recommendations we received from the Information Commissioner. Combined with our commitment to make a more detailed system of MP reporting of expenses available by default, this would open up Parliament and give Canadians the transparency they deserve, and most importantly, the transparency they want.

I encourage all members to take a look at the NDP's dissenting report, tabled today, on the subject.

While steps have been taken in terms of the greater release of information on spending by the House of Commons and also in terms of Internet access to committee proceedings, more must be done. I am going to give one example that I will freely admit is almost a bee in my bonnet. For example, the digitization of government answers to order paper questions has not yet resulted in online searchability of these answers. This could be a useful next step for transparency.

To conclude, parliamentary privilege is important in protecting freedom of speech for members of Parliament and in protecting them from intimidation, but when it is used to hide information the public would expect to be available, its invocation becomes a detriment to the standing of Parliament.

[Business of Supply, November 26th, 2013]

Mr. Speaker, it is a slightly off-topic question. I will answer it very briefly. I do believe that the House of Commons legitimately functions strongly on the basis of a party system. I personally wish we had more independents, because it injects energy and a perspective that might not otherwise come through party dynamics.

Honestly, though, we need a House of Commons oriented around parties and we need a Senate that is completely distanced from party politics, especially of the sort that uses the Senate as a home ground for fundraising, speechifying and all kinds of other things that have nothing to do with a senator's job.