Mr. Speaker, I am pleased to rise this morning to take part in the report stage debate on this bill.
The member for Ancaster—Dundas—Flamborough—Aldershot has made his points very clear. He basically said that this bill is very important and could set a precedent ruling for further aboriginal governance formed down the road.
This Westbank agreement may become a threat to Canadian values. As Canadians, we hold these qualities very dearly, that is, as Canadians across the country we should all be treated equally, certainly under the Charter of Rights and Freedoms. The Charter of Rights and Freedoms is designed to shield or, in other words, protect individuals from the arbitrary actions of their government, irrespective of which level of government, whether it be band councils or municipal councils, provincial governments or the federal government.
My colleague spoke about the two levels of government, saying that basically the child of the federal government is the Indian Act, the band councils and their regime, much like the provincial governments which in essence created the municipalities. The municipalities really are not entities unto themselves; they are governed by the provincial government.
Like my colleague, I believe that access to information and transparency are ultimately important. I come from the constituency of Dauphin—Swan River, which has 13 aboriginal reservations. At least 13% of the population is aboriginal. The same problems exist in Dauphin—Swan River that exist in other parts of the country. The problem is not the money that comes into the riding. The problem is governance. The problem is about transparency of governance, about the aboriginal community having better access and accountability as to how the money is spent. Some of the conditions my aboriginal citizens live under are unbelievable, even though we know that the federal government annually spends $7.5 billion under the aboriginal file.
The problem with the bill is that 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 does section 25 have to do with the rights of Westbank residents to use the charter to challenge arbitrary actions 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 be available to the Westbank government to shield itself from challenge under the charter only if it can claim that its actions involve the exercise of aboriginal rights.
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 a power to shield itself from a challenge from its own residents. All the Westbank government needs to do when challenged is to point out that it is exercising an aboriginal right. In other words, that is really like an opting out clause. That really is the essence of the problem.
In other words, those who are paying taxes who live on the reserve really do not have a say. We even can go back to a long time ago, 200 years ago, when the 13 colonies in the United States said “no taxation without representation”. What are we doing today? In essence, we are doing the same thing the British did to the 13 colonies. I think we need to move beyond that.
The Westbank government actually has a step up on the Nova Scotia band that challenged the federal government under the Canadian Human Rights Act. 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 of 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 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 the person, section 15, equality rights, and section 3, democratic rights of citizens. 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 Charter of Rights and Freedoms are answered by s. 25 of the Charter.
Based upon this 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 are therefore shielded from a resident's challenge under the charter.
There is a question that needs to be raised. 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?
There is another question that needs to be asked. Do members of Parliament really want to create a Westbank government that will have free rein to abuse its residents and to have that government's actions shielded from any and all challenges under the charter?
Sometimes it is too easy for non-aboriginal folks to say that people moved to the reserve because they wanted to, but does that make it legitimate to abrogate their rights as citizens of this country? In other words, the charter should really come first, regardless of the voluntary choices that people make on where they live and do business. Wherever they live and do business, they need to have access to being represented fairly, certainly if they pay taxes, and if one lives in a residence or operates a business, one pays taxes.
The Minister of Indian Affairs and Northern Development acknowledged at the Senate Standing Committee on Human Rights on March 22 the real and growing conflict between the protection of what he called the “individual rights” identified in the charter, which are equality rights, political rights, and the legal rights of life, liberty and security of the person, and what he called the “collective rights” protected by section 25. He acknowledged:
There is the necessity to reconcile principles contained in... the Charter of Rights and Freedoms with those contained in section 25, which protects aboriginal rights.
The acknowledgement by the Minister of Indian Affairs and Northern Development of the conflict between 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 aboriginal rights are involved, and he acknowledged as much at the Senate Committee on Human Rights on March 22. We know that females living on reservations do not have property rights. We know that as a fact.
In fact, I will close by stating that the government of Westbank and its council are effectively bound by the charter when the Westbank government chooses 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 its aboriginal right to govern as set out in the agreement and put into force by government.
Simply put, this agreement would give the Westbank government an umbrella to shield itself with anytime a resident seeks to rain on its arbitrary actions with a challenge under the charter.
