Mr. Speaker, I rise today to speak to Bill C-14, the Tlicho land claims and self-government act.
I would like at the outset to join my colleague in welcoming the Tlicho dignitaries to the House today. They are indeed a strong community with strong leadership. The questions of which I will speak in my comments relate less to the future direction of the Tlicho and more to the future direction of the government.
As the hon. members opposite are aware, I have a lengthy history in the country as an outspoken advocate in the resolution of both specific and comprehensive claims. In particular, as a private citizen and legal counsel, I served as the negotiator on the tripartite settlement of the Sturgeon Lake treaty land entitlement claim and more recently as a commissioner at the Indian Claims Commission, where I served as co-chair for almost 10 years.
I have been an outspoken advocate on the resolution of claims such as this and I have advocated institutional reform that would see claims resolved through an independent claims tribunal, which has the requisite independence from the federal crown. Through all that time, for nearly 20 years, I have advocated the resolution of claims, but I have also always advocated settlements which are founded on Canada's best long term interests, as well as the best interests of the aboriginal communities concerned.
I regret to say I am unable to support Bill C-14 in its current form. I do not believe that this legislation and the agreement which it brings into law, which is an aboriginal rights agreement pursuant to section 35 of the Canadian Constitution, have been fully negotiated and properly considered from Canada's point of view. The agreement gives rise to a constitutionally protected right. It does not amend the Canadian Constitution, but it does change it in the sense that it gives rise to a section 35 protected right.
I acknowledge that there are many aspects of the Tlicho agreement which are sound and represent a useful step forward in the negotiation of self-government arrangements. Indeed, this arrangement is unique. It is the first of its kind combining a comprehensive land claim with a self-government arrangement.
I would also say that I make no criticism of the lands and resources which have been allocated to the Tlicho under the agreement. I regard the agreement as a generous one. In that respect it will provide the Tlicho with the resources, both financial and otherwise, to build a partnership and a future in our federation.
Unfortunately, these positive aspects of the agreement are lost within a legislative scheme that raises serious national issues. Generally speaking, our concerns arise from the impact which the agreement will have on the governance of the country and the fact that it compromises to some degree Canada's capacity to exercise its international sovereignty.
Our opposition to the agreement is based upon our concerns that the approval of the agreement will impede the future governance of Canada. Furthermore, the passage of the agreement will create a precedent which will significantly erode federal constitutional jurisdiction in the north and also complicate Canada's international authority. In addition, important provisions of the agreement, most notably those pertaining to legislative paramountcy and concurrency and jurisdictional conflict, are internally contradictory and ultimately not decipherable in the agreement itself.
The agreement is the culmination of two separate negotiations. The first is the negotiation of the comprehensive claim which has been carried out pursuant to the federal government's comprehensive claims policy of 1986. In this respect the agreement has some similarities to the Nisga'a agreement. The second is the negotiation of the self-government arrangements which are based upon the 1995 inherent rights policy of the government. In this respect the agreement tracks the Westbank agreement.
The act gives the force of law to the tripartite agreement of August 25, 2003 and it accords that agreement paramountcy over the act itself and over any regulations which are passed pursuant to the act.
It is noteworthy and worth mentioning that the manner in which the agreement and the act have been placed before this Parliament are in effect by way of a notice of ways and means motion. This places Parliament and the House in the difficult position where it is an either all or nothing proposition, either the House effectively approves the legislation adopting the entire 208 page agreement or does not. There is no opportunity for the House to engage in a constructive amendment process.
Although the bill has received little public attention it is almost certainly the most significant such agreement considered by the Canadian government in recent years. The effect of the agreement is to create a third order of aboriginal government with concurrent but paramount authority, jurisdiction over the federal Crown in relation to matters affecting the Tlicho.
Moreover, the resultant Tlicho state is governed by a Tlicho constitution which is arguably paramount to the Canadian charter on the very terms of the constitution itself. The agreement also appears to acknowledge or perhaps confer some degree of international authority upon the Tlicho government. There are a number of provisions in the agreement that I would submit are flawed and debatable from a Canadian public policy perspective.
I will restrict my comments to four reasons why the agreement, as drafted, is damaging to the long term interests of Canada. First, I will refer to the absence of finality; second, to incursions upon Canada's international autonomy; third, jurisdictional confusion; and fourth, confusion surrounding the application of the charter as a primary instrument of Canadian law.
On the absence of finality, the agreement is a generous one in terms of lands, moneys and resources which are provided. It is worth noting that, as my friend said, the Tlicho lands will comprise as I understand it, the largest contiguous block of first nation owned land in Canada.
Unfortunately, as one who has negotiated specific claims, I am having some trouble understanding what concessions Canada has received in return for this.
Chapter 27.6.1 of the agreement provides that the Tlicho will also receive equivalent benefits to those granted in the future to any other aboriginal group in the Northwest Territories, whether by land claims agreement, self-government agreement, tax power exemption or legislation. In other words, the Tlicho agreement is clearly not a final agreement in the same sense that the Nisga'a agreement could be said to be a final agreement.
With respect to incursions upon Canada's international autonomy, the agreement contains several remarkable sections relating to international matters. I would point out for the benefit of the House that what is remarkable about those provisions is that they are a violation of the federal government's own policy relating to the negotiation of comprehensive claims. That policy states that powers relating to Canadian sovereignty are non-negotiable when the government is negotiating comprehensive claims, self-government arrangements.
Chapter 2.9 of the agreement states that it does not limit the authority of the Tlicho to enter into any international, national, interprovincial or interterritorial agreement which suggests by implication that the Tlicho government does have some authority to enter into such agreements. The agreement, moreover, contains the following remarkable provision which is self-explanatory. I refer to chapter 7.13.2:
Prior to consenting to be bound by an international treaty that may affect a right of the Tlicho Government, the Tlicho First Nation or a Tlicho Citizen, flowing from the Agreement, the Government of Canada shall provide an opportunity for the Tlicho Government to make its views known with respect to the international treaty eitherseparately or through a forum.
The agreement carries on in chapter 7.13.4, “to provide for an arbitration mechanism between the Government of Canada and the Tlicho government in respect of international legal obligations and disputes relating thereto”.
Furthermore, the Government of Canada is obligated under chapter 7.13.5 to consult with the Tlicho government before taking positions before an international tribunal in circumstances where the Tlicho government has taken action giving rise to an international legal controversy.
The clear implication of this is that the very jurisdiction that the federal government on its own principles said is non-negotiable has been negotiated and to some degree compromised. So, from the perspective of Canada, this agreement has compromised the international sovereignty of this country.
With respect to jurisdictional confusion, the provisions of the agreement relating to the future governance of this part of the Northwest Territories are, I would submit, poorly drafted and, in several respects, contradictory.
The intent or the effect of the agreement seems to have been to create a new order of aboriginal government with concurrent, although paramount, authority over the federal Crown in relation to matters concerning the Tlicho. The bill is very clear in making the provisions of the agreement paramount over the statute and over any regulations passed under the statute.
Unfortunately, the agreement itself is not internally consistent. It is contradictory, resulting in confusion regarding the concurrent and the paramount authority of the Government of Canada, the Government of the Northwest Territories and the Tlicho government.
The agreement addresses these interjurisdictional issues in at least three different places and prescribes three different distinct concepts of paramountcy. First, in chapters 7.7.2 through to 7.7.4, there is a hierarchy of authority which essentially flows as follows: first, federal legislation of general application; second, territorial legislation implementing Canada's international agreements; third, Tlicho law; fourth, territorial legislation of general application; and fifth, specific federal legislation relating to the Tlicho.
Yet, in chapter 2.8.3, there is a separate concept of paramountcy in that it makes the settlement legislation paramount over the provisions of any other legislation or the Tlicho laws. Yet the definition of settlement legislation in the statute refers to both territorial legislation and federal legislation.
In other words, this provision seems to create quite a differently hierarchy; namely, the following: first, the agreement; second, federal settlement legislation, which is presumably this bill; third, territorial settlement legislation; and fourth, other legislation for Tlicho laws. This is arguably inconsistent with the concepts outlined in chapters 7.7.2 through to 7.7.4.
Third, in chapter 2.10.7, there is yet another legislative hierarchy which applies in the event of an arbitration relating to jurisdiction or power, and it is entirely different. It outlines the following hierarchy: first, federal laws of overriding national importance; second, federal laws implementing international agreement obligations; third, other federal legislation; fourth, territorial legislation implementing Canada's international obligations; fifth, Tlicho laws; and sixth, other territorial legislation.
Certainly, the general scheme of the legislation is that the powers of the Tlicho government to enact laws are concurrent with those of the Government of Canada and the Government of the Northwest Territories.
The difficulty, from the provisions I have just outlined, is determining how and when the legislation of the Government of Canada is paramount, and how and when the legislation of the Tlicho government is paramount because there are multiple definitions that apply in the event of conflict. This will not be a good situation in the future as we determine who is responsible for what areas of activity.
Fourth, concerns the application of the charter and, frankly, the adoption of governance structures which may be inconsistent with the charter. The overall scheme created by the bill, the agreement and the Tlicho constitution appears to have implications for the application of the Canadian Charter of Rights and Freedoms to Tlicho citizens. Although both the agreement and the Tlicho constitution speak of consistency with the charter, they do not say that they are bound by the charter.
It is noteworthy that the Tlicho constitution itself is very clear, in chapter 3.1, that the Tlicho constitution, not the Canadian Charter of Rights and Freedoms, is the Tlicho nation's highest law. That is clearly expressed in the Tlicho constitution.
Frankly, the entire legislative scheme is quite unclear as to the constitutional relationship between the Constitution Act of Canada, the charter and the Tlicho constitution.
It creates a category of Canadians called Tlicho citizens, and prescribes an electoral system where only Tlicho citizens may be elected as the chief of the Tlicho community government. In addition, at least 50% of the elected councillors must be Tlicho citizens. To be a Tlicho citizen, one must be properly enrolled and registered, as I understand it, as a status Indian of Canada. The agreement clearly creates a segregated, racially based electoral system which does raise charter implications.
The Conservative Party believes that self-government must occur within the context of the Constitution of Canada. To ensure fairness and equality, the principles of the charter must apply to all Canadian citizens. Other claims such as the Nisga'a are very clear in stating that the charter binds the aboriginal self-government which is created. This document lacks that clarity.
Let me ensure that the record is clear as to my position. The future settlement of outstanding comprehensive claims must be pursued on the basis of a clear framework which balances the rights of aboriginal Canadians with those of the Canadian nation as a whole and, in particular, negotiated settlements must balance the economic and social needs of aboriginal Canadians with Canada's need for certainty and finality of terms.
Self-government agreements must reflect Canada's need for both efficacy and practicality in our institutional structure and constitutional harmony so as not to impede the future governance of Canada.
In our view the agreement has not been adequately considered from this perspective of Canada's overriding federal and international workability. In our view the agreement fails to satisfactorily balance the economic and social needs of the Tlicho on the one hand with Canada's need for certainty, finality of terms and constitutional workability on the other.
We would emphasize that this agreement has not been properly considered in that respect and that it is not in the best interests of Canada to approve a document which is contradictory on its very face, and which exacerbates the jurisdictional confusion in the north and potentially erodes Canada's federal authority and international autonomy.
The way in which the government has placed this statute, with the agreement attached, before Parliament precludes this honourable House from addressing in any significant way the issues which I have dealt with in my comments, real issues of legal significance. The House of Commons lacks the capacity in any meaningful way to address those issues because of the way in which the legislation has been brought forward.
