Joe Comartin

[Specific Claims Resolution Act, November 4th, 2003]

Madam Speaker, I agree that the cap being imposed has many negative consequences.

If a first nation involved in a land claim process has a substantially larger claim than the proposed $10 million cap, it will ignore the process completely. If a first nation is seeking $100 million, it will not get involved in this process at all. It will ignore it and move on to the litigation process.

A note that came out of a briefing from the first nations last month was to do an assessment of what the impact would be. If all claims that were either outstanding or that still had to come were dealt with under this process, it would take something like 100 years to get through the process. When one looks at the fiduciary responsibility of the crown to first nations, that alone says that the bill will not withstand a charter challenge and it will be struck down by the Supreme Court.

To deal specifically with the question of those first nations that have claims in an approximate range of $10 million, say $15 million up to $20 million, in my experience as a lawyer who has done litigation, oftentimes litigants take the position that they cannot get any more under the process, even though they are convinced they are entitled to more. However, the alternative process would be very expensive, time consuming and very difficult on the individuals involved in it. In effect this is a mechanism by the government to browbeat, intimidate and impose resolution rather than to deal with all cases, as I cited earlier, that demand of the government to take part in a meaningful negotiation and reconciliation process.

We certainly do not agree with that kind of imposed cap.

[Specific Claims Resolution Act, November 4th, 2003]

Madam Speaker, I believe we are faced with two issues today as far as Bill C-6 is concerned. I would address them in the following order. First, the fact that the government once again has used time allocation, a form of closure, to limit debate on what is a crucial issue for the first nations.

I just looked up some numbers and we know this is not the first time the government has used time allocation. In fact I did a comparison with Prime Minister Mulroney's administration from 1984 to 1993. That particular government used closure and time allocation 72 different times, which was heavily criticized by the current Prime Minister and his party throughout that entire period of time. It was a gross exception in the number of times that time allocation or closure was used.

As of today this government, which has been in power from 1993 to 2003, has used closure and time allocation 85 times. Therefore the hypocrisy of the government's position is quite clear. It is particularly shameful in terms of its conduct that it is being used on this particular bill and being used against the first nations.

It is quite clear, from our responsibilities as a legislature, that we have been directed in a series of cases by the Supreme Court of Canada on what our responsibilities are toward the first nations with regard to consultation and taking into account their position on legislation that affects them directly.

The first nations have been very clear and absolute, and I mean absolute in that term. They have been absolutely unanimous in their opposition to the legislation because it is a perpetuation of the paternalistic approach that we have used, Europeans have used, toward first nations since we came to the country and that Parliament historically has used in various pieces of legislation, most notably the Indian Act.

The proposed legislation and the approach by the government perpetuates that position and that attitude. The first nations have attacked the bill and have made it clear that they do not support it. They have a number of specific reasons, other than the basic approach, but they oppose the very contents of the bill.

The fact is that the House is being given the opportunity to once again say to the first nations people that we recognize what we have done wrong historically, that we will take another look at this and we will deal with claims on a nation by nation basis.

The fact that the other place has given us that opportunity is one that I would urge all my colleagues in the House to take advantage of today and when we come to vote on the bill.

I will use as one example, and we have heard this from some of the other members today, the opposition that has come from the first nations. This is just on one aspect of the bill, which is whether there is an independent commission here. I think anyone who has looked at the bill with any kind of objectivity realizes that there is not an independent commission.

A group, formerly known as the Aboriginal Rights Coalition, called KAIROS gathered a petition with 50,000 signatures from across the country. When it was brought to Parliament it did not quite meet the technical requirements, so it could not be filed in the House according to our standing orders. What it did then was ask the Prime Minister to receive it in order for him to perhaps finally understand the opposition among the first nations to the proposed legislation. To date, he has not agreed to do that.

I have a list of all the first nations and associations among the first nations that have opposed the bill. They have signed on saying that this commission is not independent. They are saying that we are going to have a commission appointed by one side, the Government of Canada, to arbitrate and make decisions on land claims to the exclusion of the other party, in this case the first nations. The list is quite lengthy.

Today, we are faced with time allocation. It is a shameful experience to say that we are part of a Parliament that would do that. It is even more so, when we look at the legal and constitutional position that we are in vis-à-vis the first nations. The Supreme Court of Canada has made it clear what our responsibility is with regard to consultation.

When this bill originally came forward to the aboriginal affairs standing committee in the House, it got very short consideration. There were at least 30 first nations and other organizations who wished to be heard and were not given that opportunity. In the other place, although the committee did hear some witnesses, once the amendments which are before us today were placed before the committee, there was no further evidence taken or interventions heard from first nations witnesses.

In fact, there have been no consultations on these amendments either here in the House of Commons or in the other place. The significance of that is that since 1982, since we repatriated the Constitution and introduced the Charter of Rights and Freedoms, we now have special responsibilities to the first nations.

If we were to review the Supreme Court of Canada's decisions addressing this consultation process with respect to the aboriginal peoples, we would get some sense of the scope and the magnitude of the consultation that is required. It is very clear that the Supreme Court expects us to conduct that consultation at every opportunity and with regard to every single piece of legislation affecting the first nations. It is not something on which we have a choice. We must absolutely do this.

There is a larger principle, which affects not just the first nations, of democratic government that was outlined by the Supreme Court in the reference regarding the secession of Quebec, something to the effect that “a functioning democracy requires a continuous process of discussion”. We have that at the larger level as well.

The Corbiere decision by the Supreme Court of Canada elaborated on that and would affect the first nations directly. It stated:

The principle of democracy underlies the Constitution and the Charter, and is one of the important factors governing the exercise of a court's remedial discretion. It encourages remedies that allow the democratic process of consultation and dialogue to occur. Constitutional remedies should encourage the government to take into account the interests, and views, of minorities.

With respect to aboriginal peoples, the requirement for discussion goes beyond just those basic philosophic principles. It is specific, real and justiciable. Aboriginal people are not one of the many minorities, but a people with special rights under our Constitution. That is something the government has forgotten.

Under section 91, subparagraph 24, the federal Parliament was given the responsibility for Indians and lands reserved for Indians. It is right in the Constitution. We have always had that jurisdiction. Quite frankly, historically, we did with it what we wanted to do with it. Since 1982, the responsibilities under that section have been expanded and limited because of section 35 of the Constitution, which is generally referred to as the non-derogation clause in the Constitution.

It recognized and affirmed the treaties and rights of aboriginal people. It tells Parliament that it cannot conduct business as it did prior to 1982. Parliament does not have the power to tell aboriginal peoples what they can and cannot do.

That is what this bill does and it is clear that this bill will be struck down at some point by the Supreme Court of Canada.

We expanded the responsibilities because as Parliament, in addition to government, we have a responsibility to consult with aboriginal peoples and to follow certain guidelines in the way we consult. We will hear from the government that it did consult; however, in law and in our relationship with the first nations peoples we must to conduct ourselves in certain ways.

We cannot simply say we sent out a letter, we sent out a notice and we had 10 meetings and that was it. As Parliament, we have a responsibility to engage in a dialogue with the courts to ensure that the laws we pass will not be overturned and that abuses by government are effectively restrained.

Again, I note the words of the Supreme Court in Corbiere with regards to the Indian Act specifically. It stated:

There are a number of ways this legislation may be changed so that it respects the equality rights of non-resident band members. Because the regime affects band members most directly, the best remedy is one that will encourage and allow Parliament to consult with and listen to the opinions of Aboriginal people affected by it.

After it had made that decision in Corbiere, the court suspended a declaration that would have struck down that particular section of the act as invalid in order to give Parliament the opportunity to deal with the issue in a proper consultative manner.

Nothing happened. There was no consultation. The government basically sat on its hands for the next 18 months. We are now left with having to deal with this in a variety of bills that have come before the House or are pending to come before the House, including Bill C-6.

There is no question that we are dealing with fundamental rights under the charter here. Recently, in the Powley decision regarding Métis rights, which came down in the last few months, both Houses of Parliament were told by the Supreme Court that the consultation process was crucial. When the Powley decision was raised at both the Senate committee and the aboriginal affairs committee of this House, members were told by experts that Bill C-6, based on the Powley decision and prior decisions by the Supreme Court of Canada, would not withstand legal and constitutional challenges. Both committees were told that and in spite of that, we still have this bill in front of us today.

At the same time that those witnesses were in front of those committees, they were making proposals for how the bill could be amended and how it could be put into shape.

Once the Powley decision came down, there was a recommendation made to the committee in the other place to set aside the bill for six months to give the first nations, the aboriginal peoples of this country, an opportunity to come forward to involve themselves in the proper consultative process. Instead, what happened was that a handful of experts from the other place, none of them first nations representatives, were given only a few day's notice to deal with what, at this point, had clearly become a complicated assignment. The committee, very briefly and in just over a week, reported the bill back. That was the process that was undertaken. That comes nowhere near, does not even get to first base, if I can use that analogy, in terms of the responsibility to consult.

In a number of decisions, the Supreme Court of Canada has set out more specifically what is required for consultation and the standards that must be met. The first principle it annunciated was in regard to section 35, the non-derogation and treaty rights, and that consultation is mandatory.

For example, in R. v. Horseman the court made it clear that it was no longer morally or politically acceptable for the federal government to modify a treaty right without consultation with first nations and aboriginal groups whose rights were affected. It is absolutely mandatory. That standard has not been met in Bill C-6.

The next point that it makes is that if Parliament is to infringe on aboriginal treaty rights, the court ruled in Sparrow that there must be a valid legislative objective. Even then, it must examine whether the honour of the Crown, and the special trust relationship and the responsibility of the government vis-à-vis aboriginal peoples was at stake. That was not met either.

The court built on that principle in R. v. Nikal stating that there must be as little infringement as possible in order to effect the desired result. So, if the rights are out there and they are exposed, the intervention must be justified and the intervention must be as little as possible. “Little infringement as possible,” are the words that come out of the R. v. Nikal case.

Another point is that fair compensation must be available and the aboriginal group involved must be consulted with regard to the measures being implemented. Given the history of the government, that is not going to happen either. The court went on and added:

It can, I think, properly be inferred that the concept of reasonableness forms an integral part of the Sparrow test for justification...So too in the aspects of information and consultation the concept of reasonableness must come into play. For example, the need for the dissemination of information and a request for consultations cannot simply be denied. So long as every reasonable effort is made to inform and to consult, such efforts would suffice to meet the justification requirement.

That again was not met here. We know that the consultation process here was at its absolute minimal and in some cases non-existent.

In R. v. Marshall the court again commented on the requirement for consultation where rights protected in section 35 might be affected. It stated:

As this and other courts have pointed out on many occasions, the process of accommodation of the treaty right may best be resolved by consultation and negotiation of a modern agreement for participation in specified resources by the Mi'kmaq rather than by litigation.

J. La Forest emphasized in Delgamuukw v. British Columbia at paragraph 207:

On a final note, I wish to emphasize that the best approach in these types of cases is a process of negotiation and reconciliation that properly considers the complex and competing interests at stake.

That negotiation and reconciliation does not exist in the format that was used to get us to Bill C-6 and certainly will not flow out of it. I have already mentioned the way the commission would be established. It would be open to accusations of bias as being appointed entirely by one side in the negotiations.

When we go back and read that quote, I can hear it before the lower courts and being argued with that terminology, and again used before the Supreme Court of Canada. Ultimately, this legislation will get struck down, if in fact the House proceeds to pass it.

As I said earlier, there are two issues here. First, there is the fact that time allocation has been imposed and the shameful conduct by the government, not only on this bill but historically. It is particularly offensive when dealing with a bill that is so important to the first nations. Second, the consultation process has been either non-existent or a total failure in terms of meeting the standards set down by the courts that we are required to meet.

On that basis, I would urge all my colleagues in the House to oppose this legislation and vote it down.

[Criminal Code, October 30th, 2003]

Mr. Speaker, like most members of the House, my party and I are in support of the amendments to the Criminal Code that are contained in Bill C-32.

As individual members I think we have all heard horror stories from constituents in our home ridings around the use of traps by certain members of our society, mostly the criminal elements of our society, which has put lives in danger, particularly the lives of our emergency service workers, whether they be police, firefighters, ambulance drivers or people who work in those areas.

We think of this almost exclusively in terms of the police officer crashing through a door and being met with a trap in the floor or a shotgun pointed at the door and triggered by the breaking in of the door. However, it usually is something less dramatic than that but equally dangerous, perhaps even more so because the police officer going in is well aware of the risks that he or she may be facing. It could be the ambulance driver going in simply to pick up somebody who is injured or is suffering from ill health who is confronted with this type of trap.

What the bill does in terms of trying to deal with this type of anti-social and outright criminal behaviour is increase the penalties for anybody who either has established that trap or is knowingly in possession of property and real estate wherein those traps are contained. It runs from increasing sentences from what might have been a 10 year sentence to one of 14 years and, in some cases such as situations where death results from the use of these traps, to life imprisonment. It bodes well for all members of the House to support that part of the bill.

Another point that we felt was important and were happy to see come forward is the whole issue of making restitution easier for people who have been victims of crime. The existing situation requires in effect a whole separate civil proceeding under some circumstances, that is, one actually has to start an application to the courts in order to obtain a court order from the civil courts, which would then allow one to collect on the restitution order that would already have been made by the criminal courts. There are amendments in the bill that will make that process much easier, much simpler and much less expensive for victims of crime.

There are some technical amendments around the use of warrants for going in and seizing weapons. This issue rose to the Ontario Court of Appeal in Regina v. Hurrell. The court in effect struck down the warrant used in those circumstances in that it offended the Charter of Rights and Freedoms.

What we are doing here is recognizing the limitations that the court of appeal put on the use of these warrants. We are now including those limitations in the bill but still allowing, under the proper set of circumstances, for police officers to go in on reasonable grounds and seize weapons where they are concerned that the weapons may be used for violent crimes. Again, it is a very useful mechanism to be made available to our police forces in the way of preventing crime and is therefore a good use of the Criminal Code in that regard.

The final point I would like to address, which has drawn some attention because of September 11, 2001, is redefining what is reasonable force, specifically on air flights. To make that clear, we have redefined in the amendments what a flight is.

More specifically spelled out in the bill is the right of any individual to use reasonable force in a situation where violence is either in the process or anticipated aboard air flights. Given the circumstances of September 11, this is a timely amendment which will provide clear direction to all members of society on what is acceptable and permissible and perhaps even recommended in those circumstances.

Based on those comments, the NDP is quite pleased to support the bill, particularly the amendments I have mentioned.

[Marriage Act, October 29th, 2003]

Mr. Speaker, Bill C-447 is a bill that it is suggested we should debate around the protection of the institution of marriage. It is a very short bill. It has at its beginning several points that begin with whereas, the first one of which is, “Whereas marriage has from time immemorial been recognized as the union of one man and one woman to the exclusion of all others”.

That in fact is false. Let us go back historically to the Christian period and the start of Christianity when Christ himself was alive on this earth, to the region he came from. The reality at that time was that polygamy was more common than a single relationship between one man and one woman. At the same period of time, and we could go back even further, the influence from Greece was still very prominent in Rome, in the modern world as they saw it at that time.

We know, if we look at history at all, that during the period of Greece's dominance of the world at that time, if I can put it that way, a number of the city states in fact recognized same sex relationships that were in the form of a union recognized both by the state and by religions of that period.

Therefore, as I have said, that initial whereas is not based on historical fact. Quite frankly, we can come down from that period through history to any number of other times, including times within the Catholic church where the Catholic church recognized same sex relationships and certified them within the structure of the Catholic church.

The second whereas reads that “because of certain court decisions, it is now necessary to clarify the meaning of marriage”. The bill goes on in the third whereas to say that “the Parliament of Canada, representing all Canadians, must be the final authority with respect to social policy decisions”.

In effect, these two points set up a conflict. I think it is accurate to say they reflect the reality of that conflict in our society, but what they do not reflect, and what they ignore or perhaps do not comprehend, is that in 1982 this country made a decision that when those conflicts existed between elements of society and government, this society, the Canadian society, the Canadian constitutional framework, would allow and authorize our court system to make a determination as to who was right in that conflict. That is the issue we are confronted with today and have been confronted with for a good number of years now.

We have had members of the gay and lesbian community saying that this is an equality issue, an issue that they see as a basic human right, and we have had the state in the form of legislation say no, they are wrong and this is the way it will be defined. We have that conflict.

Again, though, in 1982 this country and this Parliament adopted changes to the constitutional framework and adopted a Charter of Rights and Freedoms. At that time, they handed over to our courts the decision making power to deal with this type of conflict. We had the state on one side saying one thing and an individual group, in this case a minority group, claiming another. When we did that we did it consciously. We cannot go back at this point and say we did not understand it. Any parliamentarian elected to this House should have understood that. That is the system we function under.

Ultimately we have to allow this issue to go to the Supreme Court of Canada, as the government has now done. Lower courts have ruled on it, but the decision has to be made there. In effect, that is what is underway at this point. Until that happens, until we know what the ruling is on this issue from the highest court in the land, this legislation we have before us will have to wait.

I have to say that in terms of my reading of the law and my expectation of what the Supreme Court is going to do, it will rule on the charter and on equality rights in favour of the claim that is being made by the gay and lesbian community in the country. I will say that the Supreme Court is going to allow it and in fact mandate that this legislature recognize those relationships as full marriages.

I want to cover a couple of other points. There has been a great deal of criticism, and I think we have heard it in some of the speeches, about the way we are going about this. There has been criticism that the courts are unelected and that somehow this is anti-democratic and it is going to impinge on other people's rights, specifically within the religious community. There has been criticism that certain churches are going to be forced, against their principles, to marry same sex couples.

Anyone who has studied the law in this country will know that this argument is without merit. I will address my church specifically. The Catholic church has traditionally to this day refused to marry people who have been divorced. Unless they obtain an annulment within the canon law of that church, they cannot remarry within the church. That has existed for at least 40 or 50 years, since divorce became much more common in this country. There has not been one challenge to the Catholic church saying, “You have to allow me to marry within your church even though I'm divorced”. There has not been one successful case, not even a challenge.

The reason for this is that everybody and every lawyer in the country who knows anything, both about our charter rights and about family law, would tell us that this challenge would be unsuccessful, as it would be if gay couples ultimately are allowed to marry. The courts would be saying the same thing, which is that if these couples want to be married within the Catholic church and the Catholic church continues to prohibit those marriages, the courts are not going to force the Catholic church to marry them.

On the other hand, and I think this is often missed in this debate, a number of churches, including Christian churches, now want to allow and are beginning to allow gay couples to be married, that religion sanctifying those relationships, certifying, recognizing and in fact conducting a religious ceremony recognizing the sanctity of that relationship. If we were to prohibit that, if we were to pass this bill and it became law, we would be saying to those churches that they do not have the right to do that. We would be denying them that right. It would not only be a denial of rights to the gay and lesbian community but to the United Church, which has led the way in this regard. It would be told that it cannot conduct those marriages.

The other point I want to raise refers to some of the comments about undermining marriage that were made by the previous speaker from the Progressive Conservative Party. We can look to some examples, because there are two other countries that have moved down this path ahead of us. The Netherlands has had this in place for two years. In those first two years, the rate of marriage among heterosexual couples actually went up. The other argument was that somehow it was going to affect the birthrate. Its birthrate was not affected whatsoever. Belgium is now beginning to follow that example. My understanding is that it is having a similar experience.

I speak strongly against this bill. It is founded on principles or arguments that in fact are generally not accurate. On that basis, I speak very strongly against the bill going through.

[Nuclear Industry, October 28th, 2003]

Mr. Speaker, the government is proposing to dump another $46 million into the bottomless pit known as the nuclear power industry. In spite of a long litany of broken promises from the government and the industry and strong opposition from the Canadian public to this form of power, the government persists in giving away huge subsidies.

I ask the Minister of Natural Resources, is it not time for a full public review of government support for this toxic industry?

[The Environment, October 21st, 2003]

Mr. Speaker, I have a bit of a Kyoto update. This federal government is paying $15 million to burn eucalyptus trees in Brazil. At the same time, the Ontario Liberals are backing off their election commitment to convert coal-fired plants in Ontario to natural gas.

When will the government show some leadership by investing in the conservation and conversion of these coal-fired plants to natural gas in Ontario, rather than burn eucalyptus trees in Brazil?

[The Environment, October 20th, 2003]

Mr. Speaker, climate change and global warming have contributed both in number and severity to many environmental disasters.

We ratified the Kyoto protocol because of that reality. Now the environment commissioner tells us that we will only meet 50% of our targeted quota for reducing greenhouse gases. We also hear that the future Prime Minister intends, as he did as finance minister, to slash department budgets.

Will the government commit today that funding for Kyoto will be secured and safe from the knife of the next Prime Minister?

[Income Tax Act, October 9th, 2003]

Madam Speaker, would the member for Davenport agree with me that, if there is this type of technology available, it would be better to have tax incentives going in that direction than the blanket format that is contained in Bill C-48?

[Income Tax Act, October 9th, 2003]

Madam Speaker, I compliment the member for Davenport, who is also the chair of the Standing Committee on the Environment and Sustainable Development, on his speech and the rationale he used in speaking against the implementation of provisions that are contained in Bill C-48.

I want to pursue the question my colleague from the Bloc just asked but in a somewhat different tangent. If one were to use the tax system by way of subsidies and incentives to advance public policy, does the member have any opinion as to how that could be used with regard to the clean burning of the fossil fuel in the form of coal? Does he think that is possible? Does he know of any specific incentives that the government could put into place to encourage either research, development or actual implementation of clean burning coal technology, if that in fact exists in his opinion?

[Income Tax Act, October 9th, 2003]

Madam Speaker, let me take a shot first at the Alliance in terms of where we are in the polls in our support in this country. We are certainly several percentage points higher than that party and it is going in the opposite direction.

I have no problem standing up in this House and saying that I will defend the workers. The member's party is not going to do that. This industry has already cost this country 80,000 jobs of which 20,000 were directly from this industry, high paying union jobs, however, 60,000 over the last decade and a half were in small employers who ran gas stations and did other things that were related to this industry.

The industry put those workers out on the street. These people did not get any of these tax breaks. They did not get any use out of these tax incentives. That is what is happening with this money. It is what will happen with this tax break that the industry is about to be given.