Mr. Speaker, I appreciate the opportunity to express, on behalf of the NDP caucus, our enthusiastic support for the bill at this stage of debate in the House of Commons today.
As the spokesperson on aboriginal affairs issues for the NDP caucus, it is a pleasure to deal with such a positive issue in the House of Commons when so often we deal with issues that are controversial. This is one bill that we should all be able to feel very good about. If we are about to wrap up this Parliament and go into an election, perhaps we can conclude this 37th Parliament on a positive note and on something for which we can all be proud.
I will begin my remarks by paying tribute to and recognizing the patient, hard-working and dedicated chief of the Westbank First Nation, Chief Robert Louie, and some of the councillors who I met personally in their patient lobbying on the Hill. They were always available as a resource to all of us. Councillor Larry Derrickson was one of them. I also want to thank the negotiators who patiently steered the process through the various stages in what must have seemed like an agonizing and painstakingly slow pace. I do admire the patience and dedication they showed, specifically Mr. Tim Raybould and legal counsel, Micha Menczer. Without the passionate and enthusiastic participation of those individuals, I think it would have been very difficult to navigate the bill through some of the obstacles, not the least of which is a seeming wilful blindness on the part of some people to see this bill for what it is.
I would like to explain in the short time I have, not only the positive aspects of the bill but to try and put to bed some some of the myths that have grown up around this bill by the very small minority of people who do still find fault with it.
I feel that we should have been a lot further along with the bill. The government side sought unanimous consent for the bill to proceed last November but consent was denied by one individual who I do not think was even objecting to the specifics of the bill so much as he had problems with the aboriginal B.C. fishery. It really was not fair to the people of Westbank to delay the bill because of some grievance on another aboriginal issue that was not even related.
By way of prefacing some of the things I will be raising, I would like to recognize that this Westbank self-government agreement is groundbreaking, in a way, for several reasons.
First, it represents a major milestone in the effort to negotiate a self-government agreement in that it is the first stand alone self-government agreement. I say that because there is no land claim element to this agreement. It is the first time that a self-government agreement of this nature has been negotiated under the 1995 inherent rights policy. This is what makes this a significant and noteworthy day.
By moving closer to self-government, we believe the Westbank First Nation will have a stronger governance regime and, contrary to some of the speakers who we have heard from on this bill, it will be more accountable and transparent to its members.
If the theme and the buzzwords of this 37th Parliament are “transparency” and “accountability”, this is something that members in the House should be able to celebrate. I think the jury is in and there can be no doubt that under this new governance regime there will be more transparency and accountability to not only the members of the Westbank First Nation but the non-member residents of this geographic region and other interested parties, frankly the business community, the town council, the mayor of Kelowna, and the many speakers we heard who were not actually status Indians and supported the bill.
I will be happy to debate any member of the House, in any setting or forum, on the subject of accountability and transparency. We know the bill enables transparency and accountability.
The agreement has the solid support of Westbank's neighbours and on-reserve residents who are not first nation members. They recognize that the agreement will provide greater certainty in the exercise of governance and jurisdiction for all levels of government.
With the introduction of the Westbank First Nation self-government act, parliamentary approval is being sought to bring the Westbank First Nation self-government agreement into force and effect. What we are doing today is only giving the enabling legislation to finally put into full force and effect an agreement that already was ratified through an exhaustive consultation and ratification process by all the affected parties, the first nation members being only one of them.
I believe there is broad agreement in the House that the Westbank agreement is local democracy at its best. At the signing ceremony in October 2003, local members of Parliament from the Okanagan and Kelowna area were there and spoke favourably. The former Progressive Conservative minister, Mr. Tom Siddon, who was responsible for getting the negotiations going, was there. It was nice that he could be there to observe the ultimate fruition of this long 14 year process.
We believe that many aspects of the agreement are positive and clearly outweigh any objections that might be raised. Misinformation does abound, however, so I want to dispel one or two of those points.
We have heard from some critics that this is a copycat of the 1999 Nisga'a agreement. I would like to point out that this agreement is fundamentally different from the Nisga'a agreement. I will be able to explain that better when I go through some of the legal arguments that have been made.
I want to start with the inherent right of self-government. As I noted, this is the first agreement negotiated under the 1995 inherent right of self-government policy which finds its origins in section 35 of the Constitution. It must be understood that this agreement was negotiated in the context of the aboriginal inherent right of self-government. The agreement was negotiated by Canada based on this 1995 policy which clearly states:
The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982.
The policy calls for negotiations with first nations leading to agreements that will recognize the jurisdiction and authority of first nations governance.
Notably, not all self-government agreements are required to be in a treaty as the policy contemplates non-treaty self-government agreements. This Westbank First Nation self-government agreement is clearly not a treaty. This should be established and recognized right at the outset.
The aboriginal right of self-government is recognized by the Canadian legal system under the constitutional common law of Canada and also under section 35. While section 35(1) is an inherent point of origin, as a matter of current status it is held in Canadian law.
Those who do oppose the legislation, like Mr. Mark Milke who has written his opinions in the Calgary Herald , and Mr. Gordon Gibson who has expressed his reservations in an article in the Vancouver Sun and elsewhere, cite Campbell, the British Columbia Liberal government's appeal or challenge to the Nisga'a treaty.
Those who oppose Bill C-11 base much of their analysis on the general assumption that no aboriginal right of self-government can exist because all legislative powers are divided between Canada and the provinces under the Canadian Constitution.
While the Campbell ruling categorically throws out this point of view, aboriginal rights and in particular the right to self-government, akin to legislative powers to make laws, survived as one of the unwritten underlying values of the Constitution outside of the powers distributed to Parliament and the legislatures of 1867.
Mr. Milke and Mr. Gibson object to that legal ruling in the Campbell case. Given their view that all legislative powers then rest with Canada or the provinces, they see only mechanisms for a first nation jurisdiction as flowing from the delegated form of jurisdiction. In other words, a first nation jurisdiction can only stem from those powers delegated to it by the Government of Canada or by the provincial governments.
We, in the NDP, oppose that point of view. We feel it is far too narrow and we believe it is legally inaccurate. We embrace the opinions expressed by the royal commission on aboriginal people. Our interpretation, I suppose, is more in keeping with the federal government's in that we uphold and support the inherent rights policy as articulated in the 1995 policy, at least until such time as true meaning and definition can be given to section 35 of the Constitution.
I am one of those who believe that this is a necessary first step to a broader cross country settlement of outstanding self-government issues. I believe that rather than leaving it up to the courts to tell us what aboriginal and treaty rights mean, it is the role of Parliament and the House of Commons to take one step back and give meaning and definition to section 35 so we do not have this divisive struggle and expensive process, sometimes a 20 year process, to find a definition on a case by case basis.
I want to comment on some of the aspects of the Westbank First Nation self-government act on which I believe there has been some misunderstanding. An agreement we believe should be celebrated, is actually being criticized more by misinformation than by any solid and tangible reasoning.
Under this bilateral self-government agreement, Westbank will assume jurisdiction for most matters now regulated under the Indian Act. If there is one thing on which we can all agree, it is that the Indian Act is an outdated, obsolete and fundamentally flawed oppressive piece of legislation that we should all be committed to eradicating at the earliest opportunity. These jurisdictions will be phased in over time and as they are exercised, the related provisions of the Indian Act will no longer apply. In other words, this is the emancipation of the first nation of the Westbank region from under a colonial piece of legislation that has no business existing in the modern context.
In the category of laws, Westbank will have the jurisdiction to make laws in such areas as land management, aboriginal language and culture, resource management, the environment, et cetera. We should make it abundantly clear, if there is anyone under any misconceptions here, that the Canadian Charter of Rights and Freedoms shall, will and does apply in the context of this self-government agreement. I do not know how we can express it any more clearly. Those who are spreading this misinformation are those who may oppose the bill on the grounds that somehow the Charter of Rights and Freedoms does not apply. I point out and I urge those members to look at section 32 of this agreement where clearly the opening lines of the section says:
The government of Westbank First Nation and Council in respect of all matters under its authority are bound by the provisions of the Canadian Charter of Rights and Freedoms....
I do not know how we could be more clear to satisfy anybody who has any concerns about whether or not the charter applies. For additional clarity and certainty, the final part of that section reads:
--the rights and freedoms guaranteed by the Charter are enforceable in respect of the government of Westbank First Nation and the Council.
These statements in my view make it absolutely clear that the charter applies. Yet we find one legal opinion arguing that. Mr. Harvey, acting on behalf of some people who oppose the bill in the Kelowna area, points to the reference in section 32 of the agreement to section 25 of the charter, which deals with having regard to aboriginal and treaty rights in the interpretation of the charter. However, he fails to acknowledge that section 32 of the agreement is merely a statement of what is already in the charter, and the charter must be read and understood as a whole, not cherry-picking isolated sections. I hope that is the last we hear about it in this debate. I do not see how anyone could in any way argue that the charter does not apply.
Regarding non-members of the band, the charter states:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Therefore, individuals can always have recourse to the courts in that case. I hope we have satisfied some of the misconceptions that exist regarding the application of the charter.
I will not dwell on this very much longer. I think we have clearly stated why the NDP is firmly in favour of the bill. We look forward to the speedy passage of it.
In closing, it has been said by people wiser than I that aboriginal nations whose rights and interests in this bountiful land predate the treaties are in fact Canada's foundation. Canada's complexity and diversity derive not only from its array of people who have arrived from other lands, but also from the original inhabitants with their many cultures and languages.
To view Canada merely as a shelter society, ignores and denies the important and lasting roles of aboriginal people in Canada's legal and political foundation. There is no need for reminders of our tragic past, but that past can be put behind us with a philosophical shift acknowledging the mistakes made in the past and moving forward with progressive self-governance initiatives such as the Westbank First Nation self-government act.
Therefore, I am very proud to say that the NDP caucus will be voting in favour of the bill. Again, I wish to pay tribute, honour and recognize the herculean task it has taken on the part of Chief Robert Louie, his councillors and the negotiators to bring the bill to the stage it is. I extend my congratulations to them and I hope we can unanimously pass the bill at the appropriate time in the House.
