Mr. Speaker, I accept your ruling, although I note your lack of confidence in the substance of this so-called implementation plan put forward by the government.
I do have a second point of order. It is also in regard to the motion on the Order Paper in which the House has been asked to call upon by the government to ratify the Kyoto protocol. I would submit that this motion is also out of order and cannot be received by the Chair for quite separate reasons than those I submitted in my first point of order.
We need to start with the basics. The first stage of treaty making is signature. In the case of the Kyoto protocol that occurred on April 29, 1998. However mere signature does not bind a state to the terms of a treaty until the second stage, which is ratification. However the Vienna convention on the law of treaties 1969 specifically provides in articles 2(1) , 14(1) and 16 that, “The institution of ratification grants states the necessary timeframe to seek the required approval for the treaty on the domestic level and to enact the necessary legislation to give domestic effect to that treaty”. The clear implication here is that all necessary legislation to implement the terms of a treaty should be in place prior to ratification.
In Canada there has developed a very firm practice in regard to the necessary steps that must be taken before ratification can occur. Maurice Copithorne, who is one of the leading treaty experts in Canada, has stated that all legislation must be in place prior to ratification. In an article published in 1996, in volume 54 of The Advocate , a journal for lawyers in British Columbia, he categorically states, at page 37 that:
A treaty that is deemed to create obligations upon Canada that can be implemented only by a change in the laws requires legislative action. Normally the Canadian government withholds ratification of such a treaty until such legislation is passed.
This has been reinforced in his most recent but as yet unpublished material on the subject entitled, “National Treaty Law and Practice: Canada”, a copy of which we will provide to the Chair. He states at page 6 that:
--governments have come to take the position that they will normally only ratify a treaty after a necessary and enabling legislation has been passed.
What gives his opinion even more authority is that it has been applied in cases coming before the courts. In 1999 the Hon. Justice Owen-Flood of the British Columbia Supreme Court in the case of Re Stuckey, cited as BCSC BL0078, gave full legal sanction to this opinion.
On page 7 of his reasons for judgment, his lordship relied on the statement by Mr. Copithorne in the published article to which I referred. He quoted that statement directly and stated that it was “the best statement of the law and practice for the purpose of the case at bar”.
As a further authority, I cite Mr. Daniel Dupras of the law and government division of our own parliamentary library in a publication entitled, “International Treaties: Canadian Practice” dated April 3, 2000. On page 7 he states that for a treaty to be ratified is in the form of a
--document establishing that the formalities for the coming into force and implementation of the treaty have been completed.
Mr. Dupras goes on to say, and quite definitively, at page 6 that:
In cases requiring amendments to Canadian legislation, the treaty is not ratified until such amendments or new legislation have been passed.
The ultimate statement for our purposes is at page 8 where our parliamentary librarian states:
Where a bill must be passed in order to implement a treaty is not passed, Canada cannot ratify the treaty.
Therefore it is both a requirement of international law and established practice which has been applied in our courts of law for the government not to ratify a treaty that requires legislation for its implementation until the legislation itself has been passed by this House.
It is conceded by everyone, including the government, that for the Kyoto protocol to be implemented, it will require the passage of legislation by this House. The leader of the government in the Senate has announced publicly that there will be such necessary legislation tabled in this House but that the government cannot do so until some time next spring. Yet the Prime Minister in the House has stated that the government intends to ratify Kyoto before the end of this year.
It goes without saying that it will be impossible for the government to prepare, table and pass such enabling legislation before the deadline for ratification that the Prime Minister has announced.
These announcements by the government, coupled with the tabling of this motion by the government in the House and asking the House to pass such a resolution, constitutes a complete breach of all these established and recognized practices and rules for ratification of treaties in Canada, I would emphasize practices and rules which have been applied by our courts of law. In the absence of necessary legislation to implement the terms of the treaty not as yet passed by the House, the motion asks the House to approve the government's breach of the rules.
As the authorities I have referred to clearly show, governments do not proceed to ratification until the necessary enabling legislation is first passed by the House. It is important that we follow the customary procedures and past practice of the House in this regard.
As an example, the North American Free Trade Agreement was ratified by this government in 1994, but only after the passage by the House of the necessary legislation, namely the North American Free Trade Agreement Implementation Act in 1993.
I could cite other examples such as the World Trade Organization agreement and the Canada-Chile Free Trade Agreement, both of which were ratified by the current government after following the correct practice and having any necessary implementing legislation introduced, debated and passed by the House before ratification.
The other important precedent is of course the process followed for the ratification of the original free trade agreement. As we all know, this very important treaty was not ratified until the House and this Parliament passed the necessary implementing legislation and it took a fresh general election to make that happen.
Therefore, the House is being asked by this motion to condone and place its seal of approval on the ratification of a treaty by the government at a time when the government has not taken the necessary steps as required by international law and authoritative practice. This is a clear breach of the customary practices of the House in which the House would never be asked to give its approval to ratification of a treaty to occur virtually immediately thereafter at a time when the necessary implementing legislation has not already been passed by the House. This is the case of the government getting the proverbial procedural horse before the cart.
However, in addition to constituting a breach of the customary procedures of the House, this attempt by the government to obtain such approval for ratification from the House at this time is also both contemptuous of the House and a breach of our privileges. Therefore, the action of the government in placing a motion on the Order Paper and moving it forward for debate is fundamentally repugnant to decided international law, Canadian law and practice and the customary practices of the House.
In conclusion I would submit that the government's motion that the House at this time call upon the government to ratify the Kyoto protocol, as it appears on the Order Paper, cannot be received by the Chair and should be struck from the Order Paper. It is simply contrary to the customary practices of the House and is out of order.
I am going to submit for your review, Mr. Speaker, a number of documents that I have referred to in raising this point of order, and they also contain documents related to another matter which I may wish to raise.
