Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 6 - Evidence
OTTAWA, Tuesday, December 3, 2002
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 5, respecting the protection of wildlife species at risk in Canada; and Bill C-14, respecting the provision of controls on the export, import or transit across Canada of rough diamonds and for a certification scheme for the export of rough diamonds in order to meet Canada's obligations under the Kimberley Process, met this day at 6:30 p.m. to give consideration to the bills.
Senator Mira Spivak (Deputy Chairman) in the Chair.
[English]
The Deputy Chairman: Today we are examining Bill C-14, providing for controls on the export, import or transit across Canada of rough diamonds and for a certification scheme for the export of rough diamonds in order to meet Canada's obligations under the Kimberley Process.
We have witnesses from the Department of Natural Resources, from the Department of Justice and from the Department of Foreign Affairs and International Trade.
Mr. Bruce Boyd, Acting Associate Director, International and Domestic Market Policy Division, Minerals and Metals Sector, Department of Natural Resources: The term ``conflict diamonds'' is defined as rough diamonds used by rebel movements or their allies to finance conflict aimed at undermining legitimate governments. In Angola and Sierra Leone, the National Union for the Total Independence of Angola and the Revolutionary United Front have exploited their control over diamond producing areas to finance military activities. In the Democratic Republic of Congo, competition for control of this resource has also fuelled armed conflict.
In December 2000 and in March 2002, the United Nations General Assembly adopted resolutions cosponsored by Canada calling for the development of an international certification scheme for rough diamonds to tighten controls over the diamond trade and to prevent conflict diamonds from entering the legitimate markets.
In May 2000 the Kimberley Process was initiated by several Southern African countries in order to promote human security, and to protect the legitimate diamond industry in countries such as Botswana, Namibia, South Africa and Canada.
The process, which is chaired by South Africa, includes 48 participants that account for 98 per cent of the global trade in production of rough diamonds. Over the course of nine plenary sessions and two ministerial meetings, the Kimberley Process developed detailed proposals for an international certification scheme for rough diamonds. In March 2002, Canada hosted a meeting of the Kimberley Process, which achieved consensus on the proposals for the scheme.
On November 5, 2002, at the Kimberley Process ministerial meeting in Interlaken, ministers and heads of missions from over 45 of the participating countries adopted a declaration reaffirming their commitment to implement the proposed certification scheme for rough diamonds beginning January 1, 2003.
The overwhelming majority of these countries are now poised to launch the scheme on the target date. The membership includes the diamond producing countries in Africa as well as Canada's principal diamond trading partner, the European Union. Cyprus, the Czech Republic, Japan, Malta, Thailand and the Ukraine, did not associate themselves with the Interlaken declaration. However, they are attempting to implement the scheme at the earliest possible time. Thailand, for example, is quickly introducing regulations to be approved by its cabinet before the target date.
The proposed international certification scheme includes several key commitments, including a requirement that all shipments of rough diamonds imported to or exported from a participant be certified under the scheme. It also contains trade prohibitions banning the trade in rough diamonds with countries that do not participate in the scheme.
Canada has one operating diamond mine. This is BHP Billiton Ekati mine located 300 kilometres northeast of Yellowknife. It has 740 employees, 77 per cent of whom are Northerners. Thirty-nine per cent of those Northerners are Aboriginal workers. Royalties from Ekati and from a second mine scheduled to open in 2003, and two other planned mines, will generate an estimated $68.5 million per year.
In addition to diamond mining, a small diamond cutting and polishing industry is growing in Yellowknife and in the Gaspé region of Quebec. Other polishing facilities and jewellery manufacturers are located in various sites across Canada.
These industries depend on Canada's continued trade with the European Union, the United States and other participants in the Kimberley Process certification scheme. Bill C-14 establishes the trade regulation regime necessary to participate in the Kimberley Process rough diamond certificate scheme.
The bill deals strictly with natural rough diamonds. It does not deal with synthetic diamonds, which constitute the majority of the industrial diamond trade.
This bill provides the authority to verify that natural rough diamonds exported from Canada are non-conflict and have a Kimberley Process certificate.
Verification of certificates from other countries will begin at our borders. An exchange of specimen certificates among participants will ensure that forged certificates are not passed into Canada. The monitoring of the certification processes of other countries is part of the international arrangement. If necessary, it will comprise review missions.
The certification scheme will be subject to audit and evaluation on an ongoing basis. For example, cost recovery is provided for in the bill and will be examined in the first few months.
The Minister of Natural Resources has committed to undertake a review of the provisions and operations of the act after three years. For the review, the Minister of Natural Resources has indicated that he intends to consult with the non-governmental organizations that have been involved in the Kimberley Process from its early stages. An example is Partnership Africa Canada. He will also consult with industry experts, including the diamond exploration and producing companies and the cutters and polishers.
Passage of Bill C-14 will put in place all the authorities required for Canada to meet its commitments under the Kimberley Process. Prompt passage of this bill will ensure that these authorities are in place by year-end, when the process is planned for international implementation.
Senator Christensen: In the second page of your presentation, you list the countries that were not at the Interlaken declaration. Why were they not there, and why are they playing catch-up?
Mr. David Viveash, Director, Peacebuilding and Human Security Division, Department of Foreign Affairs and International Trade: They were at the ministerial meeting. They indicated at the time that they could not commit to being ready to implement the process by the target date of January 1.
Part of the challenge that we faced in Kimberley Process was to try to ensure universal participation. For each Kimberley Process meeting, the chair, South Africa, sends diplomatic notes to all member states of the United Nations encouraging them to participate. In some cases, the diplomatic notes work better than others. They go to missions in New York. Those missions may or may not send them to the capitals. We have all had to work our own neighbourhoods, and work our own trading partners to encourage them to come into the Kimberley Process.
Once the process comes into effect, 98 per cent of the trade will be represented within the Kimberley Process. We have most of the significant trading countries and the other countries that have joined more recently have to go through the same kind of process in order to put their regulations in place.
Those six countries are committed to making best efforts to be ready by January 1, but were not prepared to associate themselves with an overall consensus statement that all parties would be ready for January 1.
Senator Christensen: My next question probably shows my ignorance of the industry itself. You state that you are dealing with natural rough diamonds and not cut diamonds. Could countries that are trying to sell ``blood diamonds,'' if you will, cut them themselves and then sell them to other countries? What control do you have over cut diamonds?
Mr. Boyd: The Kimberley Process deals strictly with rough diamonds, because rough diamonds are being traded to finance the conflicts. There is some cost involved in setting up a cutting and polishing industry, but cut and polished diamonds do not fall under this regime.
The industry is trying to establish a diamond tracking system. Once we have set up something that will keep conflict diamonds out of the rough diamond trade, then a voluntary tracking system will keep a certificate trail of the cutting, polishing and jewellery trade. The World Diamond Council heads the tracking system.
Mr. Viveash: I think you have raised a good point, and it is one that Canada raised in the course of the negotiations. We suggested that we might want to go beyond rough diamonds to include diamonds that are cut and polished. We could not get support from the other countries involved. I think their main objective was to get the system working for rough diamonds. Experts from the industry advised us that it does take a certain level of technology and a certain level of skill to set up a cutting and polishing industry. For the present time, the system is restricted to rough diamonds.
Senator Milne: What is to prevent a diamond polisher from bleeding polished diamonds into the legitimate trade? How can you protect the buyer from being victimized? How can you track the diamond back to its source? I know the diamonds from Canada's mine are marked. What are we to do about the diamonds that have been cut and polished? As they say, diamonds are forever.
Mr. Boyd: It is one of the peculiarities of the diamond industry that the majority of the cutting and polishing industries are not in the producing countries. We rely on efficient customs operations to stop the rough diamonds from getting into the country and being cut and polished.
This issue is being looked at by the industry. The material balances in cutting and polishing factories will be looked at to ensure that diamonds are not added in at that stage. That procedure will occur in the future.
Senator Cochrane: Mr. Boyd, have you consulted with groups from the Northwest Territories? If you have consulted with them, are there any groups or individuals who have had any concerns about this bill?
Mr. Boyd: The government, industry and Aboriginal representatives of the Northwest Territories have been consulted and strongly support the bill. Discussions will continue into the future with the Government of the Northwest Territories. In the future the Government would like to play a role in administering the process. This is something we have allowed for in the legislation but we have not yet arranged.
Senator Cochrane: What about environmental groups?
Mr. Boyd: I am not aware of environmental groups having much interest in this process, because this is a trade bill. It has to do with trade and it does not deal with the production or processing of diamonds. Environmentalists have not shown any interest in this bill. On the other hand, from non-governmental organizations that are interested in human security have shown a great deal of interest.
Senator Christensen: You discussed the identification marks for cut diamonds, such as the polar bear logo on the ones from the Northwest Territories. Is there a system to identify rough diamonds? How can we stop them from being laundered through second and third countries?
Mr. Boyd: That is the reason for the Kimberley Process. The whole purpose of this certification scheme is to assure that any rough diamonds that enter the trade are from legitimate countries that are not involved with conflict.
It is very important that the certificate accompany the diamonds from one place to another, because the weights of the shipments, the estimated value, and their country of origin will be on that certificate. The purpose of the process is to provide a substitute for a marking scheme.
Senator Sibbeston: I am responsible for the bill. Are we in any way in violation of our commitments to the World Trade Organization? What will the certification scheme cost to implement? Is there a cost recovery process provided for in the act? What will it cost to administer the act?
Mr. Viveash: Senator Bolduc, the Kimberley Process provisions are indeed, inconsistent with our obligations to the World Trade Organization. It is for that reason that Canada has requested a waiver in the WTO. That waiver would recognize that we are proposing the put a trade ban in place. Trade bans are inconsistent with the spirit and the letter of the GATT, the General Agreement on Tariffs and Trade.
On November 22, Canada introduced a request for a waiver at the Council on Trade in Goods in Geneva. Other co- sponsors, that include Japan, Thailand, the Philippines, the Ukraine and, I believe, Sri Lanka requested the waiver as well. There is a broad representative base of support for Canada's proposal for a WTO waiver.
We were asked by the Council for Trade in Goods to continue consultations on that waiver to see if there is broad- based support. In order for the waiver to pass in the WTO, there would have to be a two-thirds majority in favour of it. Based on the mandate that we have received from the WTO, we will carry on the consultative process while trying to expand the group of support beyond our co-sponsors. There are a number of other countries, including the United States that have expressed interest in and support for the waiver approach.
However, the consensus is not universal. The European Union and Switzerland do not feel that a waiver is necessary; they think that the existing provisions of the GATT provide the exceptions that are needed for the Kimberley Process.
I guess the short answer to that question is ``yes.'' We feel there is an inconsistency, but we are working through the WTO waiver to address that inconsistency.
Mr. Boyd: The estimated cost for introducing this system is in $400,000 range. This amount includes: the cost of legal fees, the printing of certificates, and the cost of housing and collecting the confidential data. Further expenses will include salaries for inspectors and investigators. Some of these costs will be incurred before the end of this fiscal year.
The ongoing costs will depend very much on the level of prosecution. We look at the possibility of costs amounting to as much as $1 million per year if we were to have two prosecutions in that year. We expect our actual running costs to be between $200,000 and $500,000 a year.
We will have a much better idea of the costs after the first few months of operation. We will have a very close auditing system. This will also have an effect on decisions concerning cost recovery because the bill has allowed for an application fee by a Governor in Council decision. The amount of the fee and so on will depend somewhat on our costs. We are having trouble estimating what those costs will be.
Senator Sibbeston: A month or so ago I visited a diamond mine and tried to become familiar with the diamond industry. At that time, the officials of the Government of the Northwest Territories indicated that they would like Yellowknife to the point of entry for administering the bill. Is it a logical or a reasonable expectation that the federal government would make Yellowknife one of the points of entry?
Mr. Boyd: Yellowknife is an international port, there are customs services there, and it would be a logical place for a point of entry. A Governor in Council decision is foreseen in the bill as designating points of entry and exit. Until there is a decision on that, all points of entry and exit would be open for the diamond trade. It would be very logical to have Yellowknife as one of the points of entry. It is expected it will be.
The Deputy Chairman: How will the transit certificates prevent fraud and smuggling? How can you prevent collusion between a smuggler and a criminal?
Mr. Boyd: This bill addresses the conflict diamond issue and it is beyond this program to prevent smuggling. This bill attempts to remove the conflict diamonds from the trade by having the legitimate diamonds carefully identified.
The proposed bill will have limitations in terms of smuggled rough diamonds that are cut and polished. As pointed out, there are barriers to entering into the business of diamond polishing because of the skill required to cut and polish diamonds.
The diamond industry is taking measures concerning conflict diamonds. The industry does not want to be associated with diamonds that have come from a conflict source. They are policing diamonds from getting into the legitimate market. However, there defiantly are limitations to what can be achieved by controlling rough diamonds only.
The Deputy Chairman: Thank you. There are no further questions. I would suggest that we could proceed to clause by clause, if that is agreeable.
This is on Bill C-14. Shall the title stand postponed.
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 2 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 3 to clauses 7 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 8 to clauses 13 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 14 to clauses 16 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 17 and clauses 18 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 19 to clauses 22 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 23 to clauses 46 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall the schedule carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 1 and the title carry?
Hon. Senators: Agreed.
The Deputy Chairman: Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Deputy Chairman: Is it agreed that this bill be reported at the next sitting of the Senate?
Hon. Senators: Agreed.
The Deputy Chairman: We will go on to the next item, which is Bill C-5. I have had a conversation with the chair and we have agreed, if you are in agreement, that we will read the letter that came from Minister Cauchon, discuss his observations and then go to clause by clause. Are you all in agreement?
Hon. Senators: Agreed.
The Deputy Chairman: Are there any comments on the letter?
Senator Sibbeston: The minister has written a letter and stated the government's plan for dealing with the proposed non-derogation clause. I am a concerned however, because the letter is not clear. I see that future bill will not have non- derogation clauses.
Minister Cauchon has indicated that the government will adopt a policy of not including non-derogation clauses in proposed future legislation. I do not know what the minister's plans are with respect to the bill. Will it be a bill to delete all non-derogation clauses from past bills? Is the government's solution to do away with non-derogation clauses?
If that is the case, it was not our intention. Aboriginal rights are significant. They are more than the rights that are contained in the Charter of Rights. There is some purpose in referring to non-derogation clauses. It seems to be the practice or convention that has been established in our country in Parliament and in legislatures throughout the country. The non-derogation clause is a useful item. It reminds legislators and the courts of the importance of the Aboriginal rights.
Certainly the minister does not make clear exactly what he will be doing. While I am hopeful and optimistic, the solution is still uncertain. If his solution is to eliminate non-derogation clauses then I do not agree. I do not think that is the answer. If he does away with the non-derogation clause he will make the situation worse for Aboriginal rights in our country.
The letter says:
The Government of Canada will introduce legislation early in March 2003 to address the non-derogation clauses.
I am puzzled about that. Will he come forward with legislation to eliminate non-derogation clauses?
The Deputy Chairman: I understand what you are saying.
Senator Sibbeston: I am a bit concerned about proceeding clause-by-clause at this stage. I am aware that the lunch we had scheduled with the minister for tomorrow has been cancelled. We have this letter, but I find it unclear as to the governments' intentions. I believe that we need some clarity from the minister.
The Deputy Chairman: I understand your position.
Senator Watt: This morning I asked Senator Carstairs about the ministers' intentions and she told me that they will be introducing a piece of legislation to deal with a proposal that will accompany the letter that came from the five Aboriginal senators in regard to stand-alone legislation. I believe that is what the minister is referring to in this letter.
My problem is not so much along that line, but it is similar. What will happen to the ones that already have been passed? There are at least five pieces of legislation, I believe, that have unusual non-derogation clauses that do not reflect section 25 of the British North America Act. That to me is silent, but it is not a big item. However, it is silent in the letter. I believe that this letter indicates the future legislation will not have a non-derogation clause.
The Deputy Chairman: You are still concerned about the situation?
Senator Watt: I am concerned.
The Deputy Chairman: Would you like clarification?
Senator Watt: In some ways, I do agree with Senator Sibbeston that it does not hurt to have a reminder. However, we have dealt with that issue off and on during our committee work. I am not really pushing that item. If we end up with a proper non-derogation clause by way of coming up with the legislation, it will probably do the job.
I am concerned with how we rectify the five pieces of legislation that have been dealt with before.
Senator Milne: Perhaps it would be a good idea to read both of these letters together. I believe that the two of them tell us exactly what the government is planning to do.
The first letter dated November 27 was read into the record at our last meeting, so I think perhaps the new one should be read into the record at this meeting. The minister writes:
We recommend to the government that we adopt your proposal.
The Deputy Chairman: Which letter are you reading from?
Senator Milne: I am reading the fourth paragraph of the letter dated November 27. The minister writes:
We recommend to the government that we adopt your proposal of introducing stand-alone legislation to remove non-derogation clauses from all existing legislation.
The second letter written December 3, reads:
At the same time, the government will adopt a corresponding policy of not including non-derogation clauses in proposed legislation in the future.
The two of those together make just as firm a commitment from a minister as I have ever seen.
Senator Watt: If you read it that way, I cannot argue with you on that point.
The Deputy Chairman: Is there any further discussion?
Senator Watt: I want honourable senators to realize that it is not easy to try to administer and maintain what you ended up with through negotiations. The government from time to time has many ways of tackling what you thought you ended up with. When you wake up one day you discover that it is not an option there for you and you cannot argue the point.
I want to mention that the Aboriginal people will consider this a threat to their Aboriginal rights. I was also very much involved at the very beginning of the negotiations that led to the Constitution. Following that, when I became a senator, I was one of the instrumental persons who pushed for a reminder. You see in the piece of legislation that there is a proper non-derogation clause in it.
Senator Kenny: Our Aboriginal colleagues came to the committee with a concern, and I think that the committee endeavoured to support them with their concern. We found that the governments' initial response was unsatisfactory. This committee supported them and said it would not deal with the bill until it got a commitment from the Government of Canada to deal with the non-derogation clause.
Senator Watt, you may well have had a position some time ago that you liked to have a reminder.
Senator Watt: That was not really my statement.
Senator Kenny: I understand that, but you just said a moment ago that when you first became a senator you did like to have the reminder in it. That was not the proposition you put to us when you asked for our support. I believe we delivered exactly what you asked us to deliver.
As for Senator Sibbeston, what you see here is a commitment from the Government of Canada to introduce legislation in March 2003 to address the non-derogation issue. If you look at paragraph five, you see that it is designed to remove all non-derogation clauses and not to put in future non-derogation clauses. That gives you a very clear picture of where the government wants to go on this issue. It seems to me that we have precisely what we have asked for. Now I am wondering if people are changing their requests or changing their demands. If you are, or if you are just putting on new emphasis, I would suggest the time to make that argument is when this new piece of legislation comes before the Senate.
I think that it is contrary to the advice that we have been getting from the group up until now, if you do want to have non-derogation clauses included, but with different wording or wording that is more consistent with the Constitution, it is perfectly reasonable to do that when the government introduces the new legislation. Clearly it is not drafted. The government was not aware that we would insist on this in this particular bill. In fact, as recently as 48 hours ago I do not think the government was planning to send us a commitment of any sort.
We have a commitment from them now. We have an opportunity. If it is the wish of some senators to see that a non- derogation clause with specific wording that matches the Constitution is included in future bills, the time to bring it forward is when these bills come to the Senate. More than that, you have an opportunity as members of the government caucus to have an influence on how the minister drafts the bill.
Perhaps I am judging prematurely, but from my perspective, this committee has provided you with precisely what you asked for, and my sense is that it is ``job done.''
I do not object to Senator Sibbeston saying he would like to go further or there is another step he would like to take at some point. That is his right, but the vehicle is not with this particular bill that we have before us. What we have coming before us is a bill specifically on the non-derogation clause. That is the time to address it and to deal with the matter.
Senator Watt: I guess I owe the other senators a ``thank you'' for the help that they have given us. The fact is that Senator Sibbeston raised the issue, even though I have been saying it is perhaps not necessary at this point because stand-alone legislation could come at some point. The minister has responded, and he says he will to do that at in March. First, I want to thank everyone for the help they have given to the Aboriginal senators.
I want to mention the compensation issue. Even if you say the non-derogation clause is in there, you are playing with words, and I hope everyone realizes that. There is a definite infringement on the rights. Do we all agree on that? Even if there is a non-derogation clause, in theory, the Constitution is kept intact, but in practice we have infringement. I think we all know that.
This is not a mystery to me. From time to time, yes, legislation impacts our rights, but we have to deal with it. The compensation is one of the perfect examples. If people's livelihood is impacted, you have to try to come back with an alternative to the fact that their rights are being impacted. What are we getting in return?
I do appreciate the fact that in Bill C-5, the Aboriginal people will be part of the process in terms of deciding what gets on the list and what does not get on the list and things of that nature. I appreciate that it allows scientific communities and traditional knowledge to be able to play at the council level.
What happens if there is a strong indication from traditional knowledge that they do not have proper scientific information or have not conducted their research in a proper fashion? As an example, it happened in regards to the beluga. There should be acknowledgement that there should be compensation.
I read what the minister said in the front of the committee the other day. He said there would be no compensation if there is impacting the line. However, I also raised a question about what we do if the livelihood is impacted. Did we not all hear the answers from him?
If that is not amended, at least some of our concerns should be put in the report.
The Deputy Chairman: I think it does mention it, but we will go on to that in a moment.
Senator Watt: I am starting to sound like Senator Cools here. Can we discuss this issue?
The Deputy Chairman: Are you finished your statement?
Senator Watt: Yes.
The Deputy Chairman: Senator Kenny had a supplementary.
Senator Kenny: Senator Watt is absolutely right. I think it is appropriate that his remarks be placed in the report that accompanies the legislation. He made it clear to this committee that he had several amendments; not two but four. What he said to the committee was that if we could find movement on the non-derogation clause, he was prepared to forgo the other three. However, I think it is only reasonable that he make reference to them and whatever else he would care to in the report because the report will serve as a benchmark the next time we revisit this bill. I believe that is five years from now.
The Deputy Chairman: I think there has been some desire expressed here that it would be sooner than that.
Senator Kenny: The sooner the better, but the point is that I think we should support Senator Watt in footnoting this and putting it there so that when the bill is reviewed, we have it before us and whatever committee is dealing with it has it before them. I agree with Senator Watt.
Senator Watt: Are you telling me to put it in the observations and not even think about making an amendment?
Senator Kenny: You committed to this committee.
The Deputy Chairman: Just a minute. No pressures. Anyone on this committee can do whatever they like in terms of amendments. The committee can vote on the amendments.
Senator Kenny: Thank you for the lesson in civics. I am simply reminding Senator Watt of the undertaking he made to the committee and the support he got from the committee was based on that undertaking.
The undertaking, as I understood it, was that if the committee delivered on the non-derogation aspect of it, and you were very clear about your other amendments to us, then you would not pursue those other amendments this time around. You did not say you would give up on them forever; you just said this time around. I agree with you, and now that the committee has received these letters, I think it is perfectly appropriate that you insist that your amendments be featured in the report that goes with it. I do not believe there was a commitment on my part to amend the bill to deal with compensation. That was not what you were asking us for if you got the non-derogation clause.
Senator Watt: Let me refresh your memory, Senator Kenny. At the time I highlighted a proper non-derogation clause dealt with through the stand-alone legislation. You are partially correct in saying I would not be push for those amendments if the non-derogation clause were included. As you remember, Senator Baker asked about the compensation.
The Deputy Chairman: Senator Baker is not here.
Senator Watt: He is not here right now, but I said that this compensation issue still has to be dealt with. I did not say, ``At all costs.'' ``If the proper answer comes, I will drop all my proposed amendments.'' I did not say that. I categorically mentioned the fact that the compensation issue is still an issue.
The Deputy Chairman: There is a list, and we will go through it.
Senator Milne: I still think we should read this second letter into the record. It is important.
The Deputy Chairman: We will move that it be attached to the minutes.
Senator Milne: It should be entered into the record as if read.
The Deputy Chairman: All in favour?
Hon. Senators: Agreed.
Senator Milne: It is important to have what the minister said in both those letters, because they must be read side by side.
I thank you for your remarks on what we have attempted to do for the Aboriginal senators, because it is important. This is one of the best responses I have ever seen to this sort of thing.
Senator Watt you got your first wish. Senator Sibbeston you got what you thought was second best.
When it comes to compensation, I agree. This is one of my big concerns. I intend to vote for this bill without amendment on that issue as long as there is a strong statement in the report.
Senator Sibbeston: As I read the letters and try to understand them, I am horrified at what will happen in the future. Our attempt all along has been to improve legislation and the situation for Aboriginal people. When the minister talks of stand-alone legislation to remove non-derogation clauses, in my view, it is a step backwards. A government policy of not having non-derogation clauses in future legislation is also a step backward.
Non-derogation clauses are a reminder to the public and to the courts that the people must be mindful of Aboriginal rights. To eliminate these clauses would be mindless. The minister's proposal puts us in a worse position that we were in the beginning.
We must remember that we agreed to take out a non-derogation clause in the Nunavut water bill. That was a unique bill that emanated from the Inuit land claims. We agreed with the lawyers representing the Inuit people and the Aboriginal senators that it was the right thing to do because in the land claim agreement, there was a provision that stated that where there was any inconsistency, that land claim agreement prevailed. The non-derogation clause being used by the government in that case was confusing. In that situation we decided that it was best to eliminate it in that situation.
In ordinary legislation such as this, it is helpful to have a non-derogation clause that reminds everyone about the Aboriginal rights. I am totally surprised that the minister interpreted any of our letters. I am surprised that he is coming forth to say that the solution is to eliminate non-derogation clauses if we do not like them.
That is not the solution. It makes the situation for native people worse because not having a non-derogation clause is the worst possible situation. We were simply asking for the non-derogation clause wording that the government had used from 1982 to about 1996 which was wording from section 25 of the Charter. It was a good, simple, straightforward non-derogation clause. However, the government as a result of some court decisions, began changing it by adding the ``application of'' and another word that we thought confused the whole issue.
I am horrified, frankly, that the minister is coming forward at this late date to tell us that his solution is to eliminate the non-derogation clause. How will that help the Aboriginal peoples of our country?
I had hoped that from our correspondence that he would simply come back to the original wording that had been used. Otherwise, we sent him a copy of an Aboriginal bill of rights, which we thought the government could adopt.
In the absence of any non-derogation clause, there needs to be something in federal legislation that reminds everybody of the Aboriginal rights.
While it looks as if the minister might have a solution, that solution is actually, in my view, going to set back the plight of Aboriginal people. Not having a non-derogation clause is not the solution.
Senator Milne: The evidence that was presented to the committee by the deputy minister, or ADM, was very clear. If you mention the non-derogation clause, if you reword it in the legislation, in any way whatsoever, it will make the courts wonder what people are thinking and make them want to try the interpret it.
The Constitution is there, and it is basic to all our legislation. If you say anything else within the legislation, in effect, you are watering down the Constitution and making courts look at it.
I think that taking it out completely is probably a better solution for the future, however, it is a future debate. That is not a debate on this particular bill, but a debate for the future.
Senator Kenny: Senator Milne has summarized the point very well. The Constitution is a document that cannot be challenged. The legislation can be challenged. Senator Sibbeston, we respect you and we have supported you. We value you, and we came together as a team to try to ensure that you and your colleagues got satisfaction.
The fair description is that we got fed up seeing you folks get jerked around for so long. We were fed up to point where we were prepared to hold off a key piece of government legislation until we got an appropriate response.
The response we got was precisely what we were asked to provide. Senator Watt, we assumed, was speaking on behalf of the group. I understand that there have been four of you corresponding. This committee delivered what you asked for.
We are entitled to have a difference of views, but I disagree with you on the fact, because I believe we have delivered precisely what was asked for. I disagree with you on the substance. You are suggesting that if you go along the route that you are asking for you will be putting at risk future interpretations of this clause.
I support your objective of reminding people in future about the importance of the non-derogation clause. There are many ways of doing it other than putting it in this legislation. There are a variety of ways of doing that that are much less risky to the people upon whom it impacts.
The solution that we have is a fair one. You have our support or you would not have had the effort that went into arriving at this solution. If you feel that the public or legislators need to be reminded more frequently of it, there are a variety of ways, including your ingenuity, energy and devotion to the clause that will remind people on a regular basis that this is an important thing for us to take into account.
I am disappointed that you are reacting this way after so much effort has gone forward to try the assist you and provide you with what you told the committee or what Senator Watt told the committee was what was needed.
The Deputy Chairman: There are two more speakers, after which, unless there is a motion, we should move on to the observations.
Senator Rompkey: I want to make comments on the compensation. I have no problem with putting something in the report. However, I do not think legislation is the place to put compensation.
The Deputy Chairman: It is in the legislation.
Senator Rompkey: I thought the request was to put it in.
Senator Kenny: There is not enough in it.
Senator Rompkey: I am sorry. I did not understand.
Senator Watt: The Aboriginal senators have a problem with what was invented by the Department of Justice. Let me read this again:
For greater certainty, nothing in this act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
If we remove ``protection provided for,'' then the word ``for'' which is already in the constitution, section 25 of the British North America Act, then it most likely it not be interpreted differently from the way it is interpreted in the Constitution. That is what I was about to do, if we did not get the letter.
Let me say that the Constitution is still there, word for word. That to me is restored back to what it is supposed to be. We are hoping with the letter that we got from the minister that he committed himself and the government to undertake to produce the legislation. It would not only be within the Constitution, it would also be within the statute. That is way I read it.
The thing is, that statute is not here. They can still provide many interpretations of it. We do not know that. We are taking his word for it that he will undertake to produce the legislation. The only thing I can say is, hopefully, he will reflect on the request that we have made, and it is important that you senators have provided to the Aboriginal senators. That still remains to be seen.
I want you to be very clear that we are gambling on the fact that he will deliver when the time comes.
I have a slightly different perspective from Senator Sibbeston on this issue. I am not pushing this issue as hard as he is. It does not hurt to have a reminder. You probably heard me say it to Minister Anderson last week. I never said I ruled it out completely. I want you to be clear that I am not arguing with Senator Sibbeston. He is correct. Regardless of what we do, by removing from existing legislation and not applying it any more on a piece of legislation, there will be no such a thing as a non-derogation clause any more. I am telling you that the Aboriginal sector will consider that their rights are being attacked.
Senator Sibbeston: I cannot help but think since the Aboriginal rights were put in the Charter of Rights 1982, if it was not important, why would the government not have started the practice of putting non-derogation clauses in relevant federal legislation? That has been the practice in other provincial legislatures. In the Northwest Territories, when we have any legislation that somehow affects Aboriginal people, a non-derogation clause is added. It is a useful reminder. Certainly, the non-derogation clauses that had been used in federal legislation from 1982 to 1996 were positive. It was after 1996 that they began to change the wording.
We said, ``That is creating confusion. Please go back to the original wording.'' That has always been our submission. When the minister talks of stand-alone legislation, it came to mind that he is going to delete all non-derogation clauses. To me, that is a step backward.
The Deputy Chairman: If I may, you have some choices here. We will go over the observations. You can speak to this in observations or you can make amendments, or do whatever you wish. We need to get on with this.
Senator Milne: I believe we should go to clause-by-clause and then do our report and observations afterwards. That is the normal course of action.
The Deputy Chairman: It might be, but Senator Banks and I discussed this. I would prefer to go through the observations because it might make people feel more comfortable.
Senator Milne: Normally, when we do observations we go in camera.
The Deputy Chairman: I am in the hands of the committee, but my objective is to go through the observations. I discussed this with Senator Banks and this is what he felt was appropriate.
Senator Milne: Madam Chair, I move that we proceed to clause-by-clause now and then go in camera to discuss our observations and to battle over the report.
The Deputy Chairman: Is there any discussion? All those in favour?
Hon. Senators: Agreed.
The Deputy Chairman: Is everyone agreed?
Senator Milne: We are agreed.
The Deputy Chairman: We will go to clause-by-clause.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chairman: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 2 to 4 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 5 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 6 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 7 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 8 to 10 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 1 to 10.2 and clauses 11 to 13 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall we say clauses 14 to 142?
Hon. Senators: Agreed.
The Deputy Chairman: I hope you all know what you are doing.
The Deputy Chairman: I will go through each clause. Shall clauses 11 to 13 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 14 to 31 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 32 to 48 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 85 to 96 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Is this slow enough for your Senator Watt?
Senator Watt: No.
The Deputy Chairman: Shall clauses 97 to 107 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 108 to 119 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 120 to 124 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 125 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 126 to 129 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 130 to 133 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clauses 134 to 141 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 141.1 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 142 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall schedules 1 to 3 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall the preamble carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chairman: The committee may consider observations at this point.
Senator Milne: I move, Madam Chair, that you report this bill to the Senate with observations, and we should move in camera to do our observations.
The Deputy Chairman: All those in favour.
Hon. Senators: Agreed.
The Deputy Chairman: No one opposed.
The committee continued in camera.