Debates of the Senate (Hansard)
2nd Session, 35th Parliament,
Volume 135, Issue 43
Wednesday, October 23, 1996
The Honourable Gerald R. Ottenheimer, Speaker pro tempore
Wednesday, October 23, 1996
The Senate met at 1:30 p.m., the Speaker pro tempore in the Chair.
Resignation of Canadian
Hon. Mira Spivak
: Honourable senators, last month the Canadian Chair of
the International Joint Commission resigned. At the same time, the IJC lost the
executive director of its Canadian section. Prior to her appointment as Canadian
Chair, Adele Hurley was a respected and effective campaigner for clean air in
both countries. Why did she resign? The facts speak for themselves.
Last April, Ms Hurley and the five other IJC commissioners were aware that
the commission's International Air Quality Advisory Board had reported that air
quality in Southern Ontario was likely to suffer as a result of plans in the
U.S. Midwest to increase output from coal-fired generating stations. They knew
that the board's experts - scientists and medical researchers from both
countries - had reported that the United States Federal Regulatory Commission
had failed to consider the cross-border impact of increasing releases of
sulphur, nitrogen oxides and mercury. The commissioners also knew that the
Canadian government was not addressing the problem. The advisory board had
reported to them as follows:
...the Government of Canada, although aware of these developments, has not
commented to date.
The commissioners knew that they had the authority to remedy the situation. A
simple, written referral of the experts' brief report to both governments could
compel the U.S. Environmental Protection Agency to act. The U.S. commissioners,
however, did not want to exercise their power prior to the U.S. election.
Incredibly, one of Canada's commissioners, Mr. Francis Murphy, agreed with them
and, as a result, the report was suppressed.
Only Ms Hurley refused to turn back the clock, and thereby lose years of
progress in the struggle against acid rain; only she refused to agree that votes
are more important than lives. It took her resignation, and the publicity
surrounding it, to shame other commissioners into doing the right thing by
officially transmitting the experts' report to governments.
Although the Prime Minister was briefed prior to Ms Hurley's resignation, he
did nothing about Mr. Murphy, thereby giving him tacit support. Now the Prime
Minister has the opportunity to reconsider. He can, and should, withdraw the
appointment of the Canadian commissioner who failed to act in the best interests
of Canadians and the commission. To restore the integrity of the commission, the
Prime Minister should ensure that a new Canadian chair is found promptly; one
who brings to the task a reputation for defending the environment as strong and
as pristine as Ms Hurley's.
Committee Authorized to Meet
During Sitting of the Senate
Hon. John B. Stewart
, Chairman of the Standing Senate Committee on
with leave of the Senate and notwithstanding rule 58(1)(a
That the Standing Senate Committee on Foreign Affairs have power to sit at
3:30 p.m. today, Wednesday, October 23, 1996, even though the Senate may then be
sitting, and that rule 95(4) be suspended in relation thereto.
The Hon. the Speaker pro tempore: Is leave granted, honourable
Hon. Senators: Agreed.
Motion agreed to.
Cape Breton Development
Reconstitution of Special
Hon. J. Michael Forrestall
: Honourable senators, my question should
perhaps be directed to Senator Romkey but, out of respect for protocol, I will
direct it to the Leader of the Government in the Senate.
My question is with regard to the report of a special Senate committee, which
was very well chaired by Senator Romkey, dealing with the Cape Breton
Development Corporation. As the minister will recall, when the special committee
studying Devco tabled its report last June, one of the recommendations contained
in that report was to have the special committee reconstituted this fall in
order to continue its examination on how things at the corporation were
progressing. Our colleagues, Senators Buchanan, Murray, MacDonald, and others
who sat on that committee, remain keenly interested in its results.
The leader of my party in Nova Scotia, Dr. John Hamm, and his colleague who
appeared before the committee, Mr. Alfie MacLeod, have written to Senator
Rompkey, asking whether the committee will be reinstated. Could the minister
shed some light on this matter or, perhaps, ask the chairman of the committee to
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
certainly, this matter is under active consideration. There have been
discussions among the Deputy Leader, Senator Rompkey and Senator Murray. Those
discussions will continue.
Goods and Services Tax
Harmonization with Provincial
Sales Taxes-Agreements with Atlantic Provinces-Apportionment in Public
Hon. Roch Bolduc
: Honourable senators, in his annual financial report,
the Auditor General, Mr. Desautels, says that the government broke its own rules
by including in the deficit for the fiscal period ending March 31, 1996 a
payment of $961 million to three maritime provinces as GST harmonization, when
the agreements with these provinces, with the exception of Newfoundland, had not
yet been signed.
Can you explain to me by what sleight of hand the minister managed to do
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
with respect to these harmonization agreements about which the honourable
senator asks, I am somewhat hampered in that the Minister of Finance will be
making a statement about them in the House of Commons later today. Until he has
done so, I cannot comment on them. At any rate, it is an act that has taken
place and it will be discussed by him later today.
On the question of the Public Accounts committment, we discussed this matter
around the time that commitment was made between the federal government and the
three Atlantic provinces which are participating in harmonization. It was
indicated at that time, as it is being indicated by the government at the
present time, that the minister believed it was an important accountability
issue for the federal government to make the financial pledge at the time the
commitment was being made by the parties involved. That was why, in the 1995-96
fiscal year, that compensation amount was booked.
Senator Bolduc: How can you explain the minister just giving away one
billion dollars in a lump and saying that he will sign an agreement? Does this
not pique your interest? Parliament has heard nothing, and the minister has
already parted with the money. What does this mean? I am sure Senator Stewart
would not like to be in your shoes having to answer such a question.
Senator Fairbairn: Honourable senators, it was not just a case of
handing over an amount of money. It was a case of a binding commitment by the
federal government and three provincial governments. It was considered to be an
important part of the accountability of the federal government to clearly show
that amount of money on the books. The agreement was binding, as was the
commitment. The agreements have been signed. Indeed, the Auditor General has
commented on this matter. The federal government strongly believes that it was
an important part of its accountability to put that sum of money on the books at
that time. Indeed, it has gone ahead and met the commitment it made.
Senator Bolduc: Honourable senators, does the Leader of the Government
in the Senate view an agreement between provinces as coming under Royal
Prerogative, as would a treaty between two countries? What is involved here is
an agreement within Canada. It should therefore be subject to the prior approval
of Parliament, particularly as it concerns public finances.
Senator Fairbairn: Honourable senators, yes, it was clearly an
important agreement within Canada. The compensation package was an important
part of that agreement. It was put on the books and set on the line. We will
move ahead today with a formal confirmation of the agreement.
The government felt that it was an important principle that it be held
accountable for the fiscal impact of its actions in the year in which the
commitment was made. That is why it is on the books.
Harmonization with Provincial
Sales Taxes-Failure to Remove Tax from Reading Material-Position of Leader of
Hon. Lowell Murray
: Honourable senators, speaking of binding commitments,
I have a question for the Leader of the Government in the Senate.
The other day, I received an invitation, as I expect all honourable senators
did, to attend a function at Government House in support of literacy, at which
His Excellency the Governor General and Senator Fairbairn, as Minister with
special responsibility for Literacy, are the principal attractions.
How can the minister show her face at such a gathering given the repudiation
by the government of its commitment to remove the GST from reading material?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
I am encouraged that my honourable friend would regard me as a principal
attraction. I thank him for that.
As I have said on a number of occasions in this house, my profound hopes in
this regard must be quite clear to my honourable friend and to anyone else who
has read my speeches.
We have struggled with the issue of the GST. We have met with some success in
three provinces, and we hope to achieve success across the country.
Today I am unable to discuss with my honourable friend anything pertaining to
the comments the Minister of Finance may be making in his statement later in the
day. Although it may not satisfy my honourable friend, it is a positive move
Senator Murray: Honourable senators, it will not satisfy me because I
think I do know what the plan is with regard to the GST in those three eastern
What we are talking about here is a federal tax applied all across the
country. My honourable friend was the co-chairman of the Liberal Party's
campaign in 1993. There is no minister of the Crown, none, who is more closely
associated with the commitment to remove the GST from reading material than is
my honourable friend. On top of that, she is the minister with special
responsibility for literacy.
It is unlikely that Mr. Martin will make good on the commitment since he has
already repudiated it, for reasons which I understand and which I invoked myself
when I was on that side. Has the minister not come to the conclusion that her
resignation from the cabinet on a question of principle is indicated here?
Some Hon. Senators: Hear, hear!
Senator Stewart: Look at the explanation in the Red Book!
Senator Fairbairn: I certainly respect the vigour of the honourable
senator's argument. However, he speaks of a commitment in the Red Book when he
knows perfectly well that there is no such commitment. I agree that, when I was
on the other side of this house, I certainly expressed the strong desire, on
several occasions, to have the outcome that my honourable friend has -
Senator Murray: Take the GST off books! Just say the words; do not be
Senator Fairbairn: That is precisely the argument we made to my
honourable friend when he stood in this particular spot at that particular time.
My honourable friend is quite aware of the intricacy of the tax which was
brought in by his government, the base which exists across this country, and the
desire of this government to change that tax, beginning with the three provinces
in Atlantic Canada.
On the question of literacy, I can tell my honourable friend that certainly
it would be the prerogative of the Prime Minister to make any decision such as
the one just suggested. For myself, I have fought strong and hard for progress
on this issue. We are partly there. It is extremely important to the economic
growth of this country that we extend the greatest possible assistance to
literacy programs and skill-producing programs, in partnership with the
provinces, with organizations, and with groups on the ground.
The Minister of Finance is also an advocate of literacy, and I cannot
pre-empt any comments he might make today. This may not be the answer my
honourable friend would like, but a considerable degree of progress is being
made, and will continue to be made, between the Minister of Finance and myself
as the months go by.
Senator Murray: I will not take up any more time, except to ask the
minister whether it is not a fact that removing the GST from reading material
does not take any agreement with any province, and does not require any
incremental approach. It simply takes a decision by the Minister of Finance and
the cabinet to remove the GST from books.
Senator Fairbairn: I would not argue with my honourable friend.
However, the Minister of Finance of this country has a tremendous responsibility
to every area and region within Canada. He is working extremely hard to keep our
country's finances in the kind of shape that they have not been in for a very
long time. Our promises on the deficit have not been empty promises. They have
consistently been met, year after year, and indeed improved upon. When the
Minister of Finance is dealing with the nation's future, he and I are partners
Senator Murray: Yes, yes.
Senator Fairbairn: You know perfectly well, Senator Murray, that you
were too. A strong effort is being made to reach our objectives, something that
is not necessarily embodied in the one-line sentence that my honourable friend
wants me to say today.
Harmonization with Provincial
Sales Taxes-Support for Senator's Bill-Position of Leader of the Government
Hon. John Lynch-Staunton (Leader of the Opposition)
: I have a
supplementary question. We were all moved by the minister's pleas before this
house at one time, as we are again today, to exempt reading material from the
GST. May I remind the minister that she will have an opportunity to confirm
those feelings by supporting Senator Di Nino's bill which is presently before
this house. If passed, that bill will be a confirmation by both sides that the
GST on reading materials should be removed.
I ask the minister: Is she willing to support that bill and confirm her
feelings on this matter through a tangible vote that cannot be ignored by the
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
I am not making an emotional appeal; I am stating basic facts with respect to
the relationship of economic growth and progress in this country to literacy and
other important social issues. Literacy is, indeed, a very big economic issue in
Senator Lynch-Staunton: Yes.
Senator Kinsella: "Yes" or "No"?
Senator Fairbairn: As I said to Senator Murray, I have been actively
working with the Minister of Finance on this issue. I appreciate my friend's
position as a staunch supporter, promoter and advocate of Senator Di Nino's
bill. That is a private senator's bill, and when it comes up for decision or
debate in this house, all senators will take their own responsibilities, and I
will take mine.
Senator Lynch-Staunton: The answer, then, is that the Leader of the
Government will not support it?
Oriented Strand Board Plants in
Manitoba and Saskatchewan-Basis for Decision of Federal Minister-Request for
Hon. Mira Spivak
: Honourable senators, recently the Minister of the
Environment decided not to call a federal review of oriented strand board
projects along the Manitoba-Saskatchewan border. He will let stand what many
consider to be an inadequate assessment by the Province of Manitoba of
Louisiana-Pacific's plan to harvest timber for the world's largest such
operation. In so doing, the minister has taken a "wait and see"
attitude: Wait and see whether the company ever provides good base-line data to
determine the impact of its operation, wait and see whether concerns of
aboriginal peoples are met, wait and see about migratory birds, et cetera.
In informing Manitoba's Minister of the Environment of his decision, the
federal minister admitted he hopes that in the future:
...governments and the company will be able to determine the true effects of
the Louisiana-Pacific forest management plant on the ecosystem and, if
necessary, mitigate accordingly.
The minister did not see fit to order a review, and he probably stands on
some legal ground, but one must wonder if a proposal so potentially damaging,
including possible international ramifications, does not merit a federal review.
Would the Leader of the Government in the Senate convey to us now, if she
knows, or in the future, what advice was given to the Minister of the
Environment from the Justice department or others which led him to reach his
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
my colleague's issue is an important one. However, I do not have the answer with
me today. I will check with my colleague the Minister of the Environment for the
background to his decision, and also with my colleague the Minister of Justice
to ascertain what degree of information could be released.
Private Members' Bill in Response
to Helms-Burton Act-Government Position
Hon. A. Raynell Andreychuk
: Honourable senators, no doubt the Leader of
the Government in the Senate is aware that the Godfrey-Milliken bill has seen
the light of day, having now been introduced in the House of Commons. I wish to
commend the Godfrey-Milliken bill as the proper international tool for
negotiation, persuasion and respect for the rule of law. It is, in my opinion,
the best answer to the Helms-Burton law.
As I recall, the government first indicated its concern about the outcome of
the Helms-Burton law on Cuba, which I thought was a misplaced answer to
Helms-Burton; rather, we should have been concentrating on our right of
sovereignty and not entering into a debate as to the validity of the government
and human rights issues in Cuba.
In light of this, can the minister tell me whether the government will
support the Godfrey-Milliken bill? Can we be assured that this type of
international negotiation will be pursued, and that we have a consistent record
in Canada of respecting rights on a continuous plane?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
I cannot give my honourable friend the answer to that question at this point.
In recent months, the government has been working with its allies in various
countries around the world in opposition to the various elements of the
Helms-Burton legislation. We even evoked a slight response from the U.S.
President at one point, who indicated he wanted to take another look at one of
The intent of the government to challenge that legislation both here in
Canada and among its allies remains a strong commitment. The legislation brought
forward by two members of the House of Commons is an important piece of
legislation. I am unable at this point to give the collective view of the
government on it.
Senator Andreychuk: I have a supplementary question. I think it is a
good international negotiation to propose this law, and I would commend the two
proposers of the Godfrey-Milliken bill. However, has the government considered
the potential job creation in Canada since job creation is the number one issue,
as I understand it, of the government today? Certainly, lawyers and accountants
would do more business, and I would presume there would be other related
contingency fees. However, I can think of no other field than that might expand
Senator Fairbairn: Honourable senators, on receipt of Hansard
tomorrow, I will convey my honourable friend's views to the ministers involved
and certainly to Mr. Milliken and Mr. Godfrey.
Level of Manganese Pollution in
Hamilton, Ontario-Government Position
Hon. Noël A. Kinsella
: Honourable senators, some of our colleagues in
this chamber have embarked on research associated with proposed legislation that
will soon make its way here from the other place. That proposed legislation, in
part, deals with the question of pollution caused by manganese.
The Pollution Measurement Directorate of Environment Canada is the agency
that monitors pollution levels across the country. The levels of airborne
manganese are of considerable interest to parliamentarians as one of the
government's stated goals would be to reduce the levels of manganese affecting
Canadians from coast to coast.
In my preliminary study of this matter, I have been unable to ascertain the
levels of manganese concentrations in Hamilton, Ontario, the home of the former
Minister of the Environment.
It should be noted that Hamilton is the only major city in Canada that has
not recently reported its pollution levels. The most recent levels available
show Hamilton as having the highest levels of manganese concentration in the
Would the leader please find out for us why data for pollution levels in
Hamilton are no longer timely or, indeed, even forthcoming?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
I should be pleased to follow that up.
Senator Kinsella: As a supplementary question, if manganese is
considered to be such a problem that Bill C-29 has been deemed necessary by the
government, can we expect the government will soon table legislation to ban
steel production by Dofasco and Stelco in Hamilton?
Senator Fairbairn: I would not wish to speculate on that, honourable
Delayed Answers to Oral Questions
Hon. B. Alasdair Graham
, (Deputy Leader of the Government): Honourable
senators, I have a response to a question raised in the Senate on September 24,
1996 by the Honourable Senator Finlay MacDonald pursuant to the statement made
by the Honourable Senator Erminie J. Cohen regarding the Canada-United States
Women's Health Forum; as well as a response to a question raised by the
Honourable Senator Noël A. Kinsella on October 21, 1996 with respect to the
Order in Council concerning Madam Justice Arbour.
First Canada-United States
Conference-Exclusion of Participation by Progressive Conservative
(Response to question raised by Hon. Finlay MacDonald and statement by Hon.
Erminie J. Cohen on September 24, 1996)
The Canada-U.S.A. Women's Health Forum was originally scheduled for March 18
through 20, 1996, as announced on November 12, 1995. On February 19, 1996, a
press release was issued announcing that the Forum had been rescheduled for
August 8 through 10, 1996. Copies of these press releases are available for
The intent was to have a mix of delegates representing the following sectors:
health professionals, researchers and academics; federal and provincial
policy-makers; non-governmental organizations including women's organisations;
and committed citizens. All delegates had to have expertise in some aspect of
The Forum was not held in secret. Nominations for delegates were solicited
through a wide distribution of delegate nomination forms, press releases, a
Forum website, and of course word-of-mouth.
As this was a working conference with 13 workshop themes, it was vital to
match up the expertise of possible delegates with those 13 subject areas.
Health Canada received more than 400 nominations and many inquiries about
participation. The 150 invited delegates ultimately selected represented a
diversity of backgrounds, regions, ages, gender, language, ethnicity and points
The invitation process drew further attention to the Forum, and every attempt
was made to facilitate individuals who called on an ad hoc basis to request an
Order in Council Concerning Madam
Justice Arbour-Request for Details
(Response to question raised by Hon. Senator Noël A. Kinsella on October 21,
Order in Council P.C. 1996-1543, dated October 1, 1996, approves of leave of
absence being granted to Madam Justice Louise Arbour from October 1, 1996 to
October 31, 1996, in order for her to perform the duties of Prosecutor of the
International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia and the International Tribunal for Rwanda.
The Order in Council complies with sections 54, 55, 56 and 57 of the Judges
The Order in Council was authorized under subsection 54(1) of the Judges
Act as currently enacted, without any reference to the proposed amendments
contained in Bill C-42 now before the Senate. During her leave of absence
pursuant to Order in Council 1996-1543, Madam Justice Arbour is mandated to
undertake those duties which the Governor in Council has thereunder specifically
authorized her to perform. As such, those duties are in compliance with sections
55, 56 and 57 of the Act.
Answer to Order Paper Question
employment insurance-Request for
Hon. B. Alasdair Graham
, Deputy Leader of the Government: Honourable
senators, I also have a written response to written question No. 53 asked by
Bill to Amend-Third Reading-Debate
On the Order:
Resuming the debate on the motion of the Honourable Senator Bryden, seconded
by the Honourable Senator Stollery, for the third reading of Bill C-42, to amend
the Judges Act and to make consequential amendments to another Act.
Hon. Richard J. Doyle: Honourable senators, Bill C-42 is what might be
called a sleeper. It seems, at first reading, to be a simple housekeeping update
to treat growing pains in Canada's judicial system. It demands little sweat from
senators - those poor senators who are asked to give so much sober second
thought to legislative processes that were approved last June with nods and
knowing smiles in the House of Commons.
Let me tell you what this bill is all about. It contains provisions for
spousal pensions, tidy rules for the government and Judicial Council in the
processing of judges chosen to sit on international tribunals, odds and ends to
deal with pay and allowances to be confirmed. It contains that kind of
"stuff," one might say.
However, wiser heads prevailed at second reading debate in this chamber. From
both sides of the chamber came quietly stated alarms. Judicial independence, we
are reminded, depends entirely on exacting scrutiny from those who sit to
sustain the rules.
Senator Andreychuk is one of the critics of the bill. She is the only former
judge on the Senate roster and deserves our attention, which is given. She
The public cannot understand why Judge "A" gets a certain
opportunity and Judge "B" does not. In such circumstances, when a
judge speaks off the bench, is it possible for the public to understand which
hat he or she is wearing? This bill seems to arise out of a priority on the
part of CIDA, and a priority of this government in relation to our foreign
policy, in its efforts to strengthen democratic institutions. We cannot go
into so-called Third World countries and talk about judicial independence as
being the cornerstone of our democracies on one hand and then, on the other,
pass such bills as C-42, without reflection and the proper safeguards.
The bill was read a second time and, during the Senate break, it received the
full attention - being about 45 minutes - of Minister of Justice Allan Rock, who
was reinforced at his appearance before the Standing Senate Committee on Legal
and Constitutional Affairs by two senior ministry officials.
He moved quickly to clear the air of the thought that the Senate was holding
up the law of the land.
The Minister of Justice said:
The bill was passed -
- by the House of Commons -
-at the earliest possible moment, which I think was June... I hope it is not
thought by any senators that we were presuming that you would act in the two
days left in June. It would have been nice if you could, but the very purpose of
this place, of course, is to give careful consideration to bills... I very much
respect and appreciate the care with which you are looking at this legislation.
The minister moves immediately to the only urgent item: The bill will
legitimize the appointment of Madam Justice Louise Arbour of the Ontario Court
of Appeal to act as chief prosecutor for the International War Crimes Tribunal.
Until the bill is revised, says the minister:
...there is no provision in the Judges Act for a federally appointed judge to
be granted a leave of absence without pay to work for an international
organization or entity other than the Government of Canada or, in the case of
expenses, by the governments of the provinces.
Judge Arbour, while still on Canada's payroll on the day the committee sat,
had already spent two days in the employ of the United Nations.
The 45 minutes go like seconds; when the minister departs, he leaves his
officials to take more questions. Liberal Senator Cools leaps in:
It seems to me the issue of whether Parliament releases a judge from judicial
duties is a political and parliamentary matter and not one with which the
Judicial Council should be concerning itself.
Andrew Watt, General Counsel of Judicial Affairs, answers:
We have a practice in the department of consulting the Judicial Council on
proposed legislative amendments affecting the administration of justice... The
council is a body of all the chief justices and associate chief justices in
Two weeks later, the committee meets again, this time to hear authorities
from academe. Not all of the witnesses invited have accepted the committee's
overtures. Perhaps some are reluctant to tangle with the courts on such short
notice. The Minister of Foreign Affairs does not show; he leaves the field to
the Minister of Justice.
Professor H.W. Arthurs of Osgoode Hall says:
If, in the view of Parliament, a provision for payment of the seconded judge
by an international agency is not appropriate, then it would be appropriate for
the government to continue to pay the judge, and for the government to ask the
international agency for reimbursement.
Professor Ted Morton of the University of Calgary says:
With respect, I believe that these issues are sufficiently serious to warrant
more study, deliberation, and thus, more time than the government has or seems
disposed to allow.
He stresses the dangers of perceptions, as well as realities, in dealing with
law-givers. He says, "I must observe that the timing could not be
The questioning went on late into the afternoon. The more we tried to lift
the fog, the thicker it became, and the more apparent the need for a carefully
crafted revision of the bill.
For opposition members on the committee, the surprise of the day came with
the motion from Senator Lewis that the bill be reported without amendment.
Senator Nolin sought time to consult the Conservative caucus, which would meet
on October 23. He said:
We do not hear witnesses for the pleasure of hearing them. I wish to look at
Senator Stanbury, who had not been on hand to hear the morning witnesses,
The reason we are here today, as I understand it, is to get on with this
bill. The attitude of caucuses is important, but this has run through a period
of time which has given lots of opportunity for discussion in caucus.
Senator Carstairs stated:
There is a motion on the floor. All in favour? Opposed? Carried.
This left some members of the committee to wonder if the once feisty Legal
and Constitutional Affairs Committee was not trying on a rubber stamp for size.
Some Hon. Senators: Shame!
Senator Doyle: The issue before the committee had no partisan side to
it. It did present many questions about democratic safeguards in a time when the
courts are playing a far more active role in the governance of this country.
When the Minister of Justice appeared two weeks before, he reminded the
senators that the same committee, on a previous occasion while reviewing Bill
C-42, "slowed things down, which led us to withdraw some amendments."
However, that was then and this is now. As they say at the Bank of Montreal: The
times, they are a changing.
On motion of Senator Cools, debate adjourned.
Foreign Extraterritorial Measures
Bill to Amend-Second
Hon. Jerahmiel S. Grafstein
moved the second reading of Bill C-54, to
amend the Foreign Extraterritorial Measures Act.
He said: Honourable senators, before reviewing the principles of Bill C-54,
to amend the Foreign Extraterritorial Measures Act, 1984, let me survey the
stage set by the Helms-Burton Act, more fully entitled, "Cuban Liberty and
Democratic Solidarity (Libertad) Act of 1996", passed by the U.S. Congress
this year, whose mischief Bill C-54 is meant to ameliorate.
The Helms-Burton Act is yet another flawed and yet another rather tragic
American response to an empty American foreign policy respecting Cuba. With the
end of the Cold War, the draft escaping from Cuba that kept U.S. relations
chilled could have been defrosted. What an opportunity lost.
The use of sanctions and embargoes does have validity in international
relations, but each case should be calibrated in its targets and constantly
measured for effectiveness. What threats or risks are being contained or reduced
and what will be the effect on state or popular behaviour? The sixties are not
the nineties, yet a case may still be made for limited, selective, strategic
embargoes respecting Cuba.
However, from a Canadian perspective, the chill from Cuba should have been
defrosted. From a Canadian perspective, the time was right for opening the trade
doors to Cuba, for constructive engagement, activist support for peaceful change
within Cuba, political and economic, Cuban acceptance of international treaty
standards of human rights, people-to-people exchanges, encouraging alternate
opposition voices, dollar diplomacy, TV diplomacy, active dialogue and
interchange, and all lie in the faster lane to democratic reform pushing Cuba
along the road to a more pluralistic society.
Cuban universal education and Cuban universal medical services could be seen,
in an enlightened foreign policy, as models to Central and South America in the
desperate battle to reduce the gap between rich and poor and to move to fairer
democratic practices in those regions of our hemisphere.
Despite, honourable senators, Canada's continued trade relations with Cuba
since 1945, Canada never hesitated to co-sponsor resolutions in the United
Nations condemning Cuba's egregious human rights performance. Canada quickly
condemned the February, 1996 shooting of the two U.S. aircraft and Cuba's
inappropriate and excessive use of force that contravened internationally agreed
principles. Canada was prepared to do more. Canada has raised human rights
concerns with the Cuban government, both here in Ottawa and in Havana through
our ambassador, and in other international fora. Canada has served as an
invaluable channel into the heart of Cuba.
Yet, provocative actions through illicit incursions over Cuban air space and
in Cuban waters, periodic slamming of the economic doors to Cubans simply
groping for constructive engagement with America has set back the cause of
democratic change. Cuba is on the threshold of democratic change. Cubans thirst
for democratic and economic reform. Helms-Burton is yet another setback on the
road to gradual rapprochement, to peaceful and lawful change.
The Helms-Burton Act is revisionist in theory, contradictory in principle,
and crude in practice. It contradicts current U.S. legal practice. U.S. courts
have declared, over and over again, that confiscation by states of its own
nationals' property, no matter how flagrant, does not contravene international
Helms-Burton contravenes the principle of the international rule of law, the
very rule of law Americans are seeking to bring to the Cuban people. The
American Congress could have done better.
We need not voice our criticism of this measure. We need only to turn to the
Congressional Record, to American senators and representatives who have
highlighted its contradictions and the deep inconsistencies buried within the
Briefly, Helms-Burton is designed to unilaterally assert U.S. court
extraterritorial jurisdiction regarding foreign investment in Cuba. It provides
two categories of claimants: U.S. companies who own Cuban property; and former
Cubans or others, now U.S. citizens, who held property which they claim was
confiscated, expropriated or nationalized by Cuba, even though they were not
U.S. citizens at the time. Foreign companies which have business activities
respecting these properties are the primary targets of the Helms-Burton Act.
Also implicated are the directors and officers involved in these companies, who,
together with their families and agents, are prohibited from entering the U.S.
The scope of the Helms-Burton Act is much broader than it appears on the
Canada opposes this bill because it seeks to extend a universal U.S. embargo
to third-party countries, including Canada. Canada is a trading nation; 50 per
cent of our jobs are dependent on trade. Canada is concerned that such a law
creates a dangerous international precedent that could seriously harm
international trade and investment patterns, principles which we share with the
Americans and with the American Congress.
I would refer to one criticism in the U.S. Senate by Senator Dodd, one of
America's leading foreign affairs experts. Senator Dodd pointed out the numerous
flaws and inconsistencies in the bill. The bill, he argued, codifies embargo
regulations for Cuba, going much further than is the case under United States
law with Libya, Iran, Iraq, China, Vietnam, or North Korea. The same rights are
not offered to Hungarians, Poles, Ukrainians, Czechs or Vietnamese, who became
U.S. citizens and who had their property expropriated in their countries of
Codification, as the senator points out, ties the hands of the U.S.
government and reduces the president's flexibility in the foreign policy changes
that must be made. This, honourable senators, is a deep, deep freeze.
The issue of nationalized or expropriated property is not unique to Cuba.
Think of the reach of this act if its principles were applied to Russia, the
Ukraine, Poland, the Baltic states, to name just a few in the east, as well as
China. The implications reach even further into Western Europe and Canada.
This act goes much farther, senators, as Senator Dodd pointed out, than any
previous sanction legislation in its deep, contradictory and counterproductive
reach. No wonder there has been universal condemnation of Helms-Burton in
Europe, South America and elsewhere. Legislative measures are now being put in
place in the EU member states, such as the U.K. and Holland, to block the impact
of the Helms-Burton Act. U.K. legislation proposes to track U.S. companies in
the U.K. that purport to take advantage of its provisions.
The act, as American Congressmen and American senators have pointed out,
breaches the WTO, the FTA, NAFTA, and a multitude of bilateral and multilateral
trade treaties. Hence, the universal, international opposition to the bill.
Both the European Community - the EU - and Mexico have drafted legislation
similar to our proposed act, and other nations are considering similar moves.
The OAS, under Canada's leadership, completed a report last August that
unanimously concluded that the Helms-Burton bill was inconsistent with
international law and the international rule of law.
What more, honourable senators, do the Americans need to understand the
negative impact this Act has triggered in the international trading community,
amongst its closest allies and amongst its major trading partners? What a
setback to America in its inspired rule-of-law initiatives elsewhere around the
Title III of the Helms-Burton Act allows retroactive claims to expropriated
property. In July, the American President suspended that right of U.S. claimants
under the act to sue Canadian businesses. However, Title III is not, and was
not, suspended in its entirety. American claimants may still notify property
holders should the President reverse his decision. The President is only
authorized to suspend the right to sue under the act for six months at a time.
To extend this suspension for another six months, the President will have to act
by January 16, 1997.
The President's decision, of course, has no impact on the other provisions of
the Act, which are still authorized and have authority.
Title IV, dealing with entry restrictions, still restricts executives of
Canadian companies, their families and agents, entry to the U.S. Advisory
letters have been received from the U.S. by officials and families of at least
one Canadian, one Mexican and one Italian company. We are not aware at this time
of what other Canadian companies may be under investigation by the U.S.
authorities, but it could be a broad list. It is possible, indeed probable, that
agencies and corporations of foreign governments, including Crown corporations,
could be sued by U.S. claimants by the breach of this act. While the act targets
only a small number of Canadian companies at this time, Canada objects, and
objects strenuously, to the dangerous precedent and impact this bill has on
restricting international trade and investment policy.
Americans could have chosen another route under the international rule of law
- the Foreign Claims Settlement Commission - to validate U.S. citizens' claims
and have them enforced by other states. There are many other ways that the rule
of law could be utilized to reduce the problem that Americans assayed in
Honourable senators, I now turn briefly to our Foreign Extraterritorial
Measures Act which was passed in 1984. FEMA, if I may call it that, was designed
to block attempts by foreign governments and courts to apply their unacceptable
laws and rulings in Canada. It gives Canada's Attorney General powers to defend
Canada's interests in the face of unreasonable and perverse foreign laws and
The amendments proposed in Bill C-54, with more precision, will allow Canada
to respond to new measures under the Helms-Burton Act. As amended, FEMA will
give Canadians shields and swords to defend themselves against the financial
claims aspects of Helms-Burton. It will allow Canadians to recover in Canadian
courts any amounts awarded in a Helms-Burton authorized action in U.S. courts,
plus any costs associated with both U.S. and Canadian court actions, and will
open significant financial penalties if Canadians fail to comply with our law.
The amendments will also better prepare Canada to block further attempts by the
U.S. or any other nation who might apply their inappropriate laws or rulings in
Once FEMA is amended, the Attorney General will be able to issue blocking
orders declaring that judgments under certain foreign laws will not be enforced
or recognized in Canada. If the Attorney General opines that the legislation
violates international law, the law will permit Canadians to recover in Canadian
courts those awards under those foreign rulings, plus any costs associated with
those court cases in Canada or the foreign country. This provision is known as a
"clawback." It will allow the Minister of Foreign Affairs to list
unacceptable foreign legislation that, in his opinion, violates international
law and against which FEMA can be used. This means that any successful U.S.
claimants will neither obtain nor retain any benefit in Canada. In addition, the
amendments give Canadians forced to fight a Helms-Burton court action in the
United States an opportunity to recover court costs from the American party in
Canadian courts even before the case is completed to pre-empt any such judgment.
Honourable senators, this legislative response is not perfect. It is meant to
assuage the more radically unfair provisions of the Helms-Burton Act. We could
do more. We could retaliate against American claimants in Canada.
Honourable senators, these amendments are rather carefully measured responses
to Helms-Burton in the hope and expectation that after the American election a
sounder policy and wiser heads will prevail and we will see a sunset to these
insidious aspects of Helms-Burton which so contravene international practices,
treaties, agreements and the international rule of law.
Most sadly, the Helms-Burton victors include those leaders in Cuba who still
wish to consolidate their doctrinaire authoritarian hold on the Cuban people and
keep Cuba isolated and quarantined from western democratic influence. In this
narrow, invidious sense, Helms-Burton will succeed. Yet, the bill neither
"speaks softly nor carries a big stick" in the great American
tradition. In that sense, it is a big step back for American foreign policy.
Canada shares America's vision about pluralism and democracy and the desire
for the faster spread of pluralism and democracy in the world, including Cuba.
By this act, America has set back the cause of democratic reform, utilizing
measures so contrary to the international rule of law in which Canada and the
United States so fully believe. Belief, however, is not enough, senators. We
must practice what we preach; then, principle and practice can march smartly
together in the search for a better world.
On motion of Senator Berntson, debate adjourned.
Yukon Quartz Mining Act
Yukon Placer Mining Act
Bill to Amend-Second Reading
Hon. Len Marchand
moved the second reading of Bill C-6, to amend the
Yukon Quartz Mining Act and the Yukon Placer Mining Act.
He said: Honourable senators, I rise to address Bill C-6, to amend the Yukon
Quartz Mining Act and the Yukon Placer Mining Act. I am extremely pleased to be
speaking in support of this legislation, which will help pave the way for the
sustainable development of Yukon's mineral resources.
By way of background, honourable senators, the Yukon Placer Mining Act and
the Yukon Quartz Mining Act were enacted in 1906 and 1924 respectively. These
acts provide for the administration of Crown mineral rights and the collection
of royalties in Yukon. While they have effectively supported mining as Yukon's
number one industry for most of this century, the two acts contain no provisions
to protect the environment. This situation is unacceptable to this government,
to the vast majority of Yukon residents, and to Canadians in general.
Honourable senators, Bill C-6 represents a widely accepted solution to a
long-standing problem. All of the major stakeholders in Yukon - from mining
companies to environmentalists to First Nations and the territorial government -
have been involved in the drafting of this legislation. All of these players are
now saying that it is time to move forward.
With Bill C-6, Yukoners have developed their own solution to a situation
unique to the Yukon. The Yukon Mining Advisory Committee deserves much of the
credit for developing this regulatory regime. This multi-stakeholder forum
created in 1990 is made up of representatives of the Klondike Placer Miners
Association, the Yukon Chamber of Mines, the Yukon Conservation Society and the
Council for Yukon First Nations and the governments of Yukon and Canada. This
regime will provide a responsible level of environmental protection while
allowing the mining industry to continue to be a driving force for economic
growth in Yukon.
Honourable senators, this legislation must be viewed as a major
accomplishment for a number of reasons. First, it will reinforce the
government's commitment to sustainable development by providing for
environmentally sound mining practices. By applying land use regulations for the
first time to early activities on mineral claims, the rules in Yukon will become
consistent with all other jurisdictions in Canada.
Within the context of sustainable development, this legislation is an
important part of the ongoing process to create a more conducive environment for
mining and to support economic development in Yukon. This process complements
the process of legislative reform required for implementing land claim
settlements for Yukon First Nations.
Honourable senators, the need to extend environmental regulation to all
mining activities in Yukon has long been recognized. The coming into force of
the Canadian Environmental Assessment Act in 1994 has underlined this need. As
well, on November 29, 1995, the deficiencies in the current regime were made
abundantly clear when the Federal Court of Canada ruled that the Yukon Quartz
Mining Act and the Yukon Placer Mining Act are not subject to federal
requirements for environmental assessment.
Honourable senators, there are many important aspects to this legislation,
and I should like to give a brief overview of some of the provisions of Bill
C-6. The existing two mining acts remain unchanged except for a few minor
amendments related to environmental issues. Upon proclamation of Bill C-6, the
original acts will become Part I of the acts and the environmental protection
requirements we are considering today will become Part II.
Bill C-6 defines four classes of mining projects based on the level of
activity and the resulting environmental impacts. As the level of activity
increases, so do the requirements for project approval and mitigative measures.
Regulations will be put in place for hard rock exploration, placer exploration,
and development activities.
The Yukon Quartz Mining Act has separate licensing provisions for the
development and production stage. Bill C-6 provides the necessary authorities
for this regime, including the authority for the Governor in Council to make
In addition to establishing the authority to regulate, Bill C-6 sets out the
powers of the Chief of Mining Land Use who will be responsible for implementing
the new regime in Yukon. It provides for the appointment of inspectors and gives
them enforcement powers. It also includes a mechanism for appealing decisions, a
process for the Crown to recover any costs incurred in undertaking remedial
work, and provisions for requiring security deposits and for imposing penalties
for non-compliance with the regulations.
On the issue of penalties, these amendments will allow for fines of up to
$100,000 for failing to comply with the terms of a project approval, each day an
infraction continues being a separate offence. This is consistent with the fines
that can be levied in relation to similar land use activities in the North, and
I am convinced it will deter non-compliance.
Bill C-6 also provides a time frame for bringing the new land use regulations
into effect. For quartz operations, there will be a six-month phase-in period
during which operators will be able to prepare and submit applications for their
projects. The land use regulations under the Yukon Placer Mining Act will come
into effect after a full placer season has passed. The season is usually seven
The regulations that are now being developed will set out what lands will be
subject to the new regime. Bill C-6 allows for the application of these
amendments to all lands in Yukon. However, only after consultation with First
Nations will a decision be made on the application of these regulations to
settlement lands. The provisions of the First Nations final agreements and their
self-government agreements will guide the final decision. Any alternative
management regime must meet or exceed the regulations proposed under this bill.
Honourable senators should also be aware that this legislation is not
This proposed legislation and the regulations which support it are very
straightforward. They are fair and responsible to everyone in Yukon, and to
people throughout Canada and the world who invest in Yukon's mining industry or
are concerned about the northern environment.
As I said earlier, the people of Yukon want us to move forward now in
implementing this new environmental regime. This legislation has been a number
of years in the making, and we should not delay the process any further. With
that in mind, I urge honourable senators to support Bill C-6.
Hon. A. Raynell Andreychuk: Honourable senators, I also rise to speak
to Bill C-6, concerning Yukon quartz mining and Yukon placer mining. I have some
concerns about what might be serious flaws in this legislation. We trust,
however, that these concerns with the bill can be dealt with in committee.
Yukon has a long and storied history of mining and exploration. Its mining
industry has played a vital role in the economic and cultural development of the
territory. This legislation attempts to resolve the conflict between mining
development and the protection of Yukon's fragile ecosystem. The need for a
balance between the promotion of industry and development through mining and the
protection of the wildlife, wilderness, and biological diversity is critical to
the ultimate survival of Yukon.
The genesis of this legislation lies in a process begun in 1990 by the
government of the day. That government set in place a consultation process with
the stakeholders involved through the formation of the Yukon Mining Advisory
Committee. The process, unfortunately, was not as timely as it could have been.
This has resulted in a six-year delay in the federal government finally
addressing these important mining issues. However, despite the long delay, some
important issues appear not to have been resolved.
The greatest problem with Bill C-6 is that there appears to be no clear
direction. No clear principles are set forward to act as a decision-making guide
on which decisions on issuing permits and approval procedures can be based. The
bill does not state principles, guidelines, or a process for achieving such
guidelines. This bill does not allow for a structure for determining how to
avoid habitat loss, minimize environmental effects, and avoid the loss of
biodiversity and ecological populations. Instead, the legislation as set out
provides only an administrative mechanism for approval procedures. Although the
Canadian Environmental Protection Act does allow consideration to be given to
environmental effects, it would be preferable that guidelines be included in the
actual legislation specific to the exploration and mining industry, and specific
The second problem with the bill is the classification of mining activity
into degrees of environmental damage. Bill C-6 consists of four ascending
classes of environmental disturbance. The major problem with this division
system is that the base level is far too low. Class I mining activity requires
no notification whatsoever to the department. Class I permits tree removal up to
an area of 200 meters squared, and the excavation of up to 400 meters cubed -
all this without government approval.
There are those who argue that freedom to clear cut and strip mine would not
necessarily create an undue amount of stress on the environment. However, others
argue that the practical application of such a development would have an adverse
effect on the various flora, fauna, fresh water and animal wildlife. Without
approval, any claimant could proceed with Class I type exploration without
regard for the ecological importance that the land might hold.
Bill C-6 creates a system without a method of flagging certain areas that are
of high concern. Similar legislation in B.C., the Northwest Territories and
Alaska do not allow this type of "carte blanche" exploration. While
the Territorial Lands Act requirements do apply to certain areas, the act has no
jurisdiction over mineral development. Therefore, it is both hypothetically
possible and realistically probable for a claimant to require approval for
building a road to an exploration site but not require government approval for
the exploration of the site itself.
Another problem I wish to draw to the Senate's attention regarding Bill C-6
is the maximum fine ceiling found in the legislation. The maximum fines range
from only $5,000 to $20,000. Why is it that the Fisheries Act and the Canadian
Environmental Protection Act can have maximum fines of up to $1 million, yet the
fines for violations within Bill C-6 are only a fraction of that sum?
We are told that the function of this legislation is to protect the
environment from harmful, unprincipled and unbridled exploration. Therefore, it
is only reasonable that the penalty for such action should be considerable
enough to discourage any unwanted and improper action. Passage as is would mean
that the expense could be seen as a small risk to any project started by an
opportunistic mining developer.
A further problem is the degree of substance left to regulation. Again, this
is seen as erosion of parliamentary authority, not only in this legislation but
also increasingly in the use of regulations to circumvent substantive measures
in legislation. I believe it is an erosion of parliamentary democracy.
The Finance Minister, the Honourable Paul Martin, during the 1993 election
campaign, made a promise in his document "The Environment: A Liberal
Vision." He guaranteed:
...citizens the right to use the courts to ensure that the federal
environmental laws are properly enforced and obeyed.
Citizen enforcement is already a common procedure in Yukon's environmental
legislation. Citizens of Yukon with knowledge of violations not being enforced
may take the issue to court. Citizen enforcement acts as a safeguard in certain
instances, and is a useful supplement to the inspection procedures. This seems
to have been left out of Bill C-6. We would want to hear from government
officials in committee as to how they believe Bill C-6 allows citizens to
maintain their rights of enforcement as promised by the honourable minister.
Honourable senators, in raising these points my intention is to ensure that
the bill conforms with good, sustainable development legislation. Yukon has
waited a very long time for this bill. Similar legislation was passed for the
Northwest Territories over 30 years ago. However, these concerns have been
identified within today's knowledge by those most directly affected in Yukon,
and must be taken into account.
One group represented in the initial membership of the Yukon Mining Advisory
Committee withdrew their support for the legislation. Other groups have also
raised questions. Therefore, it is important that this bill be studied
thoroughly in committee in order to ensure that we have achieved the most
appropriate balance between the mining industry and the environment.
Motion agreed to and bill read second time.
The Hon. the Speaker pro tempore:
Honourable senators, when shall
this bill be read the third time?
On motion of Senator Marchand, bill referred to the Standing Senate Committee
on Aboriginal Peoples.
Hon. Raymond J. Perrault
moved the second reading of Bill C-26,
respecting the oceans of Canada.
He said: Honourable senators, in the century in which six human beings have
been landed on the moon, we have a situation where only two people have been to
the deepest part of the oceans. We now recognize the vital importance of the
oceans to the continued existence of humankind.
The oceans gave us life. It is believed that the earth's crust and the oceans
were created during the azoic time, about 4 billion years ago. After this, algae
was formed and photosynthesis developed the oxygen-rich atmosphere in which we
now live - an environment that is being threatened sadly by pollution
everywhere. The oceans are the last great areas left on this earth to explore.
They must be protected. The Canada Oceans Act will help us do this.
I want to be fair about this: Great interest in this subject was expressed by
the previous government. This is not a partisan thing. We are talking about the
existence of all people on this earth and the continued existence of
civilization, wherever it exists.
Approximately two-thirds of the human population live in coastal regions and
environments. Unbelievably, Canada has 15 per cent of all the coastline on earth
- more than any other nation in the world. Canada is surrounded by the waters of
three oceans with a diversity of ecosystems: The smallest ocean in the world,
the Arctic Ocean; the world's largest ocean, the Pacific Ocean; and the second
largest ocean, the Atlantic Ocean.
Canada's ocean stakeholders are obviously many and varied. During the
preparation of this legislation, stakeholders were consulted for their views on
an oceans act. The result is what we have before us today.
First, the Canada Oceans Act reinforces and affirms Canada as a leader in
ocean management and as a leader in the protection of oceans and their vast
resources. Many Canadians negotiating for this country at the international
level have achieved worldwide recognition for their expertise in this area,
something of which we should be very proud.
This bill meets all the criteria of an act of Parliament by balancing
certainty and flexibility, and it is designed to meet the diverse and evolving
needs of Canadians and the concern of all interested parties.
This Canada Oceans Act effectively recognizes the rights and responsibilities
attributed to it under international law and deals effectively with ocean
management issues in a manner that will serve Canadians for many years to come.
The legislative process, to this point, has assured us that the Canada Oceans
Act is sound legislation. Our colleagues in the House of Commons, through the
Standing Committee on Fisheries and Oceans, reviewed the bill and then, during
report stage, strengthened the bill. Valuable suggestions came from various
parts of the other place and resulted in the strengthening of this measure.
Consequently, we believe that we have before us legislation that Canadians want.
It is legislation that the oceans of Canada - the Pacific, the Atlantic and the
Arctic - need. Canada's Oceans Act will formalize Canada's jurisdiction over all
of our ocean zones.
The bill before us today is backed by international agreement. This is not
some renegade effort being made by Canada to do an "end run" on the
world as far as the oceans are concerned. It is consistent with existing
international law and it has the support of people of various political
backgrounds and origins.
The bill declares that Canada not only has jurisdiction over its internal
waters, territorial sea, fishing zones and continental shelf, but also has
jurisdiction over a new 12-nautical-mile contiguous zone and a 200-nautical-mile
exclusive economic zone. Perhaps it can be said that this should have been done
previously, but now we have it before us.
If this were all that the legislation accomplished, it would be an important
achievement. We have fought long and hard to establish Canadian ocean rights.
However, the bill does not stop there. The bill is a consolidation of
responsibilities that are currently within federal jurisdiction in order to
define a clear, leading federal department responsible for oceans management. It
was created in response to concerns about the leadership, the responsibility and
the strategy for the direction and management of our oceans. It goes on to
streamline and strengthen federal responsibilities for efficient ocean
stewardship. It goes even further by establishing the legislative base for a
new, comprehensive and cooperative oceans management strategy.
The Canada Oceans Act sets in motion a new approach to oceans management; an
approach based upon the federal government working in collaboration with all of
those who have a stake in the future of our great oceans. This involves people
from the provinces, territories and local communities, fish harvesters,
businesses and environmentalists, a very comprehensive basis of support. In
fact, during the standing committee review of the Canada Oceans Bill in the
other place, Canadians from all across this nation came as witnesses to be
heard. There was a very great interest in this important bill. These witnesses
asked that the act be more inclusionary for stakeholders. The act was changed to
accommodate this desire. They asked that the marine protected areas and marine
environmental quality classes be expanded; they have been. They asked that the
enforcement provisions of the act be toughened and strengthened. This, too, has
In addition to all of this, the Canada Oceans Act recognizes the value of
traditional ecological knowledge and it promotes sustainable development, which
is the only hope in the long term for our fisheries. Whether on the East Coast
or West Coast, we must have sustainable development.
The bill espouses the precautionary approach to oceans management. In other
words, it errs on the side of caution. This bill also recognizes aboriginal and
Where did these changes come from? They came from Canadians, of course;
Canadians who understand the oceans and who live their lives around the oceans
and make their incomes from products of the oceans; Canadians who were consulted
over the years, who wrote to the Minister of Fisheries and Oceans, and who
appeared before the House standing committee. They recognize the value of this
legislation, and they recognize the value of ensuring that our vast ocean
resources are there to continue to be enjoyed by generations to come.
Other key amendments to fortify the bill were made in the House during the
report stage debate. The preamble was rewritten to highlight the
ecosystems-based approach, a concept that underlies the ocean management
strategy described in Part II of the bill. In the preamble, recognition of the
opportunity for wealth generation offered by Canada's three oceans was also
The Canada Oceans Act was written to ensure optimum cooperation on every
level - international, national, provincial and local. It represents cooperation
of a very encouraging type in our nation. It recognizes the legitimate interests
of the wide range of ocean stakeholders. The act is committed to cooperation
between the federal government and all of the ocean stakeholders. This
commitment is found throughout the bill, which promotes the integrated
management of ocean resources. That means working together as a team at all
levels of government, industry and community.
The Canada Oceans Act is committed to this collaborative approach to oceans
management. The role of the provinces is highlighted. It is clearly stated
within the preamble, which contains the over-arching aims of the legislation,
that the Canada Oceans Act respects the territorial integrity, rights and
privileges of the provinces and territories of Canada. It does not make any
changes to the present constitutional framework or to the distribution of powers
between the federal government and the provinces.
Once again, the Canada Oceans Act is about cooperation. This legislation will
make it possible for Canadians to work together to preserve our ocean resources.
In fact, the Minister of Fisheries and Oceans has clearly indicated that he will
act quickly, seriously and effectively with this legislation, but will not act
alone. He has pledged to seek the advice and input of all Canadians in
developing an oceans management strategy that merges national objectives with
regional decision-making that sets national goals based upon local wisdom, needs
In summary, the Canada Oceans Act recognizes Canada's jurisdiction over its
maritime zones. It provides for solid and sensible federal leadership on ocean
issues. The bill creates a legislative framework for the development of a modern
and much-needed oceans management strategy.
Through these measures, the bill creates the conditions in which all
Canadians can share in developing a future for our oceans of which we can be
proud. With Royal Assent, this act will ensure that Canada continues to be
considered a leader in ocean resource management.
Our international neighbours recognize that Canada places oceans on the
highest political agenda. I am particularly pleased that the enactment of the
Canada Oceans Act will continue to enhance this reputation.
As a British Columbian, I am very pleased to recognize the importance of the
oceans to our survival as a nation, and the importance of this action being
taken. My good friends in the Atlantic provinces, I am sure, feel the same way
about their coast.
Governments and industries the world over are at a threshold in time when
problems of international and national significance must be addressed through
visionary leadership, cooperation and dedication to high environmental
principles. The Canada Oceans Act demonstrates all of these, and will help
Canada to cross the threshold and to enter into a new era of oceans for the
I want to thank all of the people across our country from diverse political
backgrounds, our friends in opposition in this chamber and others, who have
worked cooperatively to develop a bill with great promise for all of us.
Hon. Donald H. Oliver: Honourable senators, I begin by commending
Honourable Senator Perrault for the excellence of his presentation. It was
thorough and all-encompassing, and certainly gave a very important overview of
what Bill C-26 is about.
It gives me great pleasure to join in this debate today on the Canada Oceans
Bill. I was born in, and now represent, the province of Nova Scotia. It is a
province whose economy has been very much dependent upon the oceans for its
existence. In ship-building, sailing and in the fishery, men and women in Nova
Scotia have looked to the sea for their livelihood for hundreds of years. That
is why it is so important that this chamber give particularly close scrutiny to
this legislation. It affects the earning capacity of people engaged in the
fishery and in other enterprises dependent upon the oceans on all three of our
coasts, as outlined already by Senator Perrault.
I have reviewed in detail the submissions of those who appeared before the
Fisheries and Oceans Committee in the other place. If there was one consistent
theme that ran throughout virtually all of those presentations, it was: Slow
down - we have not yet been consulted; we are not sure of the resultant effects
of this bill.
The Fisheries Association of Nova Scotia Round Table claimed this about this
Fishermen have not been consulted or involved in the development...
Perhaps the most telling criticism in the process used to develop this bill
emerged in an exchange between the Chair of the committee, Liberal MP Ron
MacDonald and Paul Okalik, advisor to Nunavut Tungavik Inc. representing the
The exchange is as follows:
The Chairman: Has the NTI been specifically included in any
consultations leading up to the act at first reading?
Mr. Okalik: No.
The Chairman: Nothing? So you are absolutely sure?
This whole issue of consultation has dogged us for about a week now, as to
who or who hasn't been consulted. It concerns me that the NTI, which has just
concluded a very substantial settlement with the Crown, was not consulted. We
have three oceans, and a large part of one of them is in the settlement area.
It's astonishing if you haven't been at the table.
Nobody has asked you to come in and sit down and review it and find out where
your concerns are?
Mr. Okalik: No.
The Chairman: This is the first time?
Mr. Okalik: Yes.
Obviously there was a consultation process, but it was superficial at best.
We in the Senate are aware of other consultation processes that ignored large
groups of people who may be opposed to the legislation. We need think back no
further than the gun control legislation from the last session. In fact, the
only meaningful consultation was done by senators on this side of the chamber.
Therefore, I would urge the members of the Standing Senate Committee on
Fisheries, which will study this bill, to take time to hear the witnesses and be
certain that everyone understands the full effect of this proposed legislation.
Dealing with some of the specifics, this bill proposes to accomplish three
things. First, it recognizes, in legislative form, an exclusive economic zone,
which includes the 200-mile fishing zone and covers all economic activity in the
ocean out to 200 nautical miles from the coastal base line. In this zone, Canada
will have jurisdiction for exploring, conserving and managing all the living and
non-living resources of the water, seabed and subsoil. This is a positive goal,
and the government is to be commended for including this in the bill.
The next two parts of the bill are not as free of criticism. Part II
establishes a legislative framework necessary to produce a national oceans
management strategy. Part III provides clarification of who will have the
various responsibilities for managing Canada's oceans. I would draw the
attention of honourable senators to a few of the contentious clauses.
Clauses 28 to 36 of the bill deal with the implementation of a strategy for
the management of estuary, coastal and marine ecosystems. The following are some
of the problems these clauses present.
Clause 29 states that the strategy is to be developed in conjunction with a
number of named organizations. Then the drafters have added the phrase
"other persons and bodies". I should like to know how these other
persons or bodies are to be determined. Will it be because of their interest in
oceans and fisheries or will there be some other test? This is important because
this phrase appears numerous times throughout the bill and causes a certain
amount of vagueness.
Clause 32 relates to the implementation of integrated management plans and
uses the discretionary word "may" with regard to whom the minister is
to consult. In other words, the Minister of Fisheries and Oceans is not required
to consult with others on the establishment of or, indeed, the naming of the
members to advisory or management bodies. In criticizing the wording of this
clause and recommending that "may" be changed to the mandatory
"shall," the Oceans Institute of Canada has stated:
The Minister cannot possibly hope to develop an oceans management strategy
and implement it simply on the basis of what that ministry does. The assistance
and cooperation of the other agencies is needed and as such the minister should
be required to consult.
The mandatory "shall" should be used, rather than the permissive
Also, in relation to clause 32, the word "management" is used in
the context of the minister being able to create "management bodies."
This implies that the bill will permit delegation of actual resource management
authority to anyone whom the minister may see fit to nominate. However,
management bodies are not defined in the bill.
Management of fisheries resources, especially decisions dealing with access
and allocation of resources, is critically important to fishers. I am concerned
that the delegation of such decisions may create opportunities for fisheries
management by special interest groups to the detriment of independent fishermen.
It should be made clear in the legislation that independent fishermen or groups
of fishermen can also qualify to form management bodies.
Clause 35(3) gives the Governor in Council broad regulatory-making powers
respecting such matters as prescribing marine and environmental quality
guidelines and the implementation of agreements drafted under this bill. I
believe these regulations and others made under this bill should be the subject
of scrutiny by committees of Parliament whose members have experience in
fisheries and oceans matters. This will ensure input, at least, from senators
who have great experience in fisheries issues. Committee scrutiny will also
ensure that public hearings are held on the effect of the proposed regulation on
the fisheries industry. Thus, a more balanced approach will be created, rather
than leaving it to the senior bureaucrats in the Ministry of Fisheries and
I now move to Part III of the bill which contains clauses that allow the
minister to set fees for the use of services and facilities. The fees are to be
imposed through the mechanism of regulations published in the Canada Gazette.
Clauses 47 to 50 inclusive, which establish this fee-charging system, were
the subject of intense criticism by the Area 19 Snow Crab Fishermen's
Association of Cheticamp, Nova Scotia. They attended the hearings of the
Fisheries and Oceans Committee in the other place, where they stated:
We find the wording set out in part III, clause 49, wherein the minister is
authorized, subject to Treasury Board regulations, to fix fees for a service or
use of a facility, to be ambiguous. We can find no definition of a facility.
Clause 50, which also gives the minister the ability to charge fees for
products, rights and privileges, also gives us some grave concerns with respect
to partnering agreements and double fee structures. Our understanding of
public-private partnering is that many services that have heretofore been
provided by the government's largesse may be contracted out to the private
sector. The rationale for divesting some of these service responsibilities is to
decrease cost and thus reduce the necessity for charging fees.
In cases where fishermen pay for the cost of services such as dockside
monitoring, data collection, and scientific research, we take the position that
fees for products, rights and privileges, if they are with respect to those
services, must be adjusted accordingly or blatant discrimination and the
imposition of double jeopardy will result.
It is obvious that the matters raised by the Area 19 Snow Crab Fishermen's
Association should be reviewed carefully by the Standing Senate Committee on
Fisheries. In committee, we can question the department and officials as to
whether the concerns expressed by that association are correct and, if they are,
will the department make adjustments so that fishermen will not be paying twice
for the same service?
The fees to be charged under clauses 47 and 49 in respect of services, the
use of facilities and many necessary approvals, are not to exceed the cost of
providing the service. However, under clause 48, fees to be paid for products,
rights and privileges provided under the bill by the minister or the department,
are not subject to the same limitation. Honourable senators should inquire why
this differentiation has been made in these three clauses. It would seem to me
that there is no valid reason for this to occur other than to gouge the users of
the service. If that is the case, we may want to amend this bill to ensure that
the fees charged for services are not in excess of what it costs to provide the
The Shipping Federation of Canada is concerned that the fees charged for
services provided by the Coast Guard will be exorbitant. Members of the
federation believe there are major inefficiencies in the provision of services
by the Coast Guard and that users should be required to: "pay a fair share
of providing safe and cost-efficient services under the premise of `user-pay
user-say'." They do not object to paying a reasonable fee if it can be
Honourable senators, I believe this bill should be given close scrutiny in
committee by senators, and they should give high priority to amending the
regulation-making authority under this bill. Clauses 25, 26, 35(3), and 47 to 50
empower the government to make regulations in relation to various aspects of
ocean management. All the regulations made pursuant to this bill should be
referred to the Fisheries Committee of the Senate, whose members have
specialized knowledge in the area of fisheries and oceans.
I recommend that regulations made pursuant to this bill be laid upon the
Table in both houses to be automatically referred, at least in this chamber, to
the Fisheries Committee. These regulations should not become effective until 90
days after they have been deemed referred to the appropriate committee. This
will give senators and those interested an opportunity to be heard prior to the
regulations coming into force.
This procedure should also apply to amendments and regulations made under
this bill. I would imagine that, as fees increase, the increases will be
legislated by way of amendments to existing regulations. This procedure has been
followed successfully by the Standing Senate Committee on Banking, Trade and
Commerce in at least two instances.
For example, in its report on 1992 revisions to federally chartered financial
institutions, the Banking Committee recommended and requested that the amending
legislation be referred to it for scrutiny, and this was done. Again, in 1993,
during its scrutiny of proposed legislation in relation to the Export
Development Corporation, that committee specifically requested Minister Wilson
to refer the regulations under the legislation to the committee, and regulations
were subsequently referred. Thus, honourable senators can see there is a
precedent for my idea regarding regulations to be made under the proposed Oceans
Thank you, honourable senators, for the opportunity to discuss this bill. I
look forward to our committee deliberations.
Senator Perrault: Honourable senators -
The Hon. the Speaker pro tempore: Honourable senators, I wish
to inform the Senate that if the Honourable Senator Perrault speaks now, his
speech will have the effect of closing the debate on the motion for second
reading of this bill.
Senator Perrault: Honourable senators, Senator Oliver has raised some
significant points. Hopefully, they can be dealt with to his satisfaction when
the bill is referred to committee, and I will shortly make a motion that this
bill be referred to the Standing Senate Committee on Fisheries.
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and bill read second time.
The Hon. the Speaker pro tempore:
Honourable senators, when shall
this bill be read the third time?
On motion of Senator Perrault, bill referred to the Standing Senate Committee
Changes to School System-Amendment
to Term 17 of Constitution-Report of Committee-Motion in Amendment-Debate
On the Order:
Resuming the debate on the motion of the Honourable Senator Rompkey, P.C.
seconded by the Honourable Senator De Bané, P.C., for the adoption of the
thirteenth report of the Standing Senate Committee on Legal and Constitutional
Affairs (respecting Term 17 of the Terms of Union of Newfoundland with Canada
set out in the Schedule to the Newfoundland Act), deposited with the Clerk
of the Senate on July 17, 1996.
And on the motion in amendment of the Honourable Senator Doody, seconded by
the Honourable Senator Kinsella, that the Report be not now adopted but that it
be amended by deleting the words "without amendment, but with a dissenting
opinion" and substituting therefor the following:
with the following amendment:
Delete the words in paragraph (b) of Term 17 that precede subparagraph
(i) and substitute therefor the words: "where numbers
Hon. Noël A. Kinsella: Honourable senators, I recognize that we
attempt to keep our sittings on Wednesdays somewhat shorter than usual but, to
avoid any criticism that this side is holding up the debate on this important
matter, I will proceed. However, I propose to be brief.
Honourable senators, in my view, no more important a debate could be held in
this chamber than the one we are presently conducting, because what we are
currently debating is a textbook case of the classic struggle for power between
the majority, on the one hand, and the minority on the other. Before us,
honourable senators, is the matter of a clash between the Roman Catholic
minority, the Pentecostal minority and the Seventh Day Adventist minority, on
the one hand, and the stubborn power of the Government of Newfoundland and
Labrador on the other.
On one side, we have minority groups holding certain denominational school
rights that are protected by the Constitution of Canada, rights that in some
cases were enshrined in the Constitution as part of the very constitutional
compact that made it possible for Newfoundland to join Confederation. On the
other side, we have the Government of Newfoundland and Labrador using all of the
awesome power of the state, seeking to wrest from these minority groups, and
against the will of the minority groups, their rights.
The right which the state is attempting to take away from the Pentecostal
community, the Roman Catholic community and others is a right that was
intentionally placed beyond the reach of the legislators by having this
denominational school right placed in the Constitution itself.
The attempt by the Government of Newfoundland and Labrador to grab rights
away from the classes of people who hold the denominational school rights has
been overtly brazen. The provincial government received the majority support for
its move from all parties in the Newfoundland House of Assembly. There is no
doubt in the minds of the minorities that the political parties in the
legislature failed them.
The province used its power to conduct a referendum, and the majority who
voted, supported a reform of the school system. Other honourable senators have
commented on whether or not the conduct of the referendum was fair. The one
thing that is certain is that the government's published referendum brochure
stated that parents may choose schools of their own denomination where numbers
warrant. From the standpoint of minority interests, the brute power of the
majority expressed through a referendum is a frightening prospect, as has been
borne out in this case.
The thesis that "might makes right" and that "justice is
expediency" has a long tradition in the history of ideas. However, it has
always been an unhappy history for minorities. This situation is dramatically
illustrated for the classicists in the account of the peace negotiations between
the Athenians and the Melians. The Athenians held "that right, as the world
goes, is only in question between equals in power, wherein the stronger do
whatever they can and the weaker suffer whatever they must."
No doubt the Reform Party, with their blind affection for referenda, would
embrace this philosophy whereby the mighty have rights as long as they have
might and the weak can only do injustice by not suffering their lot.
Honourable senators, the Hebrew people who were held in captivity in Babylon
during the sixth century BC acquired their freedom not through the power of the
minority but rather through the great Charter of Cyrus the Great who proclaimed
in 538 BC that the Hebrew people were free to return to their homeland, and here
we find one of the earliest examples of the recognition of minority
denominational rights being protected by the power of the majority.
Honourable senators, we in this chamber are able to turn to Canadian examples
of the majority speaking out in defence of the rights of the minority. On March
3, 1896, Sir Wilfrid Laurier made what some consider his best speech. He spoke
in defence of minority rights in Manitoba at second reading of Bill 58, the
Remedial Act. Wilfrid Laurier, who was not yet Prime Minister, asked whether the
government was -
impelled by the desire of doing justice to the minority?
...in a community with a free government, in a free country like this, upon
any question involving different conceptions of what is right and wrong,
different standards of what is just or unjust, it is the part of statesmanship
not to force the views on any matter, but to endeavour to bring them to a
uniform standard and a uniform conception of what is right.
Honourable senators, we need not be, as of course we are not, as eloquent as
Laurier to ask this question: Was an amendment to Term 17 necessary in order for
the Government of Newfoundland and Labrador to be able to achieve its desired
educational reform? My analysis of that question, based on the committee's
study, is that it is not at all clear that this constitutional amendment was
necessary or is necessary.
The argument advanced by the proponents of the resolution before us, made in
the name of efficiency and expenditure reduction, are frightening arguments for
any defender of rights. Perhaps human rights or the rights of the minority are
not efficient, but as Clifford Lincoln said, "Rights are rights are
rights". Sir Wilfrid Laurier knew, so long ago, that rights are aimed at
limiting and domesticating state power and attenuating its outcome.
In contrast to the utilitarian point of view - in which the end justifies the
means - the concept of human rights offers an ethical approach setting
constraining limits on authority. As expressed in a letter dated May 27, 1996,
from Archbishop Francis J. Spence, President of the Canadian Conference of
Catholic Bishops to the Prime Minister:
The primary responsibility of the Government of Canada... is not the reform
of Newfoundland's education system, which all parties agree is necessary, but
the protection of minority rights under our Constitution from the arbitrary
action of the majority.
Majorities cannot arbitrarily undo hard-won constitutional protections of
minorities. Let there be no camouflage - the Roman Catholic community,
representing some 36 or 37 per cent of the population, has made it perfectly
clear that they do not wish to give up their right to run Catholic schools.
Equally, it was categorically the testimony of the Pentecostal community,
representing some 7 per cent of the population of Newfoundland and Labrador,
that they are not willing to cede their current constitutionally protected right
to denominational schools to the power of the state and the whims of the
Honourable senators, the Athenians understood a long time ago what the
English poet Dryden meant when he wrote, on the threshold of our modern era:
Laws are vain, by which by right we enjoy, if kings unquestion'd can those
Governments must accept the indivisibility of rights and respect
constitutionally entrenched minority rights. The Newfoundland Terms of Union are
enshrined in the Canadian Constitution. Premier Tobin appears no longer to
respect those terms. We in this chamber cannot accede to this ahistorical
approach to public policy making.
The case before this chamber is one wherein the minority groups, the Roman
Catholic class of persons, as with the others, such as the Pentecostal class of
persons, are threatened with the loss of a right that is protected by the
Constitution, a right that was part of the very Terms of Union of Newfoundland
To whom, I ask, can these classes of persons turn? Can they seek to have
their minority voice carry the day in the House of Assembly? Has the House of
Assembly, with the support of all three political parties, failed the
minorities? Has the will of the popular majority been the safe haven for
safeguarding the rights of the minority? No, it has not! That is obvious when
one considers the many clashes between the minority and the majority throughout
history. This precisely is why the Reform Party's policy of blind adherence to
government by referendum is seldom in the true public interest, and hardly ever
in the interest of legitimate minority interests.
There are some issues that legitimately require majority action and others
that lie outside the proper arena of majority determination. Majority rule
implies a great deal about civil rights such as free speech, free assembly and
free association. I might add that the word "majority" means major
part and so connotes the presence of other parts, or of one of several
Some would say that minorities constitute the margins of society; others
would say that minorities are the practical manifestation of a society's ability
to accommodate and provide safe alternatives. If consent forms the basis for
democratic authority, then any infringement on the right of self-determination
would also deny the logic of majorities. This is a compelling reason for
majorities to permit the operation of other groups.
The Newfoundland referendum forms the basis of Premier Tobin's argument -
that and the need for fiscal prudence. Is it prudent, however, to proceed when,
in real terms, 28 per cent of the population voted in favour of reforming the
denominational school system?
Another argument put forward by Premier Tobin is that:
...it's all about power - P.O.W.E.R. - that the churches do not want to give
Why would they want to relinquish their constitutional rights to a political
party, any political party?
As Professor Colin Irvin testified before our committee:
If you choose to "respect" the referendum, then you may do that, in
my opinion, by accepting the vote for reform, but also by accepting that the
proposal which is put to the people who voted for it included denominational
schools "where numbers warrant". If the proposed language is taken out
and replaced with the proviso "where numbers warrant", then you would
be respecting, I suggest, the referendum result and you would be turning it
around so that it becomes a real constitutional guarantee like other
constitutional guarantees. That is the only way you can do it.
Thus, honourable senators, we should support Senator Doody's amendment.
Hon. Jerahmiel S. Grafstein: Will the honourable senator permit a
Senator Kinsella: Certainly.
Senator Grafstein: Based on my friend's experience in these matters,
under the present law, are there constitutionally entrenched rights for those
minorities who wish to have their children educated in a secular or
nondenominational setting in Newfoundland?
Senator Kinsella: This question was raised during the hearings of the
committee in Newfoundland. Nothing proscribes the Government of Newfoundland
from setting up such schools.
Senator Rompkey: There is a monetary consideration.
Senator Kinsella: There is no legal impediment.
Senator Grafstein: That is not my question. Is there, under the
existing law, an equal, constitutionally entrenched right provided to those
minorities in Newfoundland who wish to have their children educated either in a
secular or non-denominational fashion?
Senator Kinsella: I am told that the answer is "no."
Senator Grafstein: Perhaps I will address that later in the debate.
Hon. Richard J. Stanbury: Honourable senators, because of the point
that I made yesterday with respect to interpretation of the Term, I wish to ask
a straightforward question of Senator Kinsella.
In your view, does the proposed Term 17 paragraph (a) provide for
constitutionally entrenched rights in denominational schools for the protected
minorities to provide religious education activities and observances for their
Senator Kinsella: I think the answer is no, to the extent that, on the
basis of the provision and the way the term is written right now, it is all
subject to provincial legislation. The promise or commitment that was held out
to the people of Newfoundland and Labrador, as indicated in the brochure that
was circulated, was that the unidenominational schools and the right to them
would remain where numbers warrant. This is a solution from another standpoint.
I am not comfortable with the whole resolution at all, but the parties who
appeared before the committee in Newfoundland and here in Ottawa made reference
to what they would find acceptable, centred around the "where numbers
warrant" provision which was promised to them in the referendum question.
I think that is the problem with the way in which the resolution is currently
worded. I heard your argument the other day about how you interpreted the
wording of it. I think this leads one to the conclusion that there are problems
with the wording. You see problems with the wording, and I see problems with the
wording because of the right that will be abrogated, and that was not part of
the deal that was proposed during the referendum.
Senator Stanbury: When you get a chance, would you please carefully
read that term? Respectfully, it seems to me you are doing exactly what Senator
Doody and others have done, and that is to mix up the paragraphs (a), (b)
and (b)(i) and (b)(ii), so that you are saying that the
denominational schools do not have the constitutionally entrenched rights,
whereas I believe you cannot read paragraph (a) any other way than to say
that they do. You are confusing it with the unidenominational schools, which are
doubtless in (b)(i), and that is where Senator Doody's amendment comes in
as to whether we will have "as subject to provincial legislation" or
"as the numbers warrant."
However, that is not the question I was asking. I am talking about the
denominational schools, although they are really interdenominational schools,
and where it is clear that they still have all their constitutional rights
Senator Doody: There are many who disagree.
Senator Kinsella: The debate at this stage is on Senator Doody's
amendment, which focuses on (b), but yes, I will reread it in light of
what you are saying. However, for purposes of this debate on Senator Doody's
amendment, the problem is the absence in (b) of the "where numbers
Senator Stanbury: That is a much narrower question.
Hon. P. Derek Lewis: I have two questions for Senator Kinsella: First,
I take it that while you give your support to Senator Doody's amendment, if the
resolution was amended in that way, you would support the amendment?
Senator Lynch-Staunton: The amendment to the resolution, or Senator
Senator Lewis: Senator Kinsella is supporting the amendment to the
resolution. If that amendment is passed, would he support the resolution itself?
He has indicated that he would. We were both at the hearings of the committee.
The report of that committee dealt with the question of the interpretation of
the words "where numbers warrant." As stated, and as we heard from the
witnesses, the effect of that phrase being included would be that the adherents
of the Seventh Day Adventist Church, which is one of the protected seven, would
undoubtedly lose their rights. They are a very small minority, being, I think,
0.1 per cent of the population. If the result of this amendment that Senator
Doody is proposing would be that this small minority would lose its rights, how
do you reconcile that with your great concern about minority rights?
Senator Kinsella: That is a very good question, Senator Lewis. When we
focused on that aspect from the minority rights protection standpoint, because
the Seventh Day Adventist community is a class of persons that have their
denominational school right currently protected by the Constitution, it is my
understanding that that community, indeed by way of a letter of recent days sent
to the Chair of our committee on Legal and Constitutional Affairs, had written
to the effect that they support Senator Doody's amendment and feel that in those
communities where they would have sufficient numbers, their interests would be
protected, as they see it.
I would suggest that, by whatever procedure necessary, the Chair of the
Standing Senate Committee on Legal and Constitutional Affairs circulate to all
senators that correspondence, because it speaks exactly to this issue, and it is
a letter from the Seventh Day Adventist Church.
Senator Lewis: I am not aware of that correspondence. If it has the
effect of wiping out their rights, how would you reconcile that with your
concern and the concern of the Senate for minority rights?
Senator Kinsella: It is a problem. There is not perfect symmetry here.
However, where the community itself has recognized that their size is so small -
I cannot remember the statistics, but less than 1 per cent, I believe - they
have indicated that they would rather see the present resolution amended to
allow for a determination of the right that would then be protected by the
amended Constitution under the criterion of "where numbers warrant,"
to be judged not by the House of Assembly but rather by a third party or by a
tribunal. That is what they seem to be saying.
I can see that that particular community, as a very small minority, would be
better off if this resolution that is presently before us is defeated. If I were
their advocate, I would argue that the minority rights that they presently have
would be better protected by their keeping it rather than by their losing it, as
proposed by this resolution, but they seem to be saying that they are prepared
to accept a modification. However, the modification that they are prepared to
accept is not the Term 17 as contained in the resolution, but rather one that
would contain the amendment that Senator Doody has proposed.
Senator Doody: They would rather trust the courts than the
Senator Lewis: We are just dealing here with the Seventh Day Adventist
Church, but it could be that, at some future time, the numbers of one of the
other recognized denominations might be reduced to such a degree that they would
then be a very small minority, and the same circumstance would apply to them.
Hon. Bill Rompkey: I wish to ask Senator Kinsella to comment on the
question that was raised by Senator Watt yesterday. Apart from the minorities
that are members of the Christian churches, there are other minorities in the
province. I will not talk about religious minorities at this point, but let me
ask him about other minorities such as aboriginal peoples.
There are three aboriginal groups in the province. Would those aboriginal
groups have a greater degree of certainty of control over their schools under
the new Term 17 than under the present Term 17? Senator Kinsella was in St.
John's with me and listened to the testimony. Indeed, we only heard from two
aboriginal leaders. One was Ovide Mercredi, here in Ottawa, and the other was
Todd Russell, president of the Labrador Métis Association. In answer to a
question of mine as to whether there should be a greater degree of latitude for
them to establish aboriginal boards under the new Term 17, Mr. Russell said:
With respect to your specific question about whether there is more
opportunity, I would have to agree there probably is with that specific clause
Would the senator comment on the degree to which aboriginal people exercise
their rights and their opportunities to have their own school boards?
Senator Kinsella: If everything went well, that could well be the
result, but in terms of a right within the meaning of aboriginal
self-government, I would encourage the aboriginal peoples of Newfoundland and
Labrador to try to find that protection within the meaning of the aboriginal
right to self-determination.
The problem that the aboriginal peoples have faced, and would face if a
pattern is set by this kind of dynamic that is operating in the matter before us
- that the House of Assembly decides to abrogate a right that is really beyond
their reach and is, in fact, entrenched in the Constitution - is that there
would be little satisfaction, I should think, within the aboriginal community in
relying upon a constitutional guarantee of aboriginal education if a right that
is currently in the Constitution can be changed so easily. That is the problem.
On motion of Senator Milne, debate adjourned.
Hon. B. Alasdair Graham (Deputy Leader of the Government)
senators, this being Wednesday and the day that committees meet, I believe there
might be an agreement that all remaining orders stand.
The Hon. the Speaker pro tempore: Is it agreed, honourable
Hon. Senators: Agreed.
The Senate adjourned until tomorrow at 2 p.m.