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Debates of the Senate (Hansard)

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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

THE SENATE )

Wednesday, October 23, 1996

The Senate met at 1:30 p.m., the Speaker pro tempore in the Chair.

Prayers.

SENATOR'S STATEMEN)

International Joint Commission

Resignation of Canadian Commissioner

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.

ROUTINE PROCEEDINGS

Foreign Affairs

Committee Authorized to Meet During Sitting of the Senate

Hon. John B. Stewart, Chairman of the Standing Senate Committee on Foreign Affairs, with leave of the Senate and notwithstanding rule 58(1)(a), moved:

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 senators?

Hon. Senators: Agreed.

Motion agreed to.

QUESTION PERIOD

Cape Breton Development Corporation

Reconstitution of Special Committee-Government Position

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 do so?

(1340)

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.

[Translation]

Goods and Services Tax

Harmonization with Provincial Sales Taxes-Agreements with Atlantic Provinces-Apportionment in Public Accounts-Government Position

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 this?

[English]

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.

[Translation]

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.

[English]

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.

[Translation]

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.

[English]

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 the Government

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 forward.

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 provinces.

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?

(1350)

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 afraid!

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 in that.

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 government?

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 this country.

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?

The Environment

Oriented Strand Board Plants in Manitoba and Saskatchewan-Basis for Decision of Federal Minister-Request for Particulars

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 conclusion?

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.

Canada-U.S. Relations

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.

(1400)

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 its provisions.

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 so quickly.

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.

The Environment

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 country.

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 senators.

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.

Women's Health Forum

First Canada-United States Conference-Exclusion of Participation by Progressive Conservative Senators-Government Position

(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 perusal.

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 women's health.

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 of view.

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 invitation.

Justice

Order in Council Concerning Madam Justice Arbour-Request for Details

(Response to question raised by Hon. Senator Noël A. Kinsella on October 21, 1996)

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 Act.

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 Tabled

employment insurance-Request for Details

Hon. B. Alasdair Graham, Deputy Leader of the Government: Honourable senators, I also have a written response to written question No. 53 asked by Senator Stratton.

ORDERS OF THE DAY

JUDGES ACT

Bill to Amend-Third Reading-Debate Continued

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 stated:

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.

(1410)

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 Canada.

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 worse."

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 the text.

Senator Stanbury, who had not been on hand to hear the morning witnesses, said:

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.

(1420)

Foreign Extraterritorial Measures Act

Bill to Amend-Second Reading-Debate Adjourned

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 law.

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 legislation itself.

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 surface.

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 origin.

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 world.

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.

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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 Congress.

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 court rulings.

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 Canada.

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.

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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 regulations.

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 months.

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 retroactive.

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 to Yukon.

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.

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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.

Referred to Committee

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.

Oceans Bill

Second Reading

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 been done.

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 treaty rights.

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 added.

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 and desires.

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 twenty-first century.

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 bill:

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 Inuit people.

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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 "may."

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 Oceans.

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 service.

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 justified.

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 Act.

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.

Referred to Committee

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 on Fisheries.

Newfoundland

Changes to School System-Amendment to Term 17 of Constitution-Report of Committee-Motion in Amendment-Debate Continued

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 warrant,".

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?

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He continued:

...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 majority.

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 laws destroy.

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 with Canada.

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 minorities.

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 up.

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 question?

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.

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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 children?

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 completely entrenched.

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 warrant" commitment.

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 Doody's amendment?

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 politicians.

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.

Business of the Senate

Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable 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 senators?

Hon. Senators: Agreed.

The Senate adjourned until tomorrow at 2 p.m.

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