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Debates of the Senate (Hansard)

2nd Session, 35th Parliament,
Volume 135, Issue 66

Tuesday, February 4, 1997
The Honourable Gildas L. Molgat, Speaker


Tuesday, February 4, 1997

The Senate met at 2:00 p.m., the Speaker in the Chair.


 The Senate

Speaker's Remarks on Return to Chamber

The Hon. the Speaker: Honourable senators, before I call for Senators' Statements, I wish to welcome back all honourable senators to this chamber after the festive season. I trust that you all had a good Christmas recess.


I hope that this session will be a friendly and a productive one.



The Late Hagood Hardy


Hon. Marie-P. Poulin: Honourable senators, on January 1 of this new year, our country lost a great Canadian: one who contributed throughout his life to Canada's human, social and cultural fabric. Hagood Hardy, composer, arranger and musician, passed away after a difficult battle with cancer.

At the funeral service, two of his close friends, Peter Giffen and Tom Williams, delivered very touching tributes. The following, honourable colleagues, is the eulogy pronounced by Tom Williams, the co-founder of Attic Records in Canada, who said:

Over the past few days we have been reading about Hagood in the newspapers, hearing about him on the radio, and watching many tributes to him on television.

We have heard about his early days playing jazz at the House of Hamburg while still a student at the University of Toronto. We have heard about his beginnings in the New York jazz clubs, and his touring the country...his wife, Martha, and kids in tow...with such great jazz players as Herbie Mann and George Shearing.

We have heard of Hagood and Martha bringing the family back to Toronto to give the children some stability during their high school years, and of his exploration of the commercial jingle business while pursuing a full-time jazz career with The Montage.

Everybody has mentioned his gold and platinum records, his Juno Awards, his many films and TV scores, the Billboard No. 1 award, and his great contribution to this country's music industry.

Many stories took note of his Order of Canada...and, most recently, his Lifetime Achievement Award at the recent Toronto Arts Awards. Others cited his many charitable efforts, including that for Cystic Fibrosis and the National Youth Orchestra.

A few referred to the literally hundreds of appearances he made at telethons and benefits...not to mention the many fundraising golf tournaments.

We know that, aside from his many accomplishments, the essence of Hagood Hardy was his humanity, and his unfailing support and compassion for those friends and family he cherished.

Will Rogers said that he never met a man he did not like. Hagood Hardy never met a person who did not like him. His music touched millions. We were lucky. He touched us. His passing will leave a big hole in our lives but not in our hearts, because he filled our hearts to overflowing. He was our friend.


Honourable senators, Hagood Hardy was a man in love. He was in love with life, the life of our country, the country he chose. He transformed this love into music for us. Hundreds of concerts, over 35 records and 40 film scores. However, Hagood left us more than his music. He has, honourable senators, left us a responsibility as Canadian parliamentarians. He expressed it in a speech to the Empire Club in Toronto, and I quote:


The most important thing for a government to remember in its policy toward the arts is that it can have the biggest impact in two major areas; those of nourishing and enriching the atmosphere and environment for artistic growth and development and of assisting in the distribution and exhibition of artistic work, both here and in the world at large.

Thank you, Hagood Hardy.

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I should like to draw your attention to distinguished visitors in the gallery. They are two staff members from the Parliament of Yemen who are here to spend a two-week period with our staff to learn how we conduct our business. Their visit is the result of an official visit which I made last year to Yemen, accompanied by Senator Robertson, during which we had a request from that nascent democracy for assistance in the further development of their parliamentary system.

I should like to introduce to you Mr. Lotfi-A-Al-sabahi and Mr. Mohammed-N-Al-komaim.

Hon. Senators: Hear, hear!


Internal Economy, Budgets and Administration

Fourteenth Report of Committee Presented

Hon. Colin Kenny, Chairman of the Standing Committee on Internal Economy, Budgets and Administration, presented the following report:

Tuesday, February 4, 1997

The Standing Committee on Internal Economy, Budgets and Administration has the honour to present its


Your Committee recommends the adoption of a Supplementary Estimate of $2,861,000 for fiscal year 1996-1997.

This Supplementary Estimate is requested to fund unanticipated expenses and capital expenditures and will result in significant savings. Initiatives recommended for implementation include the transfer of East Block Security at net savings of $80,000 per year after an initial payback period of three years, which is significantly less than the time Treasury Board uses as a guideline.

As the Main Estimates are prepared 12 to 18 months in advance, a number of special studies being undertaken by Senate Committees will be funded by this Supplementary Estimate. These studies involve issues which are important to Canadians and include topics as the State of Post-Secondary Education in Canada, including the Student Loan Program; the importance of the Asia Pacific Region, especially with regard to trade; the Amendment to the Constitution concerning Term 17 of the Terms of Union with Newfoundland with Canada; our International Competitive Position in Communications; and the State of Transportation Safety and Security in Canada.

The Supplementary Estimate also covers certain security issues to ensure that the Senate is not the weak link in Parliament's overall security effort. Some of these issues stem from recommendations made by the ad hoc committee of senior officials, established by the Solicitor General.

The Supplementary Estimate also covers funds for a computer/communication network so that the Senate remains compatible with the House of Commons systems and to adapt to technological changes in Government-wide financial and administrative practices.

Funds are also included to complete two replacement parliamentary committee rooms which were built by Public Works to compensate for the loss of rooms due to renovations. These rooms require appropriate furniture in line with their use and design concept utilised by Public Works, in addition to simultaneous translation equipment to meet official languages legislation.

Respectfully submitted,


The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

On motion of Senator Kenny, report placed on the Orders of the Day for consideration on Thursday next, February 6, 1997.

Fifteenth Report of Committee Presented

Hon. Colin Kenny, Chairman of the Standing Committee on Internal Economy, Budgets and Administration, presented the following report:

Tuesday, February 4, 1997

The Standing Committee on Internal Economy, Budgets and Administration has the honour to present its


Your Committee has examined and approved the Senate Estimates for the fiscal year 1997-98 and recommends their adoption.

The Expenditure Plan 1997-98 and a summary accompanies this report.

Respectfully submitted,


(For text of appendix to this report, see Journals of the Senate of this day.)

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

On motion of Senator Kenny, report placed on the Orders of the Day for consideration on Thursday next, February 6, 1997.

Bankruptcy and Insolvency Act
Companies' Creditors Arrangement Act
Income Tax Act

Bill to Amend-Report of Committee

Hon. Donald H. Oliver: Honourable senators, I have the honour to present the twelfth report of the Standing Senate Committee on Banking, Trade and Commerce, which deals with Bill C-5, an act to amend the Bankruptcy and Insolvency Act, the Companies' Creditors Arrangement Act and the Income Tax Act.

I ask that the appendix to this report be printed as an appendix to the Journals of the Senate of this day.

(For text of appendix to report, see appendix to Journals of the Senate of this day.)

Tuesday, February 4, 1997

The Standing Committee on Banking, Trade and Commerce has the honour to present its


Your Committee, to which was referred Bill C-5, An Act to amend the Bankruptcy and Insolvency Act, the Companies' Creditors Arrangement Act and the Income Tax Act has examined the said bill in obedience to its Order of Reference dated Thursday, October 31, 1996, and now reports the same with the following amendments:

1. Page 4, clause 2: Strike out line 8 and substitute the following:

"person occurs at the time or date".

2. Page 21, clause 30:

(a) Strike out line 4 and substitute the following:

"be just and equitable in the circumstances."

(b) Add the following after line 14:

"(18) Where all of the directors have resigned or have been removed by the shareholders without replacement, any person who manages or supervises the management of the business and affairs of the corporation shall be deemed to be a director for the purposes of this section.".

3. Page 30, clause 53: Strike out lines 7 to 9 and substitute the following:

"consumer debtor's circumstances that leads the administrator to conclude, after consultation with the debtor where practicable, that such change could jeopardize the consumer debtor's ability to meet the terms of the proposal, in writing, ".

4. Page 38, clause 65: Add after line 40 the following:

"(3) Where all of the directors have resigned or have been removed by the shareholders without replacement, any person who manages or supervises the management of the business and affairs of the corporation shall be deemed to be a director for the purposes of this section.".

5. Page 75, clause 118: Strike out line 27 and substitute the following:

"(C) for the firm's own account,".

6. Page 76, clause 118: Strike out line 6 and substitute the following:

"count, and

(iii) any investments of the securities firm in its subsidiaries that are not referred to in subparagraph (i) or (ii); and".

7. Page 84, clause 121: Strike out lines 1 to 4 and substitute the following:

"3. (1) This Act applies in respect of a debtor company or affiliated debtor companies where the total of claims, within the meaning of section 12, against the debtor company or affiliated debtor companies exceeds five million dollars.

(2) For the purposes of this Act,

(a) companies are affiliated companies if one of them is the subsidiary of the other or both are subsidiaries of the same company or each of them is controlled by the same person; and

(b) two companies affiliated with the same company at the same time are deemed to be affiliated with each other.

(3) For the purposes of this Act, a company is controlled by a person or by two or more companies if

(a) securities of the company to which are attached more than fifty per cent of the votes that may be cast to elect directors of the company are held, other than by way of security only, by or for the benefit of that person or by or for the benefit of those companies; and

(b) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the company.

(4) For the purposes of this Act, a company is a subsidiary of another company if

(a) it is controlled by

(i) that other company,

(ii) that other company and one or more companies each of which is controlled by that other company, or

(iii) two or more companies each of which is controlled by that other company; or

(b) it is a subsidiary of a company that is a subsidiary of that other company.".

8. Page 84, clause 122: Add after line 28 the following:

"(4) Where all of the directors have resigned or have been removed by the shareholders without replacement, any person who manages or supervises the management of the business and affairs of the debtor company shall be deemed to be a director for the purposes of this section.".

9. Page 86, clause 124: Strike out lines 21 to 30 and substitute the following:

"(4), the applicant also satisfies the court that the applicant has acted, and is acting, in good faith and with due diligence.".

10. Page 90, clause 124: Add after line 10 the following:

"(3) Where all of the directors have resigned or have been removed by the shareholders without replacement, any person who manages or supervises the management of the business and affairs of the company shall be deemed to be a director for the purposes of this section.".

11. Page 91, clause 124:

(a) Add after line 21 the following:

"(4) Where the monitor acts in good faith and takes reasonable care in preparing the report referred to in paragraph (3)(b), the monitor is not liable for loss or damage to any person resulting from that person's reliance on the report.".

(b) Strike out line 22 and substitute the following:

"(5) The debtor company shall".

Attached as an appendix to this Report are the observations and recommendations of your Committee on Bill C-5.

Respectfully submitted,


The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

On motion of Senator Oliver, report placed on the Orders of the Day for consideration at the next sitting of the Senate.

 National Organ Donor Week Bill

Report of Committee

Hon. Mabel M. DeWare, Chair of the Standing Senate Committee on Social Affairs, Science and Technology, presented the following report:

Tuesday, February 4, 1997

The Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its



Your Committee, to which was referred the Bill C-202, An Act respecting a National Organ Donor Week in Canada, has, in obedience to the Order of Reference of Wednesday, December 18, 1996, examined the said Bill and now reports the same without amendment.

Respectfully submitted,


The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

On motion of Senator DeWare, for Senator Keon, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.


Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, with leave of the Senate and notwithstanding rule 58(1)(h), I move:

That when the Senate adjourns today, it do stand adjourned until tomorrow, Wednesday, February 5, 1997, at 1:30 p.m.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Motion agreed to.

 Bell Canada Act

Bill to Amend-First Reading

The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-57, to amend the Bell Canada Act.

Bill read the first time.

The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?

On motion of Senator Graham, bill placed on the Orders of the Day for second reading on Thursday next, February 6, 1997.


Legal and Constitutional Affairs

Committee Authorized to Meet During Sitting of the Senate

Hon. Sharon Carstairs: Honourable senators, with leave of the Senate and notwithstanding rule 58(1)(a), I move:

That the Standing Senate Committee on Legal and Constitutional Affairs have power to sit at 3:15 p.m., tomorrow, Wednesday, February 5, 1997, even though the Senate may then be sitting and that rule 95(4) be suspended in relation thereto.

The Hon. the Speaker: Honourable senators, is leave granted?

Hon. Senators: Agreed.

Motion agreed to.

Energy, the Environment and Natural Resources

Committee Authorized to Meet During Sittings of the Senate

Hon. Ron Ghitter: Honourable senators, I wish to move a motion, seconded by the Honourable Senator Kenny. I understand that the unanimous consent of the Senate is necessary in order to do this.

The committee is asking for leave to sit this afternoon and tomorrow afternoon. We have a large number of witnesses who are slated to appear before the committee on both days. Therefore, with leave of the Senate and notwithstanding rule 58(1)(a), I move:

That the Standing Senate Committee on Energy, the Environment and Natural Resources have power to sit at 3:30 o'clock in the afternoon, today, and at 3:15 o'clock in the afternoon of Wednesday, February 5, 1997, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.

The Hon. the Speaker: Honourable senators, is leave granted?

Hon. Noël A. Kinsella: Honourable senators, the request being made asks for leave to have the committee meet on two days while the Senate is sitting. I have no difficulty with the granting of leave for today's committee meeting. However, I have some difficulty with regard to tomorrow, although my difficulty may be resolved.

On the Order Paper, we see Motion No. 83, which speaks to a matter directly associated with the work of the honourable senator's committee. The debate on that motion was adjourned in the name of the Honourable Senator Kenny.

I know that the work of the Senate may be somewhat abbreviated today, and I hope that, in the ordinary course of events, we will reach Motion No. 83 before 3:30 p.m., which would give Senator Kenny the opportunity to speak to it. If not, then I hope we will get to it tomorrow. My concern is that I want to hear what Senator Kenny has to say about the motion as it relates to the work of the committee.

The Hon. the Speaker: I am sorry to interrupt the Honourable Senator Kinsella. What is going on is out of order. Is the honourable senator refusing to grant leave?

Senator Kinsella: Honourable senators, I have no objection to the granting of leave with regard to today's meeting. However, I do object to the request for tomorrow being made today.

The Hon. the Speaker: The motion must then be amended. Is there agreement by the mover and the seconder that the motion be amended to deal only with today's meeting of the committee?

Senator Ghitter: Your Honour, I am not quite clear, procedurally, as to what will happen tomorrow. As I said, we also have a large number of witnesses lined up to be heard tomorrow.

The Hon. the Speaker: If leave is granted, then you may proceed today. You will then need to ask for leave with respect to tomorrow.

Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, it would have been helpful if the motions had been separate and distinct: that is to say, if the committee chairman had asked for leave to sit today at 3:30 p.m., and given notice of tomorrow's sitting at 3:15 p.m. That would have been the more logical course.

In view of the fact that some concerns have been raised, unless there is unanimous consent to grant leave for tomorrow's sitting, then this is merely a notice of motion. It may be that Senator Kenny wishes to say something now on this matter. However, the Speaker may say that that, too, would be out of order.

Hon. Colin Kenny: Your Honour, in order to save the time of the chamber, I intend to speak to Senator Kinsella's motion in order to agree to it, to support it, and to urge that it be passed. If there is unanimous consent, I could make my speech on that motion in about 30 seconds. That would alleviate Senator Kinsella's concern. We could then move on with Senator Ghitter's motion. That might resolve the issue.

The Hon. the Speaker: Honourable senators, this is a most unusual way of proceeding. However, we are the masters of our own rules. If it is the wish of the Senate to proceed in that way, then by unanimous consent that can be done.

Honourable senators, is it agreed that we will hear from the Honourable Senator Kenny on the motion of the Honourable Senator Kinsella before we settle the question of leave with regard to the motion of the Honourable Senator Ghitter?

Hon. Senators: Agreed.


The Hon. the Speaker: Honourable senators, following the explanation from Senator Kenny, I ask again: Is leave granted for the motion proposed by the Honourable Senator Ghitter?

Hon. Senators: Agreed.

The Hon. the Speaker: With leave of the Senate and notwithstanding rule 58(1)(a), it is moved by the Honourable Senator Ghitter, seconded by the Honourable Senator Kenny:

That the Standing Senate Committee on Energy, the Environment and Natural Resources have power to sit at 3:30 o'clock in the afternoon, today, and at 3:15 o'clock in the afternoon of Wednesday, February 5, 1997, even though the Senate may then be sitting and that rule 95(4) be suspended in relation thereto.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to.

Committee Authorized to Study Questions on Manganese-Based Fuel Additives Bill

Leave having been given to proceed to Motion No. 83:

Resuming the debate on the motion of the Honourable Senator Kinsella, seconded by the Honourable Senator Doyle:

That, notwithstanding Rule 98, the Standing Senate Committee on Energy, the Environment and Natural Resources present an interim report, before submitting its final report on the Bill C-29, to regulate interprovincial trade in and the importation for commercial purposes of certain manganese-based substances, relating to its findings on the following questions:

(1) Is MMT-based petroleum the cause of OBD malfunctioning?

(2) Does MMT in gas cause a health hazard to Canadians?

(3) Does MMT in gas cause direct damage to the environment?-(Honourable Senator Kenny).

Hon. Colin Kenny: I thank honourable senators for their indulgence. Motion No. 83 is a request by Senator Kinsella that studies take place in relation to MMT. I should like to indicate to the chamber that I support this motion. I urge that all members of the chamber also support this motion. If they do, I am prepared to table the studies forthwith.


Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, before we proceed further, do I understand that Motion No. 83 has now been disposed of?

The Hon. the Speaker: Honourable senators, that is the question I was about to ask. Is it agreed, honourable senators, that we consider Motion No. 83 as having been debated?

Hon. Senators: Agreed.

Senator Kenny: Honourable senators, I request permission to table these documents.

The Hon. the Speaker: Honourable senators, is leave granted?

Hon. John Lynch-Staunton (Leader of the Opposition): No. Senator Kenny is not replying to the motion. The motion asks that the committee present an interim report. I do not think depositing documents is the same as presenting an interim report.

The Hon. the Speaker: Then leave is not granted.

Motion agreed to.

Human Rights

Racial Discrimination-Settlement of United States Lawsuit against Texaco-Notice of Inquiry

Hon. Donald H. Oliver: Honourable senators, I give notice that, at the next sitting of the Senate, I will call the attention of the Senate to the matter of the lawsuit in the United States against Texaco with respect to racial discrimination that was settled in November of last year. 



Investigation into Sale of Airbus Aircraft to Air Canada-Notification to Swiss Authorities of Latest Developments-Disciplinary Sanctions Taken Against Officials Involved-Government Position

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I wish to quote from a letter dated September 29, 1995, or, rather, from the unofficial translation of that letter which was available to the Quebec Superior Court. It states:

The Minister of Justice and Attorney General of Canada is most kindly asking the Minister of Justice of Switzerland for judicial assistance for the Canadian Government in the investigation of breaches of Canadian law...

The letter speaks of:

- an ongoing conspiracy to defraud the Canadian government of millions of dollars during the time that Mr. Mulroney was in office, from September 1984 until his resignation in June of 1993.

The letter continues:

- this investigation is of great importance to the Canadian government because it concerns criminal activities on the part of a former Prime Minister.


On January 6 of this year, a settlement agreement was announced between Mr. Mulroney, the government and the RCMP following Mr. Mulroney's action against the two. The fourth clause in the agreement reads as follows:

Based on the evidence received to date, the RCMP acknowledges that any conclusions of wrongdoing by the former were - and are - unjustified.

Have the Swiss authorities been officially notified by the Department of Justice that the September 29, 1995, letter - which, according to the settlement agreement, was "initiated and drafted by the RCMP and signed and sent by the Department of Justice" - contains, "...language..." that - "...indicates wrongly, that the RCMP had reached conclusions that Mr. Mulroney had engaged in criminal activity...", and therefore should be ignored and treated as if it had never been sent, since both the Solicitor General and the Minister of Justice cannot deny that this letter is nothing short of sheer fabrication for purely partisan purposes? Have the Swiss authorities been officially notified that this letter is riddled with gross errors, to say the least, and should be ignored, and that any action taken by the Swiss authorities as a result of these despicable accusations should stop forthwith?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, in the interests of being absolutely accurate and precise, I should like to take that question to the Minister of Justice.

Senator Lynch-Staunton: Honourable senators, I hope that not only will the minister take my question to the Minister of Justice but that she will urge him to advise the Swiss authorities of the course that he and the government were forced to take at the beginning of this year, if he has not already done so.

Following on that question, I should like to know what, if any, disciplinary actions or sanctions have been taken against those in the RCMP and the Department of Justice who, acting in an official capacity, informed a foreign government that a former Prime Minister and two other Canadians had engaged in criminal activity, when they knew at the time what was finally admitted 14 months later, and then only on the eve of a lawsuit which, had it been allowed to proceed, would have exposed this government's perverted understanding of the presumption of innocence, namely that the RCMP and the Department of Justice never had a shred of evidence on which to base their letter? Now that we know what a fraudulent fabrication it was, surely the authors of this document cannot escape without some kind of reprimand, if not suspension. I should like to know whether those who collaborated with this letter have been allowed to escape scot-free and to carry on with their responsibilities, or if any sanctions have been or will be taken against them for perpetrating this fraudulent, despicable letter which will go down in the annals as one of the worst actions ever taken by any government of this country.

Senator Fairbairn: Honourable senators, I will also take those specific questions to both of my colleagues.

I point out to Senator Lynch-Staunton, as I am sure he is aware, that the Minister of Justice, shortly after the letter became public, instituted changes in the process of dealing with this kind of correspondence. Indeed, he indicated just yesterday that he has asked Mr. Allan Goodman, a former justice with the Ontario appeal court, to review the changes that have been instituted to ensure from an independent point of view that this kind of mistake - this kind of error that has caused an apology from the Prime Minister on behalf of the government, from the ministers who were involved, and I join with them in extending that apology - will never happen again.

Senator Lynch-Staunton: Honourable senators, the question is not whether the procedure was followed. The fault is not in the procedure. The question is on the major fault committed by those who contributed to the authorship of the letter. It is not the procedure that is at fault; it is the content of the letter which is riddled with lies deliberately put there to condemn innocent Canadians. What will happen to those who contributed to that letter?

The answer that former Justice Goodman is to examine the procedure does not answer the basic question of whether these people will be allowed to get off scot-free for having tried to ruin the reputation of one former Prime Minister and two other Canadians, and God knows how many others.

Senator Fairbairn: As I indicated, I will take that precise question to my colleague.


Despatch of Canadian Peacekeepers to Rwanda-Burundi-Zaire Region-Source of Payment for Mission-Government Position

Hon. David Tkachuk: Last year, honourable senators, the people of this country were treated to the spectacle of the Prime Minister's escapade in Zaire. For seven weeks, Canadian troops were sent to a corner of the globe to play cards and cool their heels in empty airport hangars while the Prime Minister attempted to extricate himself from this dilemma. According to the Department of Defence, the Prime Minister's folly cost the Canadian taxpayers a minimum of $14.5 million.

Who approved the expenditures of these funds? Was it the cabinet, was it the Treasury Board, or was it a unilateral decision taken by the Prime Minister?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I would disagree with my honourable friend's characterization of the initiative taken in November to send troops to Zaire.

If my honourable friend recalls the context of the situation at the time, he may remember that there were hundreds of thousands of human beings in dire straits in that area. There was no movement of those people. Neither this government nor I would claim that the evidence of an international grouping, ready to take an initiative in that area, was what prompted, on its own, those people to begin to move. It certainly was seen as a factor.

Senator Lynch-Staunton: They would not even let them into the country.

Senator Fairbairn: My honourable friend laughs, but I must say that, in a case of international distress and emergency, if the action of one country, supported by many others and the United Nations, prevents a conflict and prevents massive cases of injury and death, then I do not believe that Canada has to make any apology whatsoever for taking a lead to move that kind of influence into that extremely troubled area.

Senator Tkachuk: Honourable senators, I will await, I am sure, the answer to the question I asked. I was asking about not only the expenditure and who approved it, but the process of this government. The Leader of the Government's reply begs the question of exactly how this entire affair came about.

The Leader of the Opposition, Senator Lynch-Staunton, talked about the process involving a former Prime Minister. It seems that this sloppy way of conducting the affairs of the nation, to our great embarrassment before the rest of the world, goes on with the Prime Minister himself, because he has told us that the reason he got on this foreign affairs escapade was that he was sitting home one night watching television reading a French novel entitled Menaud, Maître-draveur. The images of the Rwandan refugees made such an impression on him that he felt he had no choice but to act.


We later learned that perhaps he had not been watching TV and reading a French novel, but sitting in a restaurant with his wife and Minister Young, having dinner and laughing, joking, probably talking about how they would proceed on the Zaire escapade. Then I am sure he received a call from his nephew, the U.S. ambassador, who told him that an African relief mission is just the thing he needs to win a Nobel Peace Prize.

Honourable senators, I ask again: What was the process followed by the Prime Minister in deciding to send Canadian troops to Zaire? Could the leader provide us with a list of the people he consulted? Did he speak to anybody in the department? Did he consult cabinet or the Treasury Board? What was the process, or was it the same process taken by Ms Prost and the Minister of Justice regarding the former Prime Minister of Canada?

Senator Fairbairn: Honourable senators, I must say I feel a little sorry for my honourable friend, who is left to sit submerged in his embarrassment and humiliation on the occasion of an international initiative taken by his country in a time of need.

Senator Lynch-Staunton: But it flopped.

Senator Fairbairn: He may choose to make fun of the Prime Minister. He may choose to make light of the action. He may choose to make light of the people who were involved and prepared. Those people included some of our own Armed Forces, who were prepared to play a significant role in that area if the need was proven.

Of course, the Prime Minister spent a great deal of time talking to leaders of a number of other countries. Of course, he received advice from our ambassador to Washington, who was in a position to help because of his own knowledge of that area and his own recognized prestige in that part of the world. Our ambassador was being asked by the United Nations to go over there as an envoy.

Of course, the Prime Minister gave the situation very serious thought. The Prime Minister of Canada may have been distressed watching refugees on his television screen but so were the Canadian people, and the Canadian people were darned proud that their government did not sit back. Their government took a lead. Their government was instrumental in bringing about an atmosphere that absolutely changed the dynamics of the situation in that area.

Senator Lynch-Staunton: Oh, come on!

Senator Fairbairn: Of course, they did, Senator Lynch-Staunton.

Senator Lynch-Staunton: The rebels attacked the camp. Look up your history!

Senator Fairbairn: We can sit here in this comfortable chamber, talking about hundreds of thousands of lives at risk. Canada played a part. Canada helped, along with its allies.

I feel sorry for Senator Tkachuk, that he was so embarrassed by the actions of the Government of Canada on behalf of the concerns of the people of Canada.

Some Hon. Senators: Hear! Hear!

Senator Tkachuk: Honourable senators, I do not think the Leader of the Government in the Senate gets it.

Senator Fairbairn: I get it. You do not get it.

Senator Tkachuk: Honourable senators, I am not embarrassed for myself. I was trying to find out about the process because I think it is important. This never left the lips of the Prime Minister, but I will tell you this: I fear for this country when soldiers - our sons and daughters - are sent on an escapade to Africa because someone was watching some news channel on television and was probably sitting at a restaurant having dinner while soldiers were directed to go across the ocean to deal with a situation about which he, his government, the cabinet, and the Treasury Board seem not to have known anything.

I am asking the Leader of the Government, as a member of the cabinet, to tell the Senate about the process so we will know, when other soldiers are sent somewhere else, how they will make those decisions. If you make them this way, tell us that you make them this way - that you sit around watching TV and someone gets up and sends out the soldiers. That is fine. At least the Canadian people will know. Otherwise, tell us the process.

Senator Fairbairn: Senator Tkachuk, really! I try very hard -

Senator Tkachuk: You sound like my mother!

Senator Fairbairn: I should sound like your mother, you are right, because you have been a bad boy! With great respect, dear, you simply do not know what you are talking about!

Senator Taylor: To the woodshed!

Senator Fairbairn: From the vantage of my advanced years in comparison to those of Honourable Senator Tkachuk, I simply say that, yes, I will make those inquiries. I hope we can make the honourable senator a little happier than he is today. However, let me again say that there were intensive diplomatic discussions, leader to leader. There were phones calls.

Senator Tkachuk: Uncle to nephew?

Senator Fairbairn: There were extensive consultations on the diplomatic front through the minister and through the department. Of course, serious consideration was given to the possibility of Canada's getting involved in helping. At a time when everyone else was sitting around and doing nothing but worrying about it, we took the lead. We took leadership of that issue. We were helped by our allies. We were encouraged and, indeed, supported by the United Nations.

Things changed because the international community came together and gave an indication that it would not tolerate the situation that was developing in that tortured part of Africa. It worked. I will try to get the honourable senator every bit and piece of information that I can.

I have told the honourable senator about the process. Part of that process is being able to pick up a telephone and start action that will help children and adults, people who are living in war and poverty. We did help.

Refusal by African Governments to Permit Canadian Peacekeeping Troops to Land-Government Position

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, by way of a supplementary question, if this mission was so essential and such a priority for the African countries who were in such despair, why is it that Canadian troops were not allowed to land in Rwanda?

Senator Grafstein: For the obvious reason.

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, as my honourable friend will know, there is a great deal of national conflict and national politics in Africa. We were trying to present an opportunity in a situation that was troubling to all the countries involved. Because of the history of war and migration in that area, we were trying to open an opportunity to let those people move.

Senator Lynch-Staunton: They were already on the move before we sent troops over.

Senator Graham: No, no.

Senator Lynch-Staunton: Yes, they were.

Senator Fairbairn: They were not.

Senator Berntson: Had you landed there, you would have been run over.

Senator Fairbairn: This country would never be egotistical enough to say, "We changed it."

Senator Berntson: Oh, yes, you would.

Senator Fairbairn: The world changed it through evidence of their will that something would be done and that it would be done by people coming in if it could not be done by the people on the ground.

Of course, there were hostilities toward any outsider coming in at that point. However, the world believed it was worth a try. An effort was made. It did not end up in shooting and death. It ended up in an incredible migration of people. We played a part. We were influential in getting others to come together. I simply say this ought to be an occasion where everyone can say that they were a little bit proud that this country did what it did.


Senator Lynch-Staunton: Let us have accurate answers. Those who were in the refugee camps for years were not released because of Canada's concern and the support for it, lukewarm as it was, of other countries. They were allowed to leave the camps because they were attacked by the rebels in Zaire. It was an attack on the camps that opened them up and allowed the refugees to flee, which happened to coincide with the pathetic efforts of this country to rally other countries that refused to commit troops, but because we are Canadians they were all nice to us.

All the Americans were willing to do, reluctantly, was to give logistical support. We are talking about a force of 10,000. We finally got down to a force of 200 Canadians. We flew them over, and when they got there, neither Zaire nor Rwanda would allow them to land. They had to land at an airport in Uganda and stay there in the heat and do nothing until they were called back. That is Canada's contribution to settling tribal warfare in Africa. If that is all it is, we do not want anything to do with it.

Delayed Answers to Oral Questions

Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, I have a response to a question raised by the Honourable Senator Comeau, on September 24, 1996, regarding employment insurance, changes to the system by way of regulation, effects on fishing industry.

I have a response to a question raised on October 22, 1996, by the Honourable Senator Forrestall, regarding the GST, harmonization of provincial sales taxes and efficacy of policy.

I have a response to a question raised on October 30, 1996, by the Honourable Senator Andreychuck regarding the mission of Ambassador Chrétien to Rwanda, Burundi and Zaire.

I have a response to a question raised on November 7, 1996, by the Honourable Senator Di Nino regarding the trial and imprisonment of dissident Wang Dan, and a response to a question he raised on December 10, 1996, regarding the correlation of Canadian aid to the human rights record and military expenditures of recipient countries.

I have a response to a questions raised on December 10, 1996, by the Honourable Senator Prud'homme and the Honourable Senator Bryden regarding Radio Canada International and the announcement of its closing.

I have a response to a question raised on December 13, 1996, by the Honourable Senator Pierre Claude Nolin regarding the Canadian Broadcasting Corporation, effects of layoffs.

Employment Insurance

Changes to System by Way of Regulation-Effects on Fishing Industry-Government Position

(Response to question raised by Hon. Gerald J. Comeau on September 24, 1996)

Information on the proposed changes to the fishing regulations has been widely distributed. When Bill C-12 received Royal Assent in early July, an Information Paper was sent to more than 150 industry representatives, MPs and others. Industry representatives were given briefings when they were requested. Upon tabling of the Regulations in the House on September 19, industry, MPs and others were again sent letters and information about the forthcoming regulations.

Many of the changes to the fishing regulations resulted from the recommendations of The Task Force on Incomes and Adjustments in the Atlantic Fishery (Cashin Task Force) which released its report in November, 1993, following 2 years of study. Changes introduced by regulation are mainly positive for fishers. They include an earnings-based qualification requirement rather than one based on hours or weeks; a longer window during which a maximum of 26 weeks of benefits may be received; an earlier and flexible start date for the qualifying period in keeping with the flexible start dates of the benefit periods; and less complicated procedures for administration. These changes will only come into effect on January 5, 1997.

Since the inception of the program in 1957, rules governing unemployment insurance benefits for fishers have resembled, as closely as possible, those for regular claimants. However, because of the nature of the fishing industry and because we are dealing with self-employed workers, some special rules are required. Authority to make these special rules is found in section 153 of the Employment Insurance Act (formerly section 130 of the Unemployment Insurance Act).

In keeping with the intent to make the employment benefits program for self-employed fishers as similar as possible to that for other workers, the key changes affecting fishers were included in Bill C-12. The main provisions in Bill C-12 that apply to self-employed fishers are the declining benefit rate based on previous weeks of benefits i.e. the intensity provision, and the clawback provisions. The application to fishers ensures treatment which is equitable for seasonal workers in all industries. In fact, self-employed fishers, on average, have higher benefit rates than regular claimants ($380 compared to $273) and would be less affected by a reduction in the benefit rate due to application of the intensity provision.

Goods and Services Tax

Harmonization with Provincial Sales Taxes-Request for Details of Implementation

(Response to question raised by Hon. J. Michael Forrestall on October 22, 1996)

Nova Scotia received its share of adjustment assistance on October 18, 1996, the day the province signed the Comprehensive Integrated Tax Coordination Agreement (CITCA). The province received its full four year assistance entitlement of $248 million on October 18, 1996, in order to assist in covering costs associated with winding down its current sales tax, and provide fiscal stability in the transition to the HST.

The amount of adjustment assistance available for Nova Scotia was determined at the time of the signing of the April 23, 1996, Memorandum of Understanding between the Federal and Nova Scotia governments. Nova Scotia's adjustment assistance of $248 million, as determined under the adjustment assistance formula applied to all provinces, was agreed to at that time, and will not be subject to change.

Adjustment assistance funds were issued by cheque and deposited into the respective provincial bank accounts at financial institutions in Ottawa. Each province will make its own policy decisions as to how adjustment assistance is to be included in provincial public accounts.


Mission of Ambassador Chrétien to Rwanda-Burundi-Zaire Region-Definition of Role-Government Position

(Response to question raised by Hon. A. Raynell Andreychuk on October 30, 1996)

Ambassador Chrétien was paid his regular salary as Ambassador by the Government of Canada. The United Nations did not provide him with special remuneration for his work as Special Envoy of the Secretary-General for the Great Lakes region.

The Government of Canada maintains its bilateral agenda with countries in the region and its policy goals are defined with Canadian interests in mind. The Government of Canada's initiative in the region and its work in cooperation with other contributing countries in forming the Multinational Force, significantly enhanced Canada's foreign policy objectives of averting a humanitarian disaster.

Currently, with most Rwandan refugees returned to Rwanda, and most displaced Zairians back in their homes, the worst of the bloodshed of civilians has passed. Arms were likely supplied to the various warring parties in Eastern Zaire by like-minded associations and/or governments in neighbouring countries.

Ambassador Chrétien visited the region on a United Nations mission assigned to him by the Secretary General and submitted his report to the United Nations Secretary General on December 11. He travelled and met with regional leaders as a representative of the United Nations. Canada's Special Ambassador to the region meets with leaders and attends meetings as a representative of the Government of Canada. He represents the interests of the Government of Canada and speaks on behalf of the Government of Canada.

The primary concern of the Government of Canada is the humanitarian aspect of the conflict in the Great Lakes region. The safety and security of Rwandan refugees and displaced people in Eastern Zaire, and the smooth reintegration of returnees in Rwanda need the attention of the international community and the United Nations. Ambassador Chrétien's mission as the United Nations Special Envoy to the Great Lakes region and the Government of Canada's offer to lead the Multinational Force demonstrated the Government of Canada's commitment to humanitarian assistance in the region and rallied other governments to become involved.

Canada-China Relations

Trial and Imprisonment of Dissident Wang Dan-Government Position

(Response to question raised by Hon. Consiglio Di Nino on November 7, 1996)

On October 16, the Canadian Embassy in Beijing made a representation to Chinese authorities, to express Canadian concerns about Wang Dan having been detained for 16 months without trial and the heavy sentence that he now faces. The Canadian Embassy reiterated Canada's position, expressed earlier to China and at the United Nations Commission on Human Rights, that China is imposing unnecessary restrictions on the peaceful expression of political views.

The Embassy has also emphasized the Government's view that notwithstanding China's claim that the Wang Dan case is strictly a "domestic legal matter", Canadians expect a more transparent judicial process and the application of the presumption of innocence, in accordance with international legal principles and with the intent of China's revised Criminal Procedure Law, which was implemented January 1st, 1997.

After Wang's trial, the Canadian Embassy in Beijing made a second demarche on November 5, 1996, to register the fact that Wang's conviction and heavy sentence have created universal concern in the Canadian public. The Embassy noted that Canada has been encouraged by China's efforts to reform its legal system as a basis of a modern society and economy, but expressed its concern that the lack of due process in Wang Dan's trial constitutes a step backward. Finally, the Canadian Government asked that this conviction be reconsidered during the appeal. The subsequent rejection of the appeal by the court was a major disappointment.

The Canadian government continues to raise human rights concerns with the Chinese leadership. The Minister of Foreign Affairs raised the issue with Qian Qichen during his September visit to Canada, as did the Prime Minister during bilateral meetings with President Jiang Zemin in Manila and Premier Li Peng in Shanghai. The Canadian government is also committed to maintaining an active human rights dialogue at various levels. Though human rights abuses continue, it is through ties with China that Canada has been able to contribute to significant reforms of China's legal system.

The Canadian Government is now proceeding with the training of Chinese senior judges. The project's objective is to support the strengthening of the training capacity of the Senior Judges Training Centre in Beijing and, thereby, to give China's court system an international dimension via the training of a new generation of trainers, fully conversant with Western judicial and legal theory and practice. These cooperation programs have the potential to be effective in the long-term and reinforce, with decisive actions within the civil society, our dialogue with the Chinese government to promote respect for human rights. The Department of Foreign Affairs will be watching closely the implementation of the Criminal Procedures Law reform which was put in place January 1st, 1997.

Human Rights

Correlation of Canadian Aid to Human Rights Record and Military Expenditures of Recipient Countries

(Response to question raised by Hon. Consiglio Di Nino on December 10, 1996)

In 1994, military expenditures as a percentage of GDP for developing countries were approximately 2.6 per cent; higher than the Canadian equivalent number of approximately 1.8 per cent, but lower than the OECD average of 2.7 per cent. It is accurate to state that more than half of Canada's major aid recipients presently spend more on their military as a percentage of GDP than Canada. However, the general trend in military spending in developing countries is downward (i.e., from 6.1 per cent of GDP in 1984) and many have security concerns which are not comparable to Canada's.

Nevertheless, the Government of Canada is concerned that these numbers remain high and in some cases impede development. Military spending has the potential to exhaust scarce investment resources which could otherwise contribute to the alleviation of more obvious social and economic problems in a country. As well, far from their intended purpose, they contribute to negative security perceptions and consequently further arms spending, thereby raising the risk of conflict. In recognition of these negative impacts, Canada has taken a number of direct and indirect actions.

As a first step, the Government hosted a forum in March 1996 with concerned Canadian groups and individuals to discuss possible approaches to this issue. As a result of these consultations, Minister Axworthy tabled in Parliament a Canadian Strategy Document entitled "Reduction of Military Expenditures in Developing Countries" in June 1996. This paper, combined with the emphasis of "Canada in the World", established the policy basis from which various actions have been taken.

Second, Canada has established a "like-minded group" of ten countries (Canada, U.K., U.S., Japan, Germany, Sweden, Norway, Denmark, Netherlands, Australia) and three international organizations (the IMF, World Bank and OECD/DAC) to examine ways to address excessive military spending. The objective is to promote consensus on a multilateral agenda for action.

Donors are now pooling their resources to undertake sub-regional case studies in Africa, Asia and the Americas, with the intent of presenting the findings at an international symposium, hosted by Canada and the OECD in Ottawa, March 18-19, 1997. The Ottawa symposium will be an excellent forum to begin a productive dialogue with developing countries. It will also help raise international and Canadian public awareness to this issue. On March 20, the day following the main symposium, a half day public forum with interested Canadian groups and individuals is planned.

Third, Canada has encouraged the International Monetary Fund, the World Bank and the OECD to play a central role in data collection and analysis, as well as to raise the profile of excessive military expenditures as an economic development, public expenditure management, and good governance issue. Canada recently highlighted the important role these organizations have in addressing this issue at the Halifax and Lyon Summits, the Annual Meetings of the IMF and World Bank, and at various other donor coordination fora, such as the Commonwealth and the Francophonie.

Finally, CIDA has many initiatives which directly and indirectly impact on the military budget and which assist in the demilitarisation of a society. For example, defence industry conversion, demobilisation of ex-combatants, de-mining, weapons buyback programs, strengthening of civil society to improve participation in public policy making, and resource allocation decisions, as well as initiatives to encourage cooperative approaches to natural resource management, such as water in the Middle East.


Radio Canada International-Announcement of Closing-Effect on Community of Sackville, New Brunswick-Request for Consideration of Government Position

(Response to questions raised by Hon. Marcel Prud'homme and Hon. John G. Bryden on December 10, 1996)

On December 6, as a result of budget reduction measures, CBC had announced the closure of RCI. On December 12, 1996, the Honourable Sheila Copps, Deputy Prime Minister and Minister of Canadian Heritage, and the Honourable Lloyd Axworthy, Minister of Foreign Affairs, were pleased to announce that government funding of $16 million had been identified for fiscal year 1997-98 to enable the continued operation of RCI.

Canadian Heritage

Effects of Layoffs on the Constitutional Rights of Francophones Outside of Quebec

(Response to question raised by Hon. Pierre Claude Nolin on December 13, 1996)

Complaints were filed with the Commissioner of Official Languages concerning the impact of CBC's reduction measures on service to minority language communities in relation to the Official Languages Act and the Broadcasting Act. These complaints are currently under investigation by the Commissioner and it would be inappropriate for the government to comment until this process is complete.

Request for Answers

Hon. Noël A. Kinsella: Honourable senators, perhaps the Deputy Leader of the Government could give the Senate an indication as to when we might have responses to questions raised by the Honourable Senator Forrestall, and to questions raised by the Honourable Senator Lynch-Staunton on May 14, 1996, and on June 4, 1996.

National Finance

Failure of Confederation Life-Estimate of Magnitude of Loss-Government Position-Request for Answer

Hon. Finlay MacDonald: Honourable senators, I might also inquire about the answer to the question I asked on October 30, 1996, with regard to the losses incurred by the Confederation Life Insurance Company.

Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, I apologize. We do not have answers to those questions, but we will persevere and see if we cannot get those answers this week or at the earliest possible date.


First Nations Government Bill

Point of Order-Ruling of the Speaker

On the Order:

Second Reading of Bill S-12, An Act providing for self-government by the first nations of Canada.-(Speaker's Ruling).

The Hon. the Speaker: Honourable senators, you will recall that when Senator Tkachuk attempted to move second reading of Bill S-12, an Act providing for self-government by the First Nations of Canada, a point of order was raised by Senator Stanbury who objected to the procedures because the bill lacked a Royal Recommendation. As debate on the point of order proceeded, it became apparent that the issues raised were indeed significant. They relate to the right of the Senate to consider legislation. In preparing my decision, I have spent a great deal of time reviewing the authorities on the subject of money bills in general and the practices of the Senate in particular with regard to financial legislation.


Honourable senators, to better explain the issues involved, I will briefly review the arguments that were presented by the senators who spoke to this point of order.

Citing rule 81 of the Rules of the Senate, Senator Stanbury asked me to rule whether Bill S-12 is properly before the Senate, since it could be regarded as a money bill requiring a Royal Recommendation, which it does not have. Senator Stanbury argued that bills requiring an expenditure of public funds cannot be introduced in the Senate. In his view, Bill S-12 would result in the expenditure of federal funds for the transfer of reserve lands to First Nations because of a need to conduct land surveys and environmental audits. In addition, he argued that by extending to Indian corporations the tax exemption currently available to Indian individuals under the Indian Act, a significant amount of potential tax revenue would be eliminated. Because costs seemed to be involved in Bill S-12, Senator Stanbury claimed that it is a money bill and therefore requires a Royal Recommendation. He noted that a previous bill on the same subject, Bill S-18, had been ruled out of order on February 27, 1991, because the Speaker found it to be a money bill that lacked a Royal Recommendation.


Senator Tkachuk, having anticipated this point of order, argued that the Senate should proceed to consider this bill. He stressed that the Senate should not continually narrow its focus and run the risk of becoming irrelevant. Rather, senators must be allowed to move bills in which they believe, as long as they do not overstep their constitutional bounds. Senator Tkachuk argued that the passage of Bill S-12 would have no impact on the public purse of the Government of Canada and should therefore be ruled in order.

In speaking to the point of order, Senator Cools referred to two reports of the Senate that have an important bearing on this question. The more recent of the two is the ninth report of the Standing Senate Committee on National Finance on the subject of Royal Recommendations, adopted by the Senate on May 29, 1990. The other is the report of the Special Committee appointed to determine the Rights of the Senate in Matters of Financial Legislation, commonly known as the Ross report, adopted by the Senate on May 22, 1918. Senator Cools voiced her concerns about the so-called "money bills." She also raised questions about the rights and privileges of individual senators and members of Parliament to move initiatives through their respective chambers and the level of government control over the parliamentary agenda. Senator Cools suggested that it is the Speaker's duty to defend the rights and privileges of individual members of Parliament, particularly senators.


When Senator Kinsella spoke to the point of order, he drew attention to clause 12 of the bill and asked whether that clause is attempting to give the power to tax. If so, he suggested that it would likely be "within the rubric of what constitutes an appropriation of public money." This point about taxation was seized upon by Senator Stanbury who felt that it added to the arguments he had made earlier. Senator Tkachuk replied that there would be no tax consequences to the Government of Canada from Bill S-12, since it would impose no taxes, but rather "it would recognize the legislative jurisidiction of the Indian community to raise money by way of taxes and other assessments. The power to tax arises from the Indian Act and is an action already authorized by Parliament... The bill only recognizes the power and moves it from the Indian Act to Bill S-12."

Finally, Senators Twinn and Marchand spoke to the importance of the legislation. Senator Twinn also noted that he saw no added costs being incurred through passage of the bill. I wish to thank them and all other senators who participated in the debate on this point of order.


My obligation as Speaker is to apply the Rules of the Senate of Canada to the best of my ability. There are only two Senate rules that directly address the subject of money bills, and only one is relevant to the matter before us today. Rule 81, which was cited by Senator Stanbury, states:

The Senate shall not proceed upon a bill appropriating public money that has not within the knowledge of the Senate been recommended by the Queen's representative.

This rule extends to the Senate the constitutional requirement imposed on the House of Commons by section 54 of the Constitution Act, 1867, which states:

It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.


By adopting rule 81, the Senate took the responsibility to ensure that bills appropriating public money are initiated by the Crown and recommended to Parliament. Non-ministerial parliamentarians, including senators, do not have the opportunity to introduce bills that would appropriate any part of the public revenue or of any tax or impost.

The key question then becomes whether or not Bill S-12 appropriates public money. Past interpretations of rule 81 and what constitutes an "appropriation" have sometimes been quite broad, for instance when Bill S-18 was ruled out of order in February 1991. In that case, reliance was placed on statutes and practices in the British House of Commons that have been adopted by our House of Commons to some extent. However, I should like to remind senators that with respect to the powers of the Senate and the House of Commons in dealing with money bills, the two chambers have not always agreed. Indeed, the Ross report rejected the idea that British practice with respect to money bills was any part of the Constitution of Canada and noted that claims by the House of Commons to the broader powers and privileges of the British House of Commons were unwarranted under the British North America Act, 1867.


In addition, the Senate's National Finance Committee has expressed some doubts about the use of the current form of the Royal Recommendation. As the committee report of 1990 explained, prior to 1968, each bill or clause in a bill which sought or authorized an appropriation was preceded by passage in the House of Commons of a financial resolution that defined the amount and purpose of the appropriation.

This resolution was recommended to the Commons by the Governor General and formed the basis of the subsequent bill. In 1968, the Standing Orders of the House of Commons were amended so that the Royal Recommendation would be given to the Commons in the form of a printed notice, rather than a proposed resolution. For several years after the change, the notice of the Royal Recommendation still provided sufficient detail to explain the amount and purpose of the appropriation. However, since 1976, the Royal Recommendation has taken on a standard form, and the purpose and amount of any appropriation is no longer evident.

Indeed, testimony before the National Finance Committee indicated that the Royal Recommendation is sometimes attached to bills in which there is no apparent appropriation. As a consequence, the committee recognized that members of both Houses, including the Speakers, are now left without a clear statement from the Crown as to what appropriations are being sought by a recommendation. Seven years after the report was adopted, the problem still exists.


In the case of Bill S-12 now before us, the task is not to determine what the recommendation might mean, but whether one is required at all. I have carefully reviewed Bill S-12 with respect to the arguments that were made on November 27 and I have been unable to find any provision that clearly appropriates money from the Consolidated Revenue Fund. Moreover, while Senator Stanbury indicated that clauses 16 to 27 might possibly involve an expenditure by government, it is not certain whether these anticipated operations would be funded by a new appropriation, which would require a Royal Recommendation, or by existing allocations established through previous legislation. Nor is there any language in the bill that effectively imposes any perceived appropriation. Yet these are the conditions to be satisfied when considering whether a Royal Recommendation should be attached to the bill.

Also, with respect to the concern about forgone tax revenue, I can find no basis for ruling the bill out of order. Bill S-12 would extend to Indian corporations the tax exemption currently available to Indian individuals under the Indian Act. The objection raised is that this extension would eliminate potential tax revenue and therefore amount to an appropriation of public revenue. However, there is no requirement for a Royal Recommendation in cases where a bill proposes to reduce a charge or extend an exemption from a tax.

Without sufficient evidence that Bill S-12 as drafted provides for an appropriation or creates a new charge, I have no authority to prevent debate on it. Based on the arguments that were presented, I find that a case has not been made that Bill S-12 requires a Royal Recommendation. With respect to rule 81, the bill is properly before the Senate. Accordingly, its fate rests with the Senate itself.

When I began my ruling, I mentioned that I had taken a great deal of time to review this matter. I recognize that this may have been inconvenient to some senators, but the time was needed in order to sift through the debate on Bill S-12 and to review the tangled history of money bills and the use of the Royal Recommendation. It has been a challenging task. It has also revealed to me that something really should be done to clarify the position of the Senate with respect to financial legislation and the proper use of the Royal Recommendation. The Ross report and the National Finance Committee report acknowledged these problems and recommended further study. Perhaps the time has finally come for the Senate to follow up on those proposals.

Second Reading-Debate Adjourned

Hon. David Tkachuk moved the second reading of Bill S-12, providing for self-government by the First Nations of Canada.

He said: Honourable senators, before I begin my remarks, I wish to thank His Honour for his ruling, and apologize if I have been impatient over this process. However, I think he has done the Senate a great service by the ruling he has brought forward.

Honourable senators, it is a pleasure for me to speak on Bill S-12, an act for self-government by the First Nations of Canada. I should like to bring to your attention words from a document circulated by our colleague Senator Watt in February of 1990 regarding the Standing Senate Committee on Aboriginal Affairs, its possible functions, and the role of the committee within the Senate. He wrote as follows:

Workable and well-developed proposals could be further refined by the committee, and perhaps, at a later date, tabled as a Private Member's Bill on behalf of the group in question.

He called for an integration of the economic objectives of the aboriginal people into the Canadian economy, and he wrote:

Their economic activities must support their values, culture, and aspirations in the same way that economies of southern Canada promote the interests, lifestyles, and ambitions of the non-aboriginal population.

From the time I first discussed the possibility of introducing this legislation in the summer of 1994, the question most often asked of me was not what was in the bill itself, nor how it affected our relationships with Indian reserves, nor even, fellow senators, whether it was constitutional; it was: Why the Senate? That is a strange question to ask about a legislative body. My reply is: Why not? At least it will be done in an open and democratic manner by parliamentarians. We will not merely be meeting an executive agenda that for some reason caused past deals, such as the Nunavut deal, to pass all stages of Parliament in one day. It was on Friday, June 4, 1993, that the Nunavut deal was debated at second reading, read the second time, referred to Committee of the Whole, reported without amendment, concurred in at report stage, read the third time and passed - all in one day.

I noted that the bills dealing with the Yukon land settlement and government agreement were also introduced with haste into the Senate. At that time, some honourable senators took exception to the haste. Senator Andreychuk said:

...both deputy leaders who are in charge of the process again reiterated today the difficulty for us to exercise our responsibilities appropriately when we receive legislation...

These comments seem to suggest that, even after 21 years of negotiations and feasibility studies, we needed a mad dash for the finish line.

I agree that the quest of native people for viable self-governing communities within Canada requires results-oriented government, but I also believe in due process. There would appear to be a reluctance to debate openly something that I believe needs the examination, attention and focus of all of us in our Parliament. To negotiate in secret is wrong.


The process we have been following of bureaucrats, lawyers, consultants and commissions is vulgar in its expenditures and is dealt with as though it were some top-secret, high-level negotiation. It would make disarmament teams blush. In the case of the Yukon bill, $90 million was spent in negotiations. Only 7,000 aboriginals were affected by the settlement. That is not a way for us to do business. The repercussions of legislation such as for Nunavut or the Council of Yukon Indians' deal will be monumental.

There are those who are arguing for self-government based on race - an Indian assembly to govern Indian people throughout Canada. This incredible and unbelievable idea is being discussed by aboriginal groups funded by the federal government, not with a critical view, but as if there was some credibility, some spiritual stamp of approval on the very idea of a government within a government, a parallel government, one governing aboriginals and another governing everybody else, with only one group of citizens paying taxes - government based on race. We, as parliamentarians, acquiesce by our silence. Our silence can be seen by certain vested interests as permission to pursue the discussions of government based on race.

Honourable senators, we should be silent no more. There is reluctance to pursue the subject by those who are not aboriginals, but, as Canadians, we all have a responsibility to discuss this important matter. At some time we must act. The present situation is, by itself, intolerable for all of us.

Think of it: a department of the federal government with dictatorial powers overseeing and in fact governing the lives of Canadians of Indian ancestry on reserves. How can we justify a totalitarian regime within a democracy?

There is some confusion in political fora about self-government. Everyone talks about it, yet no one does a thing about it. I think it is because no one quite knows what to do. In fact, hundreds of millions of dollars have been spent on the process of Indian self-government, yet no practical, concise, modern expression of native self-government has ever emerged from the major aboriginal organizations.

Senator Buchanan was present as the Premier of Nova Scotia in the four constitutional conferences on Indian self-government in the 1980s. I attended two of those sessions. He can tell you about the tremendous expense of effort, time and money that went into a decade of constitutional negotiations with few results. Senator Watt was there, too.

Honourable senators, I will always tell you that no practical, concise, modern expression of Indian self-government has ever emerged from the self-government unit of the Department of Indian Affairs, known by different names, the recent incarnation being the "inherent rights unit." The national leadership of the country has said that there must be ways by which we can accomplish the public policy of self-government without constitutional amendment.

According to The Globe and Mail of December 15, 1994, the Prime Minister said outside the Commons, in discussing constitutional proposals for natives, "I've always said there are ways to make changes without making constitutional changes." Minister Irwin, on March 12, 1995, said in his message to the bureaucracy in his department, "They are to follow the Liberal Red Book or else," which recognizes the principles of self-government.

The Charlottetown accord contained provisions that would have entrenched native self-government in the Constitution. It was not only rejected by the people of Canada, but it was rejected overwhelmingly within the reserve communities themselves. The recognition of "an inherent right of self-government" in the Constitution would not meet the needs or the aspirations of native peoples. It would not, by itself, break dependency on welfare. It would not, by itself, end the economic crisis within the reserves. In short, it would not, by itself, solve the challenges that confront native communities or redress historic injustices.

In analyzing the question of self-government, we have to start somewhere. We must not treat the problem as an aboriginal problem. It is a legal vacuum; that is the problem. On reserves we see Indians asserting their rights to self-government from the establishment of casinos in Saskatchewan and British Columbia to the confrontations between Her Majesty and the Iroquois Confederacy. There exists a legal vacuum in Canada, and although there have been negotiations for policing and education to be controlled by the band councils on some reserves, the Indian Act gives to the government such extensive power that a minister can rewrite the last will and testament of any status Indian. Indians on reserves are caricatured as dependants of the federal government. This system of economic dependency is being rejected throughout the world.

Meanwhile, when a few white people form a community in a territory or in a national park, they chafe under the system and immediately demand some form of self-government. We have territorial governments, we have municipal-type governments in Banff and Jasper, and lobbying by the towns of Field and Waskesiu, townsites in other national parks.

Bill S-12 grew out of negotiations that took place between the Sawridge Band of the Lesser Slave Lake, the previous government and officials of the Departments of Indian Affairs and Justice. The Indian regional council that worked on these negotiations is comprised of nine Treaty 8 Indian bands representing over 7,000 members. They have adopted self-government legislation that implements a legally binding agreement, which was approved by the bureaucracy on April 12, 1991, a committee of cabinet on October 4, 1991, and a cabinet as a whole on October 10, 1991. This legally binding agreement remains to be implemented by way of legislation.

Honourable senators, this legislation implements the agreement, which itself is the product of some protracted negotiations that went on between 1988 and 1991 between one of our member Treaty 8 First Nations and negotiations in the Department of Justice and the Department of Indian Affairs. During the protracted process of negotiations, the federal negotiators conducted extensive and ongoing consultations with other departments, including departments within the provincial government. The legislation sets out a framework which any land-based community or indigenous people may opt into, provided such a community is federally recognized. To opt in, each community must create a constitution that meets its needs and provides the basic checks and balances within which the community's government will operate.

Once a community opts into this form of self-government, the community will be responsible for its lands, resources and community matters. The Department of Indian Affairs will have no role in relation to that community. The community will enact laws that, with few exceptions, are territorially based. This proposal will recognize the local autonomy of communities of indigenous people to govern themselves and will remove the impediments blocking self-sufficiency. It will reduce the wasted public moneys consumed by what I call the "Indian industry."

Under this proposal, only territorially based Indian communities previously recognized as a band, tribe, nation or other body of Indian people by an act of Parliament, including the Indian Act, a treaty or agreement with the Crown, or by a court order, may choose to be acknowledged as a self-governing polity. The act does not require any negotiations, further treaties or agreements or any further public expense. It is enabling legislation.

In order to bring itself under this enactment, a community would be required to hold a referendum. The proposal would present all relevant information to the electors of the community, together with a draft constitution in accordance with the requirements of the act. If the community approves the proposal by more than 50 per cent of those entitled to vote, then the community is brought under the act as a self-governing polity with the constitution approved by the electors. The majority required to approve the referendum is higher than the majority required pursuant to the Indian Act for the election of a chief or council and the surrender of land by the community.


The bill recognizes the community as self-governing within its territory. "Indian territory" includes its reserves and other Indian land at the time it opts into this regime; lands declared as such by the Governor in Council; land acquired in a successful land claim; and land acquired as replacement Indian land in an expropriation. "Indian land" is a legal term and embraces the concept of Indian title. It does not include lands to which the community holds mere fee simple title.

Since then, along with the assistance of the legal staff in the Senate, we have painstakingly drafted this bill, keeping its original intent and its purpose but expanding its value as enabling legislation, fully supported at this time by all nine reserves of the Lesser Slave Lake area. I believe that it can act as a model for aboriginal self-government across Canada. I believe it is legislation that warrants the support of all honourable senators.

The bill is the fruit of the labour of many, including its chief drafter, James Ryan, Q.C. Mr. Ryan is recognized as one of the finest legislative drafters in the country. He was called to the Nova Scotia bar in 1950, the Alberta bar in 1951, and the Newfoundland bar in 1978. He was appointed Queen's Counsel in 1969. He was the Assistant Deputy Minister of Legislation in the Justice Department from 1973 to 1975. While associated with the Department of Justice, he was the principal drafter of numerous federal statutes and regulations, including the Canada Development Corporation Act, the Maritime Transportation Union Act, the Proclamation and Public Order Regulations under the War Measures Act, the National Transportation Act, the Canada Deposit Insurance Corporations Act, the Petro-Canada Corporation Act - something for which I will forgive him - and the Canadian Human Rights Act.

The drafters have been cognizant of the issue of the bill's propriety as a Senate bill. It is in the context of the Senate that the bill was drafted.

Honourable senators, we need to consider self-government. Do we seriously expect to consider the Assembly of First Nations as a Parliament to govern those of Indian blood, or the other option of negotiating with 600-plus reserves, each one operating under a different system of government? The present state of affairs and policy vacuum would lead one to believe that all, or some, or a mixture of the above options is under consideration.

Why is it that after all of this tax money - billions of dollars - free university education, no taxation, housing, that Mel Smith, in a paper entitled, "The Aboriginal Agenda," was moved to write:

The majority of Canada's aboriginals grapple with social and economic conditions that are appalling and tragic. Only 28% of on-reserve status Indians, 40% of non-status Indians and 39% of Métis are employed. Only 5% of status Indians graduate from high school and 40% do not get beyond Grade 8. One third of Indians on reserves live in overcrowded conditions, and 40% do not have central heating. Alcoholism, suicide, and crime rates are generally three times higher than for non-aboriginals. The quest of native peoples for viable, self-governing communities within Canada requires result-orientated government.

Canadian achievements in the area of native rights have often been remarkable, but with the helpful vigilance of native people themselves, solutions to complex questions will yield tangible measures. Throwing money at this terrible issue will not help.

I came across a book entitled, A Poison Stronger Than Love by Anastasia Shkilnyk. It is subtitled, The Destruction of an Ojibwa Community. Perhaps some honourable senators will remember the mercury poisoning issue of the 1970s in the Ontario reserve of Grassy Narrows. To quote from the book, it states, in part:

...the Ojibwa of Grassy Narrows are a truly broken people. They neglect themselves out of an inability to believe that they matter...

Grassy Narrows is a place of rape, murder, incest and thoughtless vandalism. It is a place of rage and frustration. It is, as one of the older men said, "A diseased place to live." Why did this once-thriving community enter into such a legal hell?

Shkilnyk suggests that:

It is one of the most compelling paradoxes of our public policy - that ever-increasing government expenditures on Indians find an exact parallel in ever-increasing indices of social disintegration on their reserves.

The more money you spend, the worse it gets.

Recently, I received a press release from the Department of Indian Affairs with updates on the progress in Davis Inlet in the 1990s. Who can forget the pictures of the suicidal, gas-sniffing Inuit children broadcast around the world? The recent press release proudly states that there will be $1 million in funding to support another 20 feasibility studies for the Innu, $4.8 million in Davis Inlet and $4.3 million in 1994-95 for emergency services, and another $3.1 million for 1995-96. That includes funding for another 20 more feasibility studies for the Innu.

The minister's information sheet states, in part, that in the last five years the Department of Indian Affairs and Northern Development has spent approximately $18 million in Davis Inlet. The provincial government has spent approximately $7 million. The federal government believes this money has been well spent on renewing the community that was in crisis. That is the way we talk about it. We gloat and we brag about how much money we spend, but there are no figures to show that we have reduced the amount of human suffering and increased the economic advantage of the aboriginal peoples in our country.

I ask all honourable senators to take the time to study this bill. I ask that it go to committee where it can be studied. This is something we should all do. This is something that we need to do because we have not done it in Parliament for a long time.

Politicians always talk about such problem situations outside this place. They hire commissions and committees. People travel and bill $600 a day, and they do this and that. We have been doing that for 30 years. However, we in the Senate and those in the other place do not talk about it. It is beyond belief that we do not do so. We have an emergency situation here in terms of human misery, and we do not talk about it. If it were a number of white people suffering the indignities that are endured on the reserve today, we would be talking about it 24 hours a day in this place. We would not be having commissions studying the problem; we would be finding solutions.

I believe that the Standing Senate Committee on Aboriginal Peoples will fulfil its due process by studying this bill. Approximately 20 or more feasibility studies were done on Davis Inlet. Perhaps if we sit down as a committee to debate this issue, something which we are starting today, then we will help by studying them back to life, which is what we must do. At the very least we can offer a comprehensive view of what could be a model for native self-government, for all intents and purposes.

I believe that we should resolve to move with determination to address our indebtedness to native peoples for having welcomed and assisted us in building present-day Canada. There is much to do to improve the lot of aboriginal peoples in Canada, and Bill S-12 goes some way in moving along that necessary agenda.

On motion of Senator Hébert, debate adjourned.


Criminal Code

Bill to Amend-Report of Committee-Debate Continued

On the Order:

Resuming the debate on the motion of the Honourable Senator Carstairs, seconded by the Honourable Senator Losier-Cool, for the adoption of the sixteenth report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill S-3, An Act to amend the Criminal Code (plea bargaining)), presented to the Senate on November 7, 1996.-(Honourable Senator Cools).

Hon. Noël A. Kinsella: Honourable senators, I have a few words to say on the sixteenth report of the Standing Senate Committee on Legal and Constitutional Affairs.

Honourable senators will have noted that the report is all of three paragraphs. The subject-matter addresses an issue that has been part of national headlines for two or three years. Bill S-3 is an important matter, if only because the Canadian public attention was drawn to this in the horrific case which took place a few years ago, where we were all witness to a serious flaw in the system.

As I read the report, it recommends that the bill not be proceeded with in the Senate for this reason:

The recommendation is based on your Committee's concern that Bill S-3 could infringe legal rights protected by section 11(h) of the Canadian Charter of Rights and Freedoms.

From my reading of the Canadian Charter of Rights and Freedoms, I do not think it is evident that there would be a successful Charter challenge should this bill be enacted.

The report gives a simple statement without actually giving the reason why section 11(h) of the Charter of Rights and Freedoms prohibits this kind of enactment, which is what we require in order to understand the rationale of the committee. Frankly, I find it difficult to accept a report that does not give the reason or reasons.

Honourable senators, I should like to speak further on this matter, as I have some research underway. Therefore, I shall move the adjournment of the debate.

On motion of Senator Kinsella, debate adjourned.

The Senate adjourned until Wednesday, February 5, 1997 at 1:30 p.m.