Debates of the Senate (Hansard)
2nd Session, 36th Parliament,
Volume 138, Issue 42
Tuesday, April 4, 2000
The Honourable Gildas L. Molgat, Speaker
Table of Contents
Tuesday, April 4, 2000
The Senate met at 2 p.m., the Speaker in the Chair.
Prime Minister of Japan
Condolences and Wishes of Early Recovery from Sudden
Hon. Dan Hays (Deputy Leader of the Government)
Honourable senators, on Saturday night, His Excellency Keizo
Obuchi, Prime Minister of Japan, fell ill and was admitted to
hospital. As honourable senators are aware, Prime Minister
Obuchi suffered a stroke and is in a coma. His illness is of such
gravity that an acting prime minister in the person of Mikio Aoki
assumed the office, and he and the government have resigned
making way for a new prime minister to be elected by the
governing Liberal Democratic Party today.
I know all honourable senators join me in offering sympathy to
the Japanese people and their government. I have spoken to
Ambassador Katsuhisa Uchida to convey these sentiments, which
have been acknowledged by Acting Prime Minister Aoki. I
extend our sympathy to His Excellency's family, especially his
wife, Chizuko Obuchi, the members of the diet and of his party.
We wish His Excellency a return to health, as the Japanese
people have been well served by his invaluable talents as a
political leader. Prime Minister Obuchi's political career and his
long-standing interest in foreign relations brought him into
frequent contact with Canada. I met with the then foreign
minister Obuchi as Minister Axworthy's envoy to Japan to
encourage Japan's participation in the convention against
anti-personnel mines. Minister Obuchi not only received me
warmly but also actively encouraged his government to sign the
convention. He was in Ottawa in December 1997 to sign the
convention. He also greeted Prime Minister Chrétien and the
entire Team Canada mission to Japan with great warmth and
ensured the success of the trade mission.
In the recent past, His Excellency has done a great deal to
nurture the good relationship between our two countries and has
many friends in Canada. We will miss him as Prime Minister. For
one so young, he has had a notable and extraordinary political
career. We wish him our best.
Plight of Street Children
Hon. Sharon Carstairs
: Honourable senators, on Friday
evening at the National Library, it was my privilege to see a film
entitled Letters to a Street Child
. The filmmaker is Andrée
Cazabon. She is also the street child depicted in the film.
At the age of 14, she took to the streets of Ottawa, Montreal
and Toronto. Through the efforts of Operation Go Home and
through the help and assistance of Rideauwood Addiction and
Family Services, Andrée left the streets, received treatment for
her addiction to drugs, returned to school and became a film
producer. She is one of the lucky ones.
The letters were written to her by her father, a teacher in
Orleans, which is just east of Ottawa. He wrote to her while she
was on the streets. His agony and that of his whole family is
depicted in this film. It is not an easy film to watch, but as
lawmakers and service providers it is very important that we do
Today, honourable senators will receive in their offices a letter
from the Honourable Ethel Blondin-Andrew explaining how to
gain access to this film through the House of Commons
Honourable senators, in the question and answer session
following the presentation, I asked Andrée why she had taken to
the streets. She said it was because of a sexual assault that took
place while she had been on a visit to a farm.
Physical and sexual assaults are reasons our young people turn
to the streets, yet we have few treatment programs available for
them. Every single agency in Canada engaged in this work has a
waiting list. Most provinces do not have residential treatment
facilities. There is one, for example, in all of Ontario, and it is
located in Thunder Bay.
Honourable senators, children as young as 10 take to our
streets. Are they not worth saving? If they are worth saving, why
are we not doing it?
The Hon. the Speaker
: Honourable senators, I am taking
advantage of rule 55(2) to make a statement which I believe is
important from a democratic standpoint.
Over the weekend, I represented the Government of Canada at
the swearing in of the new President of Senegal in Dakar. I rise
today to speak about this event because, in my view, it was an
amazing tribute to democracy.
For the first time in that country, a change of government was
brought about on a totally peaceful basis. The new President,
Abdoulaye Wade, whom I have known for some 25 years, was
the leader of the opposition for all that time. In the early years,
there was little hope of bringing about change. That was the view
held by most Senegalese. This recent election brought about
change. A new government was elected. The retiring president
has accepted the result most gracefully. The incoming president
has asked the retiring president to represent him at a major
African conference in Egypt this coming weekend. The whole
thing has been done in a perfectly democratic fashion.
I had the good fortune of speaking to a few young Senegalese.
They said to me, "We had given up hope on democracy. It was
always the same. It did not matter what we did; there were
always the same people in office." Quite obviously, I make no
comment from a partisan standpoint, only on the general
principle that democracy prevailed.
Honourable senators would have enjoyed the enthusiasm there.
One hundred thousand Senegalese came into the stadium for the
swearing-in ceremony. It was the most impressive ceremony I
have ever seen, and it was without expensive pageantry. It was
simply 100,000 people cheering, absolutely convinced that they
had made a change.
Cancer Awareness Month
Hon. Mabel M. DeWare
: Honourable senators, on this first
sitting day of April, I am pleased to see that many in the chamber
are wearing daffodil pins in support of Cancer Awareness Month
Cancer Awareness Month is organized by the Canadian Cancer
Society each April. It includes a series of fundraising and
educational events across the country. It is an opportunity for
Canadians to reflect on how cancer has changed our lives, to
renew our commitment to a healthy lifestyle, and to help fund
research that can improve cancer prevention and treatment. One
day we hope to find a cure.
The importance of Cancer Awareness Month cannot be
overstated when you consider that one in three Canadians will
develop some form of cancer in his or her lifetime. I could recite
some pretty grim statistics about the tens of thousands of
Canadians who will be diagnosed with cancer this year alone and
the tens of thousands more who will die from it. Today, I want to
focus on something more positive: the hope and faith that cancer
can be beaten.
The Canadian Cancer Society has adopted the daffodil, a
bright, cheerful flower that heralds the arrival of spring, as its
symbol of hope. Indeed, hope underlies all of the important work
done by the Canadian Cancer Society. The society, which relies
entirely on donations, is the largest single funder of cancer
research in Canada today. It also offers public education
programs to promote prevention and early detection of cancer. It
provides patient services to meet the social, spiritual, emotional
and informational needs of people with cancer and their families.
Cancer touches all of our lives. I know all honourable senators
will join me in applauding the courage of people with cancer,
their friends and their families, and in saluting the Canadian
Cancer Society and its 350,000 volunteers.
Hon. Consiglio Di Nino
: Honourable senators, upon hearing
of the strides democracy is making around the world, I thought it
would be appropriate to comment on what has happened recently
Until 1988, there was no democracy in Taiwan. Ever since
Chiang Kai-shek and his followers fled to Taiwan, the party he
once led has controlled power with a very heavy hand. In 1988,
democratic elections were first held in Taiwan. Several weeks
ago, Chen Shi-bian was elected President of Taiwan, defeating
the Kuomintang candidate for the first time since the foundation
of that country.
We should rejoice. Democracy is moving forward in many
parts of the world. We should join with those in Canada and
around the world in a non-partisan way to say, "Well done. We
are happy that the democratic system is becoming more
important and accepted and embraced throughout the world."
On my behalf and on behalf of all honourable senators, I wish
Mr. Chen good luck and many good years of democratic
Internal Economy, Budgets and
Seventh Report of Committee Presented
Hon. Pierre Claude Nolin
, Deputy Chair of the Standing
Committee on Internal Economy, Budgets and Administration
presented the following report:
Tuesday, April 4, 2000
The Committee on Internal Economy, Budgets and
Administration has the honour to present its
Notwithstanding, the Procedural Guidelines for the
Financial Operations of Senate Committees, your
Committee recommends that the following committee funds
be released for fiscal year 2000-2001 as interim funding:
Aboriginal Peoples Committee
Agriculture and Forestry Committee
Banking Trade & Commerce Committee
Energy, the Environment & Natural Resources
Internal Economy, Budgets and Administration
Committee $ 3,333
Legal & Constitutional Affairs Committee
National Finance Committee
Privileges, Standing Rules & Orders Committee
Social Affairs, Science & Technology Committee
Of Life and Death
Transport & Communications Committee
Library of Parliament Committee (Joint) (Senate Share)
Official Languages (Joint) (Senate Share)
PIERRE CLAUDE NOLIN
The Hon. the Speaker: Honourable senators, when shall this
report be taken into consideration?
On motion of Senator Nolin, report placed on the Orders of the
Day for consideration at the next sitting of the Senate.
Second Report of Joint Committee Presented
Hon. Céline Hervieux-Payette
: Honourable senators,
the honour to present the second report of the Standing Joint
Committee on Scrutiny of Regulations, relating to section 36(2)
of the Ontario Fishery Regulations, 1989, as enacted by
Delayed Answers to Oral Questions
Hon. Dan Hays (Deputy Leader of the Government)
Honourable senators, I have a response to a question raised in the
Senate on March 21, 2000, by Senator Stratton, regarding the
farm crisis in the Prairie provinces, flooding problem in
Manitoba and Saskatchewan; a response to a question raised in
the Senate on March 21, 2000, by Senator Atkins, regarding
residency requirement for job applicants; a response to a question
raised in the Senate on March 22, 2000, by Senator Andreychuk,
regarding China, influence of environmental policy in granting of
funds to Three Gorges Dam Project; and a response to a question
raised in the Senate on March 23, by Senator Forrestall,
regarding Sea King helicopters, level of flight training for pilots.
Farm Crisis in Prairie Provinces—Flooding Problem in
Manitoba and Saskatchewan—Request for Response
(Response to question raised by Hon. Terry Stratton on March
The Government of Canada has made a number of
changes to existing Safety Net programs to help farmers
who were unable to seed due to wet weather conditions last
In partnership with the Government of Saskatchewan, the
Government announced a $50 per acre benefit for those
with unseeded acres. This offer was open to the Government
of Manitoba as well.
The Government extended the seeding deadlines for crop
The Government changed the Agricultural Income
Disaster Assistance (AIDA) program to allow farmers to get
interim payments on their 1999 benefits earlier.
The Government adjusted the Net Income Stabilization
Account (NISA) program rules to permit easier access to
The AIDA program is designed to provide benefits to
farmers who suffer severe income drops regardless of the
circumstance. This would include farmers who are unable to
seed due to wet weather.
In addition, for Manitoba, projected eligible expenditures
under the Disaster Financial Assistance Arrangements
(DFAA) will amount to approximately $16.4 million, which
would result in a federal share of about $12.75 million. This
will cover eligible items such as private property, road
repairs, culverts, and other infrastructure.
Projected DFAA expenditures in Saskatchewan are
estimated at $2.5 million, which would result in a federal
share of about $1 million.
Losses in the agricultural sector not eligible for
cost-sharing under the DFAA are being dealt with through
Residency Requirement for Job Applicants
(Response to question raised by Hon. Norman K. Atkins on
March 21, 2000)
Environment Canada does not have a residency
requirement. The Public Service Employment Act, the
legislation that governs hiring for much of the Public
Service of Canada, allows the Public Service Commission,
in its role as hiring agent, to establish geographic,
organizational and occupational criteria that prospective
candidates must meet in order to be eligible for
While the Public Service Commission often requires that
potential candidates be residents of Canada, this is not an
absolute, inflexible rule. The Commission's practice has
been to include Canadians who apply in competitions
opened to the public, if they are outside the country on a
temporary basis and have a permanent residence in the area
Export Development Canada
China—Influence of Environmental Policy in Granting
of Funds to Three Gorges Dam Project
(Response to question raised by Hon. A. Raynell Andreychuk
on March 22, 2000)
Canada's position is that the advantages (flood control,
power generation and inland shipping) and disadvantages
(environmental issues and human displacement) of
undertaking the project have been weighed carefully by the
After considerable studies, analysis and deliberations, the
Chinese government concluded that the imperative of flood
control and the benefits of power-generation and
transportation outweigh any negative environmental impact
of proceeding with the project.The need to mitigate annual
floods caused by the Yangtze River is China's fundamental
rationale for proceeding with the project. Severe flooding in
the Yangtze River Basin has killed thousands and caused
significant damage in nearby communities. The Chinese
government has already demonstrated that it is managing
resettlement in a manner which minimizes hardship for the
The project will also generate substantial electrical power
and improve navigational access to China's interior. The
project will meet about 9 percent of China's current but
rapidly growing power needs. This is renewable energy and
considerably cleaner than the coal-fired plants that account
for three quarters of China's energy and contribute to global
In addition, the involvement of Canadian companies
could help mitigate any negative environmental effects of
the project, as the high environmental standards and
practices of Canadian suppliers would be made available to
the Chinese Project Team.
Sea King Helicopters—Level of Flight Training for
(Response to question raised by Hon. J. Michael Forrestall on
March 23, 2000)
The Minister of National Defence has stated on numerous
occasions that the Canadian Forces need to replace the Sea
King helicopters, and that the Maritime Helicopter Project is
his number one equipment priority.
The safety of personnel is of the utmost importance and
this is a principle the Canadian Forces won't compromise.
The Canadian Forces take every step necessary to ensure
that Sea Kings operate safely until such time as a new
maritime helicopter enters service. The Air Force follows a
very strict maintenance and inspection regime, and the Sea
Kings are upgraded as necessary.
As for the level of flying training, Sea King crews
continue to meet the strictest training requirements. The Air
Force continuously strives to maintain a training program
that is adapted to both the capabilities and likely tasks of the
Sea Kings. The Sea King crews are provided with the
appropriate level of flying hours to ensure that they
maintain all the skills they need to perform a wide range of
missions and respond to a broad range of situations. The
recent rescue of 13 crew members from a Panamanian cargo
ship underscores the validity and effectiveness of Sea King
Nisga'a Final Agreement Bill
Third Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable
Senator Austin, P.C., seconded by the Honourable Senator
Gill, for the third reading of Bill C-9, to give effect to the
Nisga'a Final Agreement. (Debate suspended March 30,
The Hon. the Speaker: I should like to remind honourable
senators that this item was not concluded the last time we met; it
was suspended. We are now at questions and comments. If there
are any further questions or comments, we will hear them before
we proceed to further debate on the third reading motion.
Hon. Jack Austin: Honourable senators, I was in the course
of answering a question the last time we met and should like to
reply to all the questions that were asked of me before the
Honourable Senator St. Germain begins his debate.
The Hon. the Speaker: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker: We will then conclude with the
answers to the questions that were asked of the Honourable
Senator Austin: Honourable senators, Senator St. Germain
asked a question with respect to accountability. On page 906 of
the Debates of the Senate for March 30, he asked:
Is there any possibility that transfer funds can be withheld if
financial accountability is not being satisfied within these
particular nations? Do the province and the federal
government have the right to withhold funding?
Honourable senators, with respect to financial accountability,
the Nisga'a government must meet similar standards of financial
administration as other governments and must publish its laws in
a public registry. Where Canada or British Columbia provide
funding for programs or services delivered by the Nisga'a
government, audited financial statements must be provided and
the Auditor General can review these statements. In the case of
federal funding, the full authority of the Financial Administration
Act would apply to any and all transfer payments.
In addition, the three parties to the Nisga'a Final Agreement
have entered into a companion agreement, separate from the
treaty, called the Fiscal Financing Agreement. It is not a treaty
and therefore not protected by section 35 of the Constitution Act,
1982. The Fiscal Financing Agreement specifies that the funding
provided by Canada and British Columbia to the Nisga'a Nation
and sets out the responsibilities of the Nisga'a government in
delivering agreed-upon programs and services.
The Fiscal Financing Agreement specifies, in paragraph 87,
the circumstances that would constitute a default, including
failure to meet responsibilities, as well as bankruptcy or
insolvency. Paragraph 90 sets out the right of the funding party to
deduct from payments the amounts that were to be provided for
the provision of the affected programs or services.
The Fiscal Financing Agreement also provides for the
establishment of a tripartite finance committee comprised of
federal, provincial and Nisga'a representatives that will monitor
financial arrangements between the parties and assist in resolving
any issues that emerge. This committee is designed to prevent
potential defaults from occurring.
Lastly, it should be noted that the Fiscal Financing Agreement
must be renegotiated every five years.
Honourable senators, I believe these provisions and the
various checks and balances represent the highest standards for
accountability that could be expected from government
I will send over to Senator St. Germain two pages from the
Nisga'a Fiscal Financing Agreement that contain the default and
remedies from section 87 through to section 92.
Honourable senators, Senator Beaudoin has commented on the
role of a treaty under section 35 of the Constitution as being
constitutionally protected. Senator Beaudoin indicated that he
would be completely satisfied with the constitutionality of this
agreement if he was confident that it is a treaty under section 35
of the Constitution.
I should like to draw Senator Beaudoin's attention — and,
indeed, the attention of the all honourable senators — to the
provisions in Bill C-9 and in the Nisga'a Final Agreement itself
that clarify this point. Clause 3 of Bill C-9 states:
The Nisga'a Final Agreement is a treaty and a land claims
agreement within the meaning of sections 25 and 35 of the
Constitution Act, 1982.
Under the heading of "General provisions" in Chapter 2 of the
Nisga'a Final Agreement, paragraph 1 states:
This Agreement is a treaty and a land claims agreement
within the meaning of sections 25 and 35 of the Constitution
The Honourable Senator Sparrow asked me questions with
respect to polling. In my third reading remarks on March 30, I
advised that in 1998, the polls showed that a majority of British
Columbians supported the Nisga'a Final Agreement. I also
As the fortunes of the Clark government sank to an all-time
low in public esteem, the polls showed a modest decline in
support for the agreement.
Senator Sparrow asked me to elaborate on the polls, and I will do
so as follows.
Vancouver Sun political columnist Vaughn Palmer, in a column
dated December 2, 1998, refers to the findings of MarkTrend, a
B.C.-based polling group not usually associated with the NDP,
wherein 35 per cent of respondents did not know what they
thought of the Nisga'a treaty, 12 per cent were unaware of it, 30
per cent were somewhat supportive, and 24 per cent were
An October 22, 1998 article by Dianne Rinehart reported that,
according to an Angus Reid poll, 51 per cent of British
Columbians viewed the Nisga'a Final Agreement as a step in the
right direction, with 33 per cent of those polled holding the
opposite view and 16 per cent unsure of their views. The poll
was described as having been conducted shortly after the Nisga'a
Final Agreement was signed and prior to the initiation of court
proceedings by the provincial Liberal Party and others.
Ottawa Citizen, in a story by Rick Molfina on November
6, 1999, carried the following comments:
The attitudes of Canadians toward aboriginal
self-government are hardening, but a majority across
Canada and in British Columbia support the historic Nisga'a
treaty, a federal government survey shows.
"Canadians are becoming less likely to feel that Aboriginal
Peoples have a historic right to self-government, and
becoming more likely to feel that Aboriginal Peoples have
no more right to self-government than other ethnic groups in
Canada," said the report titled Survey of Land Claims and
The Angus Reid poll was submitted to the Department of
Indian Affairs in March 1999. It surveyed about 1,200
people across Canada.
Of those polled nationally who are following the treaty, 48
per cent strongly supported it, compared with 25 per cent
who strongly opposed it. The remainder placed their support
or opposition somewhere within a scale ranking their view
from one to seven, with one representing strong opposition
and seven representing strong support.
Of people polled in British Columbia who are following the
Nisga'a treaty, 41 per cent strongly supported the treaty,
compared with 39 per cent who strongly opposed.
Honourable senators, I also wish to comment briefly on the
issue of "repealability" which Senator Kinsella addressed. I am
having more work done on that most interesting question. I hope
to have an opportunity to rise again during the debate to answer
that part of the honourable senator's question.
The Hon. the Speaker: Honourable senators, the Honourable
Senator Austin said he would like to reply at a later time to the
request of the Honourable Senator Kinsella. As Senator Austin
does not have the right of reply at third reading, is it agreed that
he be allowed to do that?
Hon. Senators: Agreed.
Hon. Gerry St. Germain: Honourable senators, I have a
question further to that of Senator Kinsella. In Senator Austin's
reply, perhaps he could elaborate further on the non-delegation of
this agreement where it is constitutionalized. He made reference
to the fact that this was required for certainty, trust and various
All other agreements entered into with our native peoples, in
the cases of Sechelt, Sawtooth, Gwich'in, Yukon and various
others, have been done on a delegated basis. Is he saying that
those agreements are in jeopardy?
I personally would be very concerned if his government feels
that these particular agreements are in jeopardy due to the
manner in which they were formed. As far as I am concerned,
those agreements were entered into in good faith and are not in
jeopardy. Whether an agreement is delegated or not should make
no difference to the way it is carried out. The honourable senator
may wish to answer this query later and tie it to the response to
Senator Austin: Honourable senators, I have no difficulty in
answering the question now. In terms of legal effect and the
honour of the Crown, whether it is protected by section 35 of the
Constitution Act, 1982 or whether it is the subject of legislation
through the delegation of power, the obligation is the same. I see
no difference. I have no trouble with the validity of the existing
agreements. Nothing in Bill C-9 affects those existing
I should have noted, while on my feet, that Senator Sparrow
asked for a list of the witnesses who asked to appear but were
declined and for additional information with respect to witnesses.
That information has been supplied to Senator Sparrow and to all
honourable senators who participated in the committee's work.
Hon. Lowell Murray: Honourable senators, I think we have a
problem here of consistency on the part of the government. The
government recently refused what I considered to be a quite
moderate proposal by Grand Chief Phil Fontaine for an
amendment to Bill C-20. That proposal would have assured the
aboriginal peoples of Quebec a seat at the negotiating table in the
event of any secession negotiations. The government refused that
proposal on the basis that the aboriginal peoples of Quebec are
not a party to the amending formula.
We have in this bill, it appears, a proposal to entrench under
section 35 a self-government agreement and a treaty with the
Nisga'a in British Columbia that simply sets aside the division of
powers in the Constitution Act, 1867.
The honourable senator himself made the following statement
about section 35, as found at page 910 of the Debates of the
Senate of Thursday, March 30, 2000:
I have no hang-up with respect to the division of powers
between sections 91 and 92. We took that decision in 1982.
Some want to repeal section 35. They want to argue from
propositions that start without acknowledging its existence.
I neither put myself nor other senators in that category. I was a
sometime member of the joint Senate-Commons committee that
studied the patriation resolution between 1980 and 1982, as was
Senator Joyal and as was my honourable friend. At least three of
us who are here today were here that night in 1981 when section
35 was approved. I remember well the very moving speech that
Senator Austin made on that occasion, recalling his very first
political assignment in Ottawa as a political assistant to the
Honourable Arthur Laing, minister of Indian Affairs in the
Pearson government. I am sure he recalls it as well.
I ask the honourable senator to reflect, first of all, on the
circumstances under which the word "existing" was placed into
section 35. I say that the word "existing" was put there to calm
certain people. By the time we got to section 35, the patriation
initiative had ceased to be an Ottawa-New Brunswick-Ontario
initiative. Mr. Trudeau, by that time, had nine provinces on
board, as we know, and section 35 was the subject of some very
intense and careful negotiation, as my friend will recall.
I ask the honourable senator to reflect especially on the fact
that, having agreed on section 35, we went on to provide for a
series of constitutional conferences, first ministers' conferences,
to discuss — and I quote from the section — matters that directly
affect the aboriginal peoples of Canada:
...including the identification and definition of the rights of
those peoples to be included in the Constitution of Canada...
That suggests to me that we will be taking considerable
liberties with section 35 by purporting to entrench in it a
self-government agreement or treaty that sets aside the division
of powers in the 1867 Constitution.
Senator Austin: Honourable senators, I think that Senator
Murray's excellent comments more properly belong in debate
than as a question.
Senator Lynch-Staunton: Comment.
Senator Austin: I will be happy when I close the debate to
cover the same ground and to provide my comments.
Hon. Gerald J. Comeau: Honourable senators, I asked some
questions during committee stage regarding the fisheries
allocations. Approximately 17 per cent of the Nass River total
allowable catch is to be reserved for Nisga'a citizens. The
official of the Department of Justice responded that this was not
an exclusive fishery and, as such, the government had the right to
allocate such entitlements to whomever it wished.
However, at that time I suggested that if such entitlements are
to be made, there should be competent legislation providing that
right to government.
Once this entitlement belongs to the Nisga'a, it becomes a
permanent allocation to the Nisga'a. As such, Parliament can
never touch it again because it is under section 35 protection. We
are suggesting that Parliament does not have the right to abdicate
such responsibility over allocations of fish.
Given that I was not provided with an answer to this particular
question, would Senator Austin have a more direct answer at this
Senator Austin: Honourable senators, I have in front of me a
letter, dated February 25, sent to Senator Comeau by Tom
Molloy, the federal chief negotiator. I will read to the Senate the
answer of the chief negotiator. I will not read every word, just the
general sense of the letter, if I may.
...you asked for my views on the question as to whether the
Nisga'a treaty creates an "exclusive" fishery contrary to the
Magna Carta. As you may know, this is one of the issues
raised by the British Columbia Fisheries Survival
Coalition ... in a constitutional challenge to the Nisga'a
treaty in the British Columbia Supreme Court. The Survival
Coalition claims that a constitutional amendment would be
required to give effect to the Nisga'a treaty (a claim similar
to the constitutional challenge filed by Gordon Campbell
and members of the BC Liberal party.) The Survival
Coalition also claims in court that the Crown holds the
fishery in trust for the benefit of the people of Canada and
has an obligation to manage the fishery for the benefit of the
people of Canada.
The Magna Carta of 1215 establishes a common law public
right of access to the fishery. The Magna Carta was intended
to limit the King's capacity as owner of the seabed to grant
exclusive fishing rights. The Supreme Court of Canada and
the Judicial Committee of the Privy Council decided in the
early part of this century that the Magna Carta applies to the
fishery in tidal waters of coastal British Columbia. In
R. v. Gladstone (1996) 137 DLR ... the Supreme Court of
Canada recognized that aboriginal rights to fish can co-exist
with the public fishing right in the following terms:
It should be noted that the aboriginal rights recognized
and affirmed by s.35(1) [of the Constitution Act, 1982]
exist within a legal context in which, since the time of the
Magna Carta, there has been a common law right to fish
in tidal waters that can only be abrogated by the
enactment of competent legislation.... While the elevation
of common law aboriginal rights to constitutional status
obviously has an impact on the public's common law
rights to fish in tidal waters, it was surely not intended
that, by the enactment of s.35(1), those common law
rights would be extinguished in cases where an aboriginal
right to harvest fish commercially existed.... As a
common law, not constitutional, right, the right of public
access to the fishery must clearly be second in priority to
aboriginal rights; however, the recognition of aboriginal
rights should not be interpreted as extinguishing the right
of public access to the fishery.
The Magna Carta was intended to limit the King's power to
create exclusive fishing locations at which no other member
of the public could fish. The Gladstone case illustrates that
aboriginal rights to fish do not give aboriginal people
exclusive fishing locations at which no other member of the
public can fish. Aboriginal rights do not create exclusive
property rights to fisheries in particular locations contrary to
the Magna Carta. The analysis in Gladstone applies to the
Nisga'a treaty rights to fish. Just as any Nisga'a aboriginal
right to fish today on the Nass river is not an exclusive
property right that would extinguish any public access to the
fishery, future Nisga'a treaty rights will not be exclusive
property rights that would extinguish any public access to
Both aboriginal and treaty rights to fish are available only to
the "aboriginal peoples of Canada" as defined in the
Constitution Act, 1982. Non-aboriginal Canadians do not
have a legal right to insist that they become members of any
particular aboriginal community in order to obtain the
benefit of being able to exercise aboriginal or treaty rights to
fish. Applying the Gladstone case this does not mean that
public access to the fishery is denied contrary to the Magna
This is why, during the presentation to Senators, we
emphasized the fact the creation of Nisga'a treaty rights to
fish, even though they are treaty rights only for Nisga'a
persons, do not prevent members of the public from fishing.
As indicated during the Minister's presentation to Senate by
Canada's legal counsel, putting in place the Nisga'a treaty
will not prevent other groups from exercising any aboriginal
rights to fish they might have, and will not prevent
recreational and commercial fisherman from fishing under
ordinary law. In this sense the exclusive allocation or
percentage share of the fishery for the Nisga'a is not an
"exclusive" fishery in the legal sense contemplated by cases
dealing with the Magna Carta.
The Nisga'a Treaty is drafted so as to prevent the Nisga'a
from having any exclusive rights to sell Nass river salmon.
The Fisheries chapter prevents the Nisga'a from selling a
particular salmon species when commercial and recreational
fishermen are not allowed to target those same species.
Paragraph 33 of the Fisheries chapter provides:
If, in any year, there are no directed harvests in Canadian
commercial or recreational fisheries of a species of Nass
salmon, sale of that species of Nass salmon harvested in
directed harvests of that species in that year's Nisga'a
fishery will not be permitted.
The fact that no exclusive property right to the fishery is
created is underscored by paragraph 3 of the fisheries
chapter of the Nisga'a treaty which provides that:
This Agreement is not intended to alter federal and
provincial laws of general application in respect of
property in fish or aquatic plants.
Lastly, as our legal counsel discussed during the Minister's
presentation before the Senate, the Nisga'a have no capacity
to close any part of the Nass river fishery or to prevent
fishing by any other group. Apart from conservation
concerns which serve the interests of all fisheries
participants, nothing in the Treaty would require the
Department of Fisheries and Oceans to close Nass River
fisheries or deny to any members of the public who wish to
fish a right of navigation on the Nass River. In fact,
paragraph 14 of the Access chapter of the Nisga'a treaty
specifically preserves all public rights of access on
navigable waters within Nisga'a lands.
W. Thomas Molloy, Q.C.
Senator Comeau: There are many words and interpretations
by Mr. Molloy, who is a negotiator, I understand, of this
agreement. Obviously, he wrote a lot of words to try to confuse
everyone. That still does not answer my question.
As parliamentarians and as a government, we do not own that
resource; it belongs to the Canadian public. As such, it is not ours
to give to whomever we wish. We would be relinquishing our
parliamentary duty in this stewardship that we hold over this
resource to the Governor in Council, and the Governor in
Council would then assume that responsibility from us. As I
understand it, Parliament does not have the right to abdicate its
responsibility, especially in a case where we do not even own the
Senator Austin: I can only reply by saying that I do not
believe the letter was written to confuse anyone, and I do not feel
confused by reading it. I believe I can understand its argument.
In any event, the R. v. Gladstone decision says, as I have
already mentioned, that a common law right to fish in tidal
waters can only be abrogated by the enactment of competent
Senator Comeau: If such arrangements can be made so that
Parliament can relinquish its responsibility over fisheries
resources and hand over that responsibility to cabinet, and if
cabinet can then turn around and hand over these resources to
whomever it wishes — whether an aboriginal group, friends of
the minister, or friends of the Prime Minister — does that not
create a precedent whereby such resources as scallops on the East
Coast of Canada could be allocated to certain groups in
Is this what may be in store for Atlantic Coast lobsters? Will
Minister Nault be given the power to allocate lobster stocks to
groups of his choosing? We may be establishing a precedent that
should be given careful consideration.
Senator Austin: I understand the concerns of Senator
Comeau, although I do not believe they justifiably arise from this
bill. The paragraph that I just read gives Parliament the power,
which it may choose to exercise, but in the Nisga'a case this has
not been done, as the rest of the letter makes clear. It is not an
exclusive fishery. Therefore, the principles from which Senator
Comeau originally argued do not apply.
I understand the concern with respect to the allocation of fish
and other seafood resources anywhere; however, that is, in my
view, a political question rather than a legal one.
Senator Comeau: Obviously, I must provide the honourable
senator's response to both East Coast fishing interests and West
Coast fishing interests in order to advise them that this may be
what is in store for East Coast lobsters, the resource that is being
requested at this time by certain groups. The senator says that it
is a political question. It appears that the government has decided
the direction of the political question. There may be opinions
contrary to what the government is suggesting.
Senator Austin: Honourable senators, this legislation applies
only to the Nisga'a. I do not at this time wish to discuss its
extension. I do not speak for the government; I am the sponsor of
the bill. However, in my remarks closing debate at third reading
I shall mention the Marshall decision.
Senator Comeau: Honourable senators, the Nisga'a treaty
also provides for non-salmon fisheries resources in the Nass
River Valley. It gives the government the right to negotiate
entitlements to those resources. In effect, Parliament is giving
cabinet carte blanche to assign allocations of the non-salmon
Is this, as well, a precedent that will be established for
fisheries resources all across Canada?
Senator Austin: Honourable senators, I think the rest of the
topic can be canvassed when I conclude the debate.
Hon. A. Raynell Andreychuk: Honourable senators, I hope
that Senator Austin will bear with me while I ask a series of
questions on minority rights.
I will start with the Canadian Charter of Rights and Freedoms.
In our hearings, we were told that the Canadian Charter would
apply. However, the preamble of Bill C-9 says:
Whereas the Nisga'a Final Agreement states that the
Canadian Charter of Rights and Freedoms applies to
Nisga'a Government in respect of all matters within its
authority, bearing in mind the free and democratic nature of
Nisga'a Government as set out in the Agreement;
It would appear that the Canadian Charter of Rights, under
section 25, already takes into account the distinctive
philosophies, traditions, and cultural practices of the aboriginal
peoples. Further, if we believe that this is a third level of
government, section 33 would be employed and the aboriginal
peoples could use it as a notwithstanding clause. Therefore, why
was it necessary to include the words following "the Canadian
Charter of Rights and Freedoms applies"?
Senator Austin: I shall need to consider that question,
honourable senators. I asked for notice of questions when we
concluded on Thursday last, and I have received none. The
question asked by the honourable senator is a particularly
interesting one, and one that I have not explored in detail. I look
forward to doing so.
Senator Andreychuk: I did not think this question would
catch Senator Austin off guard, because I asked it repeatedly in
committee. I shall await a reply to that question and ask further
questions in writing.
The majority of the committee made an observation with
which some of us did not agree. The last sentence reads:
Your Committee therefore strongly urges the federal
government and its negotiating partners to pursue
vigorously all means at their disposal to ensure that overlap
issues are resolved to the satisfaction of concerned First
Nations prior to the conclusion of future land claim
If the Gitanyow and Gitxsan are acknowledged as First
Nations, and if they are acknowledged to be in negotiations with
the federal government, why should their rights be less than
those of other First Nations, as would be the case if no further
agreements are negotiated unless overlaps are resolved?
Senator Austin: We are not saying that at all. In the
observation, we recognize the equity that is contained in the
Nisga'a Final Agreement that provides for adjustments, either to
further negotiations or to the consequences of litigation. We also
express our concern for future negotiations. We are asking the
federal government and its negotiating partners to be vigorous,
but we are not in any way asking them not to proceed with
further agreements where they believe that the parties have
negotiated in good faith and have meet the other tests that
Minister Nault set out in his evidence.
Senator Andreychuk: Is the honourable senator saying that
all efforts were made to settle the overlap issues before
proceeding with negotiations and that, therefore, the minority
Gitxsan and Gitanyow were not being prejudiced? If that is the
case, what is the point of the last sentence?
Senator Austin: Honourable senators, we are saying that the
agreement with the Nisga'a was concluded as a result of good
faith negotiations and that the aboriginal rights of the Gitxsan
and Gitanyow are not absolutely or ultimately compromised. If
they establish their rights either through negotiation or litigation,
those rights will be taken into account in the Nisga'a agreement.
I am sure that the honourable senator is very much aware of
paragraphs 33 to 35 in the Nisga'a Final Agreement.
Senator Andreychuk: I am pleased that Senator Austin
mentioned those paragraphs. Does he not believe that precisely
those paragraphs point out that the government is not acting in an
appropriate fiduciary way toward all aboriginals, that it has taken
the side of the Nisga'a against the Gitanyow and Gitxsan? Is it
good public policy to be seen to be supporting one aboriginal
claim over another, if we accept the fundamental point that all
aboriginals are First Nations and should be treated equally by our
Senator Austin: This question was fully dealt with by
Minister Nault in his evidence.
The Government of Canada at a certain point in negotiations
must make a decision to proceed with the rights of the people
with whom they are negotiating. In order to avoid prejudicing
other rights, the provisions of the Nisga'a Final Agreement
preserve those rights if they are accepted through the negotiating
process or through the courts. Therefore, I believe that there is no
basis to argue that the Government of Canada is in any way
choosing sides or in any way acting prejudicially.
Senator Andreychuk is arguing for a total stasis in treaty
negotiations and the progress in the course of establishing
agreements with aboriginal communities. She is arguing that the
slowest ship in the convoy should determine the entire speed of
the fleet. She is arguing that the Gitanyow and Gitxsan, in this
particular case, should have the right to hold up the concluded
negotiations between the Nisga'a, the Government of British
Columbia and the Government of Canada until they, in their own
discretion and their own time, decide they are willing to come to
We have had evidence from Mr. Molloy and others that the
Nisga'a made every effort to come to a conclusion. The
government was satisfied that the Nisga'a had negotiated in good
faith, and it decided to proceed with the Nisga'a agreement.
I believe that this first step is important to unlocking the
process of treaty negotiations in the province of British
Columbia. I believe that it does honour to all parties who have
engaged in this negotiation and concluded it.
Senator Andreychuk: It is unfair to characterize my opinion
as one where the government could not proceed. My question is
not whether the federal government proceeded with the Nisga'a
because, quite correctly, the federal government did proceed with
If one reads the report of the Royal Commission on Aboriginal
Peoples, and I believe that is one of the bases upon which the
government proceeded, it states that all aboriginal nations can
proceed at their own speed. If the Nisga'a were ready to proceed
and were acting in good faith, then the federal government had a
responsibility to enter into that arrangement and discussion.
The question is: Why, in a public policy manner, would the
government have included sections 33, 34 and 35 without some
signal, undertaking, letter, public statement or otherwise to the
Gitxsan and Gitanyow that they would be treated the same way?
Why did Minister Nault say that he believes the Nisga'a and not
the Gitanyow and Gitxsan?
The argument is not to hold up the debate; the argument is that
the government took sides when it had other avenues, channels
and legal recourses.
Senator Austin: May I ask the honourable senator to what
alternatives she refers?
Senator Andreychuk: The government could have instituted
a dispute-resolution mechanism prior to continuing with the
Nisga'a. That is what Canada advocates around the world in our
I can see why the Nisga'a would ask for compensation if their
claim failed in court. At that stage the Nisga'a would be required
to allocate resources, time and energy to administering the
process. At that point, the government should have signalled to
the Gitanyow and Gitxsan that those groups would be in the
same position and would be offered the same compensation in a
very public and open way.
Senator Austin: The entire process was public and open. I do
not understand, and I probably never will, why Senator
Andreychuk does not understand sections 33 to 35 because in my
opinion, and in the opinion of the witnesses who appeared before
the committee, they preserve the status quo for the Gitanyow and
Gitxsan without prejudice to them. Beyond that, we begin to
dance on points of pins. Senator Andreychuk is entitled to her
opinion, but I do not believe it is on based on the facts.
Senator Andreychuk: I believe sections 33 to 35 are not
dancing on the heads of pins. There is a clear difference between
justice and the appearance of justice. If we are to have a just and
fair system, it is not only that justice is done but that it appear to
be done in the eyes of the people.
Pulling off a Gitxsan-Gitanyow negotiator and moving him to
the Nisga'a and putting in sections 33, 34 and 35 may not be a
prejudice, but it is the appearance of prejudice that is damning. In
fact, the Gitanyow and Gitxsan felt they had been prejudiced. I,
for one, will not tell the aboriginal people that they were wrong
and that their point of view with respect to how they can
negotiate was inappropriate. My plea was for a better public
policy that would not have put the Gitanyow in that position.
I do not believe I misunderstand sections 33 and 35. I question
the federal government practice that I hope will not be repeated.
I believe the Gitanyow and Gitxsan have been prejudiced.
Senator Austin: Honourable senators, I look forward to
Senator Andreychuk's contribution to the debate.
Senator Lynch-Staunton: She just made one.
Senator Andreychuk: In February, the Standing Senate
Committee on Aboriginal Peoples tabled a unanimous report
entitled "Forging New Relationships: Aboriginal Governance in
Canada." Recommendations 1 to 4 deal very much with what we
believe the federal government should do and how it should
approach section 35 and aboriginal peoples. We were very strong
in saying that aboriginals define themselves. The aboriginals
determine how they gain their inherent rights and
self-government. Recommendation 1 states:
The Committee recommends that flowing from Section
35 of the Constitution Act, 1982, federal approaches to
engaging Aboriginal peoples in self-government
negotiations be flexible, inclusive and demonstrate
sensitivity to the diverse historical and contemporary
circumstances of Aboriginal peoples and their aspirations
Does the Honourable Senator Austin believe that passing the
Nisga'a agreement and forging ahead with the Nisga'a at this
point is inclusive and involves the Gitxsan and Gitanyow?
Are we not violating our own recommendations? We say in
recommendations 2, 3 and 4 that the Department of
Indian Affairs and Northern Development is the wrong place to
negotiate. The Nisga'a did what was right, but surely the
federal government's approach does not comply with
recommendations 1 to 4 of our report.
Senator Austin: Honourable senators, I see no inconsistency.
Hon. John Lynch-Staunton (Leader of the Opposition):
Honourable senators, if I may return to the observations in the
fourth report of the committee to which Senator Andreychuk
referred to but to which I do not believe Senator Austin
responded directly. I will read the last sentence because I believe
it contradicts what we are being asked to do. The last sentence is
quite firm. It states:
Your Committee therefore strongly urges the federal
government and its negotiating partners to pursue
vigorously all means at their disposal to ensure that overlap
issues are resolved to the satisfaction of concerned First
Nations prior to the conclusion of future land claim
The observation could not be clearer. Over 50 First Nations
may be involved, in time, in a treaty process similar to this one.
This one will obviously set the standard for future agreements. If
it is good for 50-plus First Nations to be assured that the overlap
issues, as they exist, be resolved before a conclusion of future
land claim agreements, why is that principle not applicable in
Senator Austin: Honourable senators, it was applied in this
case. After vigorous pursuit of the settlement of overlapping
claims, it proved impossible for the Nisga'a, the Gitanyow and
the Gitxsan to settle those claims.
Since 1995, the Government of Canada has laid down its
policy with respect to the way in which it will conclude an
agreement with an aboriginal community. As Minister Nault said
in his concluding remarks, the Government of Canada has
followed that policy with respect to the Nisga'a. It became
satisfied that the Nisga'a had negotiated in good faith, had
proven right of possession and the boundaries which they had
submitted and that the Province of British Columbia was
prepared to sign on to the agreement. In the final instance, after a
vigorous pursuit going back years — certainly back to 1977 in
some cases and 1991 in the principle agreement on negotiation
signed by the Northwest Tribal Council — the Government of
Canada, Nisga'a and the Government of the Province of British
Columbia decided that they would come to an agreement with
Nisga'a while preserving the rights, under sections 33 to 35, of
the Gitxsan and the Gitanyow to establish their claims. I believe
that system is eminently equitable. It meets not only the tests of
the Standing Senate Committee on Aboriginal Peoples' report to
the Senate but also the tests of the observation of the committee.
Senator Lynch-Staunton: If I heard the Honourable Senator
Austin correctly, the government took sides. It agreed with the
Nisga'a's rejection of the other two nations' claims and therefore
went ahead with the agreement. That is what I understand,
namely, that government and the Nisga'a agreed that the
Nisga'a's rejection of any territorial claims would be valid and,
therefore, they would carry on with the agreement.
Senator Austin: Honourable senators, let me be as clear as I
possibly can be. The government, after a long period of
negotiation with all the parties, accepted the claims of the
Nisga'a with respect to the boundaries and the use of lands and
proceeded to conclude an agreement with the Nisga'a. I want to
be very clear, and I will repeat it again: The rights of the
Gitanyow and the Gitxsan are preserved, either as a result of
concluding negotiations or litigation. The treaty and the
agreement will be adjusted to the establishment, through
negotiation or through litigation, of Gitxsan and Gitanyow rights.
Nothing is shut off; nothing is closed out. Those rights and the
status quo are preserved.
Senator Lynch-Staunton: How can the government reconcile
this pathetic generosity after having clamped down on the two
claiming nations? How can you say on the one hand that the
government and the Nisga'a agree that claims are ill-founded and
then, on the other, say to the claimants, "By the way, keep on
talking with the Nisga'a. If that does not work, then go to court
to spend God knows how many years and how much money."
How can the government reconcile those two statements? One is
an absolute contradiction of the other. As Senator Andreychuk
suggested, why not include in this agreement compulsory
arbitration or some form of mediation, even a dispute settlement
mechanism, so that a third party can force a claim settlement?
I do not pretend to be very knowledgeable of the treaty itself,
but I have listened to and read much of the testimony at
committee stage. I am troubled by some of the spokesmen for the
two claimants stating that, perhaps, more than words will take
place to assert their rights. That may be an empty threat and it
may be theatrics, but the fact that it is on the record should be
enough to make us pause and think of the impact, should that
Senator Austin: Honourable senators, I appreciate the
observation of Senator Lynch-Staunton. I should like to point
out, however, that under the Nisga'a Final Agreement, should
claims be established through litigation, in particular, through
negotiation with both the Gitxsan and the Gitanyow, the Nisga'a
will be entitled to compensation. They have very little to lose. If
they are prepared, through negotiation with the Gitxsan and the
Gitanyow, to make adjustments to the current terms of the
agreement, the Nisga'a will not lose anything of value. They will
get compensation in other terms of value. They should not be
accused of not being willing to proceed to negotiate in good faith
with the Gitxsan and the Gitanyow once this agreement is
terminated. They have every reason to want to live in harmony
with their neighbours. They also have every reason to go ahead
with their own political, economic and social development and
not be held up by neighbours who are neither prepared to come
to the table, which is the case with the Gitxsan, nor prepared to
move quickly, as is the case with the Gitanyow.
I wish to remind all honourable senators that we are in the
twentieth year of negotiations and the tenth year since the rules
with respect to boundaries were established in 1991. The Nisga'a
have been a very patient people. They have been at this particular
process of negotiation for a very long time. I want to say — and
I will probably have to say it again and again — that the Gitxsan
and the Gitanyow are not compromised in law. I believe that the
Nisga'a will continue to hold discussions with those tribal
communities, the Gitxsan and the Gitanyow, in the hope that
there will be a settlement. This is not an unusual situation, as was
pointed out to us by Senator Christensen. In the Yukon, it took
two to three years after the Yukon final agreements were signed
for some participants to settle boundary claims with other Yukon
Senator Lynch-Staunton: I will not prolong this discussion
because I will have a chance to enter the debate later. However, I
congratulate the Nisga'a. They are winners on both counts. If
their position is maintained, then it is maintained and the claims
are rejected. If they lose, then they are compensated. What a
position to be in. The point is that if it happened in the Yukon
and it is happening here, why at the same time be so adamant in
saying, "Do not let it happen again?" That is the point of the
question. Obviously, it is an admission that not having a solution
to the overlap problem is wrong. Do not try to convince us that,
because negotiations have been going on for 20 years, we should
give up. In the conclusion of the report, the committee indicates
that any future agreement should ensure that any overlapping
problems will be resolved first.
Honourable senators, I repeat my first question: Why not
impose that principle on this agreement and set a principle which
must be followed in future agreements? I am going beyond my
knowledge of these negotiations, but I can see future negotiation
with overlap problems and someone waving the Nisga'a
agreement and saying, "You allowed these overlap claims not to
be resolved before signature. In so doing, you set a precedent.
Let us do it again." This committee observation will then be
meaningless. In fact, you have proven by what you said that it is
Senator Austin: The honourable senator is off base. Upon
reading the entire observation, he will see that the establishment
of the entitlement to include the Nisga'a agreement is referred to
in the first part of the observation, and all else flows from that.
His interpretation is not correct.
In any event, I look forward to the debate. We have started,
and I do not wish to deprive any of my colleagues in this
chamber of the novelty of putting forth their arguments and
defending those arguments later on. Much of what I expected to
hear from honourable senators is coming out in this question
period. I think you are being unfair to yourselves.
Senator Lynch-Staunton: I am simply quoting to the
honourable senator the words of his committee, which recognizes
that the parties have attempted to address this question by
including provisions in the Nisga'a Final Agreement that aim to
preserve and protect the rights of aboriginal peoples other than
the members of Nisga'a Nation. Your committee is, nevertheless,
"deeply concerned about the implications of outstanding overlap
issues not only in relation to the Nisga'a and neighbouring First
Nations but in a broader context." In that statement, you have
demonstrated deep unease at the fact that this issue is not
resolved. My question is: Why did you not put in your report,
"Because we are so uneasy about that situation, resolve it before
signing the treaty?" If you had put that in front of the Nisga'a
and the other two nations, I am sure the privileged ones in this
treaty might be more anxious to have the claims resolved. As it
is, they have no interest in so doing, and the other two nations are
Senator Andreychuk: Honourable senators, I am sure that
Senator Austin did not intend to say that our arguments,
particularly mine, were novel though not sincere, because they
are sincere questions. I have absolutely no doubt about the
sincerity and good faith of the negotiation by the Nisga'a. They
have proved that in the testimony before us and in their actions
otherwise, to my knowledge.
Is it the honourable senator's understanding — and is it on that
basis that he is supporting this legislation — that the federal
government must negotiate in good faith with aboriginal
Senator Austin: First, honourable senators, I would be
astonished if I used the words "sincere" or "insincere" in what I
had to say, but the record will show if I did. If I accused anyone
on that side of being insincere, I certainly did not intend to do so,
and I apologize. I did use the word "novel", and I do not believe
that that is a derogatory reference in any way.
As to the outstanding portion of the honourable senator's
question, I shall stand down from replying for the time being. I
would like to hear the full arguments of all my colleagues
opposite. Following that, I would be pleased to ask questions of
those who enter the debate on that side, or on our side, because I
think very soon it should be my turn to ask questions.
Hon. Anne C. Cools: Honourable senators, when Senator
Austin was responding to Senator Comeau's question, he read
into the record some extracts from a document. Would Senator
Austin table that document, in order for all of us to have a copy
The Hon. the Speaker: Honourable senators, leave must be
granted for the tabling of documents. Is leave granted?
Hon. Senators: Agreed.
The Hon. the Speaker: Leave is granted.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, I wish to thank Senator Austin for agreeing
to reply to my question on whether the committee canvassed the
"repealability" of this bill.
When we suspended last Thursday, at Senator Austin's
request, some of us did give him a heads-up on the kinds of
questions we were interested in exploring. I should like to
explore, as I mentioned to him last Thursday, whether the
committee examined the international treaty obligations that
Canada has assumed. For example, we are bound by international
treaty obligations pursuant to the United Nations International
Covenant on Civil and Political Rights, as well as the obligation
under the first option of protocol to that international covenant.
I mention that one in particular because of my experience in
assisting native women in Canada in filing their communication
against Canada a number of years ago because of the old section
12.1(b) of the Indian Act, which, as Honourable Senator Austin
will recall, was found by the United Nations Human Rights
Committee to be in breach of covenant obligations.
At that time, then prime minister Trudeau accepted the
judgment of the United Nations, which was made after the
Supreme Court Canada had found the sex discrimination in the
Indian Act to be okay and not offensive to the Bill of Rights.
Prime Minister Trudeau then caused work to be commenced
for the preparation of what was ultimately Bill C-31. That bill
was introduced into Parliament and was adopted. It struck down
the rights-denying provision. Thus, the question of the
international treaty obligation is very important and we need to
understand it. As such, did your committee look at whether
Parliament will be able to do anything about treaty offences or
non-compliance with treaty obligations as a result of things that
may occur on the Nisga'a land?
Senator Austin: Honourable senators, the committee did not
hear evidence on the subject of the question that Senator Kinsella
has just raised. However, I shall be very pleased to discuss the
question with officials of the Department of Indian Affairs and
provide Senator Kinsella with the best answer I can give.
Senator Kinsella: I thank the honourable senator for that and,
in fairness to him, I shall develop my own thinking. Your
committee did not examine it. When I participate in the debate at
third reading, I shall examine it. With reference to the
"repealability", it would be helpful to have that answer before I
participate at third reading.
One final question: The War Measures Act was replaced by
the emergency measures legislation, and that legislation is
recognized by international human rights treaties. In other words,
there are times when the life of a nation is threatened or there are
emergencies and, as such, the rights and powers of subsidiary
governments must be derogated.
Did the committee look at the application of the emergency
measures legislation and its application to the Nisga'a land? That
legislation is under review by Parliament. There is a timeline
within which Parliament must examine whether an emergency
exists. Hence, there are controls that were not in place with the
War Measures Act.
Does the derogation of rights and powers apply to the Nisga'a
land by virtue of the emergency measures legislation?
Senator Austin: Here again, honourable senators, the matter
was not raised in the evidence before the committee, but I shall
be pleased to examine that question with government officials
and to try to provide Senator Kinsella with a response.
Senator Comeau: Honourable senators, I have a question with
respect to "repealability", and I raise that question in light of
some of the concerns regarding the role of the Senate as raised in
the clarity bill, which is also before us.
My understanding of the Nisga'a treaty is that any amendment
to that treaty must involve the three parties, the Nisga'a, the
legislature of British Columbia and the federal cabinet. Why did
it not follow the same trend as in British Columbia, where the
legislature was to be involved in any amendments? Why was the
Parliament of Canada excluded from the amendments of the
Nisga'a treaty? Why was it left in the hands of cabinet, rather
Senator Austin: I am not sure that the honourable senator's
question is correctly based. There are a number of ways to make
changes to the agreement. Of course, Bill C-9 itself, to be
changed, would require agreement of the three parties. If it were
a legislative change, it would require legislation. There are,
however, provisions for change within the Nisga'a Final
Agreement that do not require legislation. They require the
agreement of the parties.
I will study the honourable senator's question in an attempt to
provide him with a more full answer.
Hon. Gérald-A. Beaudoin: In reference to Senator Murray's
question on the division of power, reference was made to the
application of the Canadian Charter of Rights and Freedoms. Can
it not be considered in the answer that section 31 of the Charter
says that nothing in this Charter extends the legislative powers of
anyone or authority?
Section 25 of the Charter says, on the other hand, that the
guarantee in this Charter of certain rights and freedoms should
not be construed so as to abrogate or derogate from any
aboriginal treaty or other rights and freedoms.
Section 35, as we know, is not in the Charter — it is outside
the Charter. Therefore, I wonder if it might be possible for
Senator Austin, in his reply, to refer to the effect of section 25
and section 31.
Senator Austin: Thank you, Senator Beaudoin. I will
endeavour to do so.
Hon. Jerahmiel S. Grafstein: Honourable senators, I have a
supplemental question arising out of Senator Kinsella's question.
It is one of the issues that troubled me as I reviewed the evidence
of the committee after the hearings. Perhaps I could put that
same question in another way, because Senator Austin is already
on notice that he will respond.
My question is this: In the event of a national emergency as
declared under emergency legislation, such as a declaration of
war, to what extent would the federal powers, including its
powers under section 92 and also its residual powers, be subject
to limitation as it applies to the paramount powers granted to the
Nisga'a under this treaty?
Senator Austin: I will take that variation on the question
under consideration and endeavour to respond to it.
The Hon. the Speaker: If there are no further questions or
comments, we are prepared, then, to proceed to further debate at
I must give warning to the Senate, particularly to Honourable
Senator Austin, who has referred several times to closing the
debate. Under rule 35, there is no closing of debate at third
reading. Of course the Senate is free by leave to do as it wishes,
but under rule 35, there is no provision for closing debate at third
Senator St. Germain: Saved by the bell.
Honourable senators, first, I should like to recognize the fact
that today we have in the gallery the leaders and representatives
of the Nisga'a nation. I think it is important that we recognize
them, the hard work that they have put in to get to this stage of
their negotiations, and the way they followed the proceedings
and worked to try to respond to all the questions that were put to
them during the course of each of the studies that has taken
We have arrived at a critical time in the history of British
Columbia and our dealings with our aboriginal peoples. Those of
us from British Columbia, like Senators Austin, Perrault, and
myself, know full well that we must make progress in this
particular area. Expectations are extremely high in British
Columbia that what we do here will be the right thing, the correct
thing, and that it will bring finality to the issue.
I thank the members of the Standing Senate Committee on
Aboriginal Peoples for their serious examination of this
legislation. I also thank Senators Sparrow, Grafstein, Beaudoin,
Joyal, Lawson, Wilson, Comeau and Nolin for their interest and
attention to the issue of British Columbians.
Senator Austin, as Chair, had a difficult task. In retrospect, we
should have travelled. We should have gone to listen to the man
or woman on the street. It was decided that we would not do that,
but I believe it was important. We are at third reading stage now,
but I wanted to mention that in passing as a reflection of some of
the evidence brought before the committee.
Honourable senators, negotiated treaty settlements are
important to the economy of British Columbia. British
Columbians want their aboriginal land claims and
self-governance agreements concluded so that we can have
certainty and finality in our province. I have consistently stated
that I am pleased that the Nisga'a negotiated an agreement.
These agreements must take place. As stated before, politically
my party is in agreement with the intent of the deal.
However, in my review of this agreement, and in the studies
that we have done, I am struck with the realization that only three
groups really want this deal as written. I stand to be corrected on
this. The majority of the Nisga'a, those who voted, accepted this
deal through the ratification process. The federal and provincial
governments want this deal. However, in spite of all polling, I
believe that fewer than 50 per cent of British Columbians really
understand the deal and want it. That is a major concern, and it
must be a concern to all of us. They do not understand partly
because this deal is so complex. As well, British Columbians are
doubtful that this agreement will bring the finality and certainty
that is intended.
I believe we have a responsibility not only to pass legislation
but to ensure that people on the street understand what is being
done. It is not a case of government doing things to people but
doing things for people.
My understanding is that the Tsimshian and Tahltan nations,
both neighbours of the Nisga'a, signed agreements with the
Nisga'a, but their traditional lands and aborignal rights were
marginally infringed upon. They apparently are still negotiating
with the Nisga'a in regard to their differences.
The 2,000 house members of the Gitanyow and the 10,000
house members of the Gitxsan nations are opposed to this
specific agreement. Why? As has been mentioned, it is because
their rights will be severely impacted. This has been mentioned
during the questioning of Senator Austin.
Honourable senators, I have a great deal of concern about
several aspects of this bill. There is the constitutional aspect,
accountability, minority rights, women's rights, the fisheries, et
cetera. I will not go into constitutional issues, mostly because I
am not as qualified as others in this place to fully discuss
constitutional issues, but I will make some comments about the
I have never received a full answer to the question of why this
is a constitutional agreement as opposed to a delegated
agreement. Are all the other issues, as I asked Senator Austin
today, in jeopardy? What is wrong with them? If nothing else,
why was this deal done differently? Will we have to change the
others into the type of self-government authority legislation that
the Nisga'a agreement creates? As I pointed out in my
questioning on the Sahtu, Gwich'in, Sechelt and Yukon, some of
those agreements were reached by the previous government and
some have been concluded by the present government. I hope
that those agreements are not in jeopardy. Senator Austin has
said they are not. If they are not, why did we not continue the
way we proceeded in the past?
Honourable senators, I have been working on the British
Columbia treaty claim settlement for over five years. I have been
particularly concerned with the way the federal government has
handled the overlap issues. I have travelled to the Gitanyow,
Nisga'a and Gitxsan lands and have spent time with the people. It
is not a question of me reading the newspaper or transcripts. I
have been face to face with these people. I have listened to them
and spoken with them.
Let us be clear in this place: The land deal the governments
have negotiated today is far greater than the actual original land
claim by the Nisga'a. I gather I can use a book, even though we
are not supposed to use props. To give an analogy, the original
claim of the Nisga'a was about the size of my fist. There is some
debate, but it has been explained to me that the Calder claim in
the 1970s was done without prejudice, referring to the boundaries
The 1913 resolution included the Kinskuch River, which is
considered to be one of the boundaries. The 1913 resolution went
further than the Calder boundaries. The final boundaries that
were agreed upon delineated an area the size of both my fists.
What is of great concern to me are the fee simple properties that
were granted to the Nisga'a within the areas in dispute.
We are placing the Gitanyow and Gitxsan in an untenable
position, honourable senators. I have read the history, the court
actions and the testimony, and I have listened to the people of the
Nass Valley and British Columbia as a whole. I read of the
petitions of the late 1800s and 1900s regarding lands and the
rights of first peoples thereto.
We know that the Calder decision was instrumental in forcing
the federal government to create the 1973 comprehensive claims
settlement process, which did not adequately address
self-governance. We know that the 1980-82 patriation of our
Constitution recognized the rights of our peoples within it. We
also know that self-governance was not defined or specifically
included at that time, nor later. We know that during the 1980s
and early 1990s the government dealt with the issue in the only
manner available without amending the Constitution, even
though the Charlottetown Accord exercise established a solution
to recognize self-government for aboriginals within Canada.
We also know the advice and instruction from the Supreme
Court that arose from Sparrow — the Musqueam — in 1990 and
Delgamuukw — the Gitxsan — in 1997. We know the 1999 B.C.
Supreme Court decision in Luuxhon. I will speak further to the
Luuxhon case in a few moments.
We also know of the establishment of the land claims and
treaty negotiations process in 1993 and of the British Columbia
Treaty Commission that was then established. We must recognize
that it was effectively Calder that propelled the issue of modern
day negotiations. That, then, is really the modern day starting
point for our land claims and treaty rights. This is the background
context for these negotiations and agreements.
If we look at this history further, honourable senators, we see
that latter day Nisga'a negotiations started in 1976 because of the
Calder decision. In fact, we know that the Gitanyow filed to
commence their negotiations first in 1976, but the government
would not put them first in the line. The filing of the Gitanyow
was accepted in 1977. These two groups effectively commenced
their respective processes at the same time. We also know that
the Gitxsan submitted their claim in 1979.
Canada signed framework agreements with the Nisga'a in
1989 and again in 1991. In the late 1980s, the Gitanyow and the
Gitxsan commenced the research that would determine where the
boundaries of their traditional lands should be drawn. This work
was concluded in 1995.
There was a shift in population in the late 1800s, driven by
missionaries. However, the eight houses of the Gitanyow were
never relinquished and their land was never abandoned. There
was a migration due to the economies of scale at that time in this
area, as well as due to missionary direction and, I presume,
attempted assimilation. However, never did the Gitanyow
relinquish rights to the eight houses that are configured in pieces
The Gitanyow had to wait. They again filed their claim when
the B.C. Treaty Commission commenced operations in 1993. It is
important to point out that the Nisga'a and the Gitanyow were
discussing and signing agreements and MOUs through the 1980s
and right up to 1992. At the heart of these agreements was the
agreement of the Nisga'a that their land boundary with the
Gitanyow was at the mouth of the Kinskuch River, a very
important boundary. With the exception of a couple of small true
overlapping claims, these two groups agreed upon ownership of
the land and upon where the boundaries lay. Therefore, the
Gitanyow were not overly worried or too aggressive about the
land claims process. They were satisfied with the boundaries that
had been established.
It was through the pre-AIP consultations of 1992 to 1995 that
the Gitanyow accelerated their efforts, resulting in the signing of
their framework agreement in 1996 with the B.C. Treaty
Commission, the same year the Nisga'a signed their AIP.
The Gitanyow quickly learned that up to 85 per cent of their
traditional lands were being claimed by the Nisga'a.
During 1996 to 1998, the Nisga'a held their post-AIP
consultations, resulting in the signing of the Nisga'a Final
Agreement in 1998. Frustrated with the governments' continuing
lack of good faith and negotiations to settle land boundaries, the
Gitxsan sued the governments and won under Delgamuukw. With
the governments' persistent ignorance of the Gitanyow's requests
to negotiate in good faith the overlap issues with the Nisga'a, the
Gitanyow were once again forced to appeal to the courts for
instruction. That was the Luuxhon case.
Honourable senators, Bill C-9 infringes upon the rights of
several aboriginal groups. It is the Gitanyow and the Gitxsan
who are fighting for their rights.
The federal government has told these groups that it will not
renegotiate any terms of the Nisga'a Final Agreement and that
overlap issues will be dealt with after the Nisga'a Final
Agreement and through the processes set out within the Nisga'a
The minister admitted in committee that the government chose
to proceed with the Nisga'a and accepted their information on
traditional lands over that of the other groups. The courts have
urged aboriginal peoples to negotiate settlements to overlap
issues among themselves.
The minister chose the Nisga'a over the Gitanyow and the
Gitxsan. It is as simple as that. He said that he did. The minister
and the government have a fiduciary responsibility to all
aboriginal peoples. I do not believe that the government can take
sides. However, by its own admission, it has.
The Nisga'a have done an excellent job of negotiating on
behalf of their people. They asked for a huge tract of land, and
they have received it. The federal and provincial governments
wanted anything that would achieve what some describe as
"political objectives." That is what was said in committee.
After 27 years, the government can say that they have resolved
the Nisga'a claims for aboriginal rights. However, if this process
continues as it has, it will be done on the backs of all the other
aboriginal groups in the area — mainly the Gitanyow and the
The Gitanyow and Gitxsan have no financial resources with
which to fight for their rights. I asked the minister in committee
whether he was prepared to fund them. He did not answer the
question. The government advanced funds for the Nisga'a
negotiations by way of loans and legal counsel, but the
government has basically said that it will not pay for Gitanyow
and Gitxsan counsel.
The government has said, "We are right and everyone else is
wrong; if you do not like the results, you can go to court." The
government, through its own actions, provided a whole new
definition for what appears to be a slight degree of arrogance.
Honourable senators, the Nisga'a worked hard for a deal and
they should get a deal. They want a deal and they deserve one.
As honourable senators know, the purpose of this place is to
examine and revise legislation, investigate national issues, and
represent regional, provincial and minority interests. This has
never changed. This is our responsibility as senators. Our
instructions are to make laws for the peace, order and good
government of Canada. We are not to be coerced in any way,
shape or form to ratify what is not in the best interests of all
Does this bill deserve to be passed into law? I believe that
there may be flaws in Bill C-9 and in the Nisga'a Final
Agreement which must be remedied. However, the flaws are not
only in the agreement but also in the process.
Chief Joe Gosnell said that it is not a perfect agreement. No
one is seeking perfection, honourable senators, but we must
examine the process.
We all know that the federal government, at least, established
a policy to deal with the land claims and treaty agreements.
However, not one of us can state why this treaty and land claim
deal was negotiated in the way it was outside of the B.C. Treaty
Commission process. Perhaps that question has been answered.
I wanted to discuss amendments at the committee, but senators
were told by the chairman that amendments would not be
accepted and that they should be proposed in the Senate at third
Instead, it was proposed that advice be put to the government
pertaining to the future treaties where overlap treaty rights were
in conflict and that they would be resolved through mediation
and arbitration. The observation questioned by Senators
Andreychuk and Lynch-Staunton and reported to this chamber at
report stage is an admission — and I agree with Senator
Lynch-Staunton, Senator Andreychuk and others who have
questioned Senator Austin on this point — that of what I speak
today is correct and should be dealt with before ratification and
Royal Assent. That observation, inasmuch as others may want to
tie it into this and that, is an admission that the B.C. Treaty
Commission produced a document stating that no treaties would
be signed or entered into at one stage and then later changed its
position, clearly stating that all overlaps should be resolved prior
to entering into any agreements or treaties.
Honourable senators, I will provide this chamber with a quote
that was uttered by an honourable gentleman in relation to
another agreement before the House of Commons. On May 25,
1993, Minister Robert Nault is reported in Hansard at page
19537 as stating:
What members of this side of the house have tried to
relate to their constituents and all Canadians is that we as a
House of Commons, as parliamentarians who represent the
people, should not be so quick to ram this agreement
through the House.
Why Mr. Nault has lost his passion to protect the people now,
when he had asked for this in 1993, is hard to understand.
It is important that Canada's First Nations have an
unencumbered land base. The Nisga'a Final Agreement pits
native against native. Supporters of this agreement tried to
dismiss this as nothing. Surely, honourable senators will
understand that a people whose livelihoods and existence depend
upon the ability to harvest natural resources needs a land base.
However, it is not just any land base. It must be a land base with
which they are familiar, where they have lived for hundreds of
years; a land base they can, without any dispute, call their own.
That is why it is so very wrong for the Governments of Canada
and British Columbia to have negotiated a settlement with the
Nisga'a that includes lands claimed by the Gitanyow and Gitxsan
First Nations people.
The government's answer, when we raised the inequities of the
situation with the minister in committee, was that the ultimate
settlement of the disputed land ownership claims is provided for
in the Nisga'a agreement in sections 33, 34 and 35, as referred to
by Senator Austin. If it is found that the lands included as
Nisga'a lands are found to be traditional lands of the Gitxsan and
Gitanyow people, then the Nisga'a are to be equitably
compensated for losing land to which they never actually had
To clarify that, I fully understand, as the counsel for the
Nisga'a have explained to me and to others on the committee,
that if they have no rights to the land, they will not be
compensated. If they have rights to the land and other people
also have rights to the land, I believe the Nisga'a can be
compensated. That is a direct version of the compensation in
sections 33, 34 and 35.
What about the Gitxsan and Gitanyow? They get back what
rightly belonged to them, but are they compensated for the
trouble and expense they went through to reclaim their lands?
The simple answer is no. How are they to claim title to these
lands? They have to go through the courts. How else would they
do it, unless there is another solution about which we are not
The method by which the Government of Canada has dealt
with the overlapping land issue has been the subject of judicial
commentary already. In 1998, the Gitanyow First Nation began a
lawsuit against the federal and British Columbia governments as
well as the Nisga'a, requesting a court declaration that
governments involved owed the Gitanyow people the assurance
that bargaining would occur in good faith. The Gitanyow alleged
that because the governments entered an agreement in principle
with the Nisga'a — now the Nisga'a Final Agreement that is
before us today — the governments had fettered their discretion
to bargain in good faith with the Gitanyow. The governments
abandoned their negotiations with the Gitanyow and Gitxsan that
had been going on at the same time as the Nisga'a negotiations.
As we learned from the Minister of Indian Affairs and Northern
Development, he and the government chose sides in the land
dispute and went on to enter into an agreement with the Nisga'a.
The point being made in the lawsuit is that if there is a duty to
negotiate in good faith with the Gitxsan and the Gitanyow, the
government could not choose sides in the land ownership
dispute. The Gitanyow allege that by this Nisga'a agreement
their aboriginal title to land in the Nass Valley has been violated.
When the lawsuit began, the Governments of Canada and
British Columbia brought a preliminary motion to strike out the
Gitanyow statement of claim as disclosing no cause of action.
The court held that the statement of claim was valid as it related
to the issue of the two governments making it impossible to
bargain in good faith because they had already reached
agreement with the Nisga'a. The judge held that, arguably, the
duty owed by the governments is to "conduct treaty negotiations
in good faith and in a manner which will take into account all
aboriginal nations which have a claim in a specific area."
This, I submit, was not done in the case of the Nisga'a,
Gitanyow and Gitxsan. The judge in this case, the Luuxhon case,
and the famous Delgamuukw case made it clear that the courts
would prefer that all outstanding claims to land ownership were
to be settled among the parties without resorting to litigation.
When this case eventually went to trial, Mr. Justice Williamson
of the B.C. Supreme Court had to determine whether there was a
duty of the governments to negotiate in good faith a treaty with
The position of the Government of Canada as explained in Mr.
Justice Williamson's decision is hard to believe. He wrote:
While there is a moral obligation —
— so Canada argued —
— there is no legal obligation to negotiate in good faith.
This is the position of the Government of Canada in relation to
the land claims negotiation with the aboriginal neighbours of the
Nisga'a. When the government chooses sides, it shows no mercy.
Fortunately, Mr. Justice Williamson did not buy the
government's argument, stating at paragraph 53 of his judgment:
I conclude that the duty to negotiate in good faith,
founded upon the fiduciary relationship between aboriginal
people and the Crown, applies equally to the Crown in
Right of Canada and the Crown in Right of British
He went on to define the duty at paragraph 74, stating:
In general terms, that duty must include at least the
absence of any appearance of "sharp dealings", disclosure
of relevant factors, and negotiation "without oblique
Honourable senators should know that the Crown is appealing
this decision, unfortunately.
When one aboriginal nation must use the courts to define the
duty to negotiate owed by the federal government in relation to
land claims, we are in a sorry state. That is why I believe that all
outstanding land ownership issues must be settled before a
settlement offer is concluded.
Senator Austin: Is the honourable senator referring to the
whole province of British Columbia?
Senator St. Germain: Certainly, all outstanding land
ownership issues as far as overlaps must be settled.
Senator Austin: Just to be clear, is he referring to land
ownership issues affecting the Nisga'a or the whole of British
Senator St. Germain: It is my belief that all outstanding land
ownership issues must be settled before a settlement offer is
concluded under the B.C. Treaty Commission. The Nisga'a are
not motivated to open up the issue. The federal and provincial
governments believe they do not have to bargain in good faith.
The only avenue left for the Gitxsan and Gitanyow is the courts.
Why force them to go to court when the remedy is so simple?
We could wait and have them settle this amongst themselves.
Just wait on Bill C-9. That will make the parties focus quickly.
We cannot continue to deal with Canada's aboriginal people in
this way. We must ensure fairness. The government will not
follow a doctrine of fairness; therefore, it is left to us in the
Senate to impose one. If we are prudent, we should obtain an
advance ruling before we make a move, get a solution on the
overlaps, then decide on the legislation. There may be a delay.
However, our mandate compels due diligence.
Honourable senators, that is our duty to this chamber, to
Parliament, to the people of Canada, and certainly to the people
our decisions will most deeply affect — the people of British
Columbia and the people of the Nass River Valley. If we do not
proceed with prudence, then the settlement of native claims will
be set back for at least as long as it took this issue to get to this
point. I do not believe that is the solution. I predict few
settlements being reached while the Nisga'a agreement is tied up
in the courts.
This bill, the agreement, and the treaty do not achieve
certainty, finality, clarity or accountability in their entirety. This
is not an agreement that we can point to as a guide or the
template to achieve lasting good faith negotiations of which all
Canadians can be proud. The process in this agreement must be
improved. The legislation must allow for future improvements
when important circumstances warrant.
Honourable senators, let us do the right thing. Let us facilitate
the parties moving to the negotiating table. The parties have the
ability and the focus to determine the equitable solution. It is
then and only then that we can be satisfied with honouring treaty
rights in the legislation.
This, honourable senators, is such an important issue and will
have such a negative impact on all groups where overlaps exist.
Both the Gitanyow and the Gitxsan have agreed on an arbitrated
settlement if given the chance. Let me repeat that: The Gitanyow
and the Gitxsan have both agreed on an arbitrated settlement if
given the chance. This may not settle the constitutional aspects or
other aspects, but my main concern personally is the overlap. It
definitely goes a long way to negotiating aboriginal rights, I
believe, if we go that route. Remember, it is one of our chief
justices who said that we are all here to stay.
Motion in Amendment
Hon. Gerry St. Germain
: Honourable senators, in the spirit
of prudence and satisfaction, so that we can have certainty and
finality, and in order to give the government the opportunity to
consider requesting a reference from the Supreme Court of
Canada on the constitutionality of the jurisdictional issues,
including paramountcy or whatever is set out in the Nisga'a Final
Agreement, but mainly because of the overlap, I move, seconded
by Senator Andreychuk:
That Bill C-9, an act to give effect to the Nisga'a Final
Agreement, be not now read a third time, but that it be read
a third time this day six months hence.
Some Hon. Senators: Hear, hear!
The Hon. the Speaker: Is it your pleasure, honourable
senators, to adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Hon. the Speaker: Those in favour of the motion will
please say "yea".
Hon. Jerahmiel S. Grafstein: Honourable senators, I thought
we might have an opportunity to explore this interesting turn of
events for a moment or two, if we might.
I listened with care to the Honourable Senator St. Germain's
exposition. I find it a little complex and a little confusing, in the
sense that on the one hand he seems to attack the governance
pillar and on the other hand leaves the land claims pillar alone.
The honourable senator then attacks the land claims pillar by
saying that the overlap makes it impossible to deal with the land
claims issue. It strikes me that that puts us in a more intense state
of stasis than the honourable senator suggested the government
I want to deal with the honourable senator's solution to all this,
which is to now say to all of us here to abrogate our own
responsibilities and not vote on this matter until the courts —
notwithstanding the fact that most of us here believe that
Parliament is supreme — clean up our messy handiwork. Is that
the honourable senator's position?
Senator St. Germain: Definitely not. I thank Honourable
Senator Grafstein for his question. If anything, turning to the
courts should be the last course of action. What I have said is that
the Gitxsan and the Gitanyow have both said that they would
agree to binding arbitration if they were allowed to present their
case, their history, regarding their land claims. That is the route
that I recommend. It is for that reason that I moved that there be
a six-month hold on the bill, so that these people can go to
arbitration on the overlap issues, on the lands that are overlapped
by the Nisga'a agreement on the Gitanyow and Gitxsan.
Honourable senators, I may have misstated something in my
speech; however, there is no way that I meant to suggest
litigation. One of the most debilitating and sad parts of this
whole process is that we are forcing these people into litigation
and into the courts if we allow this to proceed immediately. It is
for that reason that I suggest strongly that the only course of
action at this stage is to an arbitrator, which both sides that are
afflicted have said they would accept.
Senator Grafstein: Honourable senators, my confusion
increases, but that may not be the fault of the honourable senator
opposite, it may be my limited ability to understand what he is
As I understood the evidence, I did not hear either the Gitxsan
or the Gitanyow say that they were prepared to go to binding
arbitration for these overlapping claims. As a matter of fact, what
I heard is that they did not object to this treaty or to this piece of
legislation. That surprised me because the senator knows my
concerns about this bill. I remain confused by the position of the
Senator St. Germain: I am more confused by the question,
honourable senators. The fact remains that I respect the position
of Senator Grafstein, and I think the honourable senator put
excellent points forward during the deliberations. This is not a
question of opposition going back and forth; it is a question of
clarification. As I said, if the honourable senator misunderstood
what I said, there is no way in the world that I would ever
suggest litigation. I have never been in litigation in my own
business life, and it would be the last thing that I would ever
suggest to anyone else.
I say to the honourable senator that I believe the Gitxsan were
asked a question in the committee in regard to arbitration. Elmer
Derrick, who was representing the Gitxsan, clearly stated that he
was prepared to accept the decision of an arbitrator. Whether or
not the honourable senator could be correct on this, I spoke to the
representatives of the Gitanyow and asked them emphatically the
question: Would you accept arbitration? They said they would.
However, honourable senators, whether, in fact, that was actually
in committee or not, I am not certain.
Hon. Jack Austin: I believe that Senator St. Germain will
recall that Minister Nault made it absolutely clear that he would
not contemplate a recommendation to the Governor in Council
with respect to a reference to the Supreme Court of Canada. I
believe that the honourable senator, having participated actively
in the evidence given by the Nisga'a Tribal Council, will recall
that they want to stand with the agreement as it is and that they
have no intention of arbitrating the claims. I have the same
recollection as Senator Grafstein. I did not hear the Gitanyow or
the Gitxsan make an unconditional offer to arbitrate, not that that
would have affected the points I have just made. Senator St.
Germain asked the question: "Would you be prepared to
arbitrate?" They said: "Oh yes, we would be prepared to
arbitrate." However, Senator St. Germain has not chosen an
arbitrator. There is no process of arbitration and no question
framed. What he wants to do is to stall and delay this particular
What will Senator St. Germain do with the decision of Mr.
Justice Williamson of the Supreme Court of British Columbia to
the effect that he will not deal with the case commenced by the
B.C. Liberal Party to test the constitutionality of the bill until the
bill is passed? In other words, as far as the judge is concerned,
the proposed legislation raises moot questions. He wants an
actual piece of legislation before him.
What the honourable senator is proposing is an amendment
which is designed, effectively, to wreck the bill, to destroy the
process of treaty negotiations in the province of British
Columbia, to arm those who have no intention of ever seeing
section 35 aboriginal rights in the area of self-government ever
established and who do not want section 35 constitutional
protection but rather delegated power, power that can be pulled
up and down or pulled away at any time. It is entirely contrary to
the spirit of the legislation and the public policy requirements in
aboriginal affairs with the Province of British Columbia.
Senator St. Germain: Honourable senators, the arbitration act
of the Province of British Columbia would provide all the
During discussions in committee, the question was asked
about who would be the arbitrator. The witnesses assumed that it
would be another white person. I said: "No, it does not have to be
a white person. We could name aboriginal persons to chair the
board of arbitration and to serve as members on the board." I
would say the honourable senator's statements in this regard are
a red herring.
Certainty is required. I return to what I said before, that the
Sechelt, Sahtu and the other agreements are in great jeopardy. If
they do have the certainty required, I do not see them as being
any different from the Nisga'a or any other native bands or
groups in our country. Aboriginals are aboriginals. If one has a
constitutionalized type of authority, they should all have it. If
some have delegated authority, why is there the difference? That
is the question we continually ask. It does not seem that we will
ever receive the answer.
As far as the B.C. Liberals are concerned, the honourable
senator has as many friends in that gang as I do, and perhaps
more. As far as I am concerned, I am asking for this delay
because the government may send a reference to the Supreme
Court, and perhaps they will not. The fact is, I am asking for the
time to force the natives back to the table to negotiate the overlap
As I said earlier, honourable senators, let us delve into this
subject. We are discussing a huge block of land. In the
negotiations, the Nisga'a were given rights to Gitanyow territory,
to five fee simple pieces of land to the tune of a couple of
hundred hectares as well as one island on Kwinageese Lake,
which was part of the Gitxsan territory and the Delgamuukw
designated area within the Gitxsan area. The honourable senator
says that the bargaining was done in good faith and that we could
have changed it when fee simple land that was in dispute was
given out. This is the subject I would like to see brought to the
I have been consistent on the issue of overlap. The worst thing
we could do is pit natives against natives and tell them the only
way they will be able to defend their property is on the ground.
Honourable senators know what that means.
I have said to the honourable senator before the committee that
we are possibly creating another Palestinian-Israeli situation in
regard to land battles. That analogy may be extreme, but there is
a possibility. We have had problems up there before.
Senator Austin: Honourable senators, I do not doubt the
honourable senator's sincerity. He has actively pursued the
interests of the Gitxsan and Gitanyow throughout the evidence.
He has focused on their concerns.
The Gitxsan and the Gitanyow have had years to reach a
conclusion with the Nisga'a. Negotiating with the Gitanyow
continues to be a possibility, as both they and the minister
acknowledged in the evidence.
The Nisga'a have no intention of submitting these overlapping
claims to arbitration. They have an intention to continue the
negotiations once the bill is passed.
The honourable senator's amendment is completely without
useful effect. I would never advise the Nisga'a to accept the
amendment of the honourable senator. This bargain was struck in
good faith between the Government of British Columbia, the
Government of Canada and the Nisga'a. If it is to be changed
through negotiations, it must be with the willing participation of
the Nisga'a; otherwise, it will be changed through the litigation
process, which the honourable senator deplores, and I would not
be happy to see it take place.
I believe that this amendment would destroy the very objective
the honourable senator is seeking. The Nisga'a will not be forced
into arbitration and the Government of Canada and the
Government of British Columbia will not force them into
arbitration. The Nisga'a will, of their own free will and good
judgment, have further talks with the Gitxsan and the Gitanyow
if there is no undue pressure.
Again, I believe the honourable senator's proposed
amendment is harmful to aboriginal relations in British
Some Hon. Senators: Hear, hear!
Senator St. Germain: I find that very surprising.
The Hon. the Speaker: Honourable Senator St. Germain, I
wish to point out that there is one minute left in your 45-minute
Senator St. Germain: Honourable senators, I know the
Nisga'a will not relinquish what they have, once they have this
final agreement. In any dispute like this, when somebody is put
into a preferential position, whether by government or someone
else, there is no incentive to negotiate. It does not make sense. If
they would not negotiate before, why in God's name would they
negotiate later? That is what we are saying.
The honourable senator says the Nisga'a will not go to
arbitration. I do not blame them. They might lose in arbitration
because of the oral history and the totem poles.
If the Gitanyow are prepared to subject themselves to the
decision of an arbitrator, I cannot think of anything more fair.
That would remove the possibility of litigation. Senator Grafstein
cannot understand me and I cannot understand the Honourable
Senator Austin on this position. Perhaps we should all sit down
around the table and try to figure this out. This just does not
The Hon. the Speaker: Honourable Senator St. Germain,
your speaking time has expired. Are you seeking leave to
Senator St. Germain: Honourable senators, I seek leave to
The Hon. the Speaker: Honourable senators, is leave
Hon. Dan Hays (Deputy Leader of the Government): I
propose that we extend the time for another 15 minutes.
The Hon. the Speaker: Is it agreed, honourable senators, that
we extend the time for a further 15 minutes?
Hon. Senators: Agreed.
Senator St. Germain: I thank honourable senators for their
Senator Austin: Could I just say that the Nisga'a will not
arbitrate, nor should they. The amendment is a total nullity. It
will have no beneficial effect. I propose that the Honourable
Senator St. Germain withdraw it.
Senator St. Germain: Honourable senators, I will not
withdraw my amendment.
When we asked the minister whether he would fund these
people to defend their land claim, he did not respond. Therefore,
I ask the honourable senator whether the minister will fund them.
He says he does not represent the government but he is speaking
on their behalf. The question is: The honourable senator is saying
that the parties should go to litigation. How can they go to
litigation if they have no money?
Senator Austin: I am sponsoring the bill, but I do not speak
for the government. I have no idea what they will do in terms of
funding litigation for any aboriginal community.
Senator Hays: Honourable senators, if we are at the end of
questions and comments, it is obvious that other senators wish to
speak to this amendment. My understanding is that the
Honourable Senator Austin would move adjournment of the
debate. Senator Beaudoin may also wish to speak.
Hon. Gérald-A. Beaudoin: Honourable senators, I wanted to
move the adjournment of the debate.
Senator Hays: Why do we not follow the practice of
alternating speakers? If there is no first speaker here in response,
then we would agree to you going next, Senator Beaudoin.
On motion of Senator Austin, debate adjourned.
Bill to Give Effect to the Requirement for
as Set Out in the Opinion of the
Supreme Court of Canada in the Quebec
Second Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable
Senator Boudreau, P.C., seconded by the Honourable
Senator Hays, for the second reading of Bill C-20, to give
effect to the requirement for clarity as set out in the opinion
of the Supreme Court of Canada in the Quebec Secession
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, rarely during the past 133-year history of
the Senate of Canada have we been called upon to examine a
more dangerous legislative proposal than Bill C-20. The danger
of this bill is twofold. First, it speaks to the matter of the
secession of a province from Canada. Second, honourable
senators are being called upon to give the consent of this house to
a historical reduction of the voice of this upper chamber of the
bicameral Parliament of Canada.
Honourable senators, on the first matter, and in the words of
the second preambular paragraph of the bill before us:
Whereas any proposal relating to the break-up of a
democratic state is a matter of the utmost gravity and is of
fundamental importance to all of its citizens;
Honourable senators, given that these words speak to the
breakup of Canada, it is surely axiomatic, if anything is
axiomatic, that the Senate of Canada is being called upon to
analyze and give an in-depth reflection to a legislative proposal
that touches on a matter of the utmost gravity.
Honourable senators, the record of our study and sober second
thought will be a record of the value of the Senate in our
bicameral system of Parliament. Yes, Hansard will demonstrate
the thoughtful, acute and in-depth analysis which this second
House of Parliament will have given to a proposal which
addresses the survival of Canada as a unified country.
On the second matter, our debate will be a watershed or a
turning point in the history of the Senate of Canada because this
legislative proposal attempts to redefine and restrict the role of
the Senate here at the beginning of the 21st century.
Argument has already been advanced concerning a theory of
responsible government which, if left unchallenged, would
fundamentally alter the manner in which the bicameral
Parliament of Canada itself holds the government or the
executive power to account. I am confident that all honourable
senators shall, in this precedent-setting debate, rise to the
challenge and meet this test of history.
Let me turn to the first issue, honourable senators, which is
clarity. Clarity, clearly, is popular. It would appear that Bill C-20
itself is very popular across Canada. Honourable senators, I ask:
Is it proper? At first glance, and if this bill is presented as a
so-called "clarity act", it is indeed very appealing. Everyone is in
favour of clarity. To be opposed to clarity on whatever matter
would be distinctly anti-intellectual and quite unreasonable.
However, my analysis of this bill raises many concerns and
demonstrates a lack of clarity. My study also indicates that there
is much to be concerned about as Parliament considers whether
or not to establish a statutory process and a legal right to
secession, for if we do this it will be for the first time in Canada's
Honourable senators, I ask: Does Bill C-20 bring clarity to the
matter? The government has successfully led many Canadians to
believe that Bill C-20 will bring clarity to the process of a
province seeking to secede from Canada. Unfortunately, what
this bill actually does is to give a false sense of security, to give
a facade that everything will be okay, everything will be just fine.
The bill is a masterpiece of political ambiguity, and it is very
difficult to determine if the Government of Canada knows
exactly what its own real goal is with this bill.
Furthermore, honourable senators, I am reminded by W.P.
Kinsella's passage in Shoeless Joe that, "If you build it, they will
come and use it." We also recall the dynamic of the self-fulfilling
prophesy mechanism which is documented by social scientists.
Therefore, it is of grave concern to me that Parliament would, for
the first time in our history, erect the stage upon which, if used,
would be played out the breakup of Canada.
Few federations acknowledge the right of a member state or
province to leave, let alone set up the process by which this can
be done. By setting out the conditions for secession, no matter
how stringent, this government might find short-term appeal for
this in some parts of Canada. However, it will at the same time,
with this bill, fundamentally damage the real structures holding
our country together.
In his article entitled, "Clarity and Confusion", which appears
in the February 2000 edition of Diplomatic International
Canada, David Jones, a former political minister counsellor at
the United States Embassy in Canada, has written:
Ultimately, there are only two ways to maintain national
unity: force or persuasion.
All in this chamber abjure maintaining national unity by force.
Rather, Canadians have always and must continue to rely on
My first approach to the bill was to recognize that its
proponents claim that it rests on the advisory opinion of the
Supreme Court of Canada. The question that, therefore, presents
itself is whether there are fault lines in that advisory opinion.
Indeed, what is the status of an advisory opinion of the Supreme
Court as compared with a judgment of the Supreme Court?
Honourable senators, there are several major fault lines in the
advisory opinion in the Quebec reference case. Therefore, the
bill, to the extent that it is resting on this foundation, is standing
on faulty ground. As compared with a judgment of the highest
court in Canada, an advisory opinion of the court is simply that
— advisory. Indeed, the Honourable Antonio Lamer publicly
expressed his views on this fact. One need not treat this advice
with the same degree of acceptance as a decision of the Supreme
Court. We should recall, as in the recent Marshall case, that the
Supreme Court, after making a decision, can clarify or make
changes to an earlier decision.
In looking at the advisory opinion of the court, consider what
is called "reading in." The court was placed in the unenviable
position of having to reply to the reference questions submitted
to it by the Government of Canada. It is, however, important that
we recognize that the court has attempted in this advisory
opinion to use that technique of "reading in" to legislation that
which is not contained therein. Many commentators find this
type of judicial activism to be dangerous and to be undermining
of the functions of the legislative branch in our system of
Honourable senators, if there is a concern with this approach
of the court to "read in" provisions not contained in ordinary
statutory law, then, mutatis mutandis, there must be a grave
concern if the court attempts to "read in" provisions of
constitutional law that are not expressly provided in the
Constitution. In other words, the attempt by the court to "read in"
to the Constitution of Canada provisions that are not part of the
Constitution could be a dangerous attempt at constitutional
amendment that bypasses the proper constitutional amendment
Our constitutional amendment process is designed to ensure
that changes to our fundamental law will occur only after careful
federal-provincial steps are followed, steps that involve the
various legislatures and Parliament. Constitutional amendments
ought not to be allowed to be bypassed by a judicial "reading-in"
by the court.
In this opinion, the court attempts to "read in" to the
Constitution that a secessionist movement in Canada be accorded
the right to obligate the rest of Canada to negotiate the breakup
of Canada. Honourable senators, neither the Constitution Act of
1867, the Constitution Act, 1982, nor the written and unwritten
rules and principles of the Constitution provide for such a
provision. The advice of the court would require "reading in"
such a provision.
A comparative study of this point in constitutions such as
those of the United States of America or the Republic of France
will demonstrate that not only do these constitutions not provide
for secession, their respective Supreme Courts would not be
allowed to read in any such provision. We might recall from a
case in the United States in 1868, Texas v. White, that famous line
of the United States Supreme Court, "The union is
That brings me to the principle of the divisibility of Canada.
One major fault line in the advisory opinion of the court, and
consequently a faulty foundation principle of Bill C-20, is the
assumption that Canada is divisible. The analysis of the political
theory developed by the court on federalism, democracy,
constitutionalism and the rule of law led it to develop an opinion
which, by implication, accepts the principle that Canada is
divisible. Fortunately, the court's view is only an opinion.
Consider, honourable senators, that the Supreme Court of the
United States of America and the Constitutional Court of the
United States of Mexico, the other two great federations with
which Canada shares this North American continent, federations
in which also the rule of law, democracy and constitutionalism
are shared values — these federations do not have the high court
nor their respective governments or legislatures accepting the
principle that their federations are divisible; nor should Canada.
Where in the advisory opinion of the court is there a call for
statutory action? The advisory opinion, to my reading, neither
envisages nor suggests that there should be legislation adopted
by Parliament to give statutory expression to this opinion.
Indeed, the former chief justice expressed surprise that such a
step was undertaken by the government.
Furthermore, honourable senators, where is the constitutional
authority for this proposed legislation to be introduced here in
Parliament? The advisory opinion of the court does not indicate
any constitutional authority on which to base the legislation that
has been introduced by the government. As my colleague Senator
Nolin asked of the sponsor of the bill here in the Senate:
Parliament has been asked to decide on the possible
secession of this country. On what constitutional authority is
the government relying to introduce such legislation?
Honourable senators, I ask where in the Constitution or where
in the Parliament of Canada Act or where in the customs and
usages of Parliament does the executive or legislative power
have the right to bring forward legislative proposals that will
facilitate and make legal the breakup of Canada?
The Hon. the Speaker pro tempore: Honourable senators, I
am sorry to interrupt the honourable senator but his 15 minutes
Is leave granted for the honourable senator to continue?
Hon. Senators: Agreed.
Senator Kinsella: Honourable senators, the mandate of
Parliament is to pass laws that the majority of both houses judge
to be in the best interests of Canada. This bill is obviously not in
the best interests of Canada because it speaks to the steps to
destroy Canada. Even the peace, order and good government
provisions of section 91 of the Constitution Act, 1867, do not
justify the breakup of Canada. Therefore, this bill, in my view, is
ultra vires Parliament and should not proceed through this house.
Mention has already been made that it is difficult to see the
advice of the court on the matter of the amending formula. The
advisory opinion indicates the need for a constitutional
amendment at the end of their envisaged process and one would
have expected that the court and the proponent of this bill would
have set out the circumstances detailing which of the amending
formulae would apply. The court does not indicate which
amending formula would apply; nor was the sponsor of the bill in
the Senate able to tell us when I asked him.
Honourable senators, why introduce this bill? Having made
the decision to submit the Quebec reference to the Supreme
Court for an opinion, and having received that opinion which
purports to give a new constitutional right to negotiations to the
secessionist movement, what motivated the government to now
give the secessionist movement the statutory right to secession?
The Leader of the Government in the Senate, who is also the
sponsor of this bill, stated in his remarks at second reading:
The constant threat of a third referendum on Quebec
secession in less than a generation leaves us no responsible
choice but to act now, and before the crisis atmosphere of a
referendum campaign. The Prime Minister of Canada asked
the Premier of Quebec to agree to a commitment not to hold
a referendum in the Premier's current mandate. The Premier
refused, forcing the Government of Canada to proceed with
Honourable senators, the issue raised there is what might be
called the "shelf-life" of a referendum result; that is, for how
long is the result of a referendum good? Bill C-20 is completely
silent on this matter, notwithstanding the sponsor of the bill in
the Senate telling us that this was one of the motivations for the
I turn the attention of honourable senators to why I believe that
Bill C-20 facilitates the secessionist movement. The proponent of
this bill would lead us to believe that, by adopting it, things will
be better for national unity in Canada. I fear, honourable
senators, that the opposite is the case. The Supreme Court itself,
in its advisory opinion, upon which the government tries to rely
in this bill, states in stark and unambiguous terms that,
notwithstanding the envisaged process, unconstitutional
secession remains possible. Unfortunately, honourable senators, a
unilateral declaration of independence is now made more likely
should the provisions of this bill become law.
Here is what the court states in the last paragraph of its
advisory opinion. In paragraph 155 the court said:
Although there is no right, under the Constitution or in
international law, to unilateral secession, that is secession
without negotiation on the basis just discussed, this does not
rule out the possibility of an unconstitutional declaration of
secession leading to a de facto secession. The ultimate
success of such a secession would be dependent on
recognition by the international community.
This is what the court told us after its long discussion on the
process it envisaged.
Honourable senators, I have on the wall of my office a framed
copy of the American Declaration of Independence. There are
two stickers on it. One says "UDI" and the other says "Illegal
Bill C-20 does not rule out the possibility of an
unconstitutional declaration of secession, but the steps outlined
in this bill make such an eventuality more probable. Why? How
does Bill C-20 facilitate the secessionist movement?
The answer flows, honourable senators, from the inherent
logic of the three steps for legal secession provided for by the
bill. The mechanism of the bill for dealing with the adjudication
of the clarity of the question creates an advantage for the
secessionist movement by co-opting the federal government and
Parliament into being a player in the secessionist process. If the
House of Commons gives preapproval to a referendum question,
this by itself is a major gain for the secessionist province. It is
equally a major loss for Canada because, having granted
preapproval, the rest of Canada will not be able to challenge the
question. It is also important to note that what might be
considered clear in Ottawa is not necessarily clear in other parts
Imagine, honourable senators, the confusion if some of the
provinces, for their own particular reasons, disagreed with the
House of Commons on the clarity question. Then consider the
next step, honourable senators. If the federal government refuses
to work with the secessionist province in determining the clear
question, the international community will be told that Ottawa is
acting in bad faith, thereby making it much easier for the
international recognition to occur as indicated by paragraph 155
of the court's opinion. In other words, the bill gets the
international community off the hook. They will be told by the
secessionists that they are following the law of Canada and
therefore, in terms of international diplomacy, it will make it
easy for the international community to grant the recognition.
The provisions of the bill dealing with the assessment of a
clear majority of a referendum result once again plays right into
the hands of the secessionists. It allows the secessionist
movement the opportunity to seek international recognition
because of the majority, whatever that majority number may be.
Consider, honourable senators, the membership of the
Francophonie. Without naming countries, how many of them
would require a majority of 50 per cent plus one for the
recognition of a secessionist province? Consider the general who
is the head of state of a given country, a leader who has the
support of only 12 per cent of the vote but has the army on his
side. How will such a leader view a 50-per-cent-plus-one result?
The international community, honourable senators, will have
little difficulty in giving recognition under these circumstances.
We ought not fool ourselves.
The bill speaks to the process of negotiating secession with a
province. Up to this time, all Canadian prime ministers have
consistently refused to agree to any such negotiation.
Furthermore, given the plethora of examples of failed Canadian
political negotiations, the chances of successful negotiations are
remote. Witness all the failed negotiations, in many of which
some honourable senators have participated, on matters that we
across Canada agree on. This part of the process, as set out in the
bill, once again gives the separatist movement another golden
opportunity to argue bad faith in negotiations and then call for
recognition by the international community.
The sixth preambular paragraph of the bill asserts:
...the secession of a province, to be lawful, would require an
amendment to the Constitution of Canada.
Such a constitutional amendment must involve the provinces.
However, again, the record of constitutional discussions among
the provinces and the federal government is more a history of
disagreement than a story of agreement. So, again, the seceding
province will have the opportunity to say to the international
community: "See, we have attempted to follow the federal
secession law but the required constitutional amendment is not
forthcoming. Therefore, give us recognition." Thus, again, the
scenario foreseen by the Supreme Court in its opinion at
paragraph 155 becomes more plausible.
Honourable senators, I will turn for a moment to the matter of
who shall determine the clarity of the question. Who are the
"political actors" who shall be involved in the determination of
the clarity of the question?
The seventh preambular paragraph, and also clause 1 of the
bill, as we all know, limits this to members of the House of
Commons. It seems to me that it is a classical non sequitur of
logic for the bill to state, in the second preambular paragraph,
that the matter of secession is of the utmost gravity and then to
exclude one of the two Houses of Parliament from a
determinative role. Honourable senators will recall that the
Supreme Court in its opinion at paragraph 32 pointed out that
there are four fundamental and organizing principles of the
Constitution, including respect for minorities.
The Senate of Canada has been an integral part of our
bicameral Westminster model of parliamentary democracy since
1867. Indeed, the very establishment of the Senate was one of the
keys to the bringing about of Confederation. Throughout our
133-year history, it has been the Senate that has defended the
rights of regions and ensured respect for minorities. It is,
therefore, critical that the Senate of Canada play a determining
role in a matter as important to minorities in regions of Canada
as the secession of a part of Canada.
The mover of the bill in the Senate has attempted to argue that
only the executive power has any mandate to conduct
constitutional negotiations and that it was not necessary to limit
this mandate as proposed by the bill. We must remind the
honourable senator that our system of governance is not one
wherein Parliament has no supervisory role over the political
aspects of constitutional negotiations. Rather, our parliamentary
system is one in which the Senate and the House of Commons
provide significant supervision of the activities of the executive.
Even had the government not introduced this measure, which I
would have preferred it did not, it would not mean that the
executive power would have been free of supervision by
Indeed, one of the major functions of this house since
Confederation and today is precisely to supervise the political
process and the exercise of power, not only by the executive but
also its exercise by the lower house. In the matter before us, the
court has stated that it has no supervisory role. If both Houses of
Parliament did not have this role, the government, which controls
the House of Commons, would be totally unaccountable, a
situation, no doubt, longed for by certain officials in the
Langevin Building, but not one that is in the best interests of
The fact that our Standing Senate Committee on National
Finance is currently examining the Estimates, and that the other
day we voted on supply, or that the Leader of the Government in
the Senate daily replies to questions and gives an account of
government activities, would surely provide prima facie evidence
and underscore the supervisory role of this chamber. Indeed, the
role of the Government Leader in the Senate is not only one in
which he or she represents the government in the Senate but also
represents the Senate at the cabinet table. I shall return to this
important issue shortly, honourable senators.
The drafters and proponents of the bill tell us that they have
remained faithful to the advisory opinion of the court in drafting
this legislative proposal. However, if you examine, honourable
senators, who the court stated ought to be involved in
determining the clarity of a referendum question and the clarity
of the result, the court stated that it would be the political actors
who make this determination.
At paragraphs 100 and 153 of the court's opinion, honourable
senators can read:
...it will be for the political actors to determine what
constitutes 'a clear majority on a clear question' in the
circumstances under which a future referendum vote may be
Minister Dion's published notes, which I took off the Web on
January 14, 2000, explicate the bill with references to this matter.
His notes state clearly that with respect to the seventh
preambular paragraph and clause 1, concerning that only
members of the House of Commons have a determining role in
the clarity of the question and the result, the drafting for those
sections — and this is the minister's own notes — comes from
paragraphs 100 and 153 of the court's opinion.
Honourable senators, I invite you to read those paragraphs and
read the bill.
It gets worse. On page 2, in the second paragraph, the drafters
Whereas, in light of the finding by the Supreme Court of
Canada that it would be for elected representatives —
It is there in black and white. The drafters, I submit, have not
remained faithful to the expressly written opinion of the court.
The court said political actors. The court did not limit this
determining judgment on the clarity of the question or the clarity
of the result to elected representatives.
Honourable senators, the mover of the bill in the Senate in his
second reading speech said:
How would the process begin? Who would make the
original evaluation about whether there was a clear majority
on a clear question? Who, in the view of the court, are the
political actors who would have the obligation to make such
decisions? Though the court does not answer this question
Indeed, the court does not list who the "political actors" are,
for it is self-evident that the political actors at the provincial level
are the members of the legislative assemblies and that at the
federal level they are the members of the Parliament of Canada
— senators and members of the House of Commons.
Senator Boudreau, when referring to paragraph 101 of the
advisory opinion, then weakens his case by attempting to argue
that the phrase "elected representatives" is used by the court.
However, honourable senators, read paragraph 101. If you read
it, you will see that the court is discussing in that paragraph the
issue of negotiations and the phrase "elected representatives" is
used and restricted to negotiations which, at the end of the day,
the electors can ultimately assess.
It is evident, honourable senators, that Bill C-20 does not
follow the opinion of the court. The drafters of this bill are in
error. They are in error in their attempt to try to exclude the
Senate from a determinative role in the matter of the clarity of
the question and the clarity of the majority. Perhaps sadly,
honourable senators, it is a more serious error when this attempt
to exclude the Senate is undertaken overtly, under the guise of
claiming that the Supreme Court said that only "elected
representatives" should play this role when, in fact, the court said
no such thing.
Honourable senators, let us now turn our attention to the
historic collateral damage that this bill threatens; that is, the
threat of damage to the Senate, perhaps unintentionally.
Nevertheless, Bill C-20 will, in its present form, do historical
damage to the position of the Senate in our bicameral Parliament.
Unless it is dealt with by the majority of the current sitting
senators in this place, we will be judged by history as being
accomplices to a serious impairment of the position of the Senate
in the process of providing the oversight to government
executive action. Unless the majority in this chamber acts, it will
be during our watch that the Senate of Canada ceased to be an
important part of the checks and balances which kept Canada a
I must once again note that second preambular paragraph of
Bill C-20, which states:
Whereas any proposal relating to the break-up of a
democratic state is a matter of the utmost gravity and is of
fundamental importance to all of its citizens;
It is simply inconceivable, honourable senators, that the Senate
of Canada, one-half of our bicameral Parliament, would not have
a determinative role in matters of the utmost gravity. If one is to
accept this proposition, then one is diminishing the role of the
Senate to deal with only the unimportant issues of the day.
Honourable senators, the consent of the Senate and the consent
of the House of Commons constitutes the consent of Parliament.
Where the consent of one house is sought, the consent of the
other house must be secured before legislation can be given
Royal Assent. An attempt to secure the consent of only one
house on matters of "the utmost gravity" would be a very serious
intrusion on the right of Parliament to have its consent protected.
In fact, if we follow the argument advanced by Senator Fraser
last Thursday to its logical conclusion, we will have a two-tier
legislative system in Parliament. At page 914 of last Thursday's
Debates of the Senate, the honourable senator stated:
We do not block the clearly expressed popular will, even
in matters where, in law, we have the power to do so.
The rest of the honourable senator's argumentation is so
interesting that I think I should quote it in full:
Then there is the class of matters where we did not have
that power — a class that is so fundamentally political
that it is the exclusive prerogative of the House of
Commons, the chamber of the people's elected
Essentially, that class consists of the two most basic
elements of democratic government: The decision about
who shall form the government, and the power of the purse.
I find myself, however, powerfully affected by the argument
that the focus of Bill C-20, the government's approach to
the possible secession of a province of Canada, is another
such subject, something that is so fundamentally, inherently
political, so directly and intimately bound up with the will
of the people, that it, too, falls into that small but crucial
class where it is the House of Commons and not Parliament
as a whole that must take the decision and, of course, bear
the responsibility for doing so.
Now, honourable senators, by that thesis, we have a crucial
class of statutes, so crucial that one of the two Houses of
Parliament can have no role. May I remind honourable senators
that just in the last Parliament alone, on the Pearson bill and on
the Electoral Boundaries Adjustment Act, two constitutionally
flawed statutes, that the Senate did exercise its legislative power
and defeat them. Are we now to ask to which class statutes
belong when they arrive in the Senate, as well? We may have no
power to initiate money bills; they are sent here to be dealt with.
Are we now to inquire whether these fall into the untouchable
My colleague Senator Beaudoin, in his questions, developed
that point very clearly. If we are to have a constitutional
amendment to limit the power of the Senate of Canada, then let
us have it, but surely the government should not be proceeding in
this way by a simple statute. However, I will leave that argument
to be developed further by Senator Beaudoin.
Political writer J.E. Hodgetts has written that the bicameral
Parliament has a major responsibility to provide oversight and
supervision of the government's actions. In quoting from
Parliament is the legislature's capacity to act as the great
debating, if not educational forum for the nation. This
capacity, joined with the historic right to have grievances
settled by the Crown before approving money in support of
the Crown's activities, vests in the legislature not only the
formal responsibility for approving statutes but also a
continuing critical overseeing of executive actions.
Honourable senators, let us focus for a moment on the
judgment or assessment by the Senate, whether on legislation or
on resolutions, the judgment of the Senate. The assessment of
this house on legislation or government actions has resulted in
qualitatively different judgments than those judgments that are
rendered by the House of Commons. We, in this chamber, would
do well to recall that the Senate was established to provide what
George Étienne Cartier called "a power of resistance to oppose
the democratic element."
Honourable senators, on the wall of the Senate Speaker's
chambers is that famous quote from Cicero:
Principum munus est resistere levitati multitudinis.
Translated, it means that it is our principle duty, honourable
senators, to oppose the fickleness of the multitudes.
Honourable senators, it is Senator Boudreau's theory that
because the House of Commons could adopt a motion of
non-confidence in the government, this is the only leverage at
play to ensure the principle of responsible government. I submit
that is simply false. There are many elements at play under our
system of governance and in which the principle of responsible
government has evolved. Some scholars argue that with the shift
of power to the centre and the control exercised by the executive
over the legislature, there has been a significant lessening of
governmental accountability to Parliament — certainly, little in
the House of Commons. However, the power of the Senate to
analyze and critique the government is an essential element in
the series of checks and balances which keeps that awesome
power of the government somewhat responsible, somewhat
accountable. Indeed, the defeat of a major government measure
in this place would speak directly to the legitimacy of that
government's ability to continue.
The free trade agreement required a general election to
intervene before the Liberal-dominated Senate agreed to adopt
that measure. Had the GST not been adopted by the Senate, there
surely would have been a question of confidence raised in the
minds of Canadians. As honourable senators know better than I,
governments are seldom defeated by Parliament. The fate of a
government today is typically determined by a general election
rather than a vote in Parliament.
The author Punnett wrote that, "the evolution of the
Westminster system of government has left Parliament with the
vital function of criticising and publicizing government
activities." Thus, the modern role of Parliament is not to seek to
overthrow the government but, rather, to hold the government
accountable. That is what responsible government means in the
world of the 21st century.
The argument of our colleague Senator Boudreau, that the
Senate should not have a determinative role in Bill C-20 because
it is not a house of confidence is not persuasive.
Let me make a comment, and respectfully so, on the role of
the minister in the Senate. The principle of our system of
governance is that the ministers of the Crown are responsible to
Parliament. The acceptance of the responsibility of ministers to
Parliament as well as to the Monarch forms a main aspect of
cabinet development in the Westminster system.
The fact that ministers are drawn typically from both Houses
of Parliament demonstrates the capacity of the legislature to
influence the executive. Many honourable senators are asking the
following questions: What representations, if any, did the
minister in the Senate bring to the cabinet table when this idea of
trying to exclude the Senate from a determinative role in Bill
C-20 was first raised? Did the minister articulate the purpose and
place of this chamber in our bicameral Parliament? Did he
explain the historic role of the Senate and the principles of
consent, second sober thought, and protection of minority rights
upon which the Senate operates? Did he underscore the oversight
function that the Senate has in the series of checks and balances
that keep within control the exercise of executive power? Or,
honourable senators, did the Leader of the Government in the
Senate find himself in a conflict situation? Did the impossibility
of serving the Senate and aspiring for a place in the House of
Commons place him in a conflict role and cause confusion?
The confidentiality that surrounds cabinet deliberations will
not let us know what happened. What we do know is that the
process that has led to the drafting of Bill C-20 has failed the
Senate of Canada.
Honourable senators, Senator Boudreau attempts to argue that,
because the Senate has only a 180-day suspensive veto on
matters of amendments to the constitution, therefore, it should
not have a determinative role to play under Bill C-20. That
argument, honourable senators, fails on several accounts. First,
the fact that there is a six-month veto for the Senate in matters of
constitutional amendment is no small power. Our colleague
Senator Molgat, who chaired the Committee of the Whole
examining the Meech Lake Accord, will recall the effectiveness
of the six-month delay period. Indeed, it was during this period
that the Meech Lake Accord began to unravel. When one adds
this Senate delaying check for constitutional integrity to the
additional checks provided by the requirement for support from
resolutions adopted by provincial legislatures, numbers
depending on which amending formula, then Senator Boudreau's
case is weak indeed. Let us note that, with constitutional
amendments, the provincial political actors have a real
determining function, not merely a consultative role, as in the
determining of the question of the majority in this bill.
Second, Senator Boudreau's argument also fails in its
appreciation of the Senate's delaying power. At a time in
Canadian history when the Prime Minister's Office dominates
the House of Commons through a party majority that is
controlled by its whip, the Senate of Canada remains the only
real parliamentary limitation on the government's power.
Furthermore, the Senate plays a critical role in explicating and
analyzing government initiatives such that the people of Canada
can be better informed of the issues before Parliament or the
undertakings by the government.
Senator Boudreau asserts that it would be difficult "to fit the
Senate in." Honourable senators, there are so many ways in
which the Senate's judgment on the clarity of the question could
be secured without delaying the time line envisaged by the bill.
For example, there could be a fixed number of sittings in which
each House of Parliament would make its determination, or we
could consider a process by which both houses sit jointly in the
determination of the clarity of the question. Honourable senators,
with the talent in this chamber and with a minimal degree of
creativity, other such models could and must be developed to
maintain and secure the integrity of this house.
Let me conclude, honourable senators, by noting that the
history of the Canadian adventure is a story of diverse peoples
from diverse regions of the world living across a vast land in
which regional and provincial differences have been
accommodated by compromise and flexibility. This bill is a gift
to the secessionist movement. This bill is a way out for the
international community. This bill is a straitjacket for future
prime ministers. Macdonald, Laurier, Pearson and Diefenbaker
have, no doubt, turned over in their graves. Trudeau and
Mulroney are surely saddened by this give-away to the
Honourable senators, people of goodwill do not win battles
either of weapons or of ideas by remaining perpetually on the
defensive. To want no more than to stop secession thereby
ensures that ultimately secession cannot be stopped. Far more
important than any purported steps taken to lessen the threat or
limit the challenge of secession are the positive aims, policies
and visions which all the peoples of Canada wish to achieve
The appeal of the secessionist movement can only be
challenged by providing all the peoples of Canada with
something better to live by, something worth living for as
Canadians. Our country cannot endure by negative measures.
Rather, it will survive if it continues to be inspired by the
enabling faith of our predecessors.
Canada now needs a new generation of political actors, men
and women of goodwill, to draw more closely together in
understanding, creativity and collaboration. Rather than
presenting a bill that facilitates secession, rather than promoting
legislation that, for the first time in the 133-year history of
Canada, makes secession legal, rather than accepting the
assumption that Canada is divisible, the government should be
recognizing the right of the peoples of Quebec to
self-determination and through positive, persuasive programs,
based on the successful Canadian device of persuasion and
compromise, fulfil the aspirations and dreams of all within an
The Supreme Court was asked for its opinion on what is
essentially a socio-political question. The pith and substance of
the Quebec reference case is situated within the historic claim of
Quebec as a distinct society. What the government has given us
in Bill C-20 is a statute that will make legal, for the first time in
our history, a secessionist claim from any province and on any
ground, even the simple ground of an economic objective.
In my opinion, honourable senators, the government, sadly,
has lost its way, and the Canadian people, under the seductive
guise of clarity, might well lose their country.
Some Hon. Senators: Hear, hear!
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, would the Honourable Senator Kinsella
permit a question or two?
Senator Kinsella: Of course, as many as the honourable
Senator Boudreau: The Honourable Senator Kinsella draws
some scenarios and reaches some conclusions with which I take
some exception. I will not follow all of the trails he set out, but
there were two fundamental principles upon which he built his
The first fundamental principle was that Canada is indivisible.
If we accept that principle, then what is the point of having
legislation that deals with whether the question is clear or not
clear and whether the required majority is 50 per cent plus 1, or
80 per cent, or 90 per cent or whatever?
Senator Lynch-Staunton: Is the Leader of the Government
asking himself that question?
Senator Boudreau: That is exactly the question.
Senator Kinsella is rejecting the bill on the principle that
Canada is indivisible, and he cites the American constitution as
Senator Kinsella: As well as the Mexican constitution.
Senator Boudreau: I am not sure the American constitution is
an example that the Canadian people would be willing to follow.
The Americans fought a civil war. In that civil war, more
Americans were killed than in all of the other wars in their
history put together. They fought that war because they believed
that under no circumstances was their country divisible. I am not
sure that is a principle that the people of Canada or, perhaps,
honourable senators can accept.
On the honourable senator's point of rejecting the bill
altogether, does he disagree with the leader of his party who
favours a 50 per cent plus 1 test? Does he reject that test? As
well, does he reject any formula, for example, that would see a
two-thirds majority of all eligible voters casting a Yes vote on a
clear question? Does he reject both of those options?
Senator Kinsella: I thank the honourable leader for his
question. My position is that this bill ought not be proceeded
with because it is ultra vires to the power of this house and,
indeed, ultra vires to the power of the other place. That is my
starting point. I do not think we have the authority to pass a law
that is not in the best interests of Canada. Any law that has as its
ultimate objective an orderly, legal breakup of Canada is not in
the best interests of Canada.
Honourable senators, we only have authority to pass laws that
are in the best interests of Canada. That is why I say I do not
think we have the power, which was the question asked by
Senator Nolin. Perhaps someone can point out to me where in the
Parliament of Canada Act or the Constitution Act, 1867 or 1982,
that authority is given to Parliament. I cannot find it.
The realpolitik we are dealing with in this house is that the
opposition is in the minority. Thus, this bill is an awesome
burden because of the collateral damage to the Senate of Canada.
If not corrected, it will become an awesome responsibility on the
shoulders of my colleagues, particularly my colleagues opposite.
Hopefully, we will find the creativity to deal with that
responsibility. If the majority decides to go forward, assuming
that the matter is not ultra vires to Parliament, it seems to me it is
a responsibility of the opposition to continue, in the
epistemological sense of criticism, to improve a bad situation. It
is much the same as the guidance we received from St.
Augustine, who taught that even in evil we can find good. We
must, therefore, deal with the kinds of amendments that could be
brought forward. This is why we must amend the provision that
has relativized the Senate. It is wrong-headed and not necessary.
The same objectives can be achieved without doing that, and I
have suggested a few such ways.
On the fundamental principle of my assumption that Canada is
indivisible, clearly, I find fault with the opinion of the Supreme
Court. To the extent this bill is resting on that foundation, if the
foundation has fault lines, then this bill is being erected on those
The burden of proof on those who wish to make this change is
to prove that the country is divisible. My position is that it is
indivisible, and I will sustain and argue that position. I believe
that the people of Canada share the view that Canada is
indivisible rather than divisible.
Senator Boudreau: Honourable senators, I appreciate that
position. What I was asking for is the honourable senator's
personal view. In this place, from time to time, we all make
compromises on the result that emerges. I was interested in
hearing his personal view on the issue of Canada being
indivisible and that, therefore, no vote on any question with any
percentage would lead to secession. I must say that I disagree
with him. I am glad, however, that his personal view is clearly
If this legislation is ultra vires, then the Supreme Court will
pass the ultimate judgment on that point. It will probably do so
much more capably — and I speak for myself — than I would be
able to do.
However, now that we have established our fundamental
disagreement on whether any result would justify negotiations, I
wish to pose a second question. It, too, relates to the fundamental
principle on which I think the honourable senator takes objection
to the role of the Senate. He said that the Senate has traditionally
exercised a supervisory role over constitutional negotiations by
the executive. I can check that fact in the Debates of the Senate
tomorrow. However, that was roughly the way I wrote down the
honourable senator's remark. I said to myself at that point: How?
What is the supervisory role that the Senate exercises today or
has exercised in the recent past over constitutional negotiations?
The honourable senator cannot mean legislative supervision
because the bill does not impact on that capacity. It will still
remain. Thus, since he is not talking about the legislative
process, he must be talking about something else.
Sure enough, in the next two or three sentences, the
honourable senator cleared up what he was talking about. He said
that in Question Period in the Senate, the Leader of the
Government, as a minister, must stand up and answer the
questions of honourable senators. In fact, that was one of the
The second example the honourable senator gave had to do
with our passage of supply bills. I suppose if we refused to pass
such bills, that would create all sorts of problems. Currently, that
is how the Senate apparently exercises a supervisory role over
constitutional negotiations by the executive. My question is:
How does this bill affect that supervisory role as outlined by the
honourable senator? We will still have those examples tomorrow,
next month, next year, and long after this bill passes. In fact, the
bill has no impact, first, on the legislative side of the Senate's
role and, second, on the supervisory role to which the honourable
senator refers. In neither case does the bill have any impact on
facets of our supervisory role. Where will the supervisory role of
the Senate, traditionally exercised on the right of the executive to
negotiate, be damaged?
Senator Kinsella: Honourable senators, this thrust had to be
developed because of the faulty theory of responsible
government the Leader of the Government in the Senate
advanced during his second reading speech. The leader put
forward that theory to attempt to justify the fact that the Senate
would not have a determining role on the matter of the clarity of
both the question and the result.
Honourable senators, it is my view that the Senate of Canada
has a supervisory role. The Senate of Canada and the other place
each have a responsibility and a duty to hold the government
accountable. In our system, honourable senators, governments
are not non-accountable. Some would like not to be held
accountable, but our whole system of parliamentary democracy
is based upon the principle of ministerial accountability.
This house, contrary to the view in some quarters — and this
is a view that might have received some impetus in your theory
of responsible government — has a supervisory role over the
exercise of executive power. With reference to the exercise of
executive power in the matter of constitutional negotiations, I
agreed with the honourable senator when he said that it was not
necessary for the government to have the approval, by
legislation, of Parliament, to exercise that executive power to
hold constitutional negotiations. I would have preferred that the
government not bring in the bill and not try to fetter, but, even if
it did not, it would not have been absolved from oversight by this
house and from oversight by the other place. The executive
power is not unaccountable power, even when the exercise of
that executive power deals with constitutional matters. This is
different from the amending process under the Constitution,
which requires a resolution of both Houses, although the
resolution in this house, if not given, is effectively suspensive for
Honourable senators, we must not allow the myth to be
perpetuated that the Senate of Canada does not have both a
supervisory responsibility and a responsibility to hold to account
the exercise of executive power, because we do.
Senator Boudreau: I do not think I disagree with the
honourable senator on that at all. The Senate and the House of
Commons have a supervisory role, and there are executive
powers, as referred to by the honourable senator in the main body
of his speech. Where we disagree is that this bill will make any
difference at all to the role of the Senate in exercising that
supervisory power. At this point, I fail to see what difference it
makes. How will the role of the Senate be different, in terms of
all the powers and the important role it now enjoys? How will
that role be changed by this legislation?
Senator Kinsella: It will be changed fundamentally, and in a
historically damaging fashion. The Senate of Canada will have
become relativized and made second class in its view on the
determination of what would constitute a clear question in a
referendum and what would constitute a clear majority. By
excluding the Senate of Canada from a determinative role where
the House of Commons would have a determinative role would
cause fundamental damage to the Senate of Canada, in its usages
and its practices. It would be decisively fatal to the tradition of
Hon. B. Alasdair Graham: Honourable senators, I have one
question, for the purpose of clarity. The Honourable Senator
Kinsella made reference to the principle of 50 plus one. Is it the
honourable senator's opinion that one vote should be sufficient to
break up this country?
Senator Kinsella: Absolutely not. I tend to agree with my
colleague Senator Lynch-Staunton, who spoke to this particular
issue. I make the point that, with reference to the facade of
security that this bill is presenting, we must take seriously what
the Supreme Court has told us. We can go through all these steps,
but unconstitutional and illegal unilateral declaration of
independence is still a possibility. The court is warning us.
Therefore, when you examine each of these steps and examine
the step concerning what will constitute a clear majority, there
will be very few countries around the world that will be looking
for the high standard of 66 per cent when they are asked to give
international recognition to a secessionist province. Few
countries around the world would also refuse to give
international recognition to a secessionist province if it was
50 plus one, Indeed, as I mentioned in parenthesis, there are
many countries with which we have good relations —
governments that operate without anything close to a 50 per cent
plus one support.
Senator Graham: I am glad that Senator Kinsella clarified
that point. In the presentation notes, the honourable senator made
reference and linked 50 plus one to the dictator who had 12 per
cent but also had an army. I took that reference to mean that 50
plus one, would be sufficient. That is the impression I got from
your remarks to break up the country.
Senator Kinsella: I thank the honourable senator for that
input. The serious issue involves the "political actors" referred to
by the court, namely, the international political actors. At the end
of the day, they will determine whether or not we will have
Canada broken up into a series of countries. The court has told us
that. This bill is ill-advised because it lays out these steps, which
at each point are destined to failure. Thus, at each point, a gift or
golden opportunity is handed on a silver platter to the
secessionist movement. This is a very foolish approach to dealing
with the matter. Certain principles were identified in the advisory
opinion. We should have left well enough alone. This only makes
Hon. Joan Fraser: Honourable senators, I should like to
return to the question of indivisibility. This absolutely crucial
question goes to the very heart of what we are as a country. I am
afraid that I still do not quite understand Senator Kinsella's
position. He began by saying, and I am sure we would all agree,
that there are only two ways to hold a country together — by
force or by persuasion. He went to say, and again I expect we
would all agree, that we would not support the use of force. Then
he went on to cite, with apparent approval, a number of regimes
where it is not permissible to secede. He cited the United States,
which had recourse to force for four years to prevent secession.
He cited Mexico, which has had recourse to force. He could have
cited other federations — Russia, India and perhaps some others.
Senator Kinsella did not explain how one could keep a country
together or how one could enforce his principle of indivisibility
if persuasion has failed and if, despite the best efforts of us all,
the people of a given province by an indisputably clear majority
in response to an indisputably clear question say, "We have
listened to your persuasion and we are sorry, but we still want to
go." It seems to me that the logical conclusion to which he leads
us is force. Could he clarify that position, please?
Senator Kinsella: I thank the honourable senator for that
question. First and foremost, I reiterate my view that Canada is
indivisible. Second, when one examines the theory and the
argumentation in the advisory opinion of the Supreme Court, it is
based upon an analysis of constitutionalism, the rule of law,
democracy and federalism.
These exact same values are shared by the other two
federations with which we share the North American continent
— the United States and Mexico. In both those federations, there
is no admission in their constitutional law of the breakup of their
countries. That is their starting point.
My argument is that we ought to have the same foundation.
The indivisibility of Canada should be our starting point. If that
is our starting point, then the chances are that our self-fulfilling
prophecy will be the ongoing unity of this country with all the
ups and downs that we have gone through for the past 133 years.
If, however, our starting point is the divisibility of Canada and
we set out a process and erect a stage, then that act will be played
out. If our response to the secessionist movement is always one
of defence, then at the end of the day, the secessionist movement
I suggest, honourable senators, that the solution lays in the
generation of new ideas, recognizing that there is great diversity
among the peoples of Canada. I do not want to use the jargon of
Plan A and Plan B, but others find that jargon attractive. Clearly,
as the leader of the Liberal Party of Quebec so metaphorically
describes it, we are going into a big black hole.
Hon. Gérald-A. Beaudoin: By way of supplementary to the
question of Senator Boudreau, if a simple statute can give a
power to one house and not to the other, is it not the case that if
this is done five or six times in a certain period of time, the
powers of the other house are reduced considerably? I refer to the
Senate, our house. This would be done without any amendment
to the Constitution.
Senator Kinsella: I could not agree more. I am hopeful that
Senator Beaudoin will develop that particular theme clearly. We
have the written acts. We have the Constitution Act of 1867, the
Constitution Act of 1982, and we have customs and usages, just
as within Parliament we have the Parliament of Canada Act and
the rules of this chamber. We also have customs and usages that
would develop very rapidly for a whole variety of reasons,
including the current selection process of members of this house.
We will be the ones who will be held accountable for the
relativizing in our time, during our watch, of the Senate of
Canada vis-à-vis the House of Commons.
Honourable senators, I cannot see how we could do anything
but work together to at least solve that problem. It is solvable.
Hon. Jerahmiel S. Grafstein: Honourable senators, I listened
with great care to Senator Kinsella. I congratulate him on his
ability to set out these issues from his perspective. He has two
constitutional objections, as I hear them. One is the diminution of
the power of the Senate, which has been echoed by Senator
Beaudoin, based on the Constitution and the conventions of the
I will not comment on that issue at this time, but I am
interested in the senator's first proposition, which is the ultra
vires nature of the legislation. He bases it, if I am correct, on his
view that the advisory judgment of the Supreme Court may have
some fault lines.
The question of ultra vires as it applies to the bill, as opposed
to the issue of the Senate — I want to separate the two — is this:
Given that the Supreme Court has given an advisory, in all its
splendour or flaws, and given the fact that the government, for
good or bad, has decided to exercise its discretion in the form of
this piece of legislation, which we have been told carefully
mirrors the advisory, how does Senator Kinsella still say that this
bill might be ultra vires or unconstitutional?
Senator Kinsella: Honourable senators, unfortunately, in the
advisory opinion in the Quebec Reference case, the court does
not attend to the issue of where Parliament might or might not
have the authority to bring in this kind of legislation. Indeed,
nowhere in the decision is the court recommending that this kind
of legislation would even be brought in. Indeed, the former chief
justice expressed surprise that a statutory provision was brought
in along this line.
If that matter were to be pursued, we would need to ask the
court its opinion on whether there is a constitutional basis or
where the authority exists for Parliament to pass a law that has
the effect of breaking up Canada. The court does not tell us that.
I argue that this matter is ultra vires on the basis that the
tradition of our parliamentary system is one where the consent of
the Houses of Parliament is given to the Crown on measures that
are in the best interests of the people of Canada. This bill could
never be in the best interests of Canada because, at the end of the
day, it is leading to the breakup of Canada.
Senator Grafstein: Again this gives me some concern. I want
to keep separate the question of Senate powers. I do not think
there is anyone in this chamber who was sworn at this table who
would deny the premise that no one would like to see, in any
way, shape, or form, the breakup of Canada. I cannot believe that
anyone who has ever come to this chamber would have that as an
objective. I think we all have the shared value, based on our
constitutional oath, to uphold the Constitution and uphold the
unity of the country.
However, now we are faced with an advisory, and the advisory
has raised questions. If the executive chooses, as the Leader of
the Government has suggested, to exercise its discretion in a
particular way, and perhaps limit its discretion in a particular
way, how is that constitutionally objectionable, laying aside the
role of the Senate?
Senator Kinsella: That is precisely the point. The executive
did not have to seek the approval of the House of Commons to
go through this process. The executive does not need this
legislation to do whatever it wants to do in this area. However,
each House of Parliament will have the duty and responsibility to
hold accountable the government of the day for whatever it does
in this field. Here, the House of Commons is being co-opted into
this process. How will the House of Commons hold accountable
the executive in a process into which they are now co-opted?
Hon. John. G. Bryden: Will Senator Kinsella take yet one
Senator Kinsella: Yes.
Senator Bryden: I listened to Senator Kinsella's presentation
and paid particular heed to the part about the country being
indivisible and the part where he said that we cannot use force to
keep Canada together. We do not have the power to do it by any
other means, except, I guess, persuasion.
As I listened, I was reminded of someone who for many years
was a professor at St. Thomas University, and perhaps still is. He
was a follower of Aristotle. While listening to the remarks, it
occurred to me that the logic, at least in Aristotelian terms, gets a
little convoluted. We are saying that the country is indivisible;
that it cannot be broken up. We have no jurisdiction. There is
nothing in our laws to deal with that. The United States cannot be
broken up, but they used force to do so. We would not do that.
Mexico cannot be broken up, but they used forced to so. Canada
would not do that.
Will the problem be like that of the man who had a
psychological fixation that he was dead? An Aristotelian logician
said, "I can force him to recognize that he is not dead. I can force
him to recognize that he is alive. Just give me a few minutes with
him." It was agreed and he went to see the man who said that he
was dead. The logician asked, "Do you believe that you are dead,
that you are not alive?" The man replied, "Yes, I do." The
logician said, "Let me ask you a question. Do dead men bleed?"
The response was, "No, sir, dead men do not bleed." The logician
said, "Give me your hand." He cut the man's hand and squeezed
it, then asked, "What do you think of that?" The fellow said, "My
God, dead men do bleed!"
My concern, Senator Kinsella, is that, following your logic,
you will wake up someday and find more than one country that
used to be Canada, and you will say, "My God, Canada is
Senator Kinsella: I think that Senator Bryden's argumentation
is not so much Aristotelian as sophism.
He did mention the Angelic Doctor, Saint Thomas Aquinas.
Aquinas defined law as the ordinance of right reason. I argue that
there is no right reason in this legislative proposal because, if we
adopt this bill and make it part of the Statutes of Canada, and all
the steps are followed for the legal secession of a part of the
country, it might all be very nice legally, although I do not
believe that could ever happen. However, even with that, Canada
will be gone.
I will use a different metaphor to that of Senator Bryden's. I
will use as my metaphor the beautiful Victorian home that
Senator Robichaud used to have on Waterloo Road in
Fredericton. The house would last for hundreds of years, except
that its wiring was the old cloth wiring from the turn of the
century and the place was a fire trap. Does Senator Robichaud
hire an electrical contractor to rewire the place, or does he buy
fire insurance? I suggest, honourable senators, that this measure
of the government is "buying fire insurance."
On motion of Senator Hays, debate adjourned.
Hon. Dan Hays (Deputy Leader of the Government)
Honourable senators, I should like the orders of Government
Business to be called in the following order: Item No. 6, Bill
S-17, which I think Senator Angus will address; Item No. 5, Bill
S-18, which I believe Senator Meighen will address; Item No. 7,
Bill C-13, which I believe Senators Carstairs and Keon will
address; Item No. 3, Bill C-10, to which Senator Moore will
speak; and then Item No. 4, Bill S-19.
Before we proceed, however, honourable senators, I should
like to ask leave that we not see the clock for one hour. If we are
done before that, all the better, but assuming leave is granted, I
have one other matter which I should like to raise.
The Hon. the Speaker: Is there leave that I not see the clock
for one hour?
Hon. Senators: Agreed.
The Hon. the Speaker: Therefore, at seven o'clock I will
leave the Chair, unless there is further agreement.
Committee Authorized to Meet During Sitting of the
Leave having been given to revert to Notices of Motions:
Hon. Dan Hays: Honourable senators, with leave of the
Senate and notwithstanding rule 58(1)(a), I move:
That the Standing Senate Committee on Fisheries have
power to sit at 6 p.m. today even though the Senate may
then be sitting, and that rule 95(4) be suspended in relation
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Motion agreed to.
Marine Liability Bill
On the Order:
Resuming debate on the motion of the Honourable
Senator Furey, seconded by the Honourable Senator Fraser,
for the second reading of Bill S-17, respecting marine
liability, and to validate certain by-laws and regulations.
Hon. W. David Angus: Honourable senators, I am somewhat
hesitant, even humbled, to introduce my rather technical subject
after listening to the learned debate this afternoon on Bill C-20.
The quality of the debate has been unusually high and
fascinating, given the nature of the subject matter — the very
survival of our great nation. I hope you will bear with me. This
subject pales beside the other.
I rise to make a few comments on Bill S-17, which was
introduced by the Honourable Senator Boudreau and received
first reading in this chamber on March 2, 2000. The bill was
addressed and proposed for second reading on Tuesday, March
21 by Senator Furey.
Let me say at the outset, honourable senators, one, that I firmly
support this legislation and advocate its expeditious passage
through the parliamentary process, including appropriate study
by the Standing Senate Committee on Transport and
Communications, and by the transport committee in the other
Two, I note with great pleasure that the government has once
again taken steps to move forward with this now long-overdue
legislation, and all the more so, honourable senators, because it
has chosen to initiate the process here in the Senate. It is an
initiative of which I hope we will see more.
Three, I deplore the government's repeated ham-handed
parliamentary mismanagement of this particular legislation, both
in its present form and in its earlier manifestations, leading to
unfortunate and substantial delays, so that Canada's otherwise
excellent image in the domestic and international maritime law
and insurance community has been tarnished and called into
question, both at home and abroad.
As a number of honourable senators I believe are aware, I have
devoted the bulk of my 38-year career as a lawyer to the practice
of maritime law in all its aspects. I served from 1988 through
1991 as president of the Canadian Maritime Law Association,
and I am currently, and have been since 1994, a member of the
executive council of the Comité Maritime International, the CMI,
in Antwerp, Belgium, which is the private-sector international
marine law association that brings together as constituent
members some 50 national maritime law associations from
around the world.
I have for many years been interested in and, indeed,
committed to the development of uniform Canadian and
international maritime law, and the harmonization globally of its
principle rules and regulations. Thus, I am very pleased to have
this opportunity to associate myself with and support the
principles and objectives of Bill S-17.
I say this not only to indicate to honourable senators my
special interest in this legislation, but also to demonstrate a
modicum of first-hand knowledge of the matters and issues in the
bill, especially of the on-going importance of both national and
international uniformity of laws, such as those that establish
regimes of marine liability, and rules and standards relating to the
safety of ships and life at sea. Canada has for decades
participated actively and with distinction in international
organizations dedicated to promoting uniformity and
harmonization of maritime law, including the International
Maritime Organization, the IMO, and the CMI.
This bill is a combination of substantive new law in four of its
elements, as seen in Parts 1, 2, 4 and 5 of the bill. For the rest, it
consists largely of legislative modernization, rearrangement, and
related housekeeping measures. More important, though, the bill,
as it purports to create a new marine liability statute for Canada
that can be added to and/or subtracted from as may be
appropriate over the years going forward, falls into the category
of framework legislation; part of an overall restructuring,
modernization and simplification of the main statutory elements
of Canadian maritime law. In this sense, honourable senators, I
believe Bill S-17 to be a positive and constructive initiative.
The substantive aspects of the bill concern, one, the long
overdue adoption into Canadian law, in Part 4 of the bill, of the
Athens Convention, relating to the carriage of passengers and
their luggage at sea, which sets forth an internationally accepted
comprehensive regime of ship owners' liability for loss of life or
personal injury to passengers travelling on board ships. Existing
Canadian domestic legislation deals only with global limitation
of liability for maritime claims, including passengers' claims, but
it fails to establish a basis upon which liability for passengers
may be established, thus leaving shipboard passengers to rely on
Canada's various and, in some cases, uncertain provincial laws of
negligence to solve their claims and obtain compensation.
The Athens Convention was adopted by the IMO, with
Canada's full approval, in December 1974 as a uniform
convention, which was amended in 1990 by a protocol updating
its limits of liability. It is now high time that Canada implements
this convention by incorporating it into our domestic law.
The substantive aspects also concern, two, the adoption under
federal law, which includes that certain body of law now known
as "Canadian maritime law", in Part 2 of the bill a new regime
for apportioning liability for marine claims, thus clarifying what
is presently a difficult and confusing area of Canadian law. If
enacted, Bill S-17 will provide a uniform regime for the
apportionment of liability applicable to all civil torts governed by
Canadian maritime law. This regime follows the 1997 and 1998
decisions of the Supreme Court of Canada in Bow Valley Husky
(Bermuda) Ltd. v. St. John Shipbuilding Ltd. and in Ordon v.
Grail, which held inter alia that Canadian courts may apportion
damages based on the degree of fault determined by the court as
between claimant and defendant, or amongst defendants in the
case of joint liability.
Three, Part 1 of the bill also contains substantive new law in
that it purports to update Canadian maritime law so as to reflect
recent developments in provincial fatal accidents legislation. In
this regard, Bill S-17 confirms that claims for wrongful death and
injury in the marine domain may be made against persons as well
as against ships in rem, thus enabling the relatives of deceased
and injured persons to claim for loss of care, guidance and
companionship; and, finally, to modernize the language of the
legislative provisions that govern such claims. Otherwise, Part 1
generally re-enacts those provisions concerning fatal accidents
that presently appear in Part 14 of the Canada Shipping Act.
This, honourable senators, is also an integral part of the
aforementioned overall project to simplify and modernize
Canada's maritime laws.
I understand from officials at Transport Canada that another
very important marine bill, a modernized and revitalized Canada
Shipping Act, will shortly be introduced in Parliament as a
companion to Bill S-17. I hope this will take place once again
here in the Senate.
Four, Part 5 of Bill S-17 basically incorporates word for word
into the new Marine Liability Act, Canada's Hague Rules
Statute, the Carriage of Goods by Water Act, which deals with
shipowners' and operators' liability for cargo damage. However,
one substantive and welcome change has been introduced in Bill
S-17, namely, a new provision that broadens the jurisdiction of
Canadian courts to deal with cargo claims, especially those of
Canadian exporters and importers and their insurers. This should
improve recovery costs for Canadian claimants, while at the
same time providing badly needed new business for the
down-and-out Canadian maritime lawyers.
Honourable senators, as I have indicated, Part 4 of Bill S-17
establishes the basis and amounts of liability of shipowners to
their passengers for personal injury and loss of life.
The new regime will apply to both domestic and international
carriage of passengers by ship and, accordingly, will finally bring
Canadian law in this field into line with that of most of our
In most developed maritime nations, the laissez-faire system
of liability in the marine transportation sector has long been
replaced by some form of statutory liability. The Athens
Convention is now the leading international model in the area of
In Canada, contracting out of liability by shipowners and
operators, especially in marine passenger contracts issued by
foreign carriers serving Canada, has been more the rule than the
exception. Bill S-17, if enacted, will obviate this practice. Such
exculpatory clauses are no longer recognized in France, the
United Kingdom, the United States and elsewhere. They are also
generally absent from contracts of carriage in other
transportation systems here in Canada or are expressly
prohibited, as in the air mode, pursuant to the Carriage By Air
Canada's marine industry enjoys a relatively good safety
record. However, accidents can, and often do, happen. Thus, it
appears to be a good thing that the government is finally
proceeding to ensure that Canadian law is up-to-date and in line
with that of our sister nations and our trading partners.
What is troubling, however, honourable senators, is that we are
only getting around to doing this now. A major passenger ship
disaster in Canadian waters today would doubtless generate a
public outcry for fair and adequate compensation to victims
precluded from being indemnified for their loss. Frankly, the risk
of such a casualty has been increasing through the use of large
car ferries with substantial passenger capacity on both the East
and West Coasts, as well as the growing popularity of giant
cruise liners which now regularly carry thousands of passengers
inside and adjacent to Canadian coastal waters. I submit that
good public policy demands the resolution of this problem now
and without further delay.
Why is it, then, that Bill C-59, entitled Carriage of Passengers
by Water Act, introduced in the Second Session of the
Thirty-Fifth Parliament, containing the exact same provisions as
those set out in Part 4 of Bill S-17, was permitted by this
government to die on the Order Paper in April 1997? This was
indeed unfortunate, not to say risky and imprudent, if not
impudent. Let us all, in both Houses, take heed for past
government mismanagement and give this bill the serious and
expeditious treatment it merits.
To save time, honourable senators, I make reference to but will
not repeat in extenso here today the comments I made in this
chamber on October 21, 1997, respecting the inexcusable delays
which preceded the enactment of Bill S-4, another key statute
dealing with marine liability, specifically, shipowners' liability
for maritime claims in general, and for marine pollution in
particular, and the right to limit such liability and to what extent.
One cannot help but wonder why marine policy and legislation in
Canada has heretofore seemingly had such a low priority on the
government's agenda. After all, Canada is a major maritime
nation, with one of the world's most extensive coastlines.
The Athens Convention is not the only international maritime
convention which Canada has approved at the diplomatic level
and then been subjected to delayed implementation into our
domestic law. Another striking example is the HNS Convention
dealing with the carriage of hazardous and noxious substances
and a liability regime which is related thereto. These conventions
in most cases deal with the economic and legal consequences of
maritime accidents or casualties and are designed to harmonize
the international law and practices of different nations so as to
achieve uniformity of law and procedure and a level playing field
in the marine arena, which is international by its very nature.
Once approved by our government at the diplomatic level, they
should, as a matter of comity, at the very least, as well as for
compelling practical reasons, be implemented with all due
Many dedicated private Canadian citizens and highly skilled
bureaucrats have worked long and hard to achieve international
consensus and to make these conventions good and valid
realities. Surely, it is now our duty as legislators to complete their
fine work. Let us not let them down again, either now or in the
In this same vein, I would be remiss if I did not point out that
those provisions of Part 1 of Bill S-17 which deal with fatal
accidents were also previously introduced in Parliament as Bill
C-73, to amend the Canada Shipping Act and other acts in
consequence, which was also allowed by the Government, for
what appeared to many as self-serving partisan and political
reasons, to die on the Order Paper in April 1997 — the
Government's priority apparently being to call an uncommonly
early general election on June 2, 1997, rather than diligently
completing its important legislative program first.
Honourable senators, as far as I can determine, the new
substantive maritime laws contained in Bill S-17 are
noncontroversial and unopposed by any group or interest which
had been identified to date. By contrast, the legislation is eagerly
awaited by all elements of Canada's marine industry, including
shipowning, shipping, cargo, passenger, insurance, and maritime
law interests alike. Indeed, full and complete discussion papers
have been circulated by government officials to all interested
parties, and the main elements of what is now Bill S-17 have
already received wide stakeholder approval and interest.
Honourable senators, the same may be said of the creation
through Bill S-17 of a framework for a new Canadian marine
liability statute as a companion statute to the forthcoming
modernized Canada Shipping Act.
The current legislative system, whereby liability regimes are
set forth in various pieces of legislation, is not practical,
effective, or satisfactory, and certainly is not user-friendly.
A single statute devoted exclusively to issues of marine
liability, present and future, will help all members of the marine
community to better understand the responsibilities and the rights
of those who are or will be affected by the laws in question. Dare
I say it, honourable senators, such consolidation may also
significantly simplify, and perhaps even expedite, the work of
many of Canada's maritime lawyers. Can this be a bad thing?
I have just one caveat to bring to your attention, honourable
senators. That is the indication in the department's briefing
papers that this bill contains so-called housekeeping provisions
designed retroactively to validate certain bylaws made under the
Canada Ports Corporation Act and certain regulations made
under the Pilotage Act. Honourable senators, not only do we, as a
general rule, look askance at retroactive legislation, but one must
also query why invalid bylaws and regulations were enacted in
the first place. Hopefully, these issues will be raised and
satisfactorily answered at the committee stage.
Honourable senators, subject to this one caveat, I have no
hesitation at all in recommending speedy passage of this
legislation through Parliament. It is my sincere hope that it will
not founder on such rocky shoals as those which terminated the
voyages of Bill C-59 and Bill C-73 in April of 1997.
Hon. George Furey: Honourable senators —
The Hon. the Speaker: Honourable senators, I wish to inform
the Senate that if the Honourable Senator Furey speaks now, his
speech will have the effect of closing debate on the motion for
second reading of this bill.
Senator Furey: Absent a few rather scathing swats which the
honourable senator took at timeliness, I endorse his comments
and thank him for his agreement in treating this bill as
expeditiously as possible. Indeed, the rather technical questions
raised at the end of Senator Angus' comments with respect to
retroactivity will be addressed at committee.
Therefore, honourable senators, I commend this bill to you.
The Hon. the Speaker: Is it your pleasure, honourable
senators, to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and bill read second time.
The Hon. the Speaker
: Honourable senators, when shall this
bill be read the third time?
On motion of Senator Furey, bill referred to the Standing
Senate Committee on Transport and Communications.
Bill to Amend—Second Reading
On the Order:
Resuming debate on the motion of the Honourable
Senator Pearson, seconded by the Honourable Senator
Finestone, P.C., for the second reading of Bill S-18, to
amend the National Defence Act (non-deployment of
persons under the age of eighteen years to theatres of
Hon. Michael A. Meighen: Honourable senators, I rise to
speak briefly on the second reading of Bill S-18, to amend the
National Defence Act.
I am sorry that our colleague Senator Pearson is not here at the
moment. However, I was not here when she introduced this
legislation. I suppose, then, what is fair for the goose is fair for
I am pleased to be speaking on a bill the government has seen
fit to introduce in the Senate. Recognizing the usefulness of
proceeding in this fashion, I encourage the government in its
high counsel to do more of this.
I have read with great interest the remarks of Senator Pearson.
I congratulate her, in absentia, on the succinctness and clarity of
her exposé. I will try to do likewise.
When Senator Pearson introduced the bill, she said that she
thought honourable senators would be surprised that a senator
such as herself would be introducing an amendment to the
National Defence Act. Frankly, I do not find that surprising at all.
However, she may be surprised to know that I agree with just
about everything she said. I venture to say that all honourable
senators on this side of the chamber feel the same way.
Senator Pearson pointed out in her introduction that the
proposed amendment before the Senate will put into law that
which is the current practice and policy of the Department of
National Defence and will ensure that Canada does not send
persons under the age of 18 years into a theatre of hostilities.
This amendment will also put Canada in compliance with the
recently negotiated Optional Protocol to the United Nations
Convention on the Rights of the Child. The Convention on the
Rights of the Child was adopted by the United Nations in 1989
and has since been ratified by 191 countries.
The government of the Right Honourable Brian Mulroney was
very closely involved in negotiation and development of the
convention. It was signed by Prime Minister Mulroney in 1990
and ratified by Parliament in 1991. I cannot pass up the
opportunity to note that in this area, as in so many others, the
current government is carrying on with important initiatives
introduced by its predecessors.
As stated by Senator Pearson, the optional protocol will
establish new international standards that will require its
signatories to set 18 years as the minimum age for compulsory
recruitment; to take all feasible measures to ensure that members
of their armed forces who are under the age of 18 years do not
take direct part in hostilities; and to raise the minimum age for
volunteer recruitment to at least 16 years of age and to deposit a
binding declaration to this effect upon ratifying the optional
Under the terms of the optional protocol, signatories that
permit voluntary recruitment of persons under the age of 18 years
are required to maintain safeguards to ensure that recruitment is
genuinely voluntary and that it is done with parental consent and
reliable proof of age, something which I cannot help but mention
seems to have been missing in 1939 and 1940 when many
citizens, perhaps citizens familiar to members of this house,
knowingly lied about their age in order to take part in combatting
the spread of fascism. One cannot be critical of their motive in
that case. Finally, recruited candidates must be fully informed of
the duties involved in military service.
Honourable senators doubtless know that the Canadian Forces
are currently recruiting individuals aged 16 and 17. However,
sign-up is strictly on a volunteer basis and parental consent and
proof of age are required. In addition, all candidates are informed
of their duties as military personnel.
It is interesting to note that, like Canada, the U.S. is recruiting
16- and 17-year-olds. However, unlike Canada, the U.S. is
deploying these young soldiers in conflict zones. In recent years,
these 17-year-old soldiers have been deployed by the United
States in the Gulf War, in Somalia and in Bosnia. I am pleased to
note that the U.S. recently agreed to put an end to the
deployment of young soldiers under the age of 18 in combat
The problem of the use of children in an active military role is
not insignificant. As I speak, hundreds of thousands of child
soldiers are being used in armed conflicts around the world.
Human Rights Watch, an American human rights organization,
reports that child soldiers are taking part or have taken part in 33
current or recent conflicts in almost all regions of the world.
As I indicated earlier, honourable senators, our practice in
Canada is already fully in line with this optional protocol.
However, I commend the government for acting to bring our
legislation into line with our practice.
We urge the government to work aggressively at the United
Nations to ensure that this protocol is adopted by the General
Assembly at an early date and that it is subsequently signed and
ratified by the UN member states.
Honourable senators, there is much work yet to be done to
bring the optional protocol into force. However, Bill S-18 is an
important and helpful first step. I urge all senators to support it.
The Hon. the Speaker pro tempore: Honourable senators, is it
your pleasure to adopt the motion?
Hon. Senators: Agreed.
Motion agreed and bill read second time.
The Hon. the Speaker pro tempore:
when shall this bill be read the third time?
On motion of Senator Hays, bill referred to the Standing
Senate Committee on Foreign Affairs.
Canadian Institutes of Health Research Bill
Hon. Sharon Carstairs
moved the second reading of Bill
C-13, to establish the Canadian Institutes of Health Research, to
repeal the Medical Research Council Act and to make
consequential amendments to other Acts.
She said: Honourable senators, I have the honour to rise in
support of Bill C-13, to establish the Canadian Institutes of
Canada's health research community already has a reputation
for excellence throughout the world. Major health discoveries
have been made by Canadians, such as Dr. Henry Friesen, the
present Chair of the Medical Research Council, who discovered
the human hormone prolactin that affects fertility among women.
Canadians also lead in researching innovative approaches to
help policy and administration. For example, Winnipegers like
Drs. Les and Noralou Roos and Dr. Charlyn Black have
developed databases that provide policymakers with an
understanding of the health needs of populations and the role of
health care as a determinant of health.
Each year, Canadian researchers win more than half the grants
made available to foreign researchers by the United States
National Institutes of Health.
In order to continue and sustain health research in Canada, we
must recognize that the nature of modern health research is
changing, and we need a health research system capable of
understanding these complex new challenges.
We need to be able to address emerging and re-emerging
threats to our health. We must be able to take on challenges as
diverse as the mysteries of mental health, as complicated as the
development of antibiotics to combat new strains of bacteria, and
as complex as determining the health impacts of family violence.
In addition to studying illness and disease, our health research
system needs to support the study of the social and
environmental determinants of health. We need to integrate our
findings with other research on the many factors that affect the
health of communities and populations.
We need, honourable senators, to position ourselves to take
full advantage of the revolution in genetic technology that is
opening up new avenues for treating disease. We must be able to
make use of innovative methodologies and health services
research that make it possible to better evaluate how well we are
providing services to Canadians through our health care system.
These are challenges that will define how we promote, protect
and improve the health of Canadians over the next decades.
Honourable senators, Bill C-13 would create the Canadian
Institutes of Health Research to respond to these challenges. It
takes a fundamentally different approach to health research
through the creation of institutes that will provide a strategic
direction to research in thematic areas such as chronic diseases or
Institutes will give the CIHR new tools to support health
research that are not available in the current granting-council
structure — the Medical Research Council. Through institutes,
the CIHR will provide research in a specific scientific field to
promote excellence and achievement. Institutes will provide the
opportunity to link and integrate research in different disciplines
as part of a coordinated focus on a specific health issue. They
will give the CIHR the ability to identify national health needs
and emerging critical health issues, and to develop strategies to
link these priorities with research activities.
Institutes will give the public and other key stakeholders,
through institute advisory boards, the opportunity to have direct
input into research priority setting, and they will facilitate
partnerships on strategic initiatives among the public sector, the
health charities and the private sector.
Honourable senators, as outlined in the bill:
The objective of the CIHR is to excel, according to
internationally accepted standards of scientific excellence,
in the creation of new knowledge and its translation into
improved health for Canadians, more effective health
services and products and a strengthened Canadian health
This objective contains a key phrase — nationally accepted
standards of scientific excellence. With CIHR, as with the
present system, these standards will be achieved through a
process of peer review. All major extra-mural health research
organizations rely on peer review.
CIHR will build on the excellent reputation already enjoyed by
Canada's existing peer review system. The provisional governing
council of CIHR is looking at the possibility of extending the
peer review process in order to allow the participation of
non-specialist members on peer review committees. The
governing council will also have to promote innovation and
risk-taking as part of the peer review process.
In this way, the CIHR will continue to enhance Canada's
reputation for excellence in health research.
Honourable senators, excellence in health research is all very
well, but if the results of this research are not applied, then the
question of excellence becomes solely academic. Research
findings can be translated into better practice of health care,
helping to prevent, treat and cure diseases. They can be
translated into a more efficient health care system that delivers
services that will benefit all Canadians.
Researchers in Canada have already succeeded in creating our
thriving health research environment. Michael Smith won the
Nobel Prize for his contribution to our genetic understanding of
diseases. Leigh Field has discovered two genes that produce
susceptibility to juvenile diabetes, the most severe form of the
disease. Salim Yusuf headed up a study that found that an
anti-hypertensive drug called ramipril substantially improved
survival after heart attack and lowered the risk of subsequent
heart attacks. These findings could prevent 1 million premature
deaths, heart attacks and strokes each year.
The investment in the CIHR is an investment in new
knowledge about our health and our health care system, which
will benefit all Canadians. While this investment supports
research in the academic community, the products of this
investment will benefit us all.
In the cycle of innovation that characterizes health research,
research results can also lead to new research efforts. For
example, the initial endowment of the research arm of the
Hospital for Sick Children in Toronto is a direct result of the
discovery of Pablum, several decades ago, that has helped
children in Canada and throughout the world grow to be strong
A crucial challenge for establishing the CIHR has been to have
programs ready for the first year of its existence. The
programming is now in place, administered by the existing
granting councils until such time as the CIHR is officially
established. Applications are already coming in and some awards
have already been made. The response to these transition
programs has been very encouraging, signalling that there is
great potential for capacity building and willingness among
researchers to work in collaborative research projects with the
CIHR. The success of these programs demonstrates the degree to
which the entire research community is excited about the
opportunities of the CIHR and ready to take on the challenge of
conducting health research in a new, more integrated and more
Honourable senators, one of the most important decisions the
Minister of Health will have to make in the weeks to come is
who will direct this new organization. The new president and
governing council must be individuals of the highest calibre,
capable of commanding the respect of all who are involved with
the CIHR. Nominations for these positions were actively sought,
not only from stakeholders but also from the general public,
because the CIHR belongs to all Canadians.
When the president and members of the governing council are
appointed, one of their first priorities will be to identify the first
CIHR institutes. This is no small task. Institutes must meet the
health care needs of Canadians. They must have broad scope and
the ability to excel in research and, finally, take various
approaches to health research.
The new governing council will not be starting from scratch.
They will benefit from the best thinking of the health research
community and input from the interim governing council, which
has focused on how the interests of the health research
community as a whole will best be served.
Having said that, honourable senators, I believe it is incumbent
upon each and every one of us, during our deliberations on this
bill, to give our best advice as to the future directions of these
new research institutes. In my view, there are four areas of health
research that have been seriously neglected in the past in Canada.
Honourable senators, one in five Canadians will suffer from
mental illness in their lifetime. It may be a relatively light
depression, easily treated, if treatment is indeed sought; or it can
be bipolar disease or schizophrenia, both of which can have
lifelong effects. We know of the devastating impact that these
diseases have on individuals and their families, but there are also
enormous social costs. For example, many of the homeless in our
society suffer from mental illness. Yet we have done little health
research in this country in the areas of causes, impacts and
effects of mental illness. The new CIHR offers us an excellent
opportunity, which should not be missed.
A second issue of concern in the health area is that of our
aging population. Honourable senators, the demographics in our
country are changing. According to estimates by Statistics
Canada, in 1998 there were over 400,000 people over the age of
85. In 2041, it is estimated that there will be over 1.6 million
over the age of 85 in Canada. We know that many will suffer
from Alzheimer's, dementia or other degenerative diseases. Our
aging population will put pressure on our health care system for
palliative care beds, acute care beds, personal care homes and
home care services. Research is needed not only to seek a cure
for these diseases but also to help us plan for these enormous
No one in this chamber, I know, would want us to neglect the
very serious issue of aboriginal health. I will give you just one
statistic alone, honourable senators: Three times the number of
aboriginal men and five times the number of aboriginal women
suffer from diabetes. It is a serious form of diabetes that strikes
the people in aboriginal communities, to some degree because of
the quality of their housing and their lack of medical care. Many
of them suffer from renal failure. Many of them require the
removal of limbs. This is an intolerable situation and one that we
Honourable senators, as a woman, I would not be fair to my
gender if I did not mention the concern that many women have
about our health. Cardiovascular disease, for example, is the
number one killer of women in Canada; yet women are tested
and treated far less frequently for heart conditions than are men
— unless, of course, we are lucky enough to have access to Dr.
We also know that women who are infected by HIV are
infected in different ways. Women are the principal paid and
unpaid caregivers in our society but the health consequences of
this are poorly understood. There is no doubt in my mind that my
mother died seven months after my father because she had spent
the ten previous years looking after my father.
We need to examine whether an institute on women's health is
the way to go. Is that the correct route? Perhaps another option is
to have clear gender analysis in every single one of the institutes,
gender analysis that will reflect the conditions of men and
We hear a great deal in this chamber, and most eloquently
recently by Senator St. Germain, about breast cancer. We do not
hear nearly as much about prostate cancer. Yet, if you polled the
male senators and the spouses of female senators, you would find
that prostate cancer is, in fact, a more frequent occurrence than
breast cancer, because one in eight men are affected by prostate
cancer and only one in nine women suffer from breast cancer.
However, very little money is spent on prostate research in this
country. I would suggest that that kind of gender analysis might
be extremely useful, not just for one health institute but for all
health institutes, to ensure that, when we are looking at disease in
all of its dynamics, the gender of the patients involved is also a
Honourable senators, even now in the planning phases of
CIHR, historic new relationships and partnerships are being
established. Meetings are being held among health research
groups and organizations across the country. The ties are being
created that will connect researchers from different disciplines
and different areas of the country, that will bring together
research funders and research users in CIHR.
The result, honourable senators, I have no doubt, will be a
better health care system and better health for all Canadians.
Honourable senators, I urge you to support Bill C-13.
Hon. Senators: Hear, hear!
Hon. Wilbert J. Keon: Honourable senators, it is with a great
sense of excitement and enthusiasm that I stand before you today
to speak to Bill C-13. The vision, values and principles upon
which this bill has been drafted set the stage for the development
of a renewed national research structure capable of being
responsive to the changing realities and needs of the Canadian
The establishment of the Canadian Institutes of Health
Research is an event of immense significance to the nation, an
event that carries with it enormous potential and opportunity to
build on this country's strong foundation of excellence in health
The creation of the CIHR will fundamentally and structurally
transform the way research is conducted across this country.
Much of CIHR's work will be built on a broad range of strong
and cooperative partnerships. These partnerships will be
developed, in large part, through the formation of a number of
institutes. These institutes will represent nodes of scientific
leadership in Canada and will be the mechanisms for linking
national health charities, provincial health charities, other
voluntary organizations, the private sector, provincial health
services agencies and those who deliver health care.
In effect, the institutes will move the support for health
research beyond the confines of a traditional granting agency
through a system of partnerships and alliances that will open up a
range of new opportunities — opportunities that will shape the
Canadian research agenda and expand and enhance the impact of
health care and health services research; opportunities that will
integrate the activities of researchers across the country who are
focused on meeting common goals; opportunities that will attract
private-sector funding for research and help to expedite the
commercialization of research results leading to health,
economic and social benefits for all Canadians; opportunities that
will speed the identification of new, more effective health
discoveries, treatments and practices that will improve the health
of Canadians; opportunities that will open up new avenues to
translate and disseminate research findings into health care
practice through improvements in health services, health service
products and a strengthening of the health care system itself;
opportunities, my fellow senators, to enhance Canada's
competitiveness in the global economy, generating unforeseen
economic opportunities and at the same time promoting
excellence of Canadian health research on an international stage.
The federal government's contribution and funding for the
financing of health research excellence in Canadian hospitals,
universities, health research centres and institutions will
effectively be doubled. This time we will not just be looking at a
simple increase in funding. Instead, funding will flow into a
well-designed, nationally integrated health research system that
will maximize our human, intellectual and physical resources. As
a result, it will provide a knowledge base for national health
policy and superb health care for continuing our healthy nation.
Honourable senators, under Bill C-13, the Medical Research
Council Act will be repealed and 40 years of the existence of the
Medical Research Council will come to an end. Indeed, I worked
with and served on that council for 25 years, and, although I am
sorry to see it go, I am truly excited about what has come in its
place. The fact that this is being done with the full support of the
MRC community in and of itself speaks strongly to the trust this
community has in the vision and proposed structure of CIHR.
It has been a wonderful experience to see the medical,
scientific, health care, academic, industrial and other
communities come together to make the CIHR a reality.
The CIHR concept emerged in 1998 from the work of a task
force broadly representative of many diverse interests in health
research. Plans to proceed with the proposal of the task force
were announced in the 1999 budget, which set aside an
additional $225 million, over the current MRC funding, by the
year 2001-2002 for the new CIHR.
Bill C-13 was tabled by the Minister of Health and received
first reading in the other place on November 4, 1999.
The CIHR would take over from the MRC, as well as adopt a
broader focus. It is, therefore, to be expected that the legislation
for the CIHR be more comprehensive than that of the MRC.
Most of Bill C-13 deals with the transfer of human resources,
assets, liabilities and legal proceedings from the MRC to the
CIHR. In terms of the actual functioning of the CIHR, the bill
proposes that it would have several powers and functions
additional to those of its predecessor. It should be noted that the
MRC has, in fact, already undertaken to perform some of these
additional powers and functions on its own; however, the
remaining powers and functions would set the CIHR apart from
the MRC. These functions would include working with the
provinces as well as with the people and organizations both
within and outside of Canada, and keeping government and the
public informed on issues of health and health research. In
addition, the Governor in Council could assign to the CIHR any
other function necessary for that body to achieve its objective.
There have been some concerns expressed about the
administrative costs of the CIHR. Administrative costs are the
basic costs of keeping the organization functional. They include
the costs of the governing council, the president's office, core
secretariat costs, including costs for financial and information
systems and rents, and costs of managing and administering
research programs. In the Medical Research Council, these costs
have been kept below 5 per cent of the total budget. In other
agencies, such as the Social Sciences and Humanities Research
Council, these costs are about 8 per cent.
The CIHR is designed to be a transformative organization, and
some additional strategic management investments will be
needed to support that transformation. New institutes will be
created that will focus on the health needs of Canadians, and
these will have scientific directors and small staffs. There will
also be an emphasis on the translation of new knowledge into
new clinical applications, health services and products. As a
result, much better results for each resource dollar will accrue.
There are two assurances that all expenses will be kept at a
minimum. First, the research community itself is very vigilant,
and it has proven that in the past. Second, CIHR estimates will
come to the standing committee every year.
There have also been some concerns raised about the
appointment process. The process of appointments for the CIHR
president and the governing council has been remarkable in its
openness and in the engagement of the Canadian public. The
traditional process is for the potential candidates to be both
nominated and selected by the government. However, in the case
of the CIHR, there has been a process of public identification of
suitable candidates for the leadership of the CIHR.
In December of 1999, a public call for nominations was issued
for both the president and governing council. Respondents were
encouraged to nominate candidates through either the submission
of their curricula vitae or through a Web-based application
process. The response to this call for proposals was tremendous.
Over 450 high-quality nominations were received for these
Following the nomination process, selection committees were
established to significantly narrow down the list of candidates for
the president and for the governing council. The committees
were made up of outstanding leaders in research, presidents of
universities, voluntary sector organizations and international
research leaders. The committees, in essence, certified that the
remaining candidates would meet the threshold of qualifications
to hold the positions outlined in Bill C-13.
The recommendations of these committees have been
transmitted to the government, which will make the final
decisions upon proclamation of the CIHR Act.
This unique process is substantially different than the
appointment process for other federal organizations. It has
engaged the community and has ensured that the best
nominations for the Canadian research community are included
in the process.
Before I conclude, honourable senators, I wish to take this
opportunity to recognize and pay tribute to the strong leadership
of Dr. Henry Friesen, Chair and President of the MRC. Indeed, I
was with Dr. Friesen at the meeting of the Medical Research
Council that we hosted at the Heart Institute the night the concept
was born and presented to Minister Rock. In many ways, Dr.
Friesen's foresight and energies have served as the catalyst for
moving us closer toward achieving the vision of creating a new
national institute that will transform, modernize and link health
research organizations across this country. I must say his efforts
were absolutely tireless and his genius shone throughout the
Honourable senators, it is with strong conviction and a great
sense of pride that I support Bill C-13 and ask for your
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and bill read second time.
The Hon. the Speaker pro tempore:
when shall this bill be read the third time?
On motion of Senator Carstairs, bill referred to the Standing
Senate Committee on Social Affairs, Science and Technology.
Payments in Lieu of Taxes Bill
Second Reading—Debate Adjourned
Hon. Wilfred P. Moore
moved the second reading of Bill
C-10, to amend the Municipal Grants Act.
He said: Honourable senators, I rise this evening to speak on
second reading of Bill C-10, the short title of which is the
Payments in Lieu of Taxes Act. As a former municipal politician,
I am pleased to be sponsoring this legislation on behalf of the
Bill C-10 addresses a longstanding need to modernize the
program by which municipal governments are compensated for
the services they provide to federal facilities. This is a bill of
good government that will strengthen the relationship between
the Government of Canada and close to 2,000 local communities
from coast to coast to coast. I am, therefore, hopeful that
honourable senators will give this bill their unanimous support.
We are all familiar with the large number and tremendous
variety of facilities operated by the Government of Canada
across the country. These Parliament buildings are perhaps the
most recognized and best known of these facilities, but there are
many others. The Government of Canada owns office buildings
in provincial and territorial capitals and other municipalities
The Hon. the Speaker pro tempore: Senator Moore, I am
sorry to interrupt, but it is now seven o'clock.
Is it your pleasure, honourable senators, that I not see the clock
for another hour?
Hon. Senators: Agreed.
Senator Moore: The Government of Canada also operates
wharves, docks, airports, penitentiaries, museums, interpretative
centres in national parks and recreational facilities. The
Government of Canada maintains defence establishments, court
buildings, historic sites, and the list goes on. Virtually all of these
facilities place demands on the municipal service infrastructure
— demands for water and sewer services, road maintenance,
waste disposal, public transit, and so on. The Government of
Canada has a moral obligation to pay a reasonable portion of the
costs of these services to ensure that federal facilities are an asset
at the community level rather than a liability.
Yet, honourable senators are no doubt aware that the
Government of Canada is exempt from local taxation under
section 125 of the Constitution Act, 1867. In order to protect this
important constitutional principle while paying its fair share of
the cost of local services, for the past 50 years the Government of
Canada has been paying municipalities grants in lieu of taxes.
The program is managed by the Department of Public Works
and Government Services, and it has worked very well for many
years, serving the interests of municipalities and the Government
of Canada alike. Payments in lieu of taxes to municipalities now
exceed $375 million annually. This money is helping local
communities maintain or improve services and support economic
development. It brings a tangible federal presence and influence
to the communities that receive it.
However, as is the case with all good programs, there is room
for improvement. Many far-reaching changes have been made in
municipal taxation regimes over the past 20 years, changes that
have resulted in significant increases in payments in lieu of taxes
for federal properties. While the government has an obligation to
pay its share of the cost of municipal services, it must also
protect the broad interests of federal taxpayers by avoiding
excessive program costs.
With that in mind, honourable senators, I believe that
Bill C-10 strikes an excellent balance of fairness, equity, and
predictability in the management of federal payments in lieu of
taxes. Its goal is not to subvert the existing approach but to build
on it for the new millennium.
Let me quickly explain the key elements of Bill C-10, which is
intended to ensure that federal payments in lieu of taxes are as
much like the taxes levied against private landowners as possible
while still recognizing the government's constitutional
exemption from local taxation.
Perhaps the most obvious impact of Bill C-10 is that it will
change the name of the legislation and of the program itself. In
future, we will use the terminology "payments in lieu of taxes"
instead of "grants in lieu of taxes." This is not merely a
superficial change, honourable senators. It implies a more
explicit and respectful relationship between the two levels of
government and indicates that the Government of Canada is
accepting the same responsibilities as are other property owners.
This change in name is underscored by a goodwill clause in Bill
C-10 that states the government's commitment to fairness and
equity and the administration of federal payments in lieu of
Substantive changes in the legislation include a requirement
that the Government of Canada pay a supplementary amount to a
municipality when a payment is unreasonably delayed. This will
encourage federal departments and agencies to meet the payment
schedules put in place locally, ensuring more equitable treatment
of municipalities. The Minister of Public Works and Government
Services will have the sole discretion to decide whether or not a
payment was late, and he has already indicated that he will be
seeking a high level of compliance by federal property holders.
Bill C-10 will also improve the fairness of the process by
establishing in law a dispute advisory panel through which
municipalities can challenge federal decisions on payments in
lieu of taxes. The Federation of Canadian Municipalities and
municipal assessment authorities will be consulted on the
makeup of the panel.
Honourable senators, I am pleased to say that Bill C-10 also
addresses the issue of tax defaults by tenants of federal
properties. The proposed legislation includes a new discretionary
power that allows the Minister of Public Works and Government
Services to make payments in lieu of taxes on tenant-occupied
property when the minister is convinced that the municipality has
made reasonable efforts to collect from the tenant.
Another notable change is the expanded definition of "real
property" contained in Bill C-10. This means that, in future, such
structures as employee parking lots, outdoor swimming pools
and golf courses, which are currently excluded from the
legislation, will be subject to making payments.
This proposed legislation also ensures that First Nations
governments will have the same access to federal payments in
lieu of taxes as do other taxing authorities. To this end, the
amendments contained in Bill C-10 will address certain barriers
that limit the ability of First Nations to take advantage of these
payments in their quest for greater financial independence.
Honourable senators should also be aware that the
Government of Canada is undertaking administrative changes to
the Municipal Payments Program that are not part of Bill C-10.
For example, a program advisory council will be established to
advise the Minister of Public Works and Government Services on
administrative and policy issues related to the management of the
payments in lieu of taxes program.
As well, Public Works and Government Services Canada has
engaged national professional appraisal associations to draft best
practices for unusual types of federal properties, such as
penitentiaries, airports, defence establishments and national
parks. The goal is to reduce the number of valuation disputes
related to these properties and to ensure consistent valuation
treatment of similar properties across Canada.
Honourable senators, Bill C-10 is simply confirming that the
Government of Canada respects the standards set for other
property owners, that it values the services it receives from
municipal governments, and that it is committed to being a
responsible property owner and a conscientious member of the
I mentioned at the outset that Bill C-10 responds to a
longstanding need to reform the grants in lieu of taxes program
and legislation. In fact, Bill C-10 culminates several years of
review and discussion. Many of the provisions originate from a
joint technical committee of representatives from the Federation
of Canadian Municipalities, the Treasury Board Secretariat, and
Public Works and Government Services Canada. The committee
was established in 1995 and has produced two reports.
Other suggestions were put forth by municipal leaders,
appraisal professionals and other stakeholders who met with the
Minister of Public Works and Government Services during a
series of 11 round table discussions held in the summer of 1998.
These meetings took place in major centres across Canada. At
stop after stop, the minister was told that the municipal payments
program is crucially important to local communities, that it
bolsters the relationship between the Government of Canada and
the municipalities, and that it can and should be strengthened.
On behalf of the municipalities who depend on this program,
and in the interests of fairness, equity, and predictability, I would
ask honourable senators to heed that message today and support
On motion of Senator Atkins, for Senator Grimard, debate
Canada Business Corporations Act Canada
Bill to Amend—Second Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable
Senator Kirby, seconded by the Honourable Senator Cook,
for the second reading of Bill S-19, to amend the Canada
Business Corporations Act and the Canada Cooperatives
Act and to amend other Acts in consequence.
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, I know that Senator Wilson wishes to speak
to this order. However, I observe that Senator Tkachuk is the
member opposite officially responding on this bill and, as such,
he is entitled to a 45-minute time allocation. I would ask
honourable senators for leave for that time allocation to be
reserved to him, even though Senator Wilson speaks now on this
The Hon. the Speaker pro tempore: Is leave granted,
Hon. Senators: Agreed.
Hon. Lois M. Wilson: Honourable senators, I wish to speak
briefly to Bill S-19, particularly on clause 137(5)(b)(1). My
interest is motivated by an increasing awareness that Canada
needs to look carefully at the relationship between corporate
social responsibility and investment, particularly internationally,
and the role of shareholders in corporations. The bill, as
amended, is a vast improvement on the former bill and I support
it. It encourages and allows shareholders to communicate more
freely with each other and with corporations. It greatly expands
the rights of shareholders.
However, while I welcome the proposed amendment that
requires a company to circulate proposals from beneficial
shareholders and to amend the act so as not to narrow the
grounds for a company to exclude a shareholder proposal, I have
Honourable senators, I believe that Bill S-19 could be
detrimental to shareholder issues on corporate responsibility that
some small shareholders may wish to raise. For example,
Christian Brothers Investment Services, Inc., in New York,
although supportive of the main direction of the bill, as am I, has
this to say:
The issue of Talisman Energy Inc.'s human rights record
in Sudan is an issue that can have financial consequences to
us as shareholders, and therefore is an appropriate concern
for this process... Please know that our investors would be
very concerned about investing in Canada if they were not
assured of a system that supported their rights as
shareholders to bring matters of concern to corporate
Yet, Talisman Energy refused to circulate a proposal in 1999 on
the grounds that the proposal was submitted for political,
religious, social or similar cause.
Retaining the corporate social responsibility exclusion without
establishing a right of administrative appeal is, in my judgment,
not wise. Small minority shareholders who may have a genuine
interest and concern that could properly be the subject matter of
a shareholder proposal but whose proposals have been excluded
will likely not be able to have the resources to fight their
exclusion in the courts. The inclusion of the phrase "unless the
person who submits the proposal demonstrates that the proposal
relates in a significant way to the business or affairs of the
corporation" to the tail end of the present corporate social
responsibility exclusion is positive only if it is made clear that
the initial onus is on the corporation to justify the exclusion.
Otherwise, the company holds all the power and the shareholder
is at its mercy.
Moreover, if the social responsibility exclusion is retained, the
shareholding and time holding requirements must be removed.
Otherwise, small shareholders will face a two-pronged test to
bring forward shareholder proposals. If social responsibility is
excluded, then minimum shareholding and time holding
requirements are appropriate.
Honourable senators, much effort has gone into meeting
concerns that a more open process would lead to abuse by
shareholders, but these concerns need to be revisited for the sake
of responsible small shareholders. According to documents
obtained from Industry Canada through the Access to
Information Act, eliminating the present corporate responsibility
exclusion was supported by a number of smaller, socially
responsible investment groups. It was opposed by the larger
corporations such as the Coalition on CBCA Reform, Imperial
Oil, Nova Corporation, Osler Hoskin and Harcourt, and
TransAlta Corporation. To be small is not necessarily to be
I hope that the Senate committee examining this bill will
indeed give the bill serious sober second thought in its
deliberations in order to demonstrate more equitable access by all
Some Hon. Senators: Hear, hear!
On motion of Senator DeWare, for Senator Tkachuk, debate
Financing of Post-Secondary Education
On the Order:
Resuming debate on the inquiry of the Honourable
Senator Atkins calling the attention of the Senate to the
financing of post-secondary education in Canada and
particularly that portion of the financing that is borne by
students, with a view to developing policies that will
address and alleviate the debt load which post-secondary
students are being burdened with in Canada.—(Honourable
Hon. Catherine S. Callbeck: Honourable senators, it is a
pleasure to rise today and participate in the debate on this
inquiry. I first wish to thank Senator Atkins for bringing it to the
floor of the chamber. This issue has not been formally debated in
this house since the Special Senate Committee on
Post-Secondary Education presented its final report in December
1997. However, I do not believe that there can be any doubt in
the minds of honourable senators about the significance of this
National surveys repeatedly put education, along with health
care, in the top areas of importance and concern for Canadians. A
reason for this concern is the high debt loads accumulated by
students upon graduation. Debt loads are increasing mainly
because students are now required to pay a greater portion
toward the cost of their education. For example, if we look at
1982, tuition fees represented 8 per cent of the university's
operating revenues, where in 1998 they represented 17 per cent
of such revenues. However, even with rising tuition fees, figures
from Statistics Canada show that the new enrolment has
increased on average by 20 per cent between 1987 and 1997.
Honourable senators, one must ask the following question: If
debt loads are so high, then why is that enrolment figure
increasing? That question is difficult to answer, for it attempts to
find out why individuals decide to pursue higher education. It is
known from various studies that such a decision is complex and
involves a variety of motivations and barriers. However, one
thing is clear: In many sectors of the economy today, a
post-secondary degree has replaced high school as the minimum
requirement for entry into the workforce. Therefore, the
predominant view appears to be that while the cost of studies and
debt load are definitely problematic, most students do not see
that cost as reason enough to give up their studies after high
school. In other words, given the choice of incurring debt or not
attending a post-secondary institute, the majority of students
seem prepared to incur the debt and pay what it takes to position
themselves for better employment opportunities in the future.
Students appear to view post-secondary education for what it is
— an investment in themselves and in their future.
How does the prospect of large amounts of debt affect the
decision of a student from a low-income background? Do tuition
fees and student debt have any impact on accessibility?
In its report to this chamber, the Special Senate Committee on
Post-Secondary Education also asked that question. It
recommended that the federal government and the Council of
Ministers of Education Canada evaluate the effect that the
prospect of high debt has on accessibility. These two parties
made a joint announcement in November of 1999 highlighting
their intention to conduct such a study. Unfortunately, the results
are not yet available. However, the Maritime Provinces Higher
Education Commission conducted a similar study and published
its results in October 1997.
It found that there was a growing debt problem among the
maritime student population but that high levels of debt did not,
in general, deter students from studies beyond high school.
However, they did find that the weight of student debt was
unequally borne by those in less fortunate financial situations.
This study found that 52 per cent of students in the maritimes
from lower-income families stated that they would have second
thoughts about higher education as a result of debt concerns.
Only 29 per cent of students from middle- to high-income
families had the same concern. These figures, honourable
senators, are of concern, for all the relevant data points to the fact
that one of the best ways to get out of poverty, or to improve
your income situation, is through education. Therefore, if high
debt levels are seen by some as a barrier to post-secondary
education, something must be done to alleviate this and, in turn,
to encourage all young people to pursue higher education. For, if
nothing is done, we will be creating a society of haves and
have-nots, the haves being those who can afford financially to
pursue higher education, and the have-nots being those who feel
We are now at a time when an undergraduate or college degree
has become a minimum standard of employment in many areas.
This is due, in part, to the shift in the focus of our economy. Our
economy has shifted from one based mainly on industry and
natural resource extraction to one that is information-based,
where the use of knowledge by highly mobile workers is more
important than the machine-driven production of goods. As a
result, education is becoming even more crucial, not just for
individuals but for society as a whole.
The Organization for Economic Cooperation and
Development, or OECD, underscored this in their 1996 report
entitled "Lifelong Learning for All," when they said:
Education plays a critical role in...raising the skills and
competencies of the population, thereby improving the
capacity of people to live, work and learn well. A well
educated and well-trained labour force is critical to the
social and economic well being of countries.
All this is not to say that Canada is not doing an excellent job
in providing for the education of its citizens. On the contrary,
Canada's emergence as a highly educated society is not new. Our
standards, already high by international comparisons, improved
substantially during the 1990s. According to a report released on
Monday, February 21, 2000, by Statistics Canada, more young
people than ever before graduated from high school, and more of
these graduates went on to higher education.
In 1990, 20 per cent of people aged 25 to 29 in Canada had
less than high school education. By 1998, that percentage had
dropped to 13 per cent. Also, between 1990 and 1998, the
percentage of individuals in this age group who had university
degrees rose from 17 per cent to 26 per cent.
Canada also does well under international comparisons.
According to recent OECD indicators, 48 per cent of our
population aged 25 to 65 had completed some form of
post-secondary education in 1998. That is well above the OECD
average of 23 per cent, and also considerably higher than the
United States, the second highest ranked country, at 34 per cent.
As you can see, honourable senators, Canada continues to be
ahead of the curve in terms of educating our citizens. However,
because of climbing student debt loads, as well as an increase in
the loan default rates, we are failing some students, namely, those
who opt not to attend because they feel they cannot afford to, and
others who have difficulty with repayment after graduation.
Therefore, the solution should focus on providing students with
more options and flexibility when repaying their debt, with
particular provisions geared to those in disadvantaged situations
so as to ensure accessibility.
The federal government and the provinces have begun to
introduce such methods. In 1998, the Canadian Opportunities
Strategy was introduced in the federal budget. There were a
variety of new measures to help manage student debt, including:
tax relief for interest on all student loans; extension of interest
relief after graduation; extended repayment periods for those
who need it; a reduction in the loan principal for those who are
still in financial difficulty; and finally, millennium scholarships.
These measures have ensured that hundreds of thousands of
students have had an easier time with respect to repayment.
Furthermore, they also answer some of the recommendations
made by the special Senate committee.
Provincial governments have also instituted programs to assist
students with their debt. These are in the form of loan remission
programs. A loan remission is a grant awarded to students upon
successful graduation. These amounts vary by province. For
example, in my own province of Prince Edward Island, on any
amount borrowed over $6,000, up to a maximum of $2,000 per
year is forgiven.
These programs are positive initiatives, and they should be
built upon. Unfortunately, it is too early to assess what impact
they have had on accessibility. However, given today's default
rate of one in three, it appears that some students are falling
through the cracks.
I would like to see a system where loan payments are tied to a
student's starting salary, and then adjusted accordingly with
salary increases as career and experience grow. In addition, I
think loans should be awarded interest-free status for a fixed
period of time after graduation.
A similar system is presently in use in Australia, and it appears
to be working well. In order to counteract fraud and save
administration costs, payments, pegged to a person's annual
income, are collected through the income tax system.
I would like to see a system that would continue to enable
young people in every province to reach beyond high school
toward higher levels of learning if they so choose. In order to
assist those who may not attend because the fees are high, I
suggest a fixed period of interest relief, greater loan remission
payments, and flexible repayment options, including loan
payments tied to a student's salary. These initiatives would
further demonstrate our belief in our students and our confidence
in their futures in the knowledge-based economy.
Honourable senators, the challenge is to build on the system
that we have, to develop a coordinated, equitable framework for
the financing of post-secondary education across Canada so that
every student who chooses can go on to higher levels of learning
after high school. This is an important issue. I encourage other
senators to participate in this debate.
Hon. Norman K. Atkins: Honourable senators, would the
Honourable Senator Callbeck entertain a question?
Senator Callbeck: Of course, honourable senators.
Senator Atkins: First, I wish to thank the honourable senator
for her presentation. It was excellent. We all have our own
solutions to the problems of student debt. My question is simple:
Do I take from what the honourable senator has said that anyone
who graduates from high school, regardless of their demographic
circumstances, should have the right to attend post-secondary
Senator Callbeck: I do not know what the honourable senator
means by that. Is he saying that they should be able to attend free
Senator Atkins: I am talking about some form of financial
Senator Callbeck: Yes, I think there should be some form of
financial support. However, it is obvious that some students were
As I mentioned, various initiatives were undertaken by the
federal government in the 1998 budget, but it is too early to
know how many students will be affected. However, there will
probably be thousands of students to whom those initiatives will
be helpful in paying down their debt.
In answer to your question, yes, I think some students are
falling through the cracks and we could be doing more.
Senator Atkins: The statistics that I have show that almost 1
million students now qualify for post-secondary education in one
form or another and 300,000 are in a situation where they need
financial support. There seems to be a problem with many of
those 300,000. Whether they have the opportunity to proceed is
questionable. Not only does it affect them personally, but we now
are hearing incredibly bad stories about how students in their
fourth year are anywhere from $25,000 to $30,000 in debt. The
spinoff is also affecting their parents, especially those who live in
Atlantic Canada. That is an incredible amount of debt for anyone
Is it possible to provide grants so that students can receive
some support? Repayment of that loan would then take effect
only after the student graduated and began a permanent job.
Furthermore, there should be some period of grace before a
student would have to pay back that loan with interest.
Senator Callbeck: That is what I suggested. The payment
should be geared to the salary. There should be a fixed period of
time before interest begins to accumulate on the debt.
Having said that, the government has taken great initiatives
along this line to assist our students. Many were spelled out in
the 1998 budget. The report of the Special Senate Committee on
Post-Secondary Education recommended looking at this entire
area to determine whether students who come from low-income
families are particularly disadvantaged. That is being done at
present by the provincial ministers and the human resources
department, which announced that study in November of 1999. It
will be interesting to see those results.
Senator Atkins: In the most recent budget, scholarship
deductibility has been increased from $500 to $3,000. Does
Senator Callbeck not think that any scholarship should not be
considered a taxable benefit? Frankly, it penalizes not only the
students but also the institutions because the institutions raise the
money for scholarships and then pass them on to their students.
There is, then, a taxable repayment to government. Do you not
think we should eliminate that altogether?
Senator Callbeck: I was happy to see the government take
that initiative. I do not know about eliminating it altogether.
There must be some figure. It is now at $3,000. It may be that the
figure should be higher, but let us see how it works out.
On motion of Senator Graham, debate adjourned.
Religious Freedom in China in Relation to
United Nations International Covenants
On the Order:
Resuming debate on the inquiry of the Honourable
Senator Wilson calling the attention of the Senate to
religious freedom in China, in relation to the UN
international covenants.—(Honourable Senator
Hon. A. Raynell Andreychuk: Honourable senators, I am
pleased to note that the inquiry of which Senator Wilson gave
notice on November 17, 1999, led to an interesting debate in this
chamber. I should like to add some of my own comments.
As could be expected, Senators Austin, Di Nino and Poy have
enlarged the debate beyond the scope of Senator Wilson's inquiry
and into such issues as human rights and trade and the so-called
Asian values debate.
Honourable senators will recall that in December 1998, the
Standing Senate Committee on Foreign Affairs tabled its report
entitled "Crisis in Asia: Implications for the Region, Canada, and
the World." In debating human rights and trade and Asian values,
I wish to reiterate some of the points I made in my speech on
Thursday, May 13, 1999, in addressing that Senate report.
With respect to human rights and trade, Professor Brian Job of
the Institute of International Relations, University of British
Columbia, pointed out:
The basic argument in my remarks is that we Canadians
in academic, government and private sectors cannot simply
define our relationship...in narrow economic terms, that is,
as jobs, jobs, jobs and trade, trade, trade. I argue that if we
do define our foreign policy and our bilateral relations with
Asia solely in economic terms, we would be myopic
because we will eventually undermine our economic
interests and our success in the region.
He went on to state:
Increasingly, Canada will find that its economic interests
have social, political and security implications.
Further, page 105 of the Senate report reads as follows:
The Committee believes that the dichotomy between
trade and human rights is a false one in the sense that the
two entities are interwoven. What is coming to be realized
by governments, policy makers, and businesses alike is that
the usual acceptance of the rule of law, the outlawing of
corrupt practices, respect for workers' rights, high health
and safety standards, and sensitivity to the environment are
not only morally justifiable; they are good for business. By
promoting and complying with human rights, a country
fosters the political and consumer stability for economic
prosperity and the fulfilment of trade commitments.
Business also has an important role to play, both in
human-rights promotion and in ensuring that it itself does
not contribute to abuses.
The committee then went on to state that Canada should not
"Leave its human rights values at the door" in its commercial and
other dealings with countries.
Effectively, the committee — and I concur — stated that
economics does not come first and human rights second, that
they go hand in hand.
Recommendation 18 in the Senate report states:
That Canadian foreign policy include the following group
of principles as a minimum requirement in enunciating a
clear stance on human rights:
- Adherence to the Universal Declaration of Human Rights
is the responsibility of all states. As such, Canada has the
responsibility to encourage Asia Pacific countries to adhere
to and comply with the international human rights
declarations and, in particular, instruments that they have
- Canada has an important role to play in assisting its Asia
Pacific partners in boosting their reform efforts and
fostering their human rights capacity to develop their own
human rights strategies. Canada should foster multilateral,
regional and bilateral dialogues with other countries to draw
them more fully into the international human rights
I shall come back to this point in a moment.
The second aspect that I should like to address is the
misleading Asian mystique that somehow makes us think of the
Asian countries and China in particular as different from all
others. Surely, every country, including those in Africa, in South
America and elsewhere, has its own unique history, culture and
background. Why is it that we have little difficulty in forcefully
raising human rights issues in countries in Africa and South
America, and indeed in the former Soviet Union, but we are
reticent to do so in Asia-Pacific and, more important, in China?
Size seems to be the answer. However, from a human dimension,
surely the life of an individual in China is equal to and as
important as any life in Africa or Canada.
We must be reminded that the Universal Declaration of
Human Rights is a declaration for peoples and not for nations.
Minister Axworthy himself recently made that point in his quest
for the new human security agenda. He has pointed out that there
are two cornerstones in the United Nations, one being the
declaration, which is a declaration protecting individuals, while
national sovereignty is the basis of the charter. His inclination —
and I would have thought to be, on the side of the individual in
the protection of their rights — is the right one irrespective of the
country in which they find themselves.
This Asian-values debate has certainly lessened since the
Asian financial crisis. Prior to that, as our report indicated, it was
an excuse not to make the changes required. As we pointed out in
The Asian financial crises in 1997 has proven that there is
no mystique in Asia-Pacific, or put another way, that Asian
countries have found no way around the usual economic
forces and rules.
Therefore, when Asian countries ran into difficulty, they were
quite willing to enter into a dialogue to make the kinds of
changes that would be compatible with good governance and
human rights adherence that they had previously not been
prepared to do.
The only country that seems reluctant is China. We should
note that, while there have been economic gains in China and
while China has made remarkable progress in opening its
markets and other institutions, China still has the largest army in
the world, with wealth being siphoned off for weapons. The real
need is to encourage de-escalation.
As a subpoint to this, I find it troubling that, every time human
rights is raised as an issue for analysis in China, some individuals
jump to the conclusion that sanctions are being suggested and
state that sanctions are much more destructive than dialogue.
First, I am inclined to agree that constructive dialogue is better
than isolation through sanctions, but it is not an either/or
situation. Dialogue must, in fact, be constructive and it must
produce results. Otherwise, it is merely a facade to ignore human
rights and to deflect from the real agenda.
Further, there is a whole host of measures between
constructive dialogue and sanctions that should be utilized. Many
of them are existing mechanisms within the international
community and, therefore, it is a disservice to balkanize the
Senator Poy has laid out her analysis of Asian values,
reminding us of our own poor record in the past on human rights
and indicating that the collectivity argument has weight. I can
only state over and over again my belief that the Universal
Declaration of Human Rights embodies principles, values and
rights that are, in fact, universal in nature and not unique to the
This is why I have been very conscious not to accept the
government's position that we are projecting our values abroad.
Rather, I personally subscribe to the policy of furthering the
universal values to which China agreed when it entered the
United Nations; and, while not yet ratified, they have gone so far
as to sign the two main covenants.
I, for one, am not an expert on Asian values and do not
presume to be one. However, I turn to some eminent sources who
put out the alternate position. Professor Amitav Acharya,
associate professor at the Department of Political Science at York
University and also professor at the University of Toronto/York
University Joint Centre for Asia-Pacific studies, has responded to
the question of Asian values and human rights by stating:
My definition of Human Rights is rights that every person
enjoys simply by being human. There are no cultural
conditions attached to this. Governments say that there will
be a core group of human rights, but whether they observe it
in practice is another question, the issue becomes very
complicated. Much research has been done on the question
of human rights in different cultures and they have come up
with the same point that you have made. Every culture
acknowledges and respects the dignity of human beings. We
just have to make sure that political authorities do not abuse
Amartya Sen, winner of the 1998 Nobel Prize for Economic
Science, the author of Development as Freedom: Human
Capability and Global Need and an economist with the World
Bank, stated the following in the Journal of Democracy in July
1999 with respect to the Asian values. I should also note that Sen
was instrumental in building the human development index for
the UNDP on which Canada came out to be number one. I
believe him to be well versed in understanding the human
dimension of this issue. He states:
Confucius is the standard author quoted in interpreting
Asian Values...Confucius himself did not recommend blind
allegiance to the state. When Zilu asks him "how to serve a
prince," Confucius replies —
Here, Mr. Sen adds, in brackets, that this is a statement that the
censors of authoritarian regimes may want to ponder.
"Tell him the truth even if it offends him." Confucius is not
averse to practical caution and tact, but does not forego the
recommendation to oppose a bad government (tactfully, if
necessary): "When the (good) way prevails in the state,
speak boldly and act boldly. When the state has lost the way,
act boldly and speak softly." Indeed, Confucius provides a
clear pointer to the fact that the two pillars of the imagined
edifice of Asian values, loyalty to the family and obedience
to the state, can be in severe conflict with each other. Many
advocates of the power of "Asian values" see the role of the
state as an extension of the role of the family, but as
Confucius noted, there can be tension between the two. The
governor of She told Confucius, "Among my people, there
is a man of unbending integrity: when his father stole a
sheep, he denounced him." To this Confucius
replied, "Among my people, men of integrity do things
differently: a father covers up for his son, a son covers up
for his father — and there is integrity in what to do."
He goes on to state:
The monolithic interpretation of Asian values as hostile to
democracy and political rights does not bear critical
Finally, I quote Ms Maureen O'Neill, president, at the time, of
the International Centre of the Human Rights and Democratic
Development Centre when she testified before a committee and
It has become increasingly clear that issues of trade and
investment ought not to be discussed in isolation from
human rights and democracy.
Ms O'Neill further stated that the ideas of human rights, as being
translated to us through APEC members, were not the ideas of
the citizenry but were really the ideas of the leaders, and that the
fundamental values that we call human rights were being echoed
in those countries.
Therefore, I ask if it is really Asian values that preclude
discussion of human rights, or is it the strategy of leaders to
maintain absolute control for the purpose of their own position
rather than for the benefit and welfare of the citizenry?
I now turn to the issue of religious freedom in China. I
commend Senator Wilson for her initiative in working with her
counterparts in China and for the assessments that both she and
her counterparts have made. While she rightly points out that she
saw no evidence of widespread intentional policy to persecute
religious groups, I think she would agree that the broader picture
is not one that her committee could justifiably analyze. In
rereading Senator Wilson's remarks, I would at some later date
ask what is meant by the term "main-line Christian churches in
Canada," and what she would mean by the "highly privatized
orientation of religious groups originating in Los Angeles or
Further, while I am on this train, I have some difficulty in
referring to cults and then accepting the notion that not only are
the Falun Gong a cult but that they are a destabilizing, harmful
and foreign-influenced organization. It would have been more
helpful if there was some evidence from Senator Wilson's
counterparts as to how they came to this conclusion.
Succinctly stated, the issue of freedom of religion is
guaranteed by the Universal Declaration of Human Rights, as is
the freedom of association. An attempt by any government to
sanction churches, in my view, is inappropriate, and the key to
China's problems lies in the fact that it has recognized only five
religions. I think I have at least identified the issue that it is not a
question of individuality versus collectivity but rather whether
the principle of collectivity is being manipulated by the
government in such a way as to control the citizens. To rely very
exclusively, or indeed heavily, on those churches that are
functioning openly and sanctioned by the government is
questionable. China still holds itself out to be a communist
country but with some openness for the economy. We know now,
but only after the Soviet Union collapsed, of the true difficulties
that churches and believers faced under the Soviet system, and I
believe it is a fair parallel to draw. Under the communist system,
and I can use Ukraine as an example, there was the officially
sanctioned Orthodox Church, the Orthodox Church that went
underground, and the Orthodox Church that went into exile.
Even that church which functioned and was accepted to be one of
the patriotic churches is now finally opening up to reveal what
compromises were made for survival. I can only believe that
some day in China the same will happen. While the communist
government did not try to eliminate religious beliefs, it did create
churches for both Catholics and Protestants as well as three other
government-sanctioned churches free from any links with foreign
The Hon. the Speaker pro tempore: I regret to inform the
honourable senator that her speaking time has expired. Are you
seeking leave to continue?
Senator Andreychuk: I am seeking leave to continue.
The Hon. the Speaker pro tempore: Is leave granted,
Hon. Senators: Agreed.
Senator Andreychuk: Honourable senators. I will try to be as
brief as I can.
In other words, they acknowledged five churches with
stipulations. However unwelcome this may have been to many
Protestants, I point out it certainly put the Catholics on a
collision course, as the all-important ties with the Pope were at
stake. In fact, the recently deceased Ignatius Cardinal Gong spent
30 years in Chinese prisons and labour camps for refusing to
endorse a patriotic Catholic church. His struggle, it has been
noted, was the concern for the proper source of authority in
religious belief under a totalitarian government determined to
mould the beliefs of its citizens and extract public affirmations of
loyalty. One must not forget the struggle for all those prisoners of
conscience who were imprisoned in the name of their faith,
though it is true that China has changed course several times
since then. In my opinion, even the so-called recognized
churches cannot be taken as the sole source of determination of
religious freedom, and particularly it would be unfair to put them
in that kind of spotlight as their own security could be
prejudiced. Therefore, there is a delicate balance of encouraging
these groups while not making them the spokespersons for the
issue of religious freedom totally in China. It is, therefore,
necessary for all of us to look at other sources.
Despite what China has stated with respect to the Falun Gong,
for example, as being a destabilizing and harmful
foreign-influenced organization, there has been no factual
evidence presented. The whole concept of Falun Gong
practitioners must be reviewed. Certainly, international opinion
supports that the Falun Gong practitioners have not violated any
real laws and that the worst case scenario would be that perhaps
some have resorted to civil disobedience to fight the
government's claim that they are a cult of destabilization. There
is certainly evidence that a crackdown has occurred, not only on
the Falun Gong but on Tibetan monks and Buddhists particularly.
I would encourage Senator Wilson and the other Canadian
members to contact the Falun Gong to hear their side of the story
and to seek the opinion of a whole host of legitimate and
recognized non-governmental activities familiar with China and
One must look at the broader issue of freedom of expression,
association and religion and rely on independent groups who
have access to China and who have a credible reputation. I
personally place lesser weight on the United States' human rights
report, for obvious reasons, but do rely very heavily on human
rights organizations such as Amnesty International, Human
Rights Watch and others who reported that torture and ill
treatment continues to be commonplace. In the words of the
Secretary General of Amnesty International:
Last year was unquestionably the most repressive year in
China since the horrifying massacre at Tiananmen Square
ten years earlier. Something must be done.
Further, former Liberal cabinet minister Warren Allmand,
Director of the International Centre for Human Rights and
Development, has said, as reported in The Ottawa Citizen:
Canada is undermining the multilateral efforts to affect
change in China, by pursuing its own bilateral efforts.
He says it is Prime Minister Jean Chrétien's single-minded
approach to boosting trade that has watered down Canada's
previously harder line on Chinese human rights abuses. He goes
on to state:
We think many of these things are probably decided in
the Prime Minister's Office and probably not in the
Department of Foreign Affairs.
The Hon. the Speaker pro tempore: Honourable senators, is it
your wish that I not see the clock for another hour?
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, not having seen the clock for two hours and
it now being 8 o'clock, I can interpret that two ways, I guess.
Under our rules, when we are sitting, we rise at 6 and return at 8,
or we have given leave to sit for two hours. I sense a certain
restlessness in the house, and perhaps the latter interpretation
would be the better approach. Shall we allow Senator
Andreychuk to complete her remarks?
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, I suggest that we not see the clock and go
through the Order Paper today, because there may be more
restlessness, should it be suggested that we must come back here
Friday morning. If we continue and finish the Order Paper today,
it may help us greatly later this week in terms of the schedule.
Hon. Eymard G. Corbin: Honourable senators, there must be
a sense of fairness in extending time. We were originally told that
we would continue until seven o'clock. It is now eight o'clock
and 23 seconds. We try to plan our lifestyles in a way in which
we can maintain decent health while working these abnormal
hours. It is enough to have sandwiches at noon-hour, and in
committee or caucus meetings; it is pretty tough to have
sandwiches again in the evening. At my age, I cannot take that
too often. I know that the press will make fun of this, but I do not
give a damn about the press. They are never here anyhow.
All I want is that we be able to manage our time such that we
can plan our lives in a decent way, as everyone else does. This is
no way to run a shop. I attach a great deal of importance to
progress of legislation, but surely other things can wait.
I do not wish to be unfair to Senator Andreychuk. She believes
absolutely in human rights, but this is not the first instance that
she has spoken to us about human rights, and I am sure we will
hear more speeches on the topic. However, is it justifiable to
continue to speak about human rights at this time of the day?
Why did we not adjourn at six o'clock and come back at eight
o'clock? So what if we sit on Friday? I am not against a five-day
or six-day week. However, let us have a lifestyle that enhances
our health rather than being a detriment to it.
Hon. Lois M. Wilson: Honourable senators, I have an inquiry
on Sudan on the Notice Paper to which I wanted to speak last
Tuesday. It has not been possible to speak to it because we have
run out of time each day, and apparently we are running out of
time again. My next opportunity to speak to this will be when we
reconvene after our break in May, which is fine. Sudan will not
go away. However, I need direction on this because I was to
speak to it tonight.
Senator Hays: I have commented on the restlessness of the
house, as has Senator Kinsella. I do not know how Senator
Corbin is disposed on this. We are sitting with leave. If leave is
not granted, the house will automatically adjourn.
Senator Corbin: Senator Hays knows that he can always
count on me. I am one of the senators who is always here.
Senator Hays: That is true and very much appreciated.
Therefore, I would ask for leave to complete our routine of
The Hon. the Speaker pro tempore: Is leave granted,
Hon. Senators: Agreed.
Senator Andreychuk: I thank the honourable senators, and
particularly Senator Corbin, for those comments. I have spoken
previously on human rights and I will continue to speak on this
subject, as I feel strongly about it. I beg the indulgence of
honourable senators one more time because I think there is some
merit in proceeding now.
I strongly support Mr. Irwin Cotler, a Liberal Member of
Parliament, and a coalition of 11 human rights groups in Canada
that called on Canada to express concern about China's
behaviour in the Human Rights Commission. Simply
constructive engagement on this point is not working. Minister
Axworthy has been ambivalent on these issues and it certainly
would not be in line with his human security agenda to take this
regressive stance. Therefore, it is clearly the Prime Minister of
Canada who must take the initiative to join forces with other
like-minded countries in supporting a resolution expressing
After all, the present resolution that is circulating, which will
probably be put to the Human Rights Commission this week, is
not a condemning resolution, but rather one expressing concern
and encouragement. If China is truly interested in working
cooperatively and adhering to its obligations, and if China were
truly interested in a dialogue on human rights, it would not be
lobbying, as we speak, to continue only the pleasant sounding but
ineffectual rights dialogue.
If Canada is not prepared to accept the United States
resolution, it could put forward one of its own. Simply to
continue to indicate that they are constructively engaged is not
working and is not sufficient. Therefore, it is not only China that
has something to account for, but also Canada.
In our report on the Asia-Pacific region, we clearly stated that
it was Canada's responsibility to encourage her partners to
adhere to international human rights instruments, as we are
obliged to do so. To continue to buy time for China in
constructive engagement and to talk about the long-term
solutions by virtue of other means has not borne fruit but is
jeopardizing the human security of many citizens in Canada.
As one person in an authoritarian country once said to me: It is
easy for you to be compassionate to government leaders and to
give them more time while you persuade them, but would you
feel the same way if it were you, your child, your brother, your
friend that was losing his life or being tortured or ill-treated?
Would you have the same patience?
I therefore urge the Canadian government to institute its own
resolution at the Human Rights Commission this week and to
join forces with others concerned about the human rights record,
particularly with respect to religious freedom and freedom of
association or, alternatively, to put in meaningful, constructive
engagement at the prime ministerial level. The Prime Minister
should not lead another Team Canada delegation to China this
year without first advising the Chinese government that human
rights would be a high and concurrent agenda.
I apologize if this statement was long. I wanted to cover the
points that are important. I urge the government and members
opposite, who have some influence, to join with Mr. Cotler to see
whether we can make a difference in the lives of individuals in
On motion of Senator Kinsella, debate adjourned.
Hon. Lois M. Wilson
rose pursuant to notice of March 21,
That she will call the attention of the Senate to the
situation in the Sudan.
Hon. Lois M. Wilson: Honourable senators, a year ago, on
March 23, 1999, I initiated an inquiry on the situation in Sudan,
with an update on December 7, 1999. My initial inquiry gave
much of the background of the current conflict, and I encourage
any who will be speaking to this inquiry to refer to that
We now find ourselves, a year later, with Sudan in the news,
with hundreds of more lives lost in the interval — more lives lost
than in Kosovo, Bosnia and Rwanda combined — with the brutal
war continuing unabated, with Canada and other Western
countries continuing to pour thousands of dollars of humanitarian
aid into the country annually, with the media finally paying
attention, but to only two aspects of the protracted civil war —
the extraction of oil by Talisman Oil and the allegations of
slavery. Either allegation could be the subject of an inquiry on its
The international community has not given attention
commensurate with the enormity of human suffering taking
place. What attention there is has been focused almost
exclusively on oil extraction and not on the current peace
strategies for this wartorn country. While for some stopping the
flow of oil would be a giant step toward peace — although that is
based on the premise that international sanctions would have to
be in place as Malaysia and China own large shares in the
pipeline — a significant body of opinion thinks that other aspects
of the situation of Sudan have not been fully enough explored. It
is those aspects I wish to raise.
Canada supports the formal process of peace negotiations
between the Government of Sudan and the Southern People's
Liberation Army, SPLA, presently being brokered by Special
Envoy Daniel Mboya and his secretariat, acting on behalf of the
regional African initiative called the Intergovernmental
Authority on Development, IGAD. IGAD was formed in the
early 1990s by African countries that wanted to get at the root of
the conflict. Beginning on the premise of underdevelopment, it
then began to focus efforts on a peace process for the Sudan.
Currently, Western countries, including Canada, fund the IGAD
secretariat through CIDA and support its work diplomatically
through the International Partners Forum, IPF, where I represent
Canada. The 1994 Declaration of Principles, the only document
agreed to by both warring parties, constitutes the basis for the
resolution of the conflict in Sudan. It is on the basis of these
principles that current peace negotiations are being conducted.
Two negotiation sessions have taken place, with a third
scheduled for April. My recent visit to the Horn of Africa left me
cautiously optimistic about the IGAD process. At least the
framework for an agreement exists and the envoys from
neighbouring countries have been active since the beginning of
this year. The country has been in conflict since 1956, so one can
hardly expect a speedy peace settlement. IGAD has wide African
support and should be fully supported until either a peace
agreement is brokered or the whole process breaks down, making
other mechanisms necessary.
Honourable senators, to say that things did not go smoothly in
the negotiations so far is the understatement of the year. Two
major issues seem intractable: the separation of religion and the
state, which the Government of Sudan has not yet accepted given
its strong Islamic orientation, and the right of the south to
self-determination should agreement on the unity of the country
fail. Dispute persists on the geographic borders between north
and south, particularly as to the status of "marginalized
territories," Abyei, the Southern Kordafan, and the South Blue
Nile. Moreover, the government has begun to insist that IGAD is
confined strictly to the south and that the issues of the territories
under dispute must take place apart from the IGAD table.
After the last round of negotiations, the SPLA, out of
frustration, no doubt, announced that it will move directly to an
interim arrangement before self-determination, which would
probably mean the separation of the south from the north. If this
happens, it will leave unanswered all the issues for a
comprehensive peace. It must be noted, however, that SPLA has
agreed to a third round of negotiations.
We have always said that the Sudan situation is extremely
complex, and now we are beginning to appreciate that fact. Libya
and Egypt have decided that IGAD has taken too long to work,
and have proposed a parallel peace initiative, which
unfortunately does not recognize the declaration of principles,
particularly the clause on self-determination for the south, should
efforts at unity fail.
Egypt is suggesting a national reconciliation process with or
without IGAD. Although this runs the danger of recognizing a
horizontal northern Arab solidarity that will further exclude and
alienate the south, the Libyan-Egyptian initiative appears to be
gaining wider acceptance. Kenya has intense possessiveness of
the IGAD process and does not brook interference from other
African countries; nor does Ethiopia.
A number of countries, including Canada, think that eventually
all affected parties need to be party to the peace agreement,
including a role for Egypt and the opposition NDA coalition.
Nigeria and South Africa have also indicated interest. It is not yet
clear how this will be accomplished, but any peace initiatives
need to be rolled into the IGAD process. Nor is the role of the
OAU and its conflict resolution unit clear.
There is broad acknowledgement that it is not possible to end
the brutal war in Sudan with a series of separate, that is,
piecemeal, initiatives, but the position taken by the Government
of Sudan toward IGAD as a narrow, geographically defined
peace forum forces the international community to do some hard
In an attempt to redefine the context, strength and support for
a comprehensive peace process, Canada will try to raise the
profile of the Sudan situation and the peace process in
international forums such as the Security Council and at the UN
Human Rights Commission in April. The objective of the
Security Council is twofold: One is to address the problem of
access to southern Sudan for humanitarian groups, including the
UN, which access has been highly restricted over the last year or
two; the second is to seek an endorsement of IGAD's mediation
efforts. These initiatives may be unacceptable internationally
because of the self-interest of particular countries in the Sudan.
However, Canada will persist in its efforts.
Does either side really want peace? The Government of Sudan
is unlikely to support an outcome in which Sudan becomes
secularized, or one in which power devolves to the principal
parties to the current conflict. Does it believe it can sustain the
status quo indefinitely through low-level military actions and
through deliberate bombing of civilian hospitals and schools?
Perhaps. It speaks of the conflict as the "southern problem."
The south speaks of its "war of liberation" against government
that came to power through a coup. It insists on the separation of
the state and religion, and the right of self-determination, even
though no government structures are in place for that eventuality.
Conflict over resources such as oil and water will continue.
Arabism versus Africanism will create contradictions difficult to
overcome. What is at stake is the possible dismemberment of the
largest country in Africa, and regional destabilization.
What steps has Canada taken or could take, given the fact that
Canada is not brokering the peace but is supporting the African
regional authorities who at this point are charged with that task?
Already, through CIDA, Canada supports the Inter-Africa group,
an IGAD resource think tank, as well as IGAD itself. It supports
peace and reconciliation efforts through Waterloo's Project
Ploughshares and Quebec's Alternatives that bring together
warring tribes in the process of reconciliation.
Support continues for the new Sudan Council of Churches in
its facilitation of reconciliation between the warring tribes of the
Nuers and the Dinkas. Canada supports the Dutch Embassy's
Sudanese Women's Peace Initiative, which brings together
Africans and Arabs, south and north, Christian and Muslim,
which movement is sponsoring an international meeting in April
in the Netherlands. Of course, said the Dutch Embassy, they
could never have mounted such a program without being fully
present on the ground in the Sudan.
This initiative is the most hopeful sign I saw in the Sudan. The
women are tired of having their husbands killed, their sons
fighting a war, and a lifetime of despair and misery. Their energy,
if expressed in programmatic form, could well contribute to
tipping the balance of power.
Canada has also made available, through CIDA, a person
skilled in conflict resolution and a political analyst to work full
time in the Sudan. These efforts contribute toward consolidation
of southerners, so that eventually a critical mass might emerge
that could correct the imbalance of power between the north and
The need for a small Canadian presence in the south has
certain advantages. It does not mean that Canada is tilting in
favour of Khartoum. Rather, it will allow Canada to monitor and
more adequately assess the situation, including the human rights
violations of both the Government of Sudan and the SPLA, and
support the activities of the NGOs active on the human rights and
abductions fronts. It would be able to support NGOs formerly
active in the south but now temporarily withdrawn in protest
against the SPLA requirement to place all humanitarian aid under
their control. It could also better provide political reporting.
Canada could support a human rights desk focused on the oil
regions, insisting on independent peace and human rights
experts, possibly drawn from the international community
through the UN. It should think about eventual compensation for
internally displaced persons. It could support efforts to engage
progressive Christians, Muslims, and animists in proposing
solutions to both warring parties on the role of religion, provided
such efforts are not a showcase for either side of the conflict.
Canada could bring its experience in multiculturalism and in
multi-faith communities to this situation. As well, our experience
in federalism, flawed as it may be, can be a contribution.
The massive, longstanding suffering continues, as word
continues to come of the government continuing to deliberately
target and bomb civilians in hospitals and schools, and to use
roads built for oil extraction to move troops. The problems seem
intractable, but a conflict of many years' standing will not come
to an end easily or soon. As long as it appears that Canada can
have a constructive role, our country intends to remain fully
Thank you for your patience.
Hon. Senators: Hear, hear!
On motion of Senator Andreychuk, debate adjourned.
Leave having been given to revert to Government Notices of
Hon. Dan Hays (Deputy Leader of the Government), with
leave of the Senate and notwithstanding rule 58(1)(h), moved:
That when the Senate adjourns today, it do stand
adjourned until tomorrow, Wednesday, April 5, 2000, at
That at 3:30 p.m. tomorrow, if the business of the Senate
has not been completed, the Speaker shall interrupt the
proceedings to adjourn the Senate;
That should a division be deferred until 5:30 p.m.
tomorrow, the Speaker shall interrupt the proceedings at
3:30 p.m. to suspend the sitting until 5:30 p.m. for the
taking of the deferred division; and
That all matters on the Orders of the Day and on the
Notice Paper, which have not been reached, shall retain their
Motion agreed to.
The Senate adjourned until Wednesday, April 5, 2000, at 1:30