Hon. Jean-Robert Gauthier: Honourable senators, the
Parliament of Canada needs to amend the Contraventions Act in
order to protect language rights. The Contraventions Act allows
substitution of tickets for the summary proceedings set out in the
This statute was amended in 1996 in order to allow the
criminal process in each province and territory to apply to federal
offences. The modified legislation authorizes the Minister of
Justice to reach agreements with the provincial, municipal or
local authorities on procedures for the processing of tickets.
In December 1997, the Association des juristes d'expression
française de l'Ontario drew to the attention of the Commissioner
of Official Languages the agreement dated June 9, 1997 between
the Government of Canada and the City of Mississauga. This
agreement dealt with illegal parking at Lester B. Pearson
International Airport, in Mississauga. It set out the process for
parking tickets and the payment of applicable fines, including the
procedure applicable to legal proceedings relating to these tickets
There was no reference whatsoever in this agreement to
language-related rights or obligations. As a result of this
agreement, individuals receiving parking tickets were deprived
of the language rights guaranteed by the Criminal Code.
Having analyzed the pertinent provisions of the
Contraventions Act, the Official Languages Act, the agreement
and the documentation provided by the Department of Justice,
the Commissioner of Official Languages concluded that the
complaint by the Association des juristes d'expression française
de l'Ontario was justified. The Commissioner recommended that
the Department of Justice:
1. take the necessary steps to incorporate in the
Contraventions Act, as a minimum, the same language
a) those recognized in the Criminal Code (to be
exercised before the courts);
b) those set out in Part IV of the Official Languages Act
(to be exercised outside the courts);
2. and consequently ensure that the agreements reached
under the Contraventions Act guarantee that the
provinces, territories and municipalities will respect the
rights set out in recommendation 1;
3. consult the official language minority community and the
associations of jurists before undertaking any project,
concluding any agreement, or carrying out any legislative
amendments to the contraventions system liable to have
an impact on the use of French and of English;
4. re-examine any agreement ratified to date, in order to
ensure that there is uniform protection of the language
rights referred to in recommendation 1.
Hon. Mira Spivak: Honourable senators, I used to believe in
the separation of church and state and in rendering unto Caesar
the things that are Caesar's and unto God the things that are
God's, but I am not so sure any more. I refer to the case against
former senator Ronald Ghitter where justice has been served but
where, I think, there was also some divine intervention if not
deus ex machina.
I should like to read into the record a letter that I wrote to one
of the defendants in the action, namely Ezra Levant, the
legislative assistant to Mr. Preston Manning. This letter was
written on October 6, 1998, and reads as follows:
Dear Mr. Levant:
Prior to attending synagogue on the most holy day in the
Jewish calendar, Yom Kippour, I caught your blasphemous,
intemperate, patently politically inflammatory, not to
mention defamatory, comments about Senator Ghitter, on
The absurdity of your attack is most evident when one
looks at Senator Ghitter's charitable, professional, political
and elective service to his community. He has an enviable
record as a human rights advocate, as a lawyer, as a former
member of the provincial government in Alberta, and as an
active supporter of outstanding leaders in Alberta.
On the other hand, the source of the politically motivated
criticism of him — your humble self — has an unenviable
brief career path as chief mouth piece to Canada's Ken Starr
clone. I use that evocative description because of the
indefensible manner in which the party you serve has
chosen to target individual senators and their personal lives.
I know that this is just a temporary lapse, an overzealous
reaction, and that you will go on to serious constructive
criticism. So I am sure also that the God of the Old
Testament, Yahweh, recognizing the callow youthfulness of
your action, will refrain from smiting you.
Hon. Erminie J. Cohen: Honourable senators, in a little more
serious vein, over a year ago, the authorities in Iran arrested
13 Jewish men on charges of espionage. They included the
Chief Rabbi of Shiraz and other religious leaders. They alleged
that the 13 were spies for Israel and the United States, charges
immediately and vehemently denied by both these governments.
Their trial is scheduled to begin on Thursday, April 13, which is
tomorrow. Although three have been released on bail recently,
the remaining 10 have now languished in prison for a year. As a
humanitarian gesture, the local Jewish community in Shiraz has
asked for a brief postponement of the trial and a request that the
10 still incarcerated be released on bail or on their own
recognizance to spend at least Passover with their families.
This major festival on the Jewish calendar, which begins next
Wednesday, ironically celebrates the ancient redemption of the
Jewish slaves from Egypt and exalts freedom, both physical and
religious. The special ceremony marking the first two nights
commands the participants to imagine that they, too, were slaves
in Egypt so that they might appreciate even more our precious
gift of liberty.
Religious freedom is very much on our minds as we advocate
on behalf of the 13 Jews in Iran. They have the right to due
process and a fair trial according to Article 14 of the
International Covenant on Civil and Political Rights. Should their
trial proceed as planned, there are at least two major areas of
concern. As of now, international observers will be barred from
the proceedings. It is also still not clear that the accused have
been granted the right to choose their own legal representation
and that such counsel has had adequate time to prepare
We call upon the government of Iran to ensure that the accused
have access to legal counsel of their own choosing, that these
lawyers have sufficient time to prepare a full defence, and that
international monitors be allowed into the proceedings to ensure
that they are open and transparent and conform to international
standards of justice. These elements are fundamental to any fair
trial and inherent to the dignity of human beings.
Honourable senators, we call upon Iranian authorities to do
what is just and right.
Joint Meetings of Defence and Security, Economic and
Political Committees Held in Brussels and Paris—
Report of Canadian Delegation Tabled
Hon. Bill Rompkey: Honourable senators, I have the honour
to table the fifth report of the Canadian NATO Parliamentary
Association which represented Canada at the Joint Meeting of
the Defence and Security Committee, the Economic Committee,
and the Political Committee held in Brussels and Paris,
February 20 to 23, 2000.
Firearms Registration Form—Nature of Personal
Hon. Donald H. Oliver: Honourable senators, my question is
for the Leader of the Government in the Senate and it deals with
gun control. Most honourable senators in this chamber would
agree that some form of gun control is necessary in order to
afford protection to all Canadians, but I received a letter and a
note from a businessman in Halifax recently that contained the
firearms possession and/or registration form. The gentleman
asked me to make an inquiry whether some of the questions on
the form were not an invasion of personal privacy. The form
requests information on personal history and information on the
use of firearms over the past five years. At the end, it asks the
following questions, and these represent the nature of my
question to the Leader of the Government.
During the past two years have you experienced a divorce,
separation or breakdown of a significant relationship; a
major failure in school; loss of jobs or bankruptcy, and if the
answer to any of the above is yes, give the details below.
My question to the honourable leader is the following: Is this
the kind of personal information that is required before a person
is permitted to register for a firearm in Canada?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I wish to thank the honourable senator for
raising that issue. I am not familiar with the details of the
application form. However, the process does involve certain
work by the Royal Canadian Mounted Police, among others, to
ensure that the individual who is applying for the certificate is
not a risk in any way.
I can inquire as to whether these questions are routinely
included on the application forms, and if they are, what is the
rationale for those questions.
Senator Oliver: As a supplementary question, I direct the
leader again to the language on this form, which I have with me.
It asks: "Have you ever experienced a major failure in school?"
What is "a major failure in school"? If you got an "F" in your
Latin exam in grade five, does that disqualify you later on from
having a firearm?
Senator Boudreau: No, I doubt that it does. I can say that, not
being an expert in the area.
Senator Meighen: Is the honourable senator sure about that?
Senator Boudreau: Without consulting the Minister of
Justice, I will wager that that would not disqualify you.
There is a serious aspect to these questions. For example, the
question of domestic violence is an important question. The
incidence in this country of domestic violence makes it a
significant issue and one that is related to the question of gun
control. One tends to believe that the form, in asking for details,
is doing so to make a judgment as to the risk assessment in a
specific instance. I cannot imagine that getting an "F" in Latin,
using the example given by the honourable senator, would
qualify one as a risk.
Senator Graham: Particularly in Grade 5.
Senator Boudreau: Yes, particularly in Grade 5, as stated by
my honourable colleague.
Senator Oliver: Does the honourable leader know if the same
types of questions are asked of all members of police forces in
Senator Nolin: Just say no.
Senator Boudreau: Honourable senators, again, I have to
plead ignorance on that issue. I do not know what questions are
asked on the application for the various police forces. I should
hope there would be some discussion of the individual's
background before being hired. Whether or not there are regular
updates required, for example, of any educational failures, I am
not sure. One should err on the side of prudence, particularly
where there is potential for domestic violence. I should hope that
is the purpose of the questions.
Hon. Gerald J. Comeau: Honourable senators, I do not think
the minister has responded to the question of why a divorce or a
breakup of marriage would be asked on such a form. It is
ridiculous that such a question should be asked on a Government
of Canada form.
Senator Boudreau: Honourable senators, the party may have
had an emotionally charged divorce situation. There may have
been, for example, a history of violence. However, if the form
simply asks if such an event has taken place and asks for details,
one is not automatically disqualified. It is worth asking the
question in order to ensure that there is no immediate danger of
Senator Comeau: Should the question not then be something
to the effect, "Have you been arrested for any incidents of
domestic violence?" and not, "Have you been divorced?" It now
appears as if it is the position of the Government of Canada that
people who have undergone a divorce are prone to being violent
Senator Boudreau: In this case, I am sure it is a situation
where those involved in preparing the forms wanted to err on the
side of caution and in so doing have attempted to create a
description of the surrounding circumstances. There is no
question there are incidents involving domestic violence when
parties are getting divorced. It is an unfortunate fact. I am sure
that an answer in the affirmative does not automatically
disqualify anyone from applying for a firearm. In this situation
I believe the government wants to err on the side of caution.
Auditor General's Report—Comment on Ratio of R&D to
Gross Domestic Product
Hon. Roch Bolduc: Honourable senators, regarding the tax
credit program, the Auditor General asked a very interesting
question to which I hope the Government Leader can provide an
answer. Pointing out that Canada has the most generous tax
incentives for research and development in the G-7, he asks,
"Why among the G-7 countries does Canada have the second
lowest ratio of total spending on research and development to
gross domestic product?".
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I have not read that particular section of the
Auditor General's report, which was tabled yesterday afternoon
in the House of Commons. However, this government has
initiated major efforts to increase the amount of research and
development spending. In each of the last two budgets, the
government has committed $900 million under the Canada
Foundation for Innovation or CFI program, with the requirement
that the funds be matched. That is $1.8 billion in the last
two years, which represents a substantial effort in the area of
research and development. There is no question that Canada
wants and needs to do more. The two measures in the last
two budgets are a significant part of that.
I might add that the announcement of the Chairs of Excellence
for universities will allow Canada to develop an additional
capacity for research.
Senator Kinsella: How many for Nova Scotia?
Senator Boudreau: That program is one of the most
important and significant programs that we have seen recently. In
the last two budgets we have seen $1.8 billion in the
CFI program and another $900 million for the Chairs
of Excellence, both huge government commitments to research
Effect of Tax Regime and Migration of Workers to
Hon. Roch Bolduc: Honourable senators, could part of
the problem lie in the fact that we have a tax regime that
discourages businesses from locating in Canada and that
the Prime Minister refuses to acknowledge that we have a
Last year, the Prime Minister said that there was no brain
drain. The Americans have usually been issuing some
30,000 temporary work permits annually. Last year, they issued
98,000 for Canadians.
Three quarters of the Department of Computer Science
graduates, at the University of Waterloo, are now in Seattle.
Senator Lynch-Staunton: Shame! We cannot keep
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, one of the results of a global economy is a
mobile workforce. There are surprisingly some Canadians
moving permanently, others temporarily, to the United States.
On the other hand, there are some jobs coming from the south to
Senator Stratton: Did you catch the CBC Sunday night?
Senator Boudreau: I was happy, as a matter of fact, to be
involved in an announcement just last week, where the
Government of Canada was instrumental in bringing 900 jobs to
Sydney, Nova Scotia. Those jobs were previously located in
South Carolina. I thought that was a wonderful initiative.
Senator Lynch-Staunton: High-tech jobs — minimum wage!
Senator Bolduc: Honourable senators, the minister reminds
me of Mr. Duplessis, in Quebec. At one time, Mr. Lapalme
quoted some statistics on economic, investment and employment
trends. Mr. Duplessis rose in the National Assembly and told him
that, the previous day, he had eliminated another paper machine
in Trois-Rivières. In his reply, he referred to one case. We are
talking about trends.
The minister said that the government would invest funds in
the universities. Do honourable senators realize what will
happen? The academics will eventually discover things after
doing all kinds of research and then they will develop their
findings in the United States. This is Canada's tragic story. Many
inventors discover things, they have a great deal of imagination,
but they end up moving to the United States to set up their own
businesses, because taxes in Canada are too high.
Senator Boudreau: Honourable senators, I have no difficulty
in saying that the tax regime that exists in Canada creates a
potential problem. However, it did not just fall from heaven. It is
a result of the huge deficits that were run up and the money that
was required over the years to service those deficits.
Some Hon. Senators: Shame!
Senator Lynch-Staunton: That is Senator Graham's script.
Come on now, read your own script.
Senator Meighen: Let Senator Graham do that.
Senator Boudreau: Where would the money come from, if
not from the taxpayers of Canada? That is where the money
came from. If the Honourable Senator Bolduc wants to talk about
trends and look down the road, he will see long-term measures
that are the result of balancing the budget four years in a row.
Senator Lynch-Staunton: Thanks to free trade and the GST!
Senator Boudreau: Therefore, in this year's budget we were
able to see a reduction in the capital gains tax, which is important
to business. We were able to see provisions that allow businesses
and individuals to roll over $500,000 into newly created
businesses without attracting capital gains tax. We were able to
see the business tax lowered. All of those things did not occur by
accident — they occurred because of good fiscal management.
Senator Meighen: You have free trade and the GST.
Senator Bolduc: Honourable senators, the minister says they
are taking small steps. This is what I said on March 24. They are
taking small steps and they are working on something that will
take five years. In five years we will be dead! This is urgent;
we must act now.
Senator Boudreau: In the past three years, we have seen
dramatic changes and dramatic improvements in virtually every
area. It is a staged program and a responsible way to make
changes. We will not cut taxes on borrowed money, as Mr. Harris
does in Ontario. That is not the way to cut taxes. A government
cuts taxes by putting its fiscal house in order. We have done that,
and we will continue to reduce taxes, Employment Insurance
premiums, capital gains tax, and all those things in a staged,
Senator Lynch-Staunton: Ontario booms. Ontario drives the
Canadian economy. Shame!
Possibility of Resolution to Recall Prime Minister from
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, I have a question for the Leader of the
Government in the Senate. Would the minister be able to confirm
or deny that a resolution has been passed by the cabinet to recall
the Prime Minister from the Middle East?
Senator Forrestall: Leave him there!
An Hon. Senator: Joe was there!
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I am sure the Prime Minister appreciates
the interest that his trip has generated among the
Senator Taylor: At least he did not lose his luggage.
An Hon. Senator: He did not have any.
Hon. John Lynch-Staunton (Leader of the Opposition):
Honourable senators, my understanding is that the cabinet was
seized with a resolution but that Mr. Martin and others voted
The Prime Minister has caused no end of embarrassment to
this country in the last few days in the Middle East. Obviously he
has been poorly briefed and poorly informed. This has caused
many problems for the parties who, for decades, have been trying
to come to a resolution. I will not dwell on that, however.
Visit by Prime Minister to Middle East—Statement on
Number of Lakes in Canada
Hon. John Lynch-Staunton (Leader of the Opposition):
Honourable senators, I wish to ask the Leader of the Government
in the Senate about the Prime Minister's knowledge of
geography. According to the National Post today — and I heard
it on the television last night, so the quotation is accurate — the
Prime Minister said:
For a Canadian we have 30 million lakes so we don't see it
in the same perspective but I can understand the need for
Israel to keep the only lake they got.
Forget the grammar and the ignorance. I should like to know if
the Leader of the Government in the Senate, who is so anxious to
run with the Prime Minister in the next election somewhere in
Nova Scotia, could identify the 28 million lakes which have yet
to be identified by the sources I have consulted, thanks to the
Library of Parliament.
The Canada Information Office says that there are 2 million
lakes in Canada. The Canadian Encyclopaedia — and this is
thanks to the Library of Parliament, whose research facilities are
extraordinary — says that recent surveys suggest there may be as
many as 2 million lakes in Canada. A quiz book put out by
Canadian Geographic poses this question: How many lakes are
there in Canada? The answer is — my final answer — that it is
estimated that Canada has 2 million lakes.
The Prime Minister told his international audience that there
were 30 million lakes in Canada. I should like the Leader of the
Government in the Senate to identify the 28 million
Senator Forrestall: Are they all ponds in Newfoundland?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I have not felt this much pressure since
Grade 5 geography class.
I can only suggest to the Honourable Leader of the Opposition
that the Prime Minister, being in the Holy Land, was seized of
the spirit of the country and was speaking to some degree
Visit by Prime Minister to Middle East—Sovereignty of
Sea of Galilee—Government Policy
Hon. Lowell Murray: Honourable senators, given the Prime
Minister's statement, with what country does sovereignty over
the Sea of Galilee lie in the view of the Government of Canada?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, in the reports I have read, the
Prime Minister made it clear that it is the position of the
government that these are matters of negotiation between the
parties. It is the parties that will resolve the myriad of issues that
exist between them. This will be one of those issues. At this
point, Canada supports that process and will support the results.
With respect to the Sea of Galilee and all of the other issues, we
will support the conclusions of that peace process.
Senator Murray: I appreciate that there may be negotiations
at some point on the issue, but my question was and is:
With what country does sovereignty lie in the view of the
government? I believe that is a proper question to ask following
the statement of the Prime Minister. What sovereignty does the
Government of Canada recognize over the Sea of Galilee?
Senator Boudreau: Honourable senators, the Prime Minister,
as I understood the matter — and I have not read the reports in
detail — expressed an understanding of Israel's wish to resolve
that issue in their favour. He understood, I think, why that might
be the case. However, the Prime Minister also went on to say that
we would support the peace negotiations. I do not know that it is
helpful for Canada or for any country to issue formal statements,
either here or anywhere, that indicate the government's position
on those issues.
I do not think that is what the Prime Minister did or what he
intended to do.
Hon. A. Raynell Andreychuk: Honourable senators, is this
another mistake by the Prime Minister on this trip?
Senator Boudreau: No, honourable senators. I believe that
the Prime Minister expressed an understanding of how people
felt. He went on to say that he understood how the matter would
be resolved and that we would support that resolution.
Third Reading—Motion in Amendment—Debate
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;
And on the motion in amendment of the Honourable
Senator St. Germain, P.C., seconded by the Honourable
Senator Andreychuk, that the Bill be not now read a third
time, but that it be read a third time this day six months
Hon. A. Raynell Andreychuk: Honourable senators, I wish to
make a few preliminary comments before proceeding with my
main remarks on Bill C-9.
First, Bill C-9 and the accompanying agreement is the most
significant piece of legislation to be brought before the Senate in
my seven years in this chamber. Second, I wholly and
enthusiastically support the concept of a negotiated settlement
for the aboriginal peoples with the Government of Canada. Next,
I believe the issue of aboriginal inherent rights and land claims is
a most complex area. I therefore commend the efforts of the
Royal Commission on Aboriginal Peoples which furthered my
understanding of the varying perspectives, issues and actions that
need to be taken.
I believe that the royal commission report is mandatory
reading for all senators if they wish to fully understand the
implications of Bill C-9. That report lays out a blueprint for
restructuring the relationship between Canada and aboriginal
peoples and a road map for renewal in Volume 5 entitled,
"Renewal: A Twenty-Year Commitment".
At the outset, I wish to commend the people of the
Nisga'a nation for their tenacity, perseverance, and good faith in
negotiating the Nisga'a agreement. No doubt, as history will
prove, and as the royal commission recommended, compromises
have to be made on all sides. I believe that it is not the
responsibility of this chamber to determine in any way whether
the Nisga'a agreement complies with the rules, customs, and
laws of the Nisga'a nation. Rather, the concern in Bill C-9 is
whether the federal government is exercising its jurisdiction
appropriately on behalf of the people of Canada. In that I include
all Canadians and take into account the special fiduciary
relationship with aboriginal peoples. In other words, while the
federal government had the responsibility of negotiating the
Nisga'a agreement, it is also accountable to ensure that it
complies with the Constitution of Canada.
Honourable senators, that is our role and responsibility as well.
In addition to ensuring that Bill C-9 and the accompanying
agreement are constitutional, we must ensure that we have
discharged our fiduciary responsibilities. Further, the Senate has
the responsibility to ensure that minority rights are upheld.
Therefore, I found extremely puzzling certain statements made
in a recent article in the National Post by Neil Seeman.
Commenting about a second lawsuit on the Nisga'a agreement,
he indicates that Patrick Monahan, a constitutional law scholar at
Osgoode Hall Law School in Toronto, predicted that the
British Columbia courts would bow to Parliament. He quoted
Professor Monahan as saying:
The treaty has been passed by the House of Commons and
has already been ratified by the B.C. legislature. I strongly
doubt the courts will interfere in this process.
I do not know whether Professor Monahan was simply
providing legal advice to the Government of Canada, or legal and
policy advice, but these comments dismissing the role of the
Senate are indeed troubling, for, as I understand Professor
Monahan's argument in support of the constitutionality of
Bill C-9, he seems not to have put much weight on the intent of
the legislators at the time of the passing of sections 35(1) and (3)
of the Constitution. Yet, he invites us to accept the proposition
that the legislative intent behind Bill C-9 is sufficient for the
courts not to interfere with the process. He also discounts the role
of the Senate. I find this troubling and inconsistent.
Finally, we have heard repeatedly in this chamber that it is
necessary to pass this bill because it is the right thing to do
morally — that it is a humanitarian act. I find that to be
paternalistic. I say no. I believe that inherent rights and land
claims are based on the rule of law. The claims of the aboriginal
peoples are grounded in the rule of law, as must be the answers to
I wish to speak in support of the amendment proposed by
Senator St. Germain. First and foremost, it is important to
reiterate that I do not question the value of negotiated
settlements. In a democracy that prides itself in diversity, it is the
most civilized and productive way to achieve consensus of
governance. Equally important is the rule of law, and it must
I subscribe wholly to Mr. Willard Estey's remarks before the
Committee on Aboriginal Peoples. He stated:
First, we must remember that the Constitution is the real
wall between chaos and civilized progress. No community
on the face of the earth has ever made it into the higher
standard of living to which we all aspire without a set of
rules, which are called a constitution.
He later stated:
You need rules to keep our impulses subdued.
The real issue is that, if we accept the right of self-government
within the framework of Canada, does the Nisga'a agreement and
the enabling legislation find its legitimacy in section 35 of the
Constitution or, to accomplish the same, is a constitutional
It is the responsibility of each and every senator to ensure that
the legislation passes the test of constitutionality.
I do not hold myself out as a constitutional lawyer, nor do
I even rely on my legal ability with some experience in
constitutional law. Rather, I ask you to look at the evidence
presented to the Committee on Aboriginal Peoples. There were
basically two approaches presented to the committee. The first,
presented by Mr. Estey and two former attorneys general, among
others, can be summarized by Mr. Estey's statement, after
reviewing our history:
Now we are facing something new. This is the third
plateau — section 35 in the Canadian Constitution, 1982. It
is high time we activated that section, and we all welcome
this process in the Senate as one important lifeline, going
back to the community, as to what section 35 is all about.
I thank the committee, and particularly the Chairman, for
allowing us that lifeline.
Mr. Estey stated further:
There is 100 per cent sovereignty contained in the
He is referring to sections 91 and 92.
Section 35 causes us to weld together the original settlers,
who now manage affairs through section 91 and 92, and the
aboriginals, who have been ignored for a century and a half.
Their rights must now be sifted out of sections 91 and 92.
We suggest that the details of the bill, of the agreement
appended to it, and of the studies that back it all up, must be
viewed from the simple reality that we are trying to put
muscle into section 35 without destroying the power in
sections 91 and 92, except to the extent it is found
necessary. When it is found necessary, we have to amend
the act. That is no big deal.
He concludes in paragraph 15 of his written submission:
From the foregoing it is clear that the Agreement
provides for the transfer from the governments of Canada
and British Columbia to the Nisga'a nation very significant
sovereign powers presently possessed by Canada and
British Columbia in accordance with the Constitution of
Canada. This transfer is by itself unconstitutional.
By that, he means that an amendment to the Constitution
In a nutshell, these legal scholars on this side of the argument
argue that section 35 is expressly silent on self-government.
While self-government was discussed in 1982 and subsequently
in 1983, no consensus arose; hence, the Charlottetown
Agreement, Meech Lake Accord, a series of conferences, and
then turning the whole matter over to the Royal Commission on
Aboriginal Peoples for study.
The second major approach was put forward by legal scholars
such as Professors Ryder and McNeil, and crystallized by
Professor Monahan and Dean Hogg. Although they did not
testify before our committee, we were asked to apply their
testimony from the House of Commons. That is a shame, in my
opinion, because their elaborations would have been helpful to
our deliberations, as the Government of Canada seemed to use
their opinions, although we are not certain, as this is cloaked by
Succinctly, and I hope accurately, I think they argue that
First Nations, at the point of Confederation, retained all their
inherent rights and land claims. Therefore, contrary to the
opposing view, they state and infer that "inherent rights" includes
self-government. Section 35, therefore, implicitly covers
self-government. Therefore, rights are concurrent and exclusive,
and they are not taken from sections 91 and 92. They are merely
given constitutional status.
Some scholars in this approach stated that paramountcy for the
federal government was extinguished by sections 35(1) and 35(3)
and concurrency governance was acknowledged. Professor
Monahan stated to the House of Commons essentially his view
that sections 35(1) and 35(3) contemplate an agreement such as
the Nisga'a agreement and, upon ratification, are constitutionally
protected. He stated further, in the House of Commons evidence:
On the second question, the issue of infringement, yes,
I agree with that. I think there would be some scope for
Parliament under the Sparrow test, under the Badger case,
to pass a law that might in some circumstances take
precedence over the terms of the treaty.
I would say, though, in fairness, that I think the courts
would construe that very narrowly, because the test of
justification that would have to be applied in those
circumstances would be a very significant test, I think, a
very rigorous test. Because how could the courts say that we
have now entered to this agreement and compromises have
been made — the aboriginal people have made
compromises, federal and provincial negotiators have made
compromises — and now Parliament in effect wants to
overturn that? I think it would be a very limited kind of
circumstance in which you could envisage Parliament or the
legislature enacting laws that were inconsistent with the
provisions of the treaty.
In conclusion, honourable senators, what is left? Both agree
that self-government for aboriginals is necessary and that this
right was not extinguished, although perhaps dormant. Both
agree that the Supreme Court has not yet ruled on this matter.
The first view states that sections 35(1) and 35(3) have not
implicitly allowed for self-government. The second view states
that self-government is implicit and does not place weight on
what legislatures, I gather, intended at the time. Perhaps what
they are saying is that there was sufficient discussion to give
credibility to it, or they are simply saying that those who passed
the amendments in 1982 and 1983 may have intended one thing,
but the words speak so loudly to another course. Of course, the
Supreme Court has not made a determination.
The first view certainly states that in 1982 the Prime Minister
and premiers discussed self-government, transfer payments, who
exercises self-government, what format it should take, and so on,
but there was, sadly, no consensus; hence, the aboriginal
conferences and hence the royal commission. Since the
Charlottetown Agreement was rejected, it cannot be used to
support or reject conclusions in the interpretation of
The second view employs the "living tree" doctrine of
Lord Sankey, who described the BNA Act as a "living tree
capable of growth and expansion within its natural limits." A
written constitution is not the whole constitution. One must take
into account practices and conventions.
The Royal Commission on Aboriginal Peoples struggled with
two concepts — and this is overriding, I believe, in their report
— namely: first, who in the aboriginal community has the right
to exercise the right of self-government; and, second, if
self-government exists, how does it square with the
I think they saw a vacuum of consensus on the points.
Therefore, they prefaced their conclusion with a huge blueprint
of renegotiations of the Royal Proclamation and companion
legislation, a Canada-wide framework agreement and
parliamentary act, a social and economic underpinning, and,
above all, public education before the Canadian government
gained legitimacy to negotiate a modern-day agreement that
would include self-government. It was only at that point that the
Royal Commission on Aboriginal Peoples introduced the "living
tree" doctrine. We must remember that their blueprint asked for
20 years so that those practices and conventions could be put
The Hon. the Speaker pro tempore: Honourable Senator
Andreychuk, I am sorry to interrupt, but your speaking time has
expired. Are you asking for leave to continue?
Senator Andreychuk: Yes.
The Hon. the Speaker pro tempore: Is leave granted,
Hon. Senators: Agreed.
Senator Andreychuk: One must remember that the royal
commission recommendations were just that, recommendations.
Their conclusions are simply their opinions, not with the full
force of judicial sanction. At pages 119 and 120 of Volume 5,
under the chapter "Constitutional Amendment, the Ultimate
Challenge," the commission stated the following:
In this report, therefore, our recommendations are
presented in such a way as to ensure that they can be
implemented without constitutional change.
They had one exception, with which I am sure Senator Chalifoux
is familiar, namely, the Alberta Métis Settlements.
On page 120, they say:
...Commissioners have reached a number of legal
conclusions that clearly push the boundaries of the
constitution to new limits. Critics of these conclusions may
well disagree and offer alternative interpretations. Rather
than risk conflict over what the constitution does or does not
mean, some would prefer to resolve issues through formal
They conclude that the aboriginal and treaty rights recognized
and affirmed in section 35(1) include the right of
self-government. However, they stated:
It is impossible to predict whether the Supreme Court would
reach the same conclusion, but it is a major premise upon
which much of our report is based.
Honourable senators, that is important because the scholars
upon which the government seems to have relied are the same
scholars who gave legal opinions to the effect that it push the
limits of the Constitution to avoid constitutional amendment.
Rather than following the whole network, the government seems
to have relied on the legal interpretations that might lead to the
point of view that a constitutional amendment is not required
and, therefore, the scholars still maintain their position.
To defend the commissioners — and I think it is fair to do
so — they were painfully aware of the failure of the
Charlottetown Agreement and of the prevailing climate and the
lack of appetite for constitutional amendment. Therefore, they
put in this elaborate policy process and framework to give the
Canadian government legitimacy in negotiating before they
stretched the Constitution.
Regrettably, the Canadian government has taken none of the
steps outlined in the royal commission report or created their
own approach. Instead, Minister Jane Stewart announced the
1995 "Gathering Strengths" policy, and then the government
brought in Bill C-9. The professors who gave their opinions on
this proposal to stretch the boundaries of the Constitution to new
limits have, of course, maintained their views despite the
legitimacy of implementing the fabric of the royal commission
Much must be said about negotiated settlements as being the
best approach. However, again, it is interesting to note at
page 120 that the royal commission report had a slightly different
take on this issue. They said the issue could be resolved through
formal constitutional amendment or through litigation. The
question raises the prospect of a legal challenge from adherents
of one of the stated positions, as we now have. How such a case
might arise is, perhaps, of less significance than the eventual
resolution, which must be linked to a interpretation of section 35
of the Constitution, 1982.
Therefore, honourable senators, my inference is that the royal
commission needed, wanted, and was trying to find a way to
push the limits to gain certainty on what section 35 means. It is
so painfully obvious to us today that the necessary interpretation
must avoid the need to go back and restart with the aboriginal
peoples. That would be inherently unfair.
Therefore, with everyone so certain that litigation is inevitable
to determine the meaning of sections 35(1) and 35(3), and with
two lawsuits pending already, the proposed amendment by
Senator St. Germain would allow the government to make the
following reference. It would give clear direction. It would not
create winners and losers. Supreme Court Chief Justice Antonio
Lamer once said that we are all here to live together, that
therefore, winners and losers should not be our end gain. It
would save horrendous costs and time, and it would give the
certainty that this bill in and of itself does not.
I now turn to my deepest concerns about Bill C-9 — minority
rights and our fiduciary responsibilities. The Charter of Rights
and Freedoms is Canada's main instrument for protecting
minority rights. Does it apply to aboriginal governments, to the
Nisga'a agreement, and more particularly, to Bill C-9? The
Nisga'a and the federal government say yes. If that is so, it
should have said just that and nothing more.
Sections 25, 28 and 35(4), which provide equal guarantees
between men and women before their governments, would have
However, the agreement states that the Canadian Charter of
Rights and Freedoms applies to Nisga'a government in respect of
all matters within its authority. They then added, "bearing in
mind the free and democratic nature of the Nisga'a government
as set out in the agreement." What does this qualifier do to
sections 25, 28 and 35(4), let alone all of the Charter? To qualify
the Charter application is dangerous to the protection of minority
rights and gives uncertainty to the fundamental rights of
minorities — both Nisga'a and non-Nisga'a.
I will not elaborate on the point of the non-Nisga'a. I believe
Senator Grafstein has raised that question, and it has not been
answered fully yet. I would have liked evidence on the
compliance with international law on this point, and this should
Mr. Aldridge, lawyer for the Nisga'a, stated that everyone
agrees with the fundamental principles of democracy, that no one
is trying to oppress minorities.
That may be so, but history and contemporary times prove that
democracies, as well as other types of regimes, have violated
My most fundamental concern with Bill C-9 and the
Nisga'a agreement is the manner in which it deals with the
overlap situation. While proponents of the bill pointed out other
agreements with outstanding overlap situations, these were in
delegated power situations and were not necessarily good
examples of dispute-resolving solutions in any event.
I question whether the federal government, and latterly the
House of Commons, have discharged their fiduciary
responsibility to the Gitxsan and Gitanyow nations. We will soon
be doing the same in the Senate.
The protections for land claims in section 35(1) and inherent
rights cover all aboriginals. The fundamental principle is that the
government should not take sides when there is a dispute and an
overlap occurs. While the disputing parties should be encouraged
to resolve their differences and overarching bodies such as the
B.C. Treaties Commission can lay out the ground rules for
settlement in preparation for treaty negotiations, it would take a
compelling case such as bad faith, et cetera, to upset this neutral
balance. Minister Nault and Mr. Molloy defended their position
by saying that if the Nisga'a acted in good faith, that therefore
they should proceed to settle the disputed territory. The Gitxsan
and Gitanyow also acted in good faith. They, however, did not
adopt the same time frames and methodology as the Nisga'a, as
is their right. Now, they are paying the price — a price that
prejudices their claims. They do not have the full ability to
negotiate with the Nisga'a and others. They are fettered now.
Someone said that when you read sections 32 and 34, you read
them down. In any event, in my opinion, this fetters the ability of
the Gitanyow and Gitxsan to work in a neutral and independent
environment. The federal government has taken sides.
By agreeing to the Nisga'a agreement, I believe the
Government of Canada has clearly taken the side of the Nisga'a
with no corresponding undertakings to the Gitxsan and
Gitanyow. It is not just a case of the Nisga'a agreement being
completed first. Minister Nault stated before the committee —
and his comments were elaborated upon by Mr. Molloy — that
the government accepted the Nisga'a claims. It took their side. It
therefore deprives the others of a negotiated settlement and
forces them to litigate or capitulate — costly in both money and
I have the greatest regard for the professionalism of
Mr. Molloy, the chief negotiator. I do not believe he acted
inappropriately. The government's removal of Mr. Molloy as
negotiator for the Gitxsan and Gitanyow and placing him,
midstream, as negotiator for the Nisga'a certainly appears unjust
and prejudicial. I am not saying that it is; I am saying that it has
that appearance. Justice is built on both pillars.
Minister Nault stated that Mr. Molloy was his best negotiator.
Why would he not want him on the Nisga'a file? If that is true,
and I believe it probably is, then the real question is: Why
should the Gitxsan and the Gitanyow now get the
I will not reiterate the first four recommendations contained in
the report on governance of the Aboriginal Peoples Committee,
nor will I reiterate the committee's observations appended to its
report on Bill C-9. They speak for themselves about the need for
fairness and better government policy.
The government's policy in this case leads to the conclusion
that the fiduciary duty to the Gitxsan and Gitanyow was not
discharged appropriately. Bill C-9 is not about perfection; it is
about a flawed federal approach and management that violates
the Charter and the constitutional fiduciary responsibility to the
Gitxsan and Gitanyow. It is to the credit of the Gitanyow and the
Gitxsan who have said that they did not want to hold back the
Nisga'a — they want only their rights.
The government has put Parliament, and more particularly the
Senate, in an untenable position. To vote for the bill is to violate
the rights and to not discharge the fiduciary responsibility we
have toward the Gitxsan and Gitanyow. To vote against the bill
would be to do the same to the Nisga'a. How unfortunate.
Some senators have stated that we owe the Nisga'a this
agreement as a way out of past wrongs. However, we cannot
correct the wrongs of the past by committing new ones. The
aboriginal peoples and their rights and claims survived because
they tenaciously held on to the concept of the rule of law, and we
can do no less.
Dr. Gosnell said, "Walk with us." I sincerely want to, but not
into a blind alley out of which he and I will take decades to walk.
I want to walk with the Nisga'a, the Gitxsan, the Gitanyow and
all Canadians. My conscience and my fiduciary and
constitutional responsibilities compel me to do no less.
Hon. Herbert O. Sparrow: Honourable senators, I wish to
speak for a few minutes on Bill C-9 and to tell you that I believe
we are making a mistake in bringing this type of agreement
before the Senate in its present form. We are putting in place
building blocks for a racist society in the future. We are
legislating a separatist society that will only hold for further
racism in the future.
Are we legislating for past injustices or for perceived past
injustices? If we are, that will, without doubt, create more
injustices and greater racism in the future. We cannot pay for past
injustices. However, we can try to give opportunities for a better
life in the future for all aboriginals, as well as for all Canadians.
For over 130 years, we have let the Department of Indian
Affairs rule this problem in Canada. They have governed on the
basis of keeping the natives quiet by keeping them secluded on
their reserves and by paying them off so that the rest of society
does not recognize the problem that exists. They hid the problem
from our view for all those years.
Can we then trust the Department of Indian Affairs to prepare
a treaty for the future? They have not served either the Indians or
Canadians well in the past. I cannot see this particular legislation
serving Indian nations in the future.
There is a saying about someone who went to an Indian
reserve and came back the following day to say, "All Indians
walk single file — at least the one I saw did." That is what we
are looking at now, namely, a narrow, blind approach to what has
taken place in the past and what we want to avoid in the future.
Honourable senators, I come from a part of the country where
there is a great problem with the natives and their standard of
living. I have lived with that for many years. No one can say that
I am a racist in my attitudes.
Honourable senators, we are now saying to the nation and to
all Canadians that whatever the department negotiates, regardless
of how badly they dealt with the issue in the past, is just fine with
us. We are not prepared to look at that issue in the parliamentary
process, but we should look at it.
In the past six years, we have had five ministers of Indian
Affairs and Northern Development. Does anyone really believe
that in that period of time any minister — and the last one served
but a few months — is more capable and more qualified than
many other Canadians, including many in the Senate, to
determine the value of that agreement?
For a long time in this country — and most certainly of late —
we have been developing what can only be called an "Indian
industry" — that is to say, an industry for the legal profession
that has managed to keep in the forefront the issues without
really bringing forward the need and the necessity to solve those
problems. There is a desire within the profession to say that we
will bring forth suggestions and let the courts decide. However,
we know what that has meant in the past and we know what it
will mean in the future. I refer not only to the terrible costs that
have been incurred, but to the costs with which we will be faced
in the future. Millions of dollars have been spent in this
Never-Never Land, and many people are laughing all the way to
Those who show concern and worry about the repercussions of
such agreements are not being racist. They are not being selfish.
They have nothing to gain by taking a critical stand on the issues
before us. Progress must be made in the negotiations dealing
with the native people. There is a saying that goes, "We do not
have blind opposition to progress, but we do have opposition to
blind progress." That is, perhaps, what we are facing at this day,
at this time.
In the Aboriginal Committee, the minister stated that there can
be no changes made to the agreement. Why would we have an
agreement brought forward where Parliament cannot make
changes? What kind of nation do we have when we say that we
do not have the final say on this issue?
Senator Lynch-Staunton: Hear, hear!
Senator Sparrow: The minister made it clear, not only in the
House of Commons committee but also in the Senate committee.
This is what the minister said in answer to Senator Christensen's
question, which was:
Senator Christensen: Is there any ability at this point for
amendments to this act?
Mr. Nault: If you amend the act, then we would kill the
agreement. In fact, we would need to go back to the
negotiating table because all three participants signed off on
the treaty in good faith. The agreement must be accepted,
and it is no different from Mr. Clinton signing a treaty with
a foreign nation, or when we signed the free trade
agreement. That was basically a take-it-or-leave-it
relationship, and it is the very same with this.
The minister is trying to sell us on something. He would
certainly know that even the Free Trade Agreement can be
cancelled with six months of notice. However, this agreement
cannot be changed. Why then do we allow, as parliamentarians,
such action to be taken and brought forward and not be upset
about this process?
The minister goes on to state:
Therefore, it is up to you to decide whether it is a job well
done or not well done. If you throw the agreement back at
me, then I must go back to the negotiating table because I
have two other partners who would want to have a say as to
why the Senate decided to change the treaty unilaterally. I
do not have the right or the ability to do that.
I ask this question of all senators: What are we doing here as
parliamentarians if we do not have that right?
Senator Lynch-Staunton: Exactly.
Some Hon. Senators: Hear, hear!
Senator Sparrow: Let me talk for a moment, then, about the
Senate committee study itself.
Honourable senators, very few senators at the committee
hearings were not actual members of the committee. That
committee heard from 30 witnesses. Some comments were, "We
listened to 30 witnesses and that was lots." However, we did
listen to 130 witnesses on the gun control bill. At that time, we
did not put pressure on to have that discussion stopped. However,
here we have possibly the most important piece of legislation to
come before the Senate, as the previous speaker said, yet the
committee spent only 10 minutes on clause-by-clause
consideration of the bill. There was no study in committee of the
250 pages in the Nisga'a agreement. There has been no study of
the side agreements that are in the Nisga'a agreement.
Honourable senators, the only subjects that were touched on
were the citizenship provision issue, the Charter of Rights and
the constitutional amendment issue, and the issue of the
paramountcy of Nisga'a laws. There were a few other
discussions, perhaps, but no in-depth discussion took place on all
the other provisions contained in the Nisga'a bill. Senators who
were not at the committee may not even realize that these
provisions exist. As well, there was no discussion or
clause-by-clause study of the Implementation Act, the financing
agreement, the taxation agreement, the harvest agreement, the
own-source revenue agreement, the issue papers, or the
appendices to the Nisga'a agreement. Those were not studied.
Certainly, there would have been no opportunity to discuss them
in the 10 minutes spent on clause-by-clause consideration of
The minister, in regard to the study of these issues, made this
statement before the Senate committee:
Mr. Nault: Before I go, I again want to extend the
invitation, that if there is anything we can give you as far as
information is concerned, we will. I am of the same view as
Senator Tkachuk that there is a need to have extensive
discussion and to nitpick. We look forward to that, because
we had a lot of difficulty in the other place in getting down
to the facts of the treaty. We were very annoyed about the
fact that we did not get to talk about the particular clauses
and the chapters and what they mean in the other place.
I think that was a disservice to Canadians and
British Columbians. If there is anything we can do, the
officials are at your disposal. We are prepared to give you
everything except our legal advice. Thank you.
Honourable senators, the minister was indicating that the study
pertaining to this bill was not done in the House of Commons
committee. In fact, he was pleading that perhaps we could do a
better job in our committee on that issue.
I should like to talk for a minute about what the
minister referred to as "solicitor-client privilege." Why did the
committee or this Senate not have access to the advice given by
the Department of Justice to Indian Affairs? Senator Lawson
asked the following questions in the committee and the
Senator Lawson: When Senator Comeau asked
questions about constitutional opinions and so on, a
reference was made to solicitor-client privilege. Who, may
I ask, is the client in this case?
Mr. Nault: The client is the Department of Indian Affairs
and Northern Development.
Senator Lawson: The solicitor acts for the Department
of Indian Affairs and Northern Development and
Mr. Nault: For the sake of argument, I get billed by the
Department of Justice on a regular basis.
Senator Lawson: They act for you and the department.
Who do you act for?
Mr. Nault: I act for the people of Canada.
Senator Lawson: We may very well be the client,
therefore whatever opinions you have, we have a right to
Mr. Nault: No, you do not. The courts have ruled on that
already, it would then not be client privilege at all. If I had
to release every particular, I would then have to find
someone else to give me an opinion.
Honourable senators, is he therefore suggesting that you can
shop for the opinion you want? Surely the Parliament of Canada
should have access to judgments by the Department of Justice. If
we do not have access, to whom do we as parliamentarians go to
find out what the legal opinion of the Department of Justice is on
The Hon. the Speaker: Honourable senator, I regret to
interrupt the honourable senator, but the 15-minute period
allotted to speak has expired.
Are you requesting leave to continue, Senator Sparrow?
Senator Sparrow: Yes, honourable senators.
The Hon. the Speaker: Is leave granted for Senator Sparrow
Hon. Senators: Agreed.
Senator Sparrow: Honourable senators, there are legitimate
concerns pertaining to this agreement. We make a serious error
in judgment if those concerns are not vented honestly
Very credible witnesses appeared before the committee,
including Alex MacDonald, Q.C., a former member of
Parliament and former attorney general for British Columbia.
In his evidence Mr. MacDonald stated about this treaty :
When you make it unchangeable except for a
constitutional amendment or agreement, and agreements
come at a price, then you have made a grave mistake, and
what you have done is in violation of the Constitution.
I know that the agreement says that it is not changing the
Constitution, but it is. It is allowing a sovereign entity to make
laws. They may be minor or they may be sufficient to send
someone to jail on breach of a bylaw, I do not know, but that is
changing the Constitution.
It is the first time this has happened and it is almost
Mr. MacDonald continued:
When Parliament makes a treaty by its legislation that
gives power to a group of Canadians...and cannot retrieve
that power because it is cast in constitutional stone under
section 35, it is making a grave mistake.
Parliament can delegate their law-making powers.
That happens all the time. However, you cannot abandon those
Mr. MacDonald continued:
As attorney general, I was charged with the
administration of justice in the entire province....That
mandate has now been clipped. The ability of police forces
to go in and investigate is severely limited, if it exists at all.
In any jurisdiction, when someone who was assaulted
believes that the powers that be are not investigating the
case properly, or are favouring someone, the attorney
general has the responsibility to correct that....In the justice
section, the ability of the attorney general to administer
justice in the province has been severely clipped, and that is
This bill gives a body sovereignty to make some laws
itself without the Queen's assent or Parliament's assent,
without it being changeable, which is a violation of the
Constitution of Canada and the Royal Prerogative.
Evidence before the committee indicated that it is establishing
a third order of government. If that is the case, it is wrong to do
so. Further testimony by learned constitutional experts indicates
that the Nisga'a agreement and the statutory provisions
concerning its ratification contravene the provisions of the
Canadian Constitution and cannot, therefore, have the force
At the very least, a third order of government will be created
in Canada if the provisions are legal and constitutionally sound.
If such is the case, 600 other Indian nations from across Canada
may be clamouring for the same powers. How could we manage
600 sovereign nations in this country, all with 14 or more areas
of paramountcy in their treaties?
There are those who say that this is the right thing to do.
Maybe it is the wrong thing to do.
Hon. Herbert O. Sparrow: Honourable senators, in an effort
to make the bill somewhat more acceptable, I move:
That Section 3 of Bill C-9 be amended by adding the
word "not" following the word "is" .
The amended clause 3 will therefore read:
3. The Nisga'a Final Agreement is not a treaty and a land
claims agreement within the meaning of sections 25 and 35
of the Constitution Act, 1982.
The Hon. the Speaker: Honourable senators, I have a
problem. A hoist motion is presently before us, and according to
all the authorities, a hoist motion cannot be amended. However,
in the past, when operating under time allocation, the Senate has
agreed to accept a number of amendments and vote on them all
at the end of the process, which will be tomorrow at 3:15 p.m.
With agreement, we could consider this motion to be of that
type, to be dealt with tomorrow along with any other motions
that may be moved. It would be contrary to the Rules of the
Senate of Canada, and our practices, but, by leave, of course, we
can do so and we have done so in the past.
Honourable senators, is leave granted to proceed in that
manner? If so, this motion would be voted on tomorrow, after we
deal with the hoist motion.
Hon. Senators: Agreed.
The Hon. the Speaker: Therefore, the motion is before us and
will be voted on tomorrow.
Senator Sparrow: Honourable senators, I move:
That Section 27 of Bill C-9 be amended by adding the
"which day shall not be earlier than the date upon which
the Supreme Court of Canada pronounces on the validity
of the Nisga'a agreement."
The amended clause 27 will therefore read:
"The provisions of this Act come into force on a day or
days to be fixed by order of the Governor in Council,
which day shall not be earlier than the date upon which the
Supreme Court of Canada pronounces on the validity of
the Nisga'a agreement."
The Hon. the Speaker: Honourable senators, is there
agreement to treat this amendment in the same way as the
Hon. Senators: Agreed.
The Hon. the Speaker: Therefore, honourable senators, this
motion will be voted on tomorrow in the same sequence.
Hon. Gerry St. Germain: Honourable senators, will the
Honourable Senator Sparrow accept a question?
Senator Sparrow: I will accept a question, although I may not
give my honourable friend an answer.
Senator St. Germain: My question of the Honourable Senator
Sparrow is with respect to the hoist motion that I have before the
Senate. I gather he is not comfortable with it because he has
come forward with two other amendments. Can he not see that
my motion would facilitate what he is trying to achieve, or does
he not feel my motion goes far enough?
Senator Sparrow: Honourable senators, I will let the Senate
decide which of those motions might be more relevant to the
issue at hand. The honourable senator's motion to suspend for a
period of time does not give the reason as to why the bill
should be hoisted. My specific amendments state the reason for
such a move.
Hon. Anne C. Cools: Honourable senators, I premise my
question by laying out before honourable senators that I really
know very little about native affairs and aboriginal questions.
However, I do know a little bit about racial questions and about
the racism that lives in the recesses of people's minds where
legislation cannot reach.
Senator Sparrow, in his remarks, essentially told us that he
believed that the track record of the Department of Indian Affairs
in these matters did not properly lend itself to the department
bringing forth a treaty for the future. What Senator Sparrow
essentially said is that the past did not yield harmoniously to
My question of Honourable Senator Sparrow is this: In the
committee study, was any attention paid to what I would describe
as the ghettoization of society, the ghettoization of communities?
We all know that the doctrine of "separate but equal" began in
the United States of America as a worthy and well-intentioned
notion. We all know very well that apartheid in South Africa
began with the well-intentioned notion that by the creation of
separate communities, somehow or other those communities
would be endowed with a special set of skills.
All of us in this chamber want to see the plight and the
conditions for native peoples greatly improved. I think I heard
from Senator Sparrow — I am not sure, and if I am wrong, he
can correct me — a niggling concern that, somehow or other, in
going forward in this way, the government may be creating, if
not ghettos, the possibility for a form of apartheid or a form of
ghettos. In answering that question, can Senator Sparrow tell me
whether the committee considered the possibility that we may be
creating such potential in the future?
Senator Sparrow: Honourable senators, the answer is no.
To my knowledge — certainly any time that I was in
committee — the discussion on that particular issue did not come
up. Personally, I have the concern that we may be setting up
additional ghettos, not only there, but, as the treaty process
progresses, across the country.
Honourable senators, we have Indian reservations across the
country. We certainly have them in Saskatchewan, and only in
Saskatchewan did they bring in what they call a land entitlement
act. We are creating new and expanded Indian reservations. We
have expanded them into the urban communities. We have urban
reserves within the urban communities, and already one can see
the backlash and the racism created by that situation. It is a very
disturbing move, and I think it augurs poorly for good race
relations and the absence of racism in the future.
Hon. David Tkachuk: Honourable senators, the examination
of Bill C-9, our committee's study and the debates in this
chamber have inadvertently turned into an examination of the
very concept of self-government for Indian people in this
country. Inadvertently as well, this has turned into an
examination of ourselves as parliamentarians, which we are. If
there is any place that citizens in this country can come and
expect redress, or expect that the law will be properly served, and
expect that the Constitution will be upheld, and expect that we
will be all treated equally, it is in this place. If not here,
This is a troubling thing that we are doing here.
Honourable senators, I should like to read into the record a
portion of a letter from Ms Wendy Lockhart Lundberg. I think all
honourable senators received a copy of this letter. She is a status
member of the Squamish nation, one of 50 bands negotiating
treaties in British Columbia. She was not able to testify before
us, but she submitted her brief, and it is included with our other
evidence. Her letter states, in part:
After reading the material I obtained, I find that my
primary concern is that the language of Bill C-9 asserts
collective rights over the rights of the individual. I am
concerned that this is a further erosion of native women's
rights. It is ironic that self-government initiatives are often
referred to as `modern day treaties'. I find that these
initiatives do not advance native women on the path towards
equality but rather they are draconian in their present form,
relegating native women to the Dark Ages.
She goes on to say:
Although it was stated that British Columbia's Family
Relations Act will determine the division of matrimonial
property under Nisga'a law, I have found no reference to
this statute in my reading of the documents that I possess...
And how, under Nisga'a law, will property rights apply to
native women as regards inheritance and expropriation?
All senators should read this brief before we vote tomorrow
because she is asking us for assistance and she is asking us
It is appalling that this discussion did not take place prior to
the debate about how we would negotiate treaties. That is why
we find ourselves with a minister who comes before us and says,
"You are the Parliament of Canada, but you cannot change
anything. It is yes or no, because how am I to take the bill back
to my department and tell them that it did not pass the Senate?"
Of all places, the Senate might have something to say about this
treaty and about this bill.
Honourable senators, we should have hammered out certain
principles to guide federal ministers in this negotiation with the
First Nations people. Once that had been accomplished, the
federal government could then have proceeded knowing
that there was some consensus in this place and in the other
place, rather than subjecting the Nisga'a to a debate not of
The Nisga'a know what they want. They even held a
referendum. We are a long way from that particular vehicle. The
people of British Columbia are asking for a referendum, but we
are saying no to them, as the B.C. government said no to them. In
our referendum on the Charlottetown Agreement, a great
majority of people — 60 per cent or more — rejected the
proposal for aboriginal self-government. There was enough
opposition to breaking up the country, according to the people on
the other side, but not enough to prevent this bill.
A number of troubling issues have been raised, such as the
overlap situations; the constitutional issues that
Senator Andreychuk spoke about and on which I will speak later;
and the institutions that we are creating, namely, a third order of
government, or, as Senator Austin would say, an
At committee, we heard from two professors of law from
Osgoode Hall, Dr. Bruce Ryder and Dr. Kent McNeil, who
brought forth the Monahan doctrine of the growing tree, or the
Osgoode Hall doctrine of the growing tree. As a simple man,
I am not intimidated by judges, lawyers and constitutional
professors. The same people who throw me in jail for smoking in
a restaurant allow pornographic materials about children to be
viewed in a person's house. However, these are the people who
came before us. As a simple person, I want to get along with
everyone. Yet, here these people are telling us what the
Constitution means. I will spend a few moments quoting them so
that all honourable senators can become acquainted with the
nonsense we had to put up with as we listened to these two
professors from Osgoode Hall, the very professors to whom
the Government of Canada is listening, including Senator Austin.
Senator Austin says that there is no third order of government.
We will get to that issue later.
If we look at the Nisga'a powers that that have been discussed,
such as citizenship, culture, language and property, federal and
B.C. laws will be rendered inoperative to the extent that they
conflict with Nisga'a law. I am speaking of concurrent powers.
This concept is perfect for Quebec separatists. If we recognize
concurrent powers for the Nisga'a, why cannot we recognize the
concurrent powers of federal law for Quebec? We are talking
about the growing tree here.
In committee, I asked Mr. Ryder this question:
Senator Tkachuk: You are saying that in 1867, when
they were drawing up the Constitution, lurking in the
background was another power. It was almost like another
power that they never considered at the time, but in 1983 or
1982 it was considered and has evolved over the last
18 years into this creature that we now have, called the
Nisga'a agreement. You seem to be describing a third order
of government here — that is, another level that we had
Professor Ryder from Osgoode Hall replied:
Mr. Ryder: It is appropriate to describe a third order
Senator Austin, you should be listening to this; these are your
own lawyers. Professor Ryder went on to say:
When we say "third order," we already have municipal
government. I mean a third order of government that has
Therefore, we will have to rework this thing that we send out
to the children in all our schools, where we actually have a
diagram about the institutions of our federal government — that
is, the Senate, the House of Commons, the Queen and Canada's
parliamentary system. We will be adding another order of
government with this bill. No amount of talking around the edges
will say that we are not doing that. Let's just admit it. Maybe it is
something that we should do, but we should not deny that we are
doing it. That is what they are doing in the other place. They are
amending the Constitution through the back door.
Professor Ryder goes on to state:
I did not mean to take issue with other witnesses who have
suggested that the treaty gives constitutional protection to a
third order of government, that is true. All I meant to
suggest was that it is not new in doing so.
I then said:
It is new to me and new to most of us.
Professor Ryder then says:
...there is still room for debate — and senators have been
fully exposed to the debate — that the aboriginal right of
self-government is already recognized in clause 35(1).
That would be a big surprise to Senator Buchanan and to all the
premiers who were there, as well as the Prime Minister himself.
Professor Ryder then goes on to say something interesting:
What we are trying to do now — and what we have been
trying to do for many years — with the 1982 act —
He clearly stated "What we have been trying to do" — not us,
but them, at Osgoode Hall. He goes on to state:
— and the process of treaty making is reconcile the
assertion of sovereignty that did not take into account the
prior sovereignty of aboriginal peoples. We have, in a sense,
rediscovered their rights.
It is like that Steve Martin album — "I forgot." He is saying
that we have this Constitution and, whoops, 130-some years
later, we forgot about those aboriginals. We forgot! In my way of
thinking, when someone forgets to do something, they have to
fix it — especially if they forget to do something important. They
have to fix it in the way that the document says that they have to
fix it because all kinds of bad people could come up to you and
say, "You forgot that, too, so you have to fix that through the
back door. Let's work this Constitution up real good, but let's not
tell anyone about it, because if we bring all the premiers together
and we bring all the people into this debate, there may be a
problem. They may not like it, and we cannot have that. We have
to bring it through the back door." That is exactly what they are
doing here — just in case they do not like it. That is not the
country I came to. If we forgot, honourable senators, we have
Professor Ryder then goes on to say, and this is very important:
We made the decision in 1983 to embrace treaty rights that
were concluded in the future.
I do not deny that. He then states:
From the aboriginal perspective, however, those limitations
on Canadian governments' powers ought to have been
recognized because of their inherent rights of
self-government grounded in the prior sovereignty and prior
occupation of the land.
I maintain that if those premiers and the Prime Minister at
that time knew that section 35 meant the Nisga'a bill —
self-government, constitutionally protected — we would not
have had a section 35.
The Hon. the Speaker: Honourable Senator Tkachuk, I regret
to interrupt you, but under the order of the house, I am obliged to
do so at 3:30.
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, I propose that we give leave for Senator
Tkachuk to continue to the conclusion of his remarks, including
comments and questions, and that we not see the clock until that
has occurred. I propose as well that we give leave to any standing
committees of the Senate that have arranged meetings for 3:30 to
sit even though the Senate is now sitting.
Honourable senators, I might comment that I had asked to
revert to the adjournment motion later this day. I no longer wish
to do so.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, we think that is a practical proposition and
we would grant leave.
Senator Cools: Honourable senators, I, too, am prepared for
us not to see the clock. However, at some point we should get a
clarification. If an order of the Senate was made that we should
cease sitting at 3:30 and that the Speaker should rise, I wonder if
we can remove such an order just by saying that we will not see
the clock. This is a very important point. At six o'clock in the
evenings when we agree not to see the clock, we are acting under
a particular rule of the Senate. However, in this case a specific
order was made. At some point, we should visit the question of
whether we are acting properly.
Hon. Douglas Roche: Honourable senators, as a point of
clarification, is the intent of Senator Hays' statement that the
Senate would adjourn following Senator Tkachuk's remarks and
that the rest of the Order Paper for today would not
Senator Hays: Honourable senators, in answer to that
question, we have an order of the Senate from yesterday that at
3:30 we would adjourn and that all the remaining orders on the
Order Paper would stand in their place.
I am asking now, and Senator Kinsella has commented
favourably, that the Senate continue to sit to the conclusion of
Senator Tkachuk's remarks on Bill C-9, following which, by
operation of the order to which I referred a moment ago, we
would automatically adjourn.
On the point of Senator Cools, under the rules or by virtue of
order of the chamber, we have a well-established practice of not
seeing the clock. I do not think there is much question of leave
being the appropriate way of doing that.
Hon. J. Michael Forrestall: Honourable senators, I have a
brief question for clarification. I get nervous and edgy when a
senator stands up and says, "Leave having been given, I no
longer want to do what I previously wanted to do." What is
behind that practice?
Senator Hays: As honourable senators know, we have an
order to vote on Bill C-9 at 3:30 tomorrow. My concern at one
point was that we might not have adequate time for all senators
who wish to speak to Bill C-9 to actually be able to do so.
I discussed with the Deputy Leader of the Opposition the
possibility — although we did not conclude our discussion —
that instead of adjourning to 2 p.m. tomorrow, we would adjourn
to 1:30 p.m., or perhaps even earlier, to allow time for all
senators who wish to speak to Bill C-9 to do so.
Hon. Lowell Murray: Why not do that? You can always do
what you have just done and simply ignore the order of the house
and, by unanimous consent, waive the order of the house and
Senator Hays: At 2 p.m. tomorrow, obviously it would be too
late to get unanimous consent to sit at 1:30 p.m.
The Hon. the Speaker: Honourable senators, the proposal is
that, with leave, I not see the clock and that we proceed to hear
Senator Tkachuk and any questions or comments that arise from
his speech. I would then see the clock and leave the Chair.
Meanwhile, it has been proposed that committees which were
scheduled to sit this afternoon have leave to sit. I believe it would
be cleaner for the purposes of the Senate if there were a motion
to that effect so that there would be an entry in the official
record. If it is agreeable, I suggest that Senator Hays might move,
seconded by Senator Kinsella:
That, with leave of the Senate and notwithstanding
rule 58(1)(a), all Senate committees scheduled to sit at
3:30 p.m. today have power to sit while the Senate is sitting
and that rule 95(4) be suspended in relation thereto.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to.
The Hon. the Speaker: Honourable Senator Tkachuk,
Senator Tkachuk: Honourable senators, I wanted to read
these excerpts from the testimony we heard to show how illogical
it seemed to me.
We are set to buy a theory of constitutional law. It is not like
all the participants are dead. It is not like the law was made
100 years ago and people write about it in a book, saying that this
is what they really meant and that there is no one to argue with
them because they are all gone. Constitutional lawyers do that all
the time and courts do that all the time. They make decisions
about what people thought 150 years ago because those people
are not there to defend themselves. However, they cannot do that
with this growing tree because it is still very young. It has not
even sprung from the ground. We are expected to buy this theory
of the growing tree.
Honourable senators, we are talking about 1982 and 1983.
Every premier, as far as I can tell, knows that what was said
happened did not really happen. If they knew that it was going to
happen, I know for a fact that they would never have put
section 35 in the agreement. They would never have put
section 35 into the Constitution. We have a real problem here.
Honourable senators, another thing bothers me. If we
constitutionalize something, there is no turning back. This tree
will grow. There are 600 of them.
Senator Cools: It is a forest.
Senator Tkachuk: It will be a situation with which our
children must deal. I do not look forward to that, and I do not
look forward to that for them.
Who was here first? I do not know who was here first. I really
do not. The First Nations say they were here first. They even say
the Inuit came after them, but we really do not know that for sure
either. The First Nations say they were here first, and so they get
a set of rights. Then we have the Inuit, and they get a set of
rights. Then, of course, along came the French. They came to
Quebec 500 years ago. They have a set of rights. They have
special rights, too. They want language rights. We are developing
layers of rights based on race and ethnicity.
That is what my grandfather, a 15-year-old Ukrainian who ran
away from Ukraine, thought he was trying to run away from.
We know the problems that rights based on race and ethnicity
have caused over there, and we all see it. Our peacekeepers are
still trying to deal with those problems. The beauty of this
country, at least as my grandparents told me, was that we were all
here and we would all be equal. We would all be the same and
we would all be governed by the same laws.
Honourable senators, we have not yet had this debate in our
discussion of the Nisga'a bill. We will have layered rights in
The situation of the Cree is interesting because they are not
indigenous to the Prairies. They came from Ontario and Quebec
with guns, and they cleaned out the people who were indigenous
to the Prairies. We have all those issues, too. Do we bring back
the Bloods and say that they were on the Prairies first and chase
the Cree back to Ontario and Quebec? That way of thinking
has no end.
I ask honourable senators to support Senator St. Germain's
amendment to hoist Bill C-9 in an effort to allow it to be properly
examined. Otherwise, it will be in the courts for a long, long
time, and it will hold up further issues and further negotiations
that must take place.
On motion of Senator Kinsella, for Senator Lynch-Staunton,