AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 25, 1999

• 1528

[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Thank you very much. We're starting meeting 19. The order of the day is Bill C-9, an act to give effect to the Nisga'a Final Agreement.

We're going into clause-by-clause. With us is Tom Molloy—welcome back—and Andrew Beynon to help us with our clause-by-clause consideration.

Just to get the ground rules straight, so that we can do this in an orderly fashion, I think we've been going along in five-minute rounds, five minutes for each party on each issue. If you wish, we could continue on that, or if there are any objections or other considerations, it's up to this committee.

Mr. Raymond Bonin (Nickel Belt, Lib.): Madam Chair, I would ask that you seek unanimous consent. It seems reasonable.

The Chair: Okay. Is there unanimous consent to have five-minute rounds on those areas, one five-minute round for each party?

• 1530

Some hon. members: Agreed

The Chair: Okay. Seeing no objection, that's unanimously decided.

Before we start, the clerk advises me that we have, at this point, potentially six amendments. What I propose to do is go forward by going through those clauses. If those clauses are subject to an amendment, we'll defer them to the end, just get through the ones that have no amendments first, and then go back and do our rounds with the ones that have amendments and let the parties speak on those.

We'll start with clause 2. Are there any amendments being tabled on clause 2? Seeing none, shall clause 2 carry?

Yes, Mr. Konrad.

Mr. Derrek Konrad (Prince Albert, Ref.): Sorry for being late.

The Chair: Do you have amendments on clause 2? The clerk advises me that there are six potential amendments.

Mr. Derrek Konrad: Yes, it's true.

Might I ask a question before we get started? We don't want to hurry through too much. We have people here from the department to talk about the bill, do we?

The Chair: Yes, I introduced them at the beginning of the meeting.

Mr. Derrek Konrad: That's right. But we want to go through this clause by clause, for the purpose of clarification, if we have an opportunity. Do we? Or is it simply—

The Chair: We just had unanimous consent while you were coming in late, Mr. Konrad, that the committee will deal with this, and I put it to them how they wished to deal with it. We're going to have five-minute rounds per party on the ones where there are amendments. I was just proposing as you came in that one of the ways I thought we could do it, to make sure—I understand we have about six amendments that I'm aware of right now through the clerk. We would go through clause by clause to see if any of these clauses have amendments. If they don't have amendments, we'll do the vote on that clause. When we get to the amendments, we'll stand that one down and defer it, so we can debate all of the amendments together, one right after another, in the order in which they appear in the bill.

Mr. Derrek Konrad: Just for my information here, you would accept amendments.... Suppose somebody had an amendment for, say, subclause 2(1) at this point in time. That would not be able to be submitted at this time?

The Chair: What we're going to do—no, I'll just clarify it. We'll go through all the clauses. If there is an amendment going to be tabled on that, we'll defer that until the end. That way, this committee will have an idea of how many clauses in which we're going to be dealing with amendments. We'll pass the ones that no one is offering amendments on, or not pass them, depending on what the committee does with that particular clause. Then we'll go back in the order again with the ones people have indicated there are amendments being tabled.

Mr. Bonin.

Mr. Raymond Bonin: I have a point of order. May I suggest, Madam Chair, that, as you have suggested, you go clause by clause and name them—

The Chair: Oh, I will.

Mr. Raymond Bonin: —and ask “Shall clause 2 carry?”

The Chair: Yes.

Mr. Raymond Bonin: If I have a question on clause 6, I should ask you to pull it—

The Chair: Yes, defer it.

Mr. Raymond Bonin: —or if I have an amendment, I should just yell out “pull it”, and then we can put those aside. The ones we all agree on, we can vote on them as we go. Then we'll know what kind of a workload we have left for the committee to do—if I may suggest that.

The Chair: Mr. Konrad, go ahead.

Mr. Derrek Konrad: Just one more question. Will this be all of clause 2, or will we go to subclause 2(1), subclause 2(2), period?

• 1535

The Chair: It will be clause 2, but if you have any issue with any point of that clause, that should be pulled off. If there's an amendment to any subclause of clause 2, then we should not deal with it on the first go-round. We should defer it. Am I clear, Mr. Konrad?

Mr. Derrek Konrad: Probably so.

The Chair: Okay. Thank you very much.

Does anybody else have any questions? No. Okay. We'll start.

(Clauses 2 to 4 inclusive agreed to)

The Chair: I believe we have a Reform amendment on 5. Is that correct? That's what the clerk is indicating, and I believe it's Reform 1. Can somebody from the Reform Party confirm that with me and I'll pull it?

You have an amendment to clause 5, Mr. Konrad?

Mr. Derrek Konrad: Yes, I do.

The Chair: Okay. So we'll just defer clause 5 for the time being.

(Clause 5 allowed to stand)

(Clauses 6 to 10 inclusive agreed to)

The Chair: I understand you have an amendment on clause 11. Is that correct, Mr. Konrad?

Mr. Derrek Konrad: Yes, I do.

(Clause 11 allowed to stand)

(Clauses 12 to 27 inclusive agreed to)

(Clause 1 agreed to)

The Chair: There is an amendment to the preamble by Reform....

Before I go to the preamble and the rest of my questions, we will go back to Reform 1, which talks about clause 5.

(On clause 5—Agreement binding)

The Chair: Do we have something to distribute, Mr. Konrad?

Mr. Derrek Konrad: Yes, we do.

The Chair: Does everybody have Reform 1 before them?

• 1540

Mr. Konrad, I'm going to allow you your five minutes, if you will, to.... First of all, I'll just give everybody—pardon me?

Mr. Tom Molloy (Chief Federal Negotiator, Department of Indian Affairs and Northern Development): Is it possible to get a copy?

The Chair: Certainly. Our witnesses would like a copy.

Maybe we could just take this minute to read it while we're waiting for our witnesses to get a copy.

You have five minutes on this, Mr. Konrad. Go ahead, sir.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): For questions and answers?

The Chair: Five minutes to present his....

Mr. John O'Reilly: Including the answers, as we've done before, as we agreed to?

The Chair: We have a five-minute round here, as we agreed unanimously a couple of minutes ago.

Go ahead. Mr. Konrad, it's up to you if you want to read this or just presume that people have read it. It's your five minutes. Use it whatever way you wish.

Mr. Derrek Konrad: Thank you, Madam Chair. I'll read it. It's to clause 5, and it says:

5. The Nisga'a Final Agreement is binding on all persons.

As to the rationale—I will just point out that I may ask for some help from the guests here once I get on with it.

The current version says:

5. The Nisga'a Final Agreement is binding on, and can be relied on by, all persons.

It's our contention that there are a number of issues still to be discussed by the Nisga'a, the B.C. government, other parties, and the federal government, and until those issues have all been completed, it cannot really be relied on, because there's no finality until every aspect of the agreement is dealt with. Furthermore, there are a number of issues that are before the courts at this time, and it would be very difficult for anyone to buy into it. It can't be relied on until it has been completely dealt with.

I wonder if the witnesses could respond to that.

The Chair: Mr. Beynon.

Mr. Andrew Beynon (Senior Counsel, Federal Treaty Negotiation Office, Department of Justice): I can offer some explanation of this clause. In fact it reflects a portion of chapter 2, “General Provisions”, of the Nisga'a Treaty. Right in the Nisga'a treaty, page 17, paragraph 4, the parties agreed that:

4. Canada and British Columbia will recommend to Parliament and the Legislature of British Columbia...that settlement legislation provide that this Agreement is binding on, and can be relied on by, all persons.

You'll find that it is a clause that echoes the terms of the treaty itself.

I would also note for the committee members that the provincial legislation, Bill 51, has exactly that wording, including the phrase “and can be relied on by all persons”.

One last comment I'd offer for your consideration is that even against the backdrop of some of the comments that have been made to the committee about overlaps and court cases, particularly for neighbouring communities like the Gitanyow and the Gitxsan, they may want to rely on the terms of the final agreement in order to be able to rely on, for instance, paragraphs 33 to 35 of the general provisions. That would indicate that they can invoke those in court.

The Chair: Go ahead, Mr. Konrad.

Mr. Derrek Konrad: It may be binding upon all parties to the agreement, but whether or not it can be relied on is another matter. Does the one not in a sense beg the other, or even possibly weaken the other portion of that term?

Mr. Andrew Beynon: I would suggest that the addition of the words “relied on” does not weaken the notion of it being binding. I think it's not so much expressed in the notion of the agreement being reliable like a car is reliable, but more so that you can rely on it and invoke it, use it in court; that third parties, like forestry companies, can rely on these provisions.

• 1545

If I may, perhaps it would help the French version of the text in Bill C-9, where it says

[Translation]

5. The Nisga'a Final Agreement is binding on all persons.

[English]

In that French formulation, if there's any doubt in terms of relying upon, I think that makes it abundantly clear that it's in fact a document that can be invoked in court and invoked, say, by the Gitanyow.

The Chair: Go ahead, you have more time.

Mr. Derrek Konrad: All right.

I'd like to address the point you raised about resource companies and others who may rely on a document that proves to be, in a sense, unreliable—does that sound right?—which is subject to a different interpretation from the courts than what may possibly have been stated on the face of the document, if you follow me. What if they sign an agreement and say it's relied on and all of a sudden the sand shifts underneath their feet and they have another agreement? What does that mean technically and legally in a court case, say?

Mr. Andrew Beynon: I'm not sure I can quite speculate as to the outcome of a particular court case like that. I think I just have to echo what I said before, that the intention here is to say this document can be relied upon. It is one that can be invoked in court by third parties and by other native groups, like the Gitanyow, so that they can make use of the terms of the final agreement in court.

[Translation]

The Chair: Do you have any questions, Mr. Bachand?

Mr. Claude Bachand (Saint-Jean, BQ): No.

[English]

The Chair: Would you like a five-minute round on this?

Mr. Pat Martin (Winnipeg Centre, NDP): Maybe just one minute, Madam Chair. I don't need the whole five—

The Chair: You don't have to use all of your time, but I'm offering it to you.

Mr. Pat Martin: —as much fun as that might be.

I guess I was kind of mystified as to why this particular amendment at this time. I think the witnesses have helped me to understand at least some of the ramifications. Really, it seems to me that given the tone and the content of most of the remarks made by the Reform Party surrounding the whole Nisga'a deal, these kinds of amendments are nothing more than political mischief. They are a further attempt to drag these proceedings down and stop this whole process of the speedy passage of this bill.

I would strongly point out that we've seen nothing short of barriers being thrown up at every step of the way by the Reform Party. Now that I do understand more fully the only possible reasoning behind an amendment like this, I'm even more convinced that it's a meaningless amendment and it should be voted down. It simply has no merit, no value. It doesn't add to the agreement. It just tends to bog down these meetings.

The Chair: Thank you. I take it there's no question there. I take that as a comment. I just want to make sure, Mr. Martin, before I leave you that that's the full use of your time.

Mr. Keddy, go ahead, please.

Mr. Gerald Keddy (South Shore, PC): Thank you, Madam Chair.

If the amendment were made—and I think that was Mr. Beynon's answer—certainly it would weaken the meaning. When I read it, I read it to mean if you change it to binding on all persons or can be relied upon and binding on all persons, it seems to me it's less formal in its meaning and would actually weaken the meaning of the phrase.

Mr. Tom Molloy: If I could just answer that, I agree with your comment. One of the reasons for putting in the additional wording was so that there was no question but that third parties could go to court and use the treaty without having to rely on either British Columbia or Canada to take their case in the event there was some dispute involving a private forest company, say, and the Nisga'a.

Mr. Gerald Keddy: So what we're doing by having the full clause is protecting third-party interests as best we can.

Mr. Tom Molloy: That's correct.

Mr. Gerald Keddy: Fine. Thank you.

The Chair: Thank you.

Would anyone on the government side like to ask a question of these witnesses? Seeing none, we're going to call the question on Reform 1.

• 1550

Mr. Raymond Bonin: Madam Chair, a point of order. The gentlemen we have before us are resource people. They are not witnesses and it's not an exercise to question the witnesses. It's a debate we're having. I'd like that to be clear because I wouldn't want the record to show that this is a public hearing. It is not.

The Chair: No, it's not a public hearing. This is clause-by-clause. These are our resource people. I hoped I had made that clear. If I didn't, I'll say it again. Mr. Tom Molloy and the other two people, Mr. James Barkwell and Andrew Beynon, are before us as resource people.

We are going to the question, and the question is on Reform 1.

Mr. Maurice Vellacott (Wanuskewin, Ref.): Excuse me, do I get a chance here in terms of a query?

The Chair: You were here when we did the motion that unanimously consented to a five-minute round.

Mr. Maurice Vellacott: Yes. Okay, so we're just saying five minutes per party?

The Chair: Yes. That's what you consented to earlier when you were sitting there and I asked....

Mr. Maurice Vellacott: Yes, and I understood, but I thought we would go with second rounds, possibly.

The Chair: No, a five-minute round.

Mr. Maurice Vellacott: It wasn't specified as one round; it just simply said five minutes per party.

Mr. Derrek Konrad: Could we have the motion, please?

The Chair: I specified one round, I believe.

Mr. Derrek Konrad: Do we have the motion in writing?

Mr. Maurice Vellacott: Let's get the transcript of that. I don't recall that being said. I recall five minutes per party, and I thought that was the....

The Chair: Five minutes per party and a five-minute round was what I....

Mr. Raymond Bonin: A point of order, Madam Chair. I'd like to suggest that you seek unanimous consent that it be five minutes per member. The official opposition has two members. I don't think five minutes more on three clauses will break this committee.

The Chair: As chair I think that's an eminently fair suggestion.

Mr. David Iftody (Provencher, Lib.): Madam Chair, could I just intervene. I would accept that as long as.... I'm not sure whether the Reform is expecting any more of their members to join them at the table, but a maximum of two of them.... We're therefore increasing the time outside of normal processes by 100%. I don't mind giving them each five minutes at all, but it's no more than two members for a second round.

The Chair: Let's have this clarified then. What you're proposing, as I see—go ahead, Mr. Bonin.

Mr. Raymond Bonin: Madam Chair, I will concur with the comments of my colleague pertaining to my request for unanimous consent. Therefore, my request that you seek unanimous consent would be for two members maximum per party.

The Chair: Before somebody else questions me, I just want to clarify—because I know this question will come up right afterwards—if a party only has one member here, does that mean that same member can go two rounds of five minutes?

Mr. Raymond Bonin: Madam Chairman, I made reference to the fact that the official opposition only has two members and that it will not break this committee for three clauses to allow them an additional five minutes.

The intent is very clear that it's not for 50 Reformers to be lined up outside the door to take five minutes each. It's an additional five minutes to the official opposition.

Mr. David Iftody: Madam Chair, I'm seeing, I believe, a nod of consent from the other two opposition parties that they do not object and would not take their additional five minutes per party, but out of cooperation and consideration of the official opposition, who is here today, all of us are agreeing that we will give one of their members an additional five minutes, but that would not translate into ten minutes for each of the official opposition parties, if everyone agrees with that.

The Chair: Mr. Keddy.

Mr. Gerald Keddy: Madam Chair, I don't think we have that many amendments here that we have to worry about debating time. I think if any member of Parliament cares to speak on the amendment, they should have the opportunity, and if we start a second round, it would be my contention that everyone should get an opportunity in the second round to speak if they wish. I don't think anyone wants to carry this on any further, but that's the democratic process. If we start a second round for Reform, I would hope that that would be open for the rest of the opposition parties.

The Chair: Mr. Bonin, go ahead.

Mr. Raymond Bonin: Madam Chair, we have agreed to a procedure on unanimous consent. I have made a suggestion that we offer the official opposition, because they are requesting it, an additional five minutes. I'm not suggesting that we should open additional rounds. We have cleared that up. It's five minutes per party. I've asked my colleagues if they would agree to give to the official opposition, in fairness, an additional five minutes. I did not ask for any more than that. If we're talking about more than that, we're talking about my request that you seek unanimous consent.

• 1555

The Chair: We'll ask if there is unanimous consent to provide the official opposition with an additional five minutes. All those in favour? Yes, Maurice?

Mr. Maurice Vellacott: I didn't understand it initially when you came forward—I thought it was per round—but as we get into this new thing now.... I don't know if I'm appearing selfish or what, but I didn't want the time for myself, or another person in this chair, if there were to be one. How the others judge that, that's up to them. If we want to just give to Reform, I'm okay by that. But there are other parties here representing as well and they have some say on this matter. I make the request with respect to ourselves. If it applies across there, it can.

Mr. Raymond Bonin: It's the official opposition; we don't care who.

The Chair: I guess people will signify that with their vote on this right now, whether or not....

I'm going to call the question. All those in agreement with giving the official opposition an extra five minutes, please indicate.

Some hon. members: Agreed.

The Chair: I see unanimous consent. Unanimously, then, Mr. Vellacott, go ahead for five minutes.

Mr. Maurice Vellacott: I appreciate our witnesses here. I have an aboriginal territory and constituency I represent in the Saskatoon area called Wanuskewin—

The Chair: Again, these are not witnesses; these are resource people, so you have resource people to question on clause-by-clause.

Go ahead.

Mr. Maurice Vellacott: Thank you.

I guess I do have a little concern as more of a question and in a non-partisan spirit. I do really want to have some understanding or assurance that if in fact we have things to be settled in terms of resource agreements and so on, pursuant or subsequent to this whole thing, and that would be stopped in the courts, how can we say this is and can be relied on by all persons when in fact that would be an issue of the courts to make that determination? Are we not presuming outcomes? Are we reading way ahead of it? We don't know that in those cases maybe the courts will overturn some stuff. I guess that would be my question of our resource people in terms of just a straight not wanting to be presumptive of what some court decisions may in fact be.

Mr. Tom Molloy: I think perhaps the best example I could give is that in the general provisions of the treaty there's a release by the Nisga'a of any past infringements. So mining and resource companies can rely on that, and if for some reason a court case were to arise where that issue was there, the forestry or mining industry, or whoever, could use this clause to invoke that provision of the treaty without having to rely on either Canada or British Columbia to become involved in the legal action.

Mr. Maurice Vellacott: If they were to involve or draw in those other parties, as you suggest, and some aspect were found to be overturned or not valid, are we not presuming an outcome? Is it not maybe too strong of a statement?

Mr. Tom Molloy: We're not presuming an outcome. We're giving third parties some further protection through the provisions of the treaty.

Mr. Andrew Beynon: Perhaps I could just add to that one point. To elaborate on what Tom is saying, the agreement is between three parties: Canada, British Columbia, and the Nisga'a nation. This clause makes it binding and can be relied on by third parties. Canada and British Columbia have a capacity to rely on it because they signed it, but third parties, mining companies, forest companies, the Gitanyow, neighbours, and persons resident on these lands will be able to rely on it by invoking the legislation. Otherwise, a court might look at them and say, why are you trying to invoke in court an agreement you didn't sign? It's a legal concept of privity of contract.

Mr. Maurice Vellacott: That's the end of my questions for now.

The Chair: Thank you very much.

Now I will call the question on Reform 1, which is an amendment to clause 5.

• 1600

Mr. Derrek Konrad: A point of order. Could we have a recorded vote, please?

(Amendment negatived—[See Minutes of Proceedings])

(Clause 5 agreed to)

(On clause 11—Judicial notice of Agreements)

The Chair: Now we're going to Reform amendment 2 on clause 11, please. Everybody should have a copy of that before them.

Mr. Konrad, are you going to do the five minutes here or will your colleague?

Mr. Derrek Konrad: The amendment at line 27 reads:

Agreement and including any amendments made to that Agreement from time to time

—as opposed to:

the Nisga'a Final Agreement and the Taxation Agreement shall be

We are talking about judicial notice being taken of the Nisga'a Final Agreement and the Taxation Agreement, which is complete in itself but doesn't take into account any amendments that may be made to the agreement from time to time. So we want to see the Taxation Agreement and the Nisga'a Final Agreement both be made amendable and judicial notice taken of them at that time rather than simply crystallized at this point in time with no opportunity for amendment. It may well be that some time down the road we'll want to see the final agreement amended or the Taxation Agreement amended.

So we'd like to see that amendment made. We feel there is room in that clause for that particular agreement.

I would ask Mr. Beynon to comment on that for me.

The Chair: Mr. Beynon.

Mr. Andrew Beynon: Well, I can offer this comment. If you look at the definitions in clause 2 of Bill C-9, you see a definition of the Nisga'a Final Agreement and later a definition of the Taxation Agreement. At the end of each one of those definitions there's a phrase “and includes any amendments made” to that agreement “from time to time in accordance with its provisions”.

So I would suggest the addition is redundant or unnecessary because judicial notice shall be taken of the Nisga'a Final Agreement as defined, which by definition means the agreement as amended from time to time. It's the same with the Taxation Agreement.

• 1605

The Chair: Does that clarify, or do you want to continue with your questions?

Mr. Derrek Konrad: Does it muddy the water to put it in or does it improve the bill to put it in? It's our contention that it would improve the bill by putting it in there so that one doesn't always have to refer back.

Mr. Andrew Beynon: I would suggest, with respect, that it would muddy the language of the bill, because there are many places throughout Bill C-9 where you refer to the Nisga'a Final Agreement or to the Taxation Agreement. In all of those cases, you want the reader to refer back to the definition to include amendments. If you just included it one time, a court might ask why that difference is drawn. I think it would muddy the waters.

Mr. Derrek Konrad: That leads me to another question. Should it be in every clause like that in order to...?

An hon. member: I believe the other clauses have been passed.

Mr. Derrek Konrad: I'm not asking if they're passed. I'm asking a general question. Would it have been better to have had it everywhere as opposed to nowhere and expecting a referral back?

Mr. Andrew Beynon: I would suggest that it's economy of drafting. If we had to say “and includes amendments” over and over and over again, we would clutter up the drafting and make it significantly longer in both French and English. I note for committee members, out of interest, that provincial Bill 51 uses the same economical drafting by defining the Nisga'a Final Agreement to include amendments as well.

The Chair: Go ahead. You have another minute.

Mr. Derrek Konrad: It occurs to me there are many times in this bill where things are referred to time and again where we could have had a more economical drafting of the bill, but I'll take your point on that for now.

The Chair: You've got a bit more time left if you want.

Mr. Derrek Konrad: I'll pass to either of my colleagues, if they're doing a second round, or if anybody else has a comment.

The Chair: All right.

[Translation]

Mr. Bachand.

Mr. Claude Bachand: I have no questions.

[English]

The Chair: Mr. Martin? Mr. Keddy? No? Do you want a second round, Mr. Vellacott?

Mr. Maurice Vellacott: I have a question. I'm not a lawyer, but if I can be reassured somewhat by our resource people here.... You're saying all of these definitions have the full weight and impact, if referred to in the preparatory part here, in every section throughout. That's assumed it's part and parcel. It's inherent there. It's as good as having been written there? Am I to understand that correctly?

Mr. Andrew Beynon: That would be my interpretation. I would note for your benefit that every time the term “Nisga'a Final Agreement” is used, it's used in capital letters. Every time “Taxation Agreement” is used, it's used in capital letters. It is fairly standard in federal legislation that the use of that formulation refers you back to the capitalized terms as definitions in the agreement.

Mr. Maurice Vellacott: So in a court of law, simply, there would be no problems, no dispute; it would be simply a matter of reference back to these terms at the beginning, in all instances.

Are you a lawyer? I'm sorry, sir, I guess I should have asked that.

Mr. Andrew Beynon: Yes. I am legal counsel with the Department of Justice. I'm not allowed to provide legal advice to the parliamentary committee, but I can offer the comment that, yes, in my experience, when a term is used in capital letters in federal legislation, the intention is to refer back to the definitions at the start of the act. So the courts would say, whenever they come across the words “Nisga'a Final Agreement”, what does that mean? It means this thing, the date, signed on a certain date, laid before the House of Commons, and it includes any amendments made to that agreement in accordance with its provisions.

Mr. Maurice Vellacott: So you're assuring me that there are no exceptions to that, in your knowledge and in your experience of these matters of federal law.

Mr. Andrew Beynon: I would offer only the comment that in terms of what is said here—and the use of the phrase “here”—the intention in clause 11 is to refer back to those defined terms that include amendments.

Mr. Maurice Vellacott: That will be all for now.

The Chair: No further questions?

[Translation]

You have five minutes, Mr. Bachand.

Mr. Claude Bachand: Andrew, I'm curious to know if the use of capital letters has the same significance in English as it does in French.

Mr. Andrew Beynon: That's a good question. French capitalization rules are somewhat different. In French, as you will note, only the first word in the expression "Accord définitif nisga'a" is capitalized.

• 1610

Clause 11(1) reads as follows in French:

(1) L'Accord définitif nisga'a et l'accord fiscal sont admis d'office.

It's always important to refer to the definitions at the beginning of the bill, to clause 2(1) which says: "ainsi que toutes les modifications apportées à celui-ci sous son régime".

[English]

Mr. Gerald Keddy: A point of order. With respect, Madam Chair, we established a speaking order, round one and round two. I think it went through twice. It was decided that the opposition parties wouldn't be involved in round two. Reform has had round two.

The Chair: Mr. Keddy, I'll take your point. Each party could get five minutes if they wished to take it.

Mr. Gerald Keddy: We went through round one. This is round two. This is not round one.

Mr. Claude Bachand: A point of order.

The Chair: That's a very technical—okay, go ahead.

[Translation]

Mr. Claude Bachand: This is a highly technical matter, Madam Chair. If I can't even ask if the French and English versions are equivalent, I'll simply have to turn to my lawyers for assistance and move to challenge the legislation. I have to wonder when we will be allowed to speak French here. Until now, to be a good team player, I've not objected to allowing English-only documents to be tabled. Yet, when I question whether the wording has the same import in my language as it does in English, I'm told that I've had my turn. Well, if that's how it's going to be, then I'll skip my turn. If the legislation is illegal or incorrect, I'll seek advice from our counsel and we'll challenge it, if that's what you want.

Mr. Guy St-Julien (Abitibi—James Bay—Nunavik, Lib.): On a point of order, Madam Chair.

[English]

The Chair: Is this a point of order?

[Translation]

Mr. Guy St-Julien: Yes, I'd like to speak on the same subject. Mr. Bachand is right.

[English]

The Chair: Okay.

Mr. Raymond Bonin: Madam Chair, may I suggest that the question as was put should be put as a point of information. May I suggest to my colleagues that on the first round they defer their five minutes in case they want to use it up after the Reform has had their second round. I think we'll eliminate the problem.

The Chair: The chair is going to interpret this that each party is going to get their five minutes if they wish it. The opposition is going to get two five-minute rounds and the official opposition two five-minute rounds. I think the suggestion just put forward is an appropriate one.

I think the cooperation around this table between the members...and the accommodations have been superb throughout. I think at this late date it would be a mistake to do anything that would take away from that. I know we're tired. It's the end of a long process. I will try to accommodate you. I'm trying not to be too technical. I think, though, for my preference, I will ask all members, if they are not going to take it in the first round and they come up with their question, to say “defer”, and then I will go back. We will try to be accommodating that way.

I am now going to—-

Mr. Claude Bachand: Is there some time left on my five minutes?

The Chair: Yes, there's one minute.

Mr. Keddy, go ahead.

Mr. Gerald Keddy: With respect, my point is not anything to do with Claude's question. It's how we run this meeting. We had one round of five minutes. Every member of Parliament was asked. We've already established and voted unanimously that the second round will go to the official opposition. That's my only point. It has nothing to do with the question. It's the format and the order. If we voted, and I sat in this room and voted, on an order and it was unanimous—and we're not going to re-discuss that; it was unanimous—then I suggest, with respect, that we follow that order. That's all.

It's not five minutes for the second round. You get your five minutes on the first round, you ask your questions, and if you miss that opportunity, unfortunately we've already established the order.

Mr. Raymond Bonin: Could we call the question?

The Chair: We'll call the question now. On the amendment of Reform 2—

Mr. Derrek Konrad: Recorded division.

The Chair: Recorded division is not a problem. We're voting on Reform 2, and this is regarding clause 11.

• 1615

(Amendment negatived—[See Minutes of Proceedings])

(Clause 11 agreed to)

The Chair: Now we go to the preamble. We have an amendment, Reform 3.

Does everybody have it before them?

Mr. Konrad, you're going to do the honours for five minutes? Go ahead.

Mr. Derrek Konrad: I'm going to do the first five minutes.

The Chair: Okay. You'll do the first five minutes.

Mr. Derrek Konrad: I'll bet every party will wish they had a say when I'm done here, Madam Chair.

In the original it says:

Whereas Canadian courts have stated that this reconciliation is best achieved through negotiation and agreement, rather than through litigation or conflict;

We really don't have any problem with the latter part of that, but we wonder why the Liberals themselves would want to be known to have been told by the courts to get on with it. If we change that to simply “Whereas this reconciliation is best achieved”, we do not lose the meaning of that part of the preamble. Parliament takes control of the agenda rather than saying, well, the Canadian courts took us by the hand, put us over their knee, gave us a spanking, and told us what to do.

Consequently, I would like to see that out of there because I think it's demeaning to Parliament. It's demeaning even to the Liberal Party to have that in there. So my motion is to delete “Canadian courts have stated that” and simply move from the word “Whereas” to the word “this”. I believe that's right, the Reform Party believes that's right, and we think the government should agree with us on that.

Maybe I would ask Mr Molloy why that's in there.

Mr. Tom Molloy: It's intended to be a factual statement of the events, that that's what the courts have directed or have indicated is the best way to achieve this. It's there as a factual statement of what is occurring and the context in which negotiations have taken place. I might also mention that it also appears in the legislation passed by the British Columbia legislature.

Mr. Derrek Konrad: Who requested that it be put in there?

Mr. Tom Molloy: It was part of the negotiations. The three parties agreed that the wording as it appears before you and as it appears in the agreement was wording that was negotiated and agreed to by the three parties.

Mr. Derrek Konrad: But somebody must have asked that it be in there, and I'm just curious to know who it is that asked to have it there.

• 1620

Mr. Tom Molloy: I can't recall who specifically requested that particular wording. It's part of the factual context in which the negotiations occurred. It sets out the steps that occurred leading up to the negotiations, and it is intended to provide information and background to someone who is reading the bill.

Mr. Derrek Konrad: I can tell you who's asking to have it out: the Reform Party. I would simply state that reconciliation is best achieved through negotiation and agreement. That's something that I think we can agree to. I don't think we have to tell the world how it happened. Quite frankly, it's embarrassing to me.

The Chair: Mr. Konrad, you still have another minute if you wish. No?

Mr. Derrek Konrad: I suppose I could carry on and on here.

Is there any good reason why it shouldn't come out, in your view?

Mr. Tom Molloy: It's intended to replicate the wording that was agreed to in the treaty.

Mr. Derrek Konrad: Does it need to?

Mr. Tom Molloy: It's intended to provide information and background for readers, and I think it's an important part of the negotiation, the context in which the negotiations were carried out. I think it provides, for someone reading the bill for the first time, the information and background as to what then follows.

Mr. Derrek Konrad: But the treaty isn't a part of the legislation of this country. That's one of the problems we have with it anyway, that it is not part of the legislation before Parliament. Consequently, what is in here doesn't have to reflect 100% in that line what is in anything else. It doesn't have to replicate B.C. legislation; it doesn't have to replicate the agreement—

Mr. Tom Molloy: That wasn't an argument. I gave that as—

The Chair: Mr. Molloy, could you just let our questioner finish first?

Mr. Derrek Konrad: Now I realize that not everybody will agree with me on everything. But this is the Parliament of Canada and it can write its own legislation. Thank you.

The Chair: Mr. Molloy.

Mr. Tom Molloy: You will recall my reference to B.C. legislation. I gave it as a point of information. The reason why we put it in here, as I say, is as a replication of the preamble contained in the final agreement.

The Chair: That is the end of the time.

[Translation]

Do you have any questions, Mr. Bachand?

Mr. Claude Bachand: Yes.

[English]

The Chair: The one and only time I will come to you....

[Translation]

Mr. Claude Bachand: The Canadian courts have said that the best way to achieve this objective is through negotiation. While I'm not happy with this part of the preamble, I have to acknowledge that this is the sad truth. In Calder and succeeding judgments, the Supreme Court placed considerable emphasis on the importance of negotiations.

Unfortunately, as I see it, this is tantamount to an admission of failure on the part of parliamentarians, and I don't much like it. As Mr. Molloy stated, a preamble to an act is important because those consulting the legislation for the first time start by reading the preamble.

It's important to recount the facts leading up to the legislation and to refer to past events. The Canadian courts dictated in some respects the negotiation process and this reality should be stated in the preamble to the act.

Therefore, I intend to oppose this amendment.

[English]

The Chair: Was there a comment? No, that's it.

Mr. Martin, nothing? Mr. Keddy.

Mr. Gerald Keddy: Thank you, Madam Chair.

I wonder if the Reform Party would be happier if we took “Whereas the Reform Party has stated that reconciliation is best achieved through negotiation and agreement, rather than through litigation or conflict”.... Certainly they have all espoused a belief in and support for the treaty process. I would expect that could easily be replaced with “the Reform Party”.

But I'm being the devil's advocate, Madam Chair. Certainly I agree wholehearted with what Mr. Bachand has said, and that is the fact that that is a sad lesson of Canadian history. It's part of the preamble of the bill. It doesn't take anything away from the bill, but certainly it does add to the clarity of the bill and part of the reason why the bill is before us. So I would certainly be against removing it.

Thank you.

The Chair: You have more time. Is that all the time you wish to take?

Mr. Gerald Keddy: I'm finished.

• 1625

The Chair: Is there anybody on the government side who wishes to take five minutes?

Does the Reform Party wish to take its extra five minutes?

Mr. Maurice Vellacott: I guess first a point of clarification, Madam Chair. Was that a friendly amendment on the fly here from the Reform Party?

The Chair: No, it was not.

Mr. Maurice Vellacott: It was not.

The Chair: It wasn't tendered as such.

Mr. Maurice Vellacott: Good.

I find it a bit of an interesting irony here that we're appealing to that place of litigation, “the courts”. That's basically what goes on there, in courts obviously, and we're appealing to them and saying they are that place of higher authority that says we should not be in litigation and in the courts. Why would we be appealing to them to make our case on this thing? I don't know. That doesn't seem to make a lot of sense to me.

I guess that would be my question to Mr. Molloy or Andrew—the place of litigation where the judgments were made, appealing to them to say we should be pursuing this different approach, which I would agree with, rather than through litigation conflict. But we're referencing it to the courts where the litigation in fact has all this precedent from the Canadian courts. It seems an irony to me, if you can understand what I'm saying.

Mr. Tom Molloy: Well, except I think the purpose of a preamble in any piece of legislation is to provide a factual context behind what comes thereafter. That is in fact one of the reasons why and how we came to negotiate it as a result of the court saying this is the best way in which to resolve these matters.

Mr. Maurice Vellacott: Okay.

You made a comment before as to why we put this into the legislation. I take it you meant as parliamentarians why we're...because we're the ones getting the agreement on this whole thing and your groundwork that was done. You're basically asking why we as parliamentarians put this in the legislation. Is that correct?

Mr. Tom Molloy: That's right, why it was put into the draft legislation.

Mr. Maurice Vellacott: You as the agent in terms of the drafter.

I just find that rather an odd reference. I'm not familiar, I suppose, with all these bills and preambles, etc. I would have been akin to that particular amendment that was proposed before, and I don't know, frankly, why we need that reference to the courts—just say it is the best way. I think it's in some sense self-evident and I don't know why it requires that to be included.

Does it change anything dramatically if we don't have that there? It's giving us historical understanding only, you're saying.

Mr. Tom Molloy: And it replicates the wording as found in the preamble to the treaty itself.

Mr. Maurice Vellacott: That's the reason why it's....

Mr. Tom Molloy: It might beg the question as to why there's a difference between the preamble and the agreement and the preamble and the legislation.

Mr. Maurice Vellacott: From a legal point of view, you're saying?

Mr. Tom Molloy: There would be questions raised perhaps if the matter ever ended up in court over some issue: why is there a difference between what's contained in the treaty and what's contained in the legislation when other clauses here are taken from the preamble of the treaty itself?

Mr. Maurice Vellacott: We don't want it to end up in the courts. I think that's what you're trying to say...out of this whole clause here.

Mr. Tom Molloy: I'm not saying that each clause would result in a court case. I'm saying if there was, at some point in the future, a court case and the court was looking at the legislation and the agreement, it might raise a question as to why the difference. Obviously there must have been something else intended.

Mr. Maurice Vellacott: That would be the height of irony if we're taking it back into the court, and in this particular instance where “the courts” have said to take it into a more amicable kind of environment instead of into the court situation.

Mr. Andrew Beynon: Maybe I can offer something. If you read it in the context of the other clauses in the preamble and also in the treaty itself, it's nicely set out in context. With all due respect, I wouldn't suggest that this clause is in any way an appeal to the courts to intervene, nor is it inviting litigation. Instead what it's doing is starting out in context. The preamble points out that reconciliation of the crown sovereignty with the rights of aboriginal peoples is a significant issue.

The courts have told us—and it's just recitation of fact because it's in the court cases—that this is best achieved through negotiation and agreement instead of going to court, rather than through litigation or conflict. Then what we do is we say in our next preambular clause, well, that's exactly what we did. We had a negotiation instead of going to court. That's how we got the Nisga'a Final Agreement.

• 1630

So it's introductory; it's factual background. With all due respect, I wouldn't read this at all as an appeal to the courts to become involved. Instead it's precisely the opposite. We're saying the courts have encouraged negotiation instead of going to court, and that's what the Nisga'a treaty is.

The Chair: That is the time. Thank you very much.

Now we're going to the question.

Mr. Derrek Konrad: A recorded vote.

The Chair: You want it recorded, so we'll take a recorded vote. We are voting on Reform amendment 3.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: Shall the preamble carry?

Some hon. members: Agreed.

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill carry?

Some hon. members: Agreed.

The Chair: Shall I report the bill without amendment to the House?

Some hon. members: Agreed.

[Translation]

Mr. Guy St-Julien: Will the report be tabled tomorrow, that is Tuesday November 26?

[English]

Tomorrow morning?

The Chair: Yes. I guess I'm not going home tonight. I will report this tomorrow.

Yes?

Mr. Maurice Vellacott: I thought after the amendments you were going to go through the others. Is that not what I understood?

The Chair: We've done them. We've passed them. You were sitting in your seat.

Mr. Maurice Vellacott: I know I was—the ones where there were actual amendments tabled. You mentioned going thereafter to the other ones.

The Chair: We've voted on them. After we did your amendments, we went back to the original clause. You were sitting there during the vote.

Mr. Maurice Vellacott: I was sitting right here during the vote. You weren't going to go through those...?

The Chair: I did.

Mr. Maurice Vellacott: In terms of reading through each of those?

The Chair: I've done it all.

I will report this to the House on behalf of the committee.

Mr. John O'Reilly: Madam Chair, a point of order. I don't believe I heard you say you would order a reprint for use at report stage.

The Chair: We don't need it. There were no amendments. I would have done that if we had had amendments.

Thank you. We are adjourned.