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CANADA House of Commons Debates VOLUME 139 Ï NUMBER 037 Ï 3rd SESSION Ï 37th PARLIAMENT OFFICIAL REPORT (HANSARD) Tuesday, April 20, 2004 (Part A) Speaker: The Honourable Peter Milliken CONTENTS (Table of Contents appears at back of this issue.) All parliamentary publications are available on the ``Parliamentary Internet Parlementaire´´ at the following address: http://www.parl.gc.ca 2107 HOUSE OF COMMONS Tuesday, April 20, 2004 The House met at 10 a.m. The Speaker: The House has heard the motion. Is it the pleasure of the House to adopt the motion? Prayers Some hon. members: Agreed. (Motion agreed to) ROUTINE PROCEEDINGS Ï (1005) GOVERNMENT ORDERS [English] WESTBANK FIRST NATION SELF-GOVERNMENT ACT PETITIONS The House proceeded to the consideration of Bill C-11, an act to MARRIAGE give effect to the Westbank First Nation Self-Government Agree- Mr. Darrel Stinson (Okanagan—Shuswap, CPC): Mr. Speaker, ment, as reported (with amendment) from the committee. I am pleased to present a petition with signatures collected in my [English] riding by the Broadview Evangelical Free Church addressing the issue of marriage. SPEAKER'S RULING The petitioners state that the best foundation for families and the The Speaker: There are three motions in amendment standing on raising of children is that the institution of marriage be recognized in the Notice Paper for the report stage of Bill C-11. federal law as being the lifelong union of one man and one woman to [Translation] the exclusion of all others. *** Motion No. 2 will not be selected by the Chair as it could have been presented in committee. Ï (1010) [English] QUESTIONS ON THE ORDER PAPER Hon. Roger Gallaway (Parliamentary Secretary to the Leader The remaining motions have been examined and the Chair is of the Government in the House of Commons, Lib.): Mr. Speaker, satisfied that they meet the guidelines expressed in the note to I ask that all questions be allowed to stand. Standing Order 76.1(5) regarding the selection of motions in amendment at the report stage. The Speaker: Is it agreed? Some hon. members: Agreed. Having heard submissions from the hon. members in respect of that matter, Motions Nos. 1 and 3 will be debated and voted upon. *** [Translation] [Translation] I will now put Motions Nos. 1 and 3 to the House. BUSINESS OF THE HOUSE [English] Hon. Mauril Bélanger (Deputy Leader of the Government in the House of Commons, Lib.): Mr. Speaker, discussions have taken MOTIONS IN AMENDMENT place between all the parties and I believe that if you were to seek it you would find consent for the following motion: Mr. John Cummins (Delta—South Richmond, CPC) moved: That the recorded divisions scheduled today at 3:00 p.m. be taken in the following Motion No. 1 order: first, referral to committee before second reading of Bill C-25; second, the That Bill C-11 be amended by deleting Clause 3. amendment to second reading of Bill C-30, and third, second reading of Bill C-246. Mr. John Duncan (Vancouver Island North, CPC) moved: The Speaker: Does the hon. government House leader have unanimous consent to present this motion? Motion No. 3 That Bill C-11 be amended by adding after line 13 on page 2 the following new Some hon. members: Agreed. clause: 2108 COMMONS DEBATES April 20, 2004 Government Orders “4.1 Despite section 102 of the Agreement, lands acquired by the Westbank First ...[the band] acted pursuant to its inherent powers of self government...this Nation that are contained within the limits of the city of Kelowna, British Columbia, inherent power...is one of the 'rights or freedoms that pertains to the aboriginal may be transferred to Canada for the purpose of being set apart as lands reserved for peoples of Canada' shielded from erosion by the Charter through s. 25 Indians under subsection 91(24) of the Constitution Act, 1867, or as reserves within the meaning of the Indian Act for the use and benefit of the Westbank First Nation, That was the band's opinion. only with the consent of the City of Kelowna.” Mr. John Cummins: Mr. Speaker, the issue here is the The Federal Court of Appeal rejected the band's argument holding application of the Charter of Rights and Freedoms or the failure of that the band government had not been charged under the section 15 the Charter of Rights and Freedoms to apply here, and it is to that equality rights provision of the charter and therefore it could not issue that I would like to address my comments. invoke section 25 as a shield against the equality provisions of the The Charter of Rights and Freedoms is designed to shield Canadian Human Rights Act. individuals from the arbitrary actions of their government. The charter provides individuals with a tool to challenge their The court said: government. All Canadians are covered by the charter. ...the answer to the [the band's] contention is three-fold. First, section 25 of the Charter has been held to be a shield which protects [aboriginal] rights... Yet, while all Canadians are covered by the charter, all Canadians are not equally protected by the charter. Some government actions Second, the named respondents have complained that the are shielded from the application of the charter. appellant's refusal to pay social assistance to them is a contravention of section 5 of the CHRA. Since they did not allege that the appellant Section 25 of the charter acts to shield government actions had violated section 15 of the Charter, section 25 of the Charter has involving aboriginal rights from challenges under the charter; that is, no application here. Third, the appellant has not established by if an individual challenges a government action involving the evidence the unique right which they are asserting and which they exercise of aboriginal rights, the government can shield itself from say is included in section 25 the challenge by claiming that the arbitrary government action involves aboriginal rights. Second...Since [the respondents] did not allege that the appellant had violated section 15 of the Charter, section 25 of the Charter has no application here. Charter challenges involving aboriginal rights trigger the section Third, [the band] has not established by evidence the unique right which they are 25 shield. asserting and which they say is included in section 25 What has section 25 got to do with the right of Westbank residents The Westbank government has a step up on the Nova Scotia band. to use the charter to challenge arbitrary rights of the Westbank It will never have to make the argument that it has an aboriginal right government? of self-government and as such that its actions are shielded from Section 25 has everything to do with the right of Westbank charter challenge. The Westbank agreement does all that. It states residents to use the charter to challenge the Westbank government. clearly and unequivocally that the Westbank government is a Section 25 will only be available to the Westbank government to representation of the aboriginal right of self-government. Any time it shield itself from a challenge under the charter if it can claim that its faces a charter challenge it need only point to the agreement with the actions involve the exercise of an aboriginal right. The Westbank crown that will have been ratified by Parliament. Its actions will agreement makes invoking the section 25 shield very easy. automatically be shielded from charter challenges. The Westbank agreement states throughout that the purpose of the agreement is to “recognize” and “implement” an aboriginal right of self-government. Ï (1015) In establishing the Westbank government as an aboriginal right, In a recent decision, the British Columbia Supreme Court has the agreement triggers section 25 of the charter. This gives the ruled that section 25 offers a complete defence, or what it called a Westbank government the power to shield itself from the challenges “complete answer”, to challenges under the charter involving section of its own residents. All the Westbank government needs to do when 7, legal rights of life, liberty and security of person; section 15, challenged is to point out that it is exercising an aboriginal right. End equality rights; and section 3, democratic rights of citizenship. It of story. stated: That is the problem in a nutshell. ...Section 25 of the Charter is a complete answer to this argument. For those who think this is a pipe dream, they should give their In any case, s. 25 of the Charter itself is as much an answer to a submission concerning sections 7 and 15(1) as it is an answer to the s. 3 submission. heads a shake. In Nova Scotia an appeal was made under the Canadian Human Rights Act that a band government was The challenges based upon the Canadian Charter of Rights and Freedoms are discriminating against a non-native husband. On appeal to the answered by s. 25 of the Charter. Federal Court of Appeal, the band argued that it had an inherent right to govern and as such it could invoke section 25 of the charter to Based upon the dangerous wording of the Westbank agreement, it shield itself from the prohibition against discrimination found in the will always be open to the Westbank government to affirm that its Canadian Human Rights Act. arbitrary actions against its own residents are merely an exercise of its aboriginal right to govern and therefore is shielded from a The court said: resident's challenge under the charter. April 20, 2004 COMMONS DEBATES 2109 Government Orders Do members of Parliament really want to create the Westbank chastized the minister on March 22 in the Senate human rights government as a charter-free zone where residents will have lost their committee stating: rights to challenge their own government? You say that it is up to the Aboriginals to do this.

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