Native fishery at heart of Alliance-led reform battle

Page 1

A federal committee that has the rare power to keep the government honest is embroiled in a dispute that involves the Aboriginal-only fisheries of the West Coast and could become crucial to the First Nations governance act reform process.

The government and the Opposition are at odds over how regulations should be developed. The regulations are constructed by bureaucrats to govern the way federal laws operate after they're passed by Parliament.

The Joint Committee of Scrutiny of Regulations (JCSR), established in 1971, has power most other federal committees don't. It can actually make the government do something it doesn't want to do.

In its 31 years of existence, the committee has sent only nine reports to the Commons. The JCSR's job is to monitor regulations and ensure they embrace the spirit of the legislation. If they don't, the committee can send a disallowance report to the House of Commons.

The JCSR has never had one of its reports rejected by the government, despite the fact its authority is not defined by law.

Committee vice-chair Gurmant Grewal (Canadian Alliance-Surrey Central) believes the government uses the regulations to realize certain legislative goals without having to debate them in Parliament.

"The regulation making process, generally they're supposed to submit the regulations along with the legislation. Or at least they should list some of the things they want to accomplish with the regulations along with the legislation so that when we are debating legislation in the House we are also aware what kind of regulations will be following," Grewal told Windspeaker. "But, to the contrary, the legislation which is submitted by the government in the House, generally it's very vague, it's not comprehensive, it's not to the point. It's very brief. It doesn't give enough substance to the members of Parliament for debate. So after the legislation passes through the House, after it becomes law, the government bombards through regulation. And many of the regulations are contrary to the original intent of the legislation. The law is not made through debate in the House but through the back door by regulations."

He said it's becoming common to see, for example, a six-page bill go through the House that is then followed by a 300-page list of regulations.

"The government is governing through the back door, not governing, ruling through the back door," the MP said.

Because it has become a tradition in Ottawa that JCSR reports are not ignored or over-ruled by the government, committee members call their reports the "nuclear option" and use the tool sparingly.

But the fight over Aboriginal-only fisheries in the Pacific has brought the committee to a crossroads. Grewal admitted some of his Canadian Alliance colleagues on the committee are pushing this issue because they disagree with the idea of Aboriginal-only fisheries, something they see as contrary to the equality provisions of the Charter. But as committee vice-chair, he insists that the policy matters are not for him to consider. He is more concerned that the committee process is respected.

"This committee is mandated for scrutiny of regulations. When we go through our scrutiny of regulations, we have a set criteria. We are not concerned about policy. We are concerned about the validity, the legality of the regulations," he explained.

If the JCSR decides a regulation is improper, that information is first relayed to the department that made the regulation. If there is a disagreement there that can't be resolved, it might be time to use the nuclear option. Once the disallowance report is sent to the House, the government has a set time (Grewal said 30 to 45 days) to respond. If there is no response, the regulation is automatically disallowed.

"The committee has that power, which the Parliament of Canada doesn't," he said. "The Parliament of Canada can't disallow the regulations but the committee can."

The reason this committee has had this rae power over the government for so long is that committees are usually dominated by the party in power and rarely buck the government. Grewal said this incarnation of the JCSR is operating in a different way.

"We very rarely vote on this committee. We develop a consensus," he said.

The committee decided back in 1997 that the regulations that created the Aboriginal-only fisheries were illegal. And after five years of discussion and wrangling, decided that a disallowance report would be issued at its meeting on Feb. 7. The government responded with one of the best attended sessions of the committee in years and the participating Liberal members were able to stall things by insisting that because of a recent cabinet shuffle, newly-appointed Fisheries and Oceans Minister Robert Thibault should be allowed time to get up to speed.

Grewal said the committee has not issued a disallowance report on the fisheries regulations yet because there would nothing to replace them and that could lead to the same kind of chaos on the waters that the Marshall decision led to on East Coast. He urged the Fisheries and Oceans minister to clean up the mess with a legislative amendment.

"The fisheries minister has delegated authority by government-in-council to issue the licenses for Aboriginal fisheries," Grewal explained. "What the minister does is he authorizes the Aboriginal band to issue the licenses. According to regulations, the committee found out the minister doesn't have power to further delegate to the First Nation bands to issue the licenses. That's where the one problem is. The other problem is the license can be issued to one person, not a group of persons. So when you issue to a band, the band doesn't have a date of birth, it doesn't have a legal identity. When the licenses have been issued in the past they've been issued to a group of people, not to individuals. I believe the minister is abusing his authority. If they want the minister to have the authority to delegate te license issuing authority to First Nations, then the Parliament has to instruct so. The Parliament has to legislate that."

For five years, the government has opted not to debate the merits of Aboriginal-only fisheries in Parliament and amend the legislation, prompting some observers to suggest the government isn't willing to defend the concept in full view of the Canadian public.

Now that the possibility of a direct challenge to the government is looming, Grewal believes the JCSR's basic flaw must be addressed.

"One problem this committee faces is the disallowance procedure is not on a statutory footing. The committee doesn't have the authority to disallow the regulations. They ask Parliament to do it. Parliament may do it; they may not. So far all the nine reports, the government has accepted them," Grewal said. "We've never reached the level where we had a difference of opinion with the committee and Parliament."

A study in 1986 recommended the current JCSR process begin as an experiment and that the committee's power would be consolidated in legislation after it had functioned without any major problems for an unspecified period of time. But no Prime Minister has yet seen fit to propose legislation that would codify a power over his government that he can't control and therefore no action has been taken.

"The disallowance procedure must be on a statutory footing," Grewal said.

The government has already shown a reluctance to respond to the committee's recommendations. Grewal said some disputes over regulations have been the subject of 25-year-long fights involving lawyers and bureaucrats in various departments.

"Those regulations are not supposed to be there but they continue to be there for 25 years? That is shameful," he said.

The Alliance MP believes the public has an impact on the way regulations are formulated because politicians direct the bureaucrats and politicians have to be responsive to the voters if they want to keep their jobs. But he admited legislation affecting Native people - like the proposed First Nations governance act - could reflect the needs of the majority rather than the needs of the people most directly affected by the legislation.

"Yes, their opinions will be skewed," he said.