Pipelines Kimberly Process Non-Derogation Clauses
May 9, 2002 -- United States—Natural Gas Pipeline from Alaska
Hon. Nick G. Sibbeston: Honourable senators, I wish to rise to speak on a matter of some urgency to the Northwest Territories and to Canada as a whole.
In the United States, both the House of Representatives and the Senate have adopted provisions mandating an Alaska Highway route to transport Alaskan natural gas to southern markets. More alarming is the U.S. Senate proposal to subsidize the price of Alaskan gas in order to make sure a route is economically feasible.
These proposals risk stranding Canadian gas in the Northwest Territories and damaging the prospects for the development of a Mackenzie Valley pipeline to deliver that gas. Even though it appears that a stand-alone Northwest Territories pipeline is viable in the current market, these measures may delay this important project for many years. Moreover, by interfering in the floor price of natural gas, they may put exploration and development of new gas wells throughout North America at risk. This represents gross interference in what should be a market-driven decision. As the Honourable Steve Kakfwi, Premier of the Northwest Territories, has pointed out, these moves violate the spirit and intent of free trade and have the potential to damage Canada-U.S. relations.
This goes beyond issues of federal support for public infrastructure, something desperately needed by all three territories, or of developing market-based mechanisms to assist our Aboriginal people and other northerners to participate in this development. What the American Congress is proposing is to make it illegal to even consider alternatives to the Alaska Highway route and, further, both Democrats and Republicans seem prepared to destroy one of the freest markets in North America, merely to gain political advantage.
The Canadian government and the Bush administration have made it clear that they are route-neutral and do not favour interference in the marketplace in this matter. However, politics has all too often gotten the better of good sense. There is still a risk that these measures will be adopted by the United States.
Fortunately, there is still time. Because the House of Representatives and the Senate pass quite different laws, there is a process whereby the two Houses, along with the President, work together to create a compromised law. Canada must make its position clear on this matter. I have been assured in correspondence with the Prime Minister that he intends to do everything he can to influence the final legislation. I plan to add my voice to those of the Prime Minister and Premier Kakfwi. I urge other honourable senators to do so as well.
Bill C-14 The Kimberly Process
Second Reading -- November 21, 2002
Hon. Nick G. Sibbeston moved the second reading of Bill C-14, providing for controls on the export, import or transit across Canada of rough diamonds and for a certification scheme for the export of rough diamonds in order to meet Canada's obligations under the Kimberley Process.
He said: Honourable senators, it is my pleasure to speak to the second reading of Bill C-14.
By way of background to the bill, it is important to understand the international concern that persists about the link between the illicit international trade in rough diamonds and armed conflict, particularly in Angola, Sierra Leone and the Democratic Republic of Congo. While "conflict diamonds'' constitute a very small percentage of international diamond trade, they have a devastating impact on peace, security and sustainable development in affected countries.
The Kimberley Process is the principal international initiative established to develop practical approaches to the conflict diamond challenge. Launched in May 2000, the process was initiated by several southern African countries in response to growing international pressure to address peace and security concerns, as well as to protect several national economies in the sub-region, including Namibia, Botswana and South Africa, that depend on the diamond industry.
The Kimberley Process, which is chaired by South Africa, now includes 48 countries involved in producing, processing, importing and exporting rough diamonds. These countries account for 98 per cent of the global trade in the production of rough diamonds and include all of Canada's major diamond trading partners. Canada has participated in the Kimberley Process since its inception. Over the course of nine plenary sessions and three ministerial meetings, the process has developed an international certification scheme for rough diamonds. In March 2002, Canada hosted a meeting of the Kimberley Process that achieved consensus on the scheme. Earlier this month, the participating countries met in Switzerland and renewed their commitment to the certification scheme and to the target implementation date of January 1, 2003.
Honourable senators, in Canada, the diamond industry is a relatively new industry. Our first commercial deposit was discovered in the Northwest Territories in 1991. BHB Billiton's Ekati mine, 300 kilometres northeast of Yellowknife, has been in operation since 1998. The nearby Diavik mine will begin operation in 2003, and two more mines in the region, one in the Northwest Territories and one in Nunavut, are likely to be operating in 2007. Annual production from these mines could reach $1.6 billion, and they are expected to generate about 1,600 direct jobs and an additional 3,200 indirect jobs.
Last week, I had the opportunity to visit the Diavik mine site. It is a marvel of human engineering, built at a cost of $1.3 billion. It is huge. In order to reach the diamond deposit, it was necessary to build a large, 6.6 kilometre dike and drain a portion of a huge lake. The ore body, called a Kimberlite pipe, is only 150 metres across, but it extends deep into the earth. Using eight 240-tonne trucks, each costing $5 million, they will begin digging a conical pit one kilometre wide and spiralling over 300 metres deep to extract the ore. That ore will be processed on-site, turning hundreds of thousands of tonnes of rocks into suitcases filled with diamonds. The plant is automated so that human hands never touch the diamonds — for obvious security reasons — and it can be operated by six workers.
During the life of this one mine, over $3 billion will be generated for governments in the form of taxes and royalties. Most of this will benefit the federal government. As the Northwest Territories is still a territory, the resources and lands are still controlled by the federal government.
The Ekati and Diavik mines are more than engineering miracles; they are economic miracles. Because of them, the Northwest Territories gross domestic product increased by more than 20 per cent last year. More practically, these mines have taken a new approach to partnership with northern and, particularly, Aboriginal businesses. In addition to employing hundreds of northerners directly at the mines, they have helped many northern Aboriginal businesses set up or increase their capacity through joint ventures and other participation processes.
The North is not the only beneficiary of this activity. Literally tens of thousands of person years of employment have been created in Ontario, Quebec, Alberta and British Columbia as a result of the diamond mines. Active diamond exploration is pointing to the prospect of additional mines in the Northwest Territories and Nunavut. Exploration has also been undertaken in Alberta, Saskatchewan, Manitoba, Ontario, Quebec and Newfoundland, and this could lead to diamond mines in these provinces.
The diamond mining industry is growing. By 2011, it is expected that Canada will rank third globally in terms of the annual value of rough diamond production, after Botswana and Russia.
In addition to diamond mining, a small diamond cutting and polishing industry has grown up in Yellowknife, with over 50 cutters and polishers now. Tiffany & Co. of New York announced this fall that in the New Year it will construct a new plant in Yellowknife. These operations have an important training component that includes a number of Aboriginal apprentices. There is also an expanded facility with a training program in Matane, Quebec.
Both the mining industry and the diamond cutting and polishing industry are dependent on access to export markets, which are dependent on Canada's participation in the Kimberley Process.
The proposed international certification scheme includes a requirement that all shipments of rough diamonds imported to or exported from Canada be certified under the scheme and it bans trade in rough diamonds with countries that do not participate in the scheme.
Bill C-14 establishes the trade regulation regime necessary to participate in the Kimberley Process rough diamond certificate scheme. It provides the necessary regulations to produce the certificates without which Canada could not participate in the international trade of diamonds.
Honourable senators, this bill provides the authority to verify that natural, rough diamonds exported from Canada are non- conflict diamonds. It also gives the authority to verify that a Kimberley Process certificate accompanies every shipment of natural, rough diamonds entering Canada from the exporting country, certifying again that the diamonds have a non-conflict source.
There is provision in the bill for monitoring the effectiveness of the certificate scheme with a review of the provisions and operation after three years. For the review, the Minister of Natural Resources has indicated that he intends to consult with the stakeholders in the process, especially the NGOs who have been involved in the Kimberley Process from its early stages, such as Partnership Africa Canada and members of the industry, including diamond exploration and producing companies, and cutters and polishers. The result of this review will be reported back to Parliament.
Honourable senators, both the mining industry and the diamond cutting and polishing industry are dependent on access to export markets and, therefore, on Canada's participation in the Kimberley Process. Passage of Bill C-14 will put in place all of the authorities required for Canada to meet its commitments under the international Kimberley Process. The early passage of Bill C- 14 will ensure that these authorities are in place by year-end when the process is planned for international implementation.
In conclusion, honourable senators, I ask for the support of all members of the Senate in passing this important bill in order that Canada can be in a position to implement the Kimberley Process in concert with our global partners.
Third Reading -- December 5, 2002
Hon. Nick G. Sibbeston moved the third reading of Bill C-14, providing for controls on the export, import or transit across Canada of rough diamonds and for a certification scheme for the export of rough diamonds in order to meet Canada's obligations under the Kimberley Process.
He said: Honourable senators, I am pleased to speak today on the third reading of Bill C-14, which will provide controls for the export, import and transit across Canada of rough diamonds and which will establish a certification scheme for the export of rough diamonds.
As I said at second reading, it is important to understand the international concern that persists about the link between the illicit international trade in rough diamonds and armed conflict, particularly in Angola, Sierra Leone and the Democratic Republic of Congo. While conflict diamonds constitute a very small percentage of international diamond trade, they have had a devastating impact on peace, security and sustainable development in affected countries.
The Kimberley Process is the principal international initiative established to develop practical approaches to the conflict diamond challenge. It was launched to address peace and security concerns, as well as to protect several national economies that depend on the diamond industry.
The process now includes 48 countries involved in producing, processing, importing and exporting rough diamonds. These countries account for 98 per cent of the global trade in and production of rough diamonds, and they include all of Canada's major diamond-trading partners.
Honourable senators, last month, the participating countries met in Switzerland and renewed their commitment to the certification scheme and to the target implementation date of January 1, 2003. The proposed international certification scheme includes the requirement that all shipment of rough diamonds imported to or exported from Canada be certified under the scheme. It bans trade in rough diamonds with countries that do not participate in the scheme. Bill C-14 establishes the trade regulation regime necessary to participate in the Kimberley Process rough diamond certificate scheme.
I would thank the members of the Standing Senate Committee on Energy, Environment and Natural Resources for reviewing Bill C-14. The committee examined the bill in the context of international trade and the structure of the diamond industry. At committee, we heard some of the points raised by Senator Bolduc at second reading debate. We were informed of Canada's approach to other countries to ensure that the Kimberley Process certificate scheme would not be open to challenge at the World Trade Organization. We also heard that the Canadian certification scheme would be audited, on an ongoing basis, for its effectiveness and with a view to introducing cost recovery measures. Finally, we were informed in committee of the measures that the diamond industry would take to extend the warranties on diamonds to polished stones and to jewellery.
Honourable senators, the exploration and mining industry, the diamond cutting and polishing industry, and the jewellery industry are dependent on access to the export markets and, therefore, on Canada's participation in the Kimberley Process.
Passage of Bill C-14 will put in place all of the authorities required for Canada to meet its commitments under the international Kimberley Process. The early passage of Bill C-14 will ensure that these authorities are in place by year-end, when the process is planned for international implementation.
In conclusion, honourable senators, I ask for your support in passing this important bill so that Canada can be in a position to implement the Kimberley Process, in concert with our global partners.Non-Derogation Clauses -- December 5, 2002
Hon. Nick G. Sibbeston: Honourable senators, as many senators know, I, along with several colleagues, have been concerned with the matter of non-derogation clauses in federal legislation. Bill C-5 contains such a clause, clause 3.
Briefly, non-derogation clauses have appeared in federal legislation since the adoption of the 1982 Constitution. These clauses, modelled directly on the wording of section 25 of the Charter, were meant to provide assurances to Aboriginal peoples that their rights under section 35 were not being infringed either intentionally or unintentionally. This was the case until 1996 when, suddenly, different wording began appearing in legislation. This was done, apparently, unilaterally on advice from the Department of Justice. Although the wording changes seem minor, they are, in fact, significant.
Department of Justice officials admit the changes were made because they felt the wording of the original non-derogation clauses limited the ability of legislation to infringe Aboriginal rights. However, Aboriginal peoples should expect that their rights will not be infringed casually but only in exceptional circumstances where the will of Parliament is clear.
These changes in the wording of the non-derogation clauses have created uncertainty for Aboriginal peoples. They fear that their rights will be infringed because of these differently worded clauses. Given the history of Canada, they are justifiably afraid of the government's intentions.
The 1982 Constitution, and particularly the inclusion of section 35 which recognizes and affirms existing Aboriginal and treaty rights, is viewed by many Aboriginal peoples as a high water mark. In the words of the Supreme Court of Canada in the Sparrow case, which was the first case dealt with by the Supreme Court of Canada after the Constitution Act, 1982, Section 35 ``represents the culmination of a long and difficult struggle...for the constitutional recognition of aboriginal rights.'' It ``...provides a solid constitutional base upon which subsequent negotiations can take place.'' This is the basis of all the advances Aboriginal peoples have made in the last 20 years. We are dismayed that the government would risk these gains.
I and others have raised this matter and tried to find a remedy. We wanted to go back to the original wording, which is nothing other than the wording of the Constitution in section 25. It was a struggle. However, we did manage to persuade our colleagues on the Standing Senate Committee on Energy, the Environment and Natural Resources that there was a problem and that something had to be done. We have persuaded the Minister of Justice, and indeed the government, that these variations in the wording of non-derogation clauses are a problem. They have caused uncertainty for Aboriginal peoples, for the courts and even for the government. The minister has promised to introduce legislation to address this issue in March of 2003.
This, I suppose, is progress of a sort. At least they admit that there is a problem and they have promised to do something, but the question remains: Will the government do the right thing? I am afraid, based on the minister's letters, that all we will get is the removal of all non-derogation clauses from existing and future legislation. This does remove the issue of inconsistency but, frankly, for Aboriginal peoples this would be a terrible loss, a step backwards, a betrayal, and they will be angry. As I said in the committee, I am horrified to think that, as a result of my attempts and the attempts of others to deal with the non-derogation clause, the government will decide to obliterate all non-derogation clauses.
Non-derogation clauses have a long and complex history. In some cases, such as the Sechelt Indian Band Self-Government Act, they were included as a result of negotiations directly with Aboriginal peoples. In others, such as the Migratory Birds Convention Act, the clause was included as a recognition and redress of past wrongs.
Non-derogation clauses are part of the solemn promises made to Aboriginal peoples and critical to the successes achieved under section 35. They cannot merely be swept aside or obliterated. Any new legislation must achieve the original objective, which was to ensure section 35 rights are not infringed and to assure Aboriginal peoples that this is the case. Any legislation must contain some other measure to achieve these objectives. We must persuade the government to do the right thing in the months ahead, and I will seek the assistance and support of my colleagues in this house in this.
For the long term, the right thing is to provide, in stand-alone legislation, that Parliament does not infringe these rights casually. We know, through a number of Supreme Court of Canada decisions, that Parliament has the capacity to infringe Aboriginal and treaty rights, but we also know that Parliament does not intend to do so other than in exceptional cases. The new legislation should provide that laws do not infringe Aboriginal and treaty rights unless this intention is clearly indicated.
I am very serious about this. I would prefer that we amend the non-derogation clause in this bill to refer to the original wording. I would have accepted from the minister a clear statement that the government will resolve this matter in a positive and satisfactory manner. Unfortunately, this has not been given. Therefore, I will, in my small way, register my protest by abstaining from voting on this bill.