The House and Its Members / Miscellaneous

Ratification of international treaties

November 28, 2002

Debates, pp. 2016-7

On November 25, 2002, Stephen Harper (Leader of the Opposition) rose on a point of order with respect to a Government motion on the Order Paper concerning the ratification of the Kyoto Protocol. Mr. Harper argued that the motion should be ruled out of order as it contravened international law as well as established Canadian practices and rules for the ratification of treaties by asking the Government to ratify a treaty prior to the approval of implementation legislation by the House. After the interventions of other Members, the Deputy Speaker (Bob Kilger) stated that he had not heard anything that would lead him to not allow the motion to be called for debate and would come back to the House as soon as possible, well before the end of debate on the motion. Following a number of points of order and questions of privilege, the House took up consideration of the motion.^[1]

On November 28, 2002, the Deputy Speaker delivered his ruling. Noting that the motion in question was in the nature of a show of support for the Government to ratify and implement the treaty and emphasizing that no rule or practice of the House required the prior passage of enabling legislation, he affirmed that the ratification of such agreements is strictly a prerogative of the Crown exercised through the executive branch and not conditional on Parliament first adopting implementing legislation. Reminding Members that the Speaker has no role in interpreting matters of either a constitutional or legal nature and that he could therefore not rule on the constitutionality or legality of the motion in question, he ruled the motion to be in order.

Decision of the Chair

The Deputy Speaker: I would now like to deal with the point of order raised on November 25 by the hon. Leader of the Opposition relating to Government Motion No. 9, standing in the name of the Minister of the Environment.

The hon. Member argued that the motion calling upon the Government to ratify the Kyoto Protocol on Climate Change was out of order and should not be received by the Chair.

I would like to thank the hon. Leader of the Opposition for raising the matter, the hon. Leader of the Government in the House of Commons, the hon. Parliamentary Secretary to the Minister of Public Works and Government Services, the Rt. Hon. Member for Calgary Centre, the hon. Member for Fraser Valley and the hon. Member for Kootenay–Columbia for their contributions on this matter. The hon. Leader of the Opposition in raising the matter argued that it was both a requirement of international law and established Canadian practice for the Government not to ratify a treaty that required legislation for its implementation until the legislation itself had been passed by this House. He claimed that in order for the Kyoto Protocol to be implemented, enabling legislation must first be passed by Parliament, followed by ratification. He therefore asked the Chair to consider the motion out of order and to remove it from the Order Paper.

There is in my view one fundamental issue that needs to be addressed in the case before us: Is there anything in Canadian parliamentary procedure or practice to require that the motion before the House be preceded by enabling legislation? Put another way, in the absence of enabling legislation, must the Speaker find that the motion is not in order?

I have examined with great care the arguments raised by the hon. Leader of the Opposition in this regard and wish to make the following points.

First, it is the view of the Chair that the intent of the motion put by the Minister of the Environment is clearly not in and of itself a ratification of the Kyoto Protocol. The power of ratification lies with the Crown, not with Parliament nor with this House. Rather the motion allows for debate in this House on the issue of ratification of the Kyoto Protocol.

The adoption of this motion would constitute a show of support for the Government to move forward to ratify and implement the agreement.

As has been pointed out in some of the arguments made by Members over the course of the debate, it is one of the prerogatives of the Crown to make treaties without the necessity of parliamentary approval. As R. McGregor Dawson explains on page 205 of the Government of Canada:

Parliament may be consulted and even asked to approve international agreements and treaties, but this is largely a matter of convenience and political strategy: the actual ratification is purely an executive act.

There is no legal or constitutional requirement for parliamentary approval of ratification of international agreements. The Government could choose however to table an agreement in the House. It may also choose to move resolutions in the Commons and the Senate to seek approval for such an agreement. The Government has a third option: to seek approval from the House to introduce enabling legislation to change Canada’s Statutes in order to implement the agreement. It is on the latter point that I will focus my comments.

The hon. Leader of the Opposition argues that all necessary legislation to implement the terms of a treaty should be in place prior to ratification. A study of past events would suggest that there may be treaties that actually need no legislation for their implementation. It is also possible that the Canadian Government signs a treaty and never ratifies it or ratifies a treaty and later decides not to implement it for whatever reason. The essential point here is that treaty ratification is an executive action, a prerogative of the Crown. It is not conditional on Parliament first adopting implementing legislation.

A review of House records shows that the House, by resolution, approved the 1965 Auto Pact between Canada and the United States without first seeing implementing legislation. It may be the case that a treaty, whether or not already ratified by the Government, requires legislation if it is to be implemented as a matter of Canadian domestic law. In this regard the Canada-U.S. Free Trade Agreement of 1988 and the North American Free Trade Agreement of 1993, came before the House as appendices to implementing legislation. The bills in each case stated that the Government of Canada had already entered into the free trade agreements. The title of each bill indicated that the bill was to “implement” the free trade agreement. Each implementing bill contained provisions amending the federal laws of Canada so as to give effect to the free trade agreement already entered into and attached to each bill. There was no indication in these bills that the Government was seeking parliamentary approval of the treaties in order to ratify them.

The issue is whether implementing legislation must be adopted before a treaty is ratified. This does not appear to be a rule of procedure or a practice of this House.

To illustrate with another example, during the Second Session of the Thirty-Sixth Parliament, the House and the Senate passed Bill C-19, enabling legislation which was required to enact or implement Canada’s obligations under the treaty entitled the Rome Statute of the International Criminal Court. The Bill listed new offences under the Criminal Code and amended our extradition and mutual assistance legislation.

As I noted previously, many international agreements do not require enabling legislation. Enabling or implementing legislation is required only when an agreement necessitates amendments to Canadian statute law. Of the more than 1,400 international agreements entered into by Canada from 1928 to 1978, only 111 required enabling legislation and of these 47 dealt with taxation matters. From 1979 to 1986 another 500 agreements were entered into and of these only 33 required legislation.

It is also worth noting that the United Nations Framework Convention on Climate Change, adopted at Rio de Janeiro in 1992, was signed by a Minister and ratified by Canada, without any enabling legislation.

When the Government last week tabled its plan to implement the Kyoto Protocol, it did not include as part of its package any enabling legislation. One can only assume that the Government, through consultations with its legal advisers across the relevant departments, has determined that no enabling legislation is necessary at this time.

I join with many of my predecessors in pointing out that it is not part of the Speaker’s mandate to comment on points of law. In a ruling delivered on April 9, 1991, Speaker Fraser stated:

The Speaker has no role in interpreting matters of either a constitutional or legal nature.

This principle is clearly outlined as well in the 4th edition of Bourinot at page 180, which states:

The Speaker… will not give a decision upon a constitutional question, nor decide a question of law, though the same be raised on a point of order or privilege.

It is not up to the Speaker to rule on the constitutionality or legality of measures before the House. The Chair cannot assume that the Kyoto Protocol will require implementing legislation. Perhaps it will. At the moment, the House is being asked to consider a resolution calling upon the Government to ratify the treaty. If Members object to this resolution being before the House when no implementing legislation has been adopted, this might be argued in the debate on the resolution and taken into account when the time comes to vote on the resolution.

While the hon. Leader of the Opposition has raised an interesting point concerning the motion currently before the House, the Chair must conclude that Canadian practice does not support his premise that the ratification of all international treaties necessitates the prior passage of enabling legislation. Accordingly, I must conclude that the motion of the Minister of the Environment is properly before the House.

See also other rulings on November 25, 2002.^[2]