1998/99 Legislative Session: 3rd Session, 36th Parliament
HANSARD
(Hansard)
Afternoon
Volume 13, Number 4
[ Page 11087 ]
The House met at 2:06 p.m.
C. Clark: Well, today is the last day on our staff for a very valuable staff member: Kevin Moorhead, who worked on the Ministry for Children and Families. I'm sure that the minister's office will be glad to see the back of him as he goes to South Africa. He's joined in the gallery today, on his last day, by his grandmother, Miriam Moorhead, and a friend of his grandmother, Mary Morris, who are both visiting. I hope the House will make them all very welcome.
Hon. J. MacPhail: I'm honoured today to introduce to the House Mr. Chih-Lin Chu, president of Canadian Metropolitan Properties Corp., whom some in this House will know as the owner of the Plaza of Nations facility. Mr. Chu is here in British Columbia to discuss the expansion of Canadian Metropolitan Properties Corp. business activities in this province. I know that all members of the House will welcome that news and will want to make him welcome.
Hon. P. Priddy: In the galleries today are a number of representatives from the College of Dental Surgeons that I would ask the House to welcome: Dr. Hank Klein, who is the president of the college; Dr. Kerstin Conn, vice-president of the college; Dr. Serge Vanry, president of the Association of Dental Surgeons of British Columbia; Dr. Bill Dunnigan, who is past president of the B.C. Federation of Dental Societies, which is now known as the Association of Dental Surgeons; Dr. Evelyn McNee, registrar at the college; and Jocelyn Johnston, the managing director of the B.C. Federation of Dental Societies. Accompanying them is Lorne Valensky. I'd like the House to make them all welcome.
G. Abbott: I see in the gallery today my former professor, Dr. Paul Tennant. Rather like it's certain every fall that the salmon will be spawning in the Adams River, I suspect, given the presence of Professor Tennant here today, that we are about to soon see some new legislative interns. I'm sure the House would like to join with me in commending our friend for doing such a fine job with that program and to welcome him today.
G. Janssen: It's with great pleasure that I welcome two fellow motorcyclists and good friends, Daisen Gee-Wing and Wilfred Vacheresse. I ask the House to make them welcome.
Hon. A. Petter: In the gallery today are Marnie and Ron Lundin, who have chosen to escape the chilly winds -- particularly chilly, it seems, right now -- of Kenora, Ontario, to visit Victoria here on the warm, wet west coast, with my executive assistant, Lorie Bennett. I'd like the House to join me in making them feel very welcome.
E. Conroy: In the gallery today is Shailine Rayner. Shailine is an immigrant from Kenya who is presently a businessperson in Ontario and is here in British Columbia sussing out some business opportunities. I might add that Shailine is also a good friend of Pratik Modha, who works in the building.
GOVERNMENT ASSISTANCE FOR
RESOURCE-DEPENDENT COMMUNITIES
Hon. D. Streifel: I think I'm rather rewarded this early in the session to get a question from the opposition on fisheries. I'd like to point out that the problems we've had on the coast this past fishing season have gone wholly ignored by the opposition -- the devastation that's happened, that's been wrought by the federal Liberal government, the lack of fishing opportunity in what has been the eleventh-best salmon run in the history of the coast of British Columbia. We've had zero word, zero concern, and no opportunity taken for input from the members opposite. So if we're going to address the circumstances on the coast -- I've been working very closely with the folks in the communities on the coast -- we have to gather information. If the member would pass over the document that he has in his hands, I would be pleased to expand further.
The Speaker: First supplementary, the member for Shuswap.
G. Abbott: I would be more than pleased to table this document with the Minister of Fisheries. It's pretty clear now why this document wasn't shared with him and why he's not a member of the A team. That's pretty obvious.
The memo outlines the new bureaucracy and states that its purpose is to carry out transition planning for resource communities and workers that have lost their livelihoods. It's also promised an "economic assessment of existing fishery and forest industries in the community." To the Minister of Forests: after all this time, after the loss of thousands of forest jobs, why do we need another economic assessment to tell us about those forest jobs being lost?
Hon. D. Zirnhelt: What the document shows is that this side of the House cares about what's happening in forestry and fishing communities. But we don't want to debate about secretariats, teams, implementation; we want to talk about what we're actually doing. It is important that we respond to communities in an organized fashion when they come to us. If you go to Lumby or Merritt or Gold River, they will tell you that they like the way in which we've responded to those communities by saying: "You have a future, and we will work with you on the future, both in forestry and fishing and in the economic diversification realms, whether it's tourism or whatever." We will work with the communities. That's what that memo says.
G. Campbell: Let's talk about what this memo says and what it shows. First of all, the proposed secretariat -- just so
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the other side knows what it's called -- is called the F2CTC secretariat, and it has all the trappings of a bureaucratic nightmare that has in fact driven these resource communities to the edge of despair.Listen to the reporting structure: this proposed secretariat is to be led by a consortium of ADMs who report to their home ministry DMs as well as to the new ADM of forest community transition, who'll report to the DM of Forests on a day-to-day basis. The DM of Forests will, in his capacity as chair of the economic policy deputies' committee, seek the advice and provide updates to the chair of the social policy committee and the council of deputy ministers. Well, that's going to solve a lot of problems, hon. Speaker.
[2:15]
Will the Minister of Forests enlighten this House as to how yet another level of bureaucracy in British Columbia is going to put one of those thousands of resource community citizens back to work?Interjections.
The Speaker: Members, members.
Hon. D. Miller: Beyond the laughter lie some very serious and troubling issues for people who live in resource-dependent communities. Over the years, in terms of the issues that have arisen, it became clear that government was not organized to deal with the kind of crisis that results when a major industry leaves a community.
It first started in Cassiar. Most of these members here were not in the House when the Cassiar situation arose and when we virtually had to close a town. It became apparent at that time that the various resources of government were not organized to move in in a way to assist that community across the broad spectrum of government services.
We have been working on that. It's been developed over the years, and it has been used successfully. There are some very real success stories. The Elk Valley was in crisis a few years ago. This model was used. The town of Golden was in crisis. This model was used. And by the way, it's a very successful restructuring and an industry that's contributing to jobs in that community. It was used in the Skeena situation.
No one is hoping that this mechanism has to be used. But surely there is an obligation on the part of government to be ready in a coordinated way to assist communities when these kinds of problems arise. For the Liberals to mock this is doing an injustice and a disservice to the people who depend on this in those communities.
The Speaker: Leader of the Official Opposition, first supplementary.
G. Campbell: There is one obligation here, and that's for this government to create jobs in this province instead of destroying them -- thousands and thousands of jobs you and your government have destroyed. Your answer is another layer of bureaucracy, another layer of regulation.
The fact of the matter is that this government has, in this model, come up with a new idea for the NDP. Imagine -- a new idea. "We're going to have a communication plan. We're going to have propaganda again. We're going to take dollars from the Ministry of Forests and the Ministry of Fisheries and the Ministry of Advanced Education, and we're going to tell people that things are all right." Will the Minister of Forests tell me if he has talked to one forest worker in British Columbia who has told him that the answer to creating jobs in this province is for the NDP to run more propaganda campaigns?
Interjection.
The Speaker: Order, please.
Hon. D. Miller: I understand the opposition's desire to play politics with anything they think might enhance their position -- fair enough. I don't know what world the Leader of the Opposition lives in. I don't know that he's so isolated that he doesn't understand that the price of copper -- set internationally, not in British Columbia -- is at a 13-year low. I don't know if he understands that the price of molybdenum is half of what it was a year ago. If he thinks that all of those problems or British Columbia are somehow immune to the issues of a global economy, then he's not fit to sit in that chair, and he's certainly not fit to sit over here. Our job
The Speaker: Minister, complete your remarks.
Hon. D. Miller: Some dilettante who can loll on the beaches of Hawaii
The Speaker: Minister.
Hon. D. Miller:
The Speaker: Minister, thank you very much.
Hon. D. Miller: Hon. Speaker, it is not a propaganda exercise.
The Speaker: The minister will take his seat.
Hon. D. Miller: It is a genuine attempt to bring the resources of government to assist people in communities
The Speaker: Order, order! The minister will take his seat. The microphones have been cut off.
Second supplementary, Leader of the Official Opposition.
G. Campbell: Unfortunately, this minister has not even taken the time to find out that this is about fisheries and forests communities.
G. Farrell-Collins: Hasn't even read it.
G. Campbell: He obviously hasn't even read it. The fact of the matter is
My question once again to the Minister of Forests is: have you met one forest worker who has told you that more government propaganda will create a job for them?
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The Speaker: I recognize the Minister of Energy, Mines and Northern Development.Hon. D. Miller: Hon. Speaker, I represent, as the MLA, coastal communities from Bella Coola to the midcoast and up to Stewart. I have seen and I know firsthand the impact that the federal fisheries policies have had on those communities. I have invited the Leader of the Opposition to come to Prince Rupert and debate the issues around Skeena Cellulose and saving forest jobs.
The fact is that he does not have the jam to come up there and talk to real people. If he would get off his comfortable chair and go up to those communities -- come with me up to Prince Rupert
The Speaker: I recognize the member for Peace River South.
Interjections.
The Speaker: Order, members. The member for Peace River South has been recognized.
PRICE OF GASOLINE IN NORTHEAST B.C.
J. Weisgerber: My question is for the minister responsible for consumer affairs. Crude oil is down to $12 a barrel. Gasoline is selling for less than a dollar a gallon in many parts of the United States, the lowest pump prices in 20 years. In the lower mainland, gasoline is as low as 32 cents a litre, and many, many stations are selling for below 40 cents a litre. In the northeast, however, gasoline prices haven't come down one red cent. Stations in Chetwynd are charging 55.9 cents a litre; Dawson Creek is charging 57.9 cents. Can the minister advise what steps he's taking to investigate these consumer ripoffs in the interior of British Columbia?
Hon. U. Dosanjh: Hon. Speaker, that's a very
Interjections.
The Speaker: Members, members. The Attorney General has the floor.
Hon. U. Dosanjh: That's a very important issue. I agree with the hon. member that the gouging by the oil companies should be stopped. I certainly will be looking into it and will perhaps review this matter.
The Speaker: First supplementary, the member for Peace River South.
J. Weisgerber: Also to the Attorney General. Two years ago, when propane prices went through the roof, we were told that a shortage in the U.S. had driven up the price. The fact that the cost of propane produced in our own back yard was less than a third of the retail price didn't matter. International markets set the price. Now the shoe is on the other foot. North American crude prices are down, and oil companies are gouging the very people who live where all of British Columbia's crude oil is produced. It's obvious to me -- and the minister appears to agree -- that the oil companies, at least in the northeast, are fixing prices and gouging consumers. Will the minister commit today to taking the steps necessary to investigate and stop this illegal and immoral price-fixing?
Hon. U. Dosanjh: The answer is yes, and I'll be inviting the hon. member to be part of that review.
The Speaker: Question period is now over.
NISGA'A FINAL AGREEMENT ACT
(continued)
On section 1 (continued).
Hon. D. Lovick: When we adjourned, despite the fact that we were discussing section 1 of the bill, we were into what seemed to be a slightly tenuous connection, if you will, with section 1. We were talking about the corrigenda, or the errata, the corrections that were made to the final agreement from the blue document that was published, to the legal document that's here before us in the House today.
I want to explain what those corrections are, to give members and the public a clearer idea of why it is we say with such firmness and finality that there is no material difference between those two documents. In addition, I propose to table a document today that will show all of those corrections, every single one, and also explain the reason for them. In so doing, I hope I will be able to give assurance to my colleagues in the opposition that, frankly, this is not a big issue. Indeed, it is probably a non-issue. So let me just explain very briefly, then.
First of all, let's note that the Nisga'a Final Agreement is an incredibly long, complicated and, some would argue, convoluted document. It's lengthy; it's complex. It consists of some 80,000 words and some 7,200-plus paragraphs. We made every serious effort to ensure that what we printed was, in fact, the Nisga'a Final Agreement -- that that was the best we could get in terms of finality.
Given the magnitude of the task, alas, we discovered that we made some mistakes. The mistakes are almost entirely typographical. They aren't substantive in terms of affecting the meaning of the treaty in any significant way. The editorial corrections number approximately 30 in total. They are typographical, cross-referencing and grammatical errors, such as misplaced words and misplaced commas.
[2:30]
None of these corrections -- and here's the point I want to emphasize for everybody's benefit -- alters the substance or the intent of the agreement that was initialled on August 4, 1998. Moreover, what we did when we discovered those problems[ Page 11090 ]
involved. When we discovered that this error had indeed been committed, what we promptly did was make sure that we made the changes. We put them into the next printing of the document. They are also, of course, part of the document. They are, indeed, embedded in the document that we are actually debating in the House today. We also ensured that the text of the agreement that was placed on the Internet made those changes. I would hasten to point out that further printings of the final agreement
To give my colleagues across the way some flavour of what the changes are
The page references are out of the blue document -- the blue copy. "In the definition of 'gravel management plan,' delete the comma following the word 'size.' " That's one of the kinds of errors we're talking about. "Page 170. Paragraph 54 (in the second line) -- Add a comma after the word 'property'
In addition, there are some others that clearly needed to be made, because obviously we need a perfectly correct document for legal purposes. But again I want to emphasize that all of those changes, individually and collectively, do not alter the meaning or the intent of this document one whit. That is why we didn't do anything elaborate about making a big announcement that we found some errors. Our judgment was that the errors were, quite frankly, technical. They were editorial, and they didn't really have any huge impact. Indeed, they ought to have no impact whatsoever in terms of whether people felt good or not good about the Nisga'a final agreement that we published.
So I hope that clarifies matters. As I say, I will be sharing this document in all its splendour with my colleagues opposite and indeed with members of the press gallery. I hope that helps.
M. de Jong: Well, it would help more if that courtesy had been extended prior to when we are engaged in the actual debate.
I guess what I want to confirm, still not having seen the document that the minister is alluding to
Hon. D. Lovick: I stand entirely by what I said earlier, and I don't run from that for a moment. What I also said -- which the member doesn't point out, however -- is typos which would lead to having to redraft the whole treaty -- in other words, significant problems with the document
What we're looking at is very minor. Please consider the human dimension of drafting this document: 72,000 paragraphs and Lord knows how many commas. A group of people worked assiduously to the best of their abilities under some pressure to get this document out, so that people could indeed see what it said -- and they made some mistakes, minor errors. Some mistakes were made. Again, I want to emphasize that not one of those mistakes has any effect whatsoever on the intent or the substance of this treaty. That's the key point. Again, I'm sharing with the members opposite
G. Plant: Well, I'm not going to pursue this much longer. It may be that what's actually required is not an apology but simply an admission that the minister said it would be "quite frankly a little irresponsible" to do that which he in fact has done. We could move forward if the minister would simply establish that in fact he did that which in July he said would be "quite frankly, a little irresponsible." Because what he did was send out 250 pages, and then, apparently, he discovered that he had not just 15 typos, but, we're told, perhaps something like 30. Then he did that which he said he would sure as heck not want to do; he reprinted and did it over again, that is, apparently, in copies of this blue document issued sometime in December, or something like that, all these corrections that are talked about are made.
I understand why the minister would be defensive about this. I understand why the minister wants to make the point -- and it may be fair; we'll see when we see the document that he said he's going to give us -- that there's nothing substantive here. But it is a bit disconcerting, frankly, to be part of a debate that was supposed to be a serious debate in July, where a minister of the Crown said: "Oh, don't worry. I'll never do that. I'd certainly never rush to print a document as important as this, because" -- and the minister said this to assure all those who were listening to him -- "quite frankly, it would be a little irresponsible to do that." Well, he's done that.
Of course, we don't know everything else that the minister has done, but what we do know at this point in the debate is that the minister has done one thing which he said back in July would be "quite frankly, a little irresponsible" to do. It may be that I am
An Hon. Member: Read what it says.
G. Plant: Yeah, exactly. I will do that. "I think the member would agree with me that it would be, quite frankly, a little irresponsible to send out 250 pages and then discover that you have 15 typos and have to reprint and do it over again, or something. I think everybody would agree that we can wait a few weeks until we have that." That is what the minister said, and in fact he did something quite different.
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Hon. D. Lovick: Mr. Chairman, I am sure your patience is being tried, because we are obviously straying from the section.
I have said, and I do not retreat from the point for one moment, that we -- and by "we" I mean the Nisga'a, the federal government and the provincial government -- all thought we had the document right, complete, correct. We took what we thought was a required amount of time to do that. Alas, various of the parties -- indeed, all of the parties to the agreement, I understand
I don't think the fact that there are a number of minor errors that don't have any material significance ought to in any way lead one to the conclusion that somehow, therefore, the minister is breaking the faith with his word because he said that we ought to have done due diligence. We did due diligence. We made our best effort to get a perfect copy. Given the magnitude of the document and the possibilities for error, you can argue, I think, just as convincingly that we did very well. You've only got 30 errors out of a document that's 72,000 paragraphs. I think we did pretty well.
I hope, Mr. Chairman, that this ends this matter. Let's get on to talk about the substance of this agreement.
The Chair: The member for Matsqui on section 1.
M. de Jong: We will get on to the substance of the treaty. That, quite frankly, is where most of our interests lie. But there are some other matters that we need to canvass, because we won't get another chance. We won't get another chance, for example, to talk about the circumstances that the minister just briefly alluded to, which I think contributed to the irresponsible conduct that gave rise to the dissemination of a faulty document -- that is, the circumstances around which the announcement was made that the document was prepared. Yeah, there was pressure put on the people finalizing the document. But that wasn't pressure from the opposition; that wasn't pressure from people in the public. That was pressure that this government put on those people, because they made announcements prematurely, I suspect, because they were being driven by a political agenda rather than doing their homework and making sure, literally, that they had all of the i's dotted and the t's crossed.
Let me ask this question: if there was a problem with the document, if it did have to be reprinted, how many of these documents were thrown out? What was the cost involved in making the corrections? What was the cost involved in the irresponsible conduct that the minister said wouldn't take place back in July?
Hon. D. Lovick: The principal pressure was to counteract the fact that the Liberals leaked documents of material that was still being prepared. Therefore we had to correct it. There was considerable pressure to get a correct version out.
M. de Jong: Let's talk about that, hon. Chair, because when we're talking about the agreement which is referred to in section 1, we're also talking about a document which this government gave assurances to TNAC that it would have an opportunity to review before it became public, before it was finalized, before it was initialled. That didn't happen. I don't know whether to this day TNAC has been advised of the changes, which today the minister characterizes as being minor. I don't know whether they have ever been advised of the changes that took place. Maybe the minister could advise us of that.
Hon. D. Lovick: I can't answer that with certainty. I didn't attend those TNAC meetings. One assumes that it would have happened, but I don't know.
What I want to say, though, is that I think we are wildly out of order from the agreement we made earlier this morning in terms of how we were going to approach this document. I can't see how section 1 of this document in any way lends itself to a discussion of the kind invited by the member's question.
The Chair: The member for Matsqui on section 1.
M. de Jong: Section 1, hon. Chair, I hasten to point out, is the definitions section relating to the Nisga'a Final Agreement. The debate we're having is to determine what the Nisga'a Final Agreement is. I can't think of anything more relevant prior to embarking upon the agreement.
You know, you've got government ministers and a Premier who are sitting there presuming to be outraged that we're having this discussion. We're being told in the midst of the committee-level debate that there were changes. The same minister who said a few months ago that it would be irresponsible to do something, did it. Now he sits here and has us believe
[2:45]
Look, I didn't wait until the last minute to give me the document. I didn't wait until the very last minute to discuss these minor changes that we're now going to have to go back and cross-reference and make sure are as minor as the minister says -- because, quite frankly, a lot of what of these ministers and this government have said about this deal hasn't been true.Chair: Members, I believe this subject has been fairly well canvassed. We should move on to discussion of section 1, the definitions section of this bill.
G. Wilson: I was just going to try to make what I thought might be a helpful suggestion here. I thought perhaps I might read into the record, for those listening to or reading this debate, what exactly it is we're debating. It says, for example: "Page 7. In the definition of 'gravel management plan,' delete the comma following the word 'size.' Page 55. Paragraph 5 (in the first line) -- delete the first occurrence of the word 'to' " -- because it's repeated. "Page 97. Paragraph 56
Hon. Chair, there are a lot of people who take seriously the need for us to get into the heart and soul of what is going to be, I think, a very important treaty agreement in British Columbia. If we don't get a slightly more orderly process
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through which we can get into this debate, we're going to have to rank this discussion along with an eight-hour debate as to whether or not we should go for dinner. So I would really urge that we move into the substance of this debate.The Chair: I believe that's the direction that I've given, and I understand that members are now ready to do that.
The member for Matsqui, on section 1.
M. de Jong: I do have one further question somewhat related: what was the document that the Nisga'a ratified? Was it the document that we have before us as a bill, or was it the unamended version?
Hon. D. Lovick: The document that the Nisga'a ratified is the document that you have in the bill, the one under your desk. It was an earlier draft but with the corrigenda attached to it. In other words, they were dealing with exactly the same document as the one we are dealing with today.
M. de Jong: Just to clarify, then, it was the amended document, or the old document with amendments attached.
Hon. G. Clark: The old document with the corrigenda attached.
M. de Jong: I want to engage in a bit of a discussion about the costs related to this treaty, particularly those costs that will be the responsibility of the provincial government. I'm doing that now because, as I said earlier, one of the things we will want to pursue as we go through this document is to compare that which we have heard from the minister and the Premier in days and weeks past about what the ultimate cost to British Columbia taxpayers will be with what emerges from this debate and from the answers we get to the questions we put with respect to the questions. So this is the minister's opportunity, or the Premier's, for that matter, to give us a comprehensive -- as comprehensive as they feel comfortable giving -- and all-encompassing description of the costs that accrue to the provincial government, to the provincial taxpayers, with respect to the implementation of the Nisga'a Final Agreement as it is defined in section 1.
Hon. G. Clark: I' m not sure how you want to proceed on this, but I'll start with the broad discussion of the costs. Perhaps that will elucidate the matter, or at least enlist more questions.
First, the total cash cost of settling the Nisga'a treaty is $312 million. British Columbia pays about one-fifth of the cash costs, or $65 million. It is paid out over 15 years, so it works out roughly to about $1 per year per British Columbian, or $16.50 paid out over 15 years. The federal government will pay the remainder of the cash costs, which is 80 percent of the cash costs. So that is a distinction. I'm making this distinction on cash consciously, obviously, because I will just try to break it down into quantum.
Now, in addition to the cash, there is a land value. The land is the provincial contribution of Crown land. The valuation of the land is somewhat of a debate and a negotiated number. But the valuation that we have ascribed, the ascribed land value, is $106 million. In addition, there is compensation to third parties, which is yet to be entirely negotiated, and there the federal and provincial governments share those costs 50-50. The estimated cost of fisheries to be negotiated -- compensation to licence holders -- is about $5 million. The estimated cost for forestry, yet to be negotiated, is between $18 million and $25 million. In addition to that, there was some forgone revenue -- I'm sorry, I shouldn't say "in addition." I'm going to be careful here.
The roughly $300 million I mentioned -- $312 million -- includes everything except the land value and the compensation to third-party holders. Follow me? I think I might have got confused there. It's $312 million in cash, including forgone revenue to the government for forestry, etc., and $106 million in ascribed land value and then some amount of compensation somewhere in the neighbourhood of $10 million to $20 million. That is, as I understand it, the total cost. Outside of the Nisga'a agreement, the province agreed to pave the Nisga'a Highway, and that will be done over a period of time. The federal government, I think, made a further contribution -- no, that is included in the $312 million, sorry. So that is, I believe, the total amount.
As I said, if you take the cash part, it results in about 80 percent Canada, 20 percent British Columbia. Then our portion is bumped up with the ascribed value of the Crown land.
M. de Jong: As the Premier went through those figures
Hon. G. Clark: I'm sorry; no, it's not. I made a double count. Let me try to make it simple. The $312 million -- that's rounding up -- is the total cash part. Then you add $106 million, if you ascribe that as the land value; so we're now at $418 million. Then there is compensation to third parties, which is about
M. de Jong: One of the additional costs involved in this treaty relates to the treaty implementation committee. That, of course, has been an issue of some controversy for a number of reasons.
But I'm only interested in nailing down the figures at this point. Again, in so doing I want to refer to what we were told by the minister back on July 8. I raise this because I think it's important for us to try to establish some degree of comfort with the accuracy of the figures as the government presents them through this debate, starting today. The minister said:
"We estimate that the cost of the Nisga'a public information initiative will be no more than $2.3 million. These costs will both cover the production and distribution of information about the treaty and provide the public with information on how to access more details about the treaty. This total figure is made up of the following: firstly, $600,000 estimated for publication costs, including printing the approximately 250-page treaty and appendices document, fact sheets and the treaty summary to be mailed to every household in B.C.; secondly, $1.3 million for media costs, which will include radio and television production and broadcast, which we perceive to be the most effective means of ensuring that the public is made aware of the agreement and how it can obtain the agreement and information about it."The minister then went on to say: "We assume we're not likely to spend all of that money; we are presenting a maximum budget."
I want to ask, firstly, whether those figures remain accurate -- whether that was the budget that the government
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expended. We know it isn't, but the minister will know where I'm going with that questioning. He can likely, I'm sure, explain what occurred between July 8 and over the course of the last three or four months, which caused what I think is a fairly sizeable overexpenditure.Hon. D. Lovick: Yes indeed, the member is quite right. There is a huge increase in that, beyond that original budget, and that has been public information for some time. Indeed, the information was released on December 22, a complete accounting. At the end of the day, the total amount of budgeted expenditure on the Nisga'a implementation project was $6,777,000 -- a huge increase, obviously.
The explanation for that is, in large measure, simply an unanticipated demand for information. At the end of the day, we ended up with something like 180,000 hits on the web site; we had 180,000-plus. In addition, we had
The other part of the explanation, I think it is absolutely fair to say, is that government decided that this issue did indeed matter. We were embarking on a course of action that truly was, as somebody referred to earlier -- I think the Premier made this point a while ago -- in a significant way perhaps redrawing the social contract in this province. I don't think we should run from saying that; I think we're doing so. For many of us, that's long overdue, frankly. We needed to do it, and we're doing it.
Accordingly, because of the magnitude and because of the importance, we the government made the decision that we ought to then mount a significant information campaign, larger than we had anticipated. Accordingly, then, I went back to Treasury Board and asked for a significant increase. That was granted -- thus the explanation for that much-increased budget. Again, I entirely accept the member's characterization of that as a huge increase. It is a huge increase. It seems to me, however, that it is an absolutely justified increase, too, given the importance, the magnitude and the significance of what we're trying to do with this treaty.
[3:00]
M. de Jong: With the greatest respect, nothing that the minister has just said persuades me that anything but political considerations were at work here. Nothing that the minister says today about the import -- the genuine import -- of this subject wasn't known to him and his government when he made these statements on July 8.
How do we have any faith in a government and in a ministry, in a minister, in cabinet ministers who, over the next number of weeks, are going to answer questions again and again with: "We've thought about that. Don't worry; trust us. We've thought it through"? On something as basic and fundamental as a communications budget, something that was completely within the control of the government -- completely, no variables
Hon. D. Lovick: Not the variables.
M. de Jong: They could control that entirely. "Not the variables," says the minister. Well, I'm sure he's going to tell us what they were.
One aspect of this whole process that they could control entirely
Did the issue suddenly become so important as to justify almost doubling -- more than doubling, in some cases -- the amount of money that was going to be spent? What happened between July 8 and August 8? While I'm at it, in terms of ascertaining the cost of this Nisga'a final agreement, can I ask the minister why, when I was written to at the end of November, I was still provided with the old budget figures? Why was I still told that the amount of money that was going to be spent was $600,000, with a grand total of $2.3 million?
Why was I being told, at a time when the budget obviously had been overspent, that we were still on course? And why was I getting that information at the end of November in response to an FOI request? Why should we believe any of the assurances that we are going to get from this minister and this government when something as basic and fundamental as adhering to a communications strategy eludes them? It is apparently beyond their level of competence. Why should we believe them on any of the issues that we are going to canvass in the days ahead?
Hon. D. Lovick: I'm tempted to respond by saying: "Why should I believe anything that the member for Matsqui says?" This is the guy that in July said he was opposed to a referendum on the Nisga'a deal. One has to say: "Wait a minute. Is it true that new occasions teach new duties?" I'm also struggling mightily with the fact that these folks are lamenting the fact that there was a public information campaign. I note that the new member for Parksville-Qualicum is in the House, and she will appreciate this, I think. In 1995, in the great Liberal mailing, there was a resolution at the convention that said they supported a strategic public awareness initiative that would address the fundamental principles of treaties and would confront those public actions which create unsubstantiated anxiety or racial stress.
It seems to me that what the Nisga'a campaign was about, pretty evidently, was to achieve precisely that end. I wonder, therefore, if it's the case that three or four years has made a huge difference or whether it's all about Bill Vander Zalm coming on the scene. But I hope we don't have to play that game, and I hope we don't have to engage in that sort of debate; rather, we can talk about this treaty.
The information that the member wants to make into a major issue at this moment has been public for some while. On December 22 we made that information public. It's no surprise, and I have stood here and explained why we spent
[ Page 11094 ]
that extra money. The member disagrees. He thinks it was an absolutely outrageous expenditure. He thinks we should have been like Nancy Reagan and just said no, or something like that. Let him think that if he wants. I disagree. I think that what we did was spend money in a responsible and, indeed, necessary fashion. I think that what we're doing with Nisga'a is something incredibly significant and that what we need to do is ensure that people who have questions or concerns are given every opportunity to have those questions addressed. That's what the Nisga'a implementation project was designed to do. I think it did it very well. I think the evidence, in terms of demand, would make that point. The member says: "Well, didn't you know that in the beginning?" No, we didn't know it in the beginning, quite frankly, because we discovered a demand hugely more than we thought. Our conclusion, in response to that demand, was to make it a bigger public information campaign.Interjection.
Hon. D. Lovick: Well, the member says it was to buy more ads, and that was indeed part of it. But why suggest that that is somehow disreputable? That's a legitimate expenditure. Is the member saying that advertising is, by itself, a necessary evil or something? What's his point? I said why we did it. I think it's legitimate, I think it's justified, and I stand behind that.
M. de Jong: I guess you'd have to be a member of this NDP government to be baffled that parliamentarians would be somewhat disconcerted that the executive branch had purposely overspent a budget for communications that was set only a few short months ago. The minister seems baffled that somehow that causes opposition MLAs concern. That ain't his money. And he doesn't seem to understand that when you set a budget, presumably you do it with a view to living within that budget. What a novel idea; what a novel concept. "We didn't know." He would have us believe that in July of 1998 he didn't know this was an important issue; he didn't know that there was interest in British Columbia.
Here's the fallacy in what he says. What he and the Premier would have the people who are watching this debate believe is that somehow all of these costs accrued because there was this groundswell of demand for documentation and paper. Well, let me ask the minister this: what is the difference in the figure, between what was originally budgeted for printing costs and what was ultimately spent? And what is the difference in the figure, between what was originally budgeted for television and radio advertising and what was ultimately spent? Let's not create this myth that somehow we had to spend an extra $5 million at the printing press.
Hon. D. Lovick: I don't have before me the initial breakdown, but I do have the final cost, which is what the member asked for. I've got that. It would be a simple matter -- I'm sure he could do the math if he wants -- to take the final cost that I gave him, subtract the amount that he had, the earlier estimate, and he will have the answer to the question. I don't think I'm going to bother asking staff to run off and locate it. It's a pretty elementary matter.
M. de Jong: I didn't create the issue. The Premier and the minister are telling British Columbians that the reason they went $5 million over budget is because too many of them wanted a copy of the document.
I want to know what the relationship was between the cost of printing
Hon. D. Lovick: The short answer is that the member should do the math himself; it's not that difficult. If he wants, send it over; I'll do it for him. Second, the Premier was not on TV. He probably should have been; we could have used the exposure. But he wasn't; he wasn't on TV.
We decided to have a major advertising campaign or information campaign, depending on your point of view, because our reading of that increased interest, demand and concern about the treaty -- partly created by the opposition, I might add, in their regular efforts to foment uncertainty and anxiety -- was to therefore say that we'd better do a significantly enhanced advertising campaign. We did so. I think that what we did was absolutely legitimate. Again, I certainly make no apology for it. Indeed, I'm rather proud of the work we did.
The Chair: Members, the Chair appreciates the strong views of members on both sides of this question. It has been an interesting debate, but I have to remind members of the relevancy of the debate as it relates to section 1 of the bill.
M. de Jong: Hon. Chair, I am mindful that we are talking about the Nisga'a Final Agreement and costs associated with its implementation and passage through this House. I think this is very much an issue, particularly when we are talking about tens of millions of dollars, as it relates to this particular campaign.
We're not done, as I understand it from the most recent disclosure of information from this particular committee. It contemplates a whole series of expenditures to follow, between December 22 and February 28. It has budgeted -- and I'm mindful of what that means; I'll add a zero -- for print, radio and TV ad expenses in the range of $210,000.
Interjection.
M. de Jong: The Premier says that's not enough. I guess that at this point I'd be thankful for an acknowledgment that it won't be any more than that.
Hon. D. Lovick: Hon. Chair, I'm not about to make some claim that it may later be found I can't substantiate. I am being accused of doing that already, apparently, so I'm not about to do it again. Suffice it to say, we have released our best guess, our best estimate at this time, of what we anticipate costs will be. But again, what if we have another 200 requests for meetings? What if we are asked by people to go and do things, and therefore produce more information, more advertising on their behalf or more advertising of the treaty?
Part of our predicament is that we have been regularly forced to counter what we regard, quite frankly, as misinformation. That's pretty commonplace. That's why we still have a team that is monitoring what is said. We still have people working, doing that. I think it's necessary, and I think it's important to do so. I have to say, though, that one of the things
[ Page 11095 ]
that I have had to deal with on a regular basis for the last few months is a constant complaint aboutG. Plant: One aspect about this that I want to pursue for a minute is what the Nisga'a treaty implementation office has been doing. When I look at the document -- the release or the publication was in late December -- I see that $5 million of the $6.7 million budget is devoted to advertising and communications. I take it that that means it has to do with designing and implementing an advertising campaign in print, radio and TV, getting pamphlets and brochures, talking about the treaty in British Columbia households and the staff costs associated with that. Perhaps I can do this one step at a time. Is that a fair summary of what was done by the treaty implementation office under the heading of advertising and communications?
[3:15]
Hon. D. Lovick: I don't know why the member suggests that there's any mystery to this. He has the same document before him that I have. What it isInterjection.
Hon. D. Lovick: Well, no. Let's, however, make sure that he covered all the categories under that particular heading. I mean, if he wants to do this, let's at least be honest with one another and say what they are: print, radio and TV, pamphlets and brochures distributed to every B.C. household, and then -- if I misheard him, I apologize -- the other categories were production, staff and administration and contingency. Okay?
G. Plant: All of which is directed at essentially the two things, advertising and communicating -- that is, the government might say, informing British Columbians about what is in the treaty and what it means for British Columbians. I see the minister nodding. I think that he and I are in agreement on that.
Another category is ceremonies and events. I take it that one of those significant items there is the Nisga'a visit, which I assume is the visit by the chiefs and others to Victoria last year. Then there is special events. Those would be events like ceremonial events, perhaps like the event at the Royal British Columbia Museum -- that kind of thing, generally having to do with, shall we say, the public recognition and the importance and significance of the treaty and what we're doing here. Is that a generally accurate description of what was intended or is encompassed by this part of the expenditure item?
Hon. D. Lovick: That is correct.
G. Plant: Another part of the expenditure item, representing something like $1.16 million of the estimated expenditures to December 31, is called public education and community outreach. Now, that includes, I take it, things like sending staff people or perhaps even the minister himself -- I'm not sure -- out to various events around British Columbia, publishing the document, the treaty itself, and monitoring the 1-800 information line. If you will, it's another side of the public education process around telling British Columbians what this treaty is and what it means for them. Is that a fair summary?
Hon. D. Lovick: Yes, it is.
G. Plant: Now, the last item is the Nisga'a treaty implementation office. There are three items here. Office and equipment is one of them, one of them is travel, and the last is staffing. What is it that the staff did, who are encompassed by that item? I'm not looking for a long explanation, just very general.
Hon. D. Lovick: Staff were involved in various activities. One of them was a media monitoring process where we weren't sure
G. Plant: If you then take all of these expenditures, they are all, generally speaking, directed at what the minister just called promotion, communication, information by a variety of means -- in effect, the government informing British Columbians about what this treaty says and means for them. Is that an admittedly general but a relatively fair summary?
Hon. D. Lovick: Yes.
G. Plant: So none of it actually has anything to do with implementing the treaty.
Hon. D. Lovick: If the member is suggesting that the title is perhaps not as accurate as it could be, he probably has a point, yes.
G. Plant: There's a lot of magic in titles, actually. One thing you could have called this committee or this office is the Nisga'a government public relations office or the Nisga'a public communications office or the Nisga'a treaty promotion office, because that's all it did. It didn't do anything around implementing the treaty. In fact, if I'm not mistaken
Hon. D. Lovick: It's very clear where the member wishes to go with this.
Interjection.
Hon. D. Lovick: Indeed you have. It took awhile, but indeed you have.
Mr. Chairman, I think the answer to the question, essentially, is that we are talking about implementation in the broader way, in terms of bringing this treaty into focus so that the people will be ready to accept the fact that we are negotiating the first modern treaty in B.C.'s history, and we hope, frankly, to be more receptive. I have said publicly on many occasions that I think what we are involved in, in negotiating with the Nisga'a -- and others, for that matter -- is, in effect, analogous to growing a new culture in this province, because
[ Page 11096 ]
it is different. We're on different turf, and people, understandably, have apprehensions, concerns, anxieties. We the government decided that the best thing we could do, given that we were embarked on a pretty ambitious project, was to, quite frankly -- as I said earlier -- promote the deal. I don't think we did so in any way that anybody could say was dishonest. I think our campaign was factual; I think it provided good information. I don't see anything in what was done there as in any way anything to be loath to embrace on our part.
I want to also just draw attention to one other thing, for the member's benefit. I had occasion to visit the Nisga'a treaty implementation office and to talk to a number of people there. What I want the member and others to know is that if we had in fact taken the work done by the people who were committed to this treaty and charged government for every hour they spent, the cost would have been hugely more. I want that known: the dedication, the commitment, on the part of all sorts of people -- large numbers of whom were seconded from my ministry -- because they believed that this was the appropriate and the right thing to do, and they were therefore willing to give up weekends and evenings and to work huge numbers of hours with no recompense. I think that captures a little bit of the
I want to take this opportunity now to simply thank those individuals for that dedication, because they showed it in an amazing way indeed.
G. Plant: I too am always impressed at the hard work and dedication of all the province's public servants.
But back to the issue of cost. I think that just for the purpose of taking the point the one step further that I, at least, want to go at this point
Does the minister have any budget or sense of what that cost is projected to be over some reasonable time frame, in order that we can add one more number? If the minister doesn't have that number, then we can move on. I'm just curious to know if that number exists yet.
Hon. D. Lovick: I don't have a number to share with the member, but I would say that it is simply the ongoing operational cost, as we have with any legislation, quite frankly -- the ongoing operations of a ministry.
M. de Jong: Well, here's what I take from the discussion we've had, which hopefully we can shortly move off of, regarding this whole exercise. In initiatives of this sort and as we move into future negotiations, the government will reserve for itself the right to spend however much money it believes necessary, be that two or three or four times beyond what is originally budgeted for, if it is confronted by anything approaching a vocal opposition, and I don't mean opposition in the political sense. If it hears a single person registering some opposition, some reservations, about what the government is doing, that's justification enough -- if the cause is right, in the government's mind -- to throw the budget out the window and keep spending.
That's what the government is saying it did this last time. The minister has said he was taken off-guard by the level of interest. I think what he means is that he was taken off-guard by the level of discontent -- the level of opposition -- and he wanted to respond to that. That's a political decision; that's got nothing to do with providing information. As my friend has discovered, it certainly has nothing to do with implementing the treaty itself. That is a political decision that falls squarely within the discretionary authority of the cabinet, and they made that decision for purely political reasons. It had nothing to do with the distribution of information.
We know now that the title of the committee wasn't accurate. We know that the budget wasn't accurate. We've always known that a lot of the information wasn't accurate. Nothing about what went on here related to the distribution of information; it was all about politics.
[3:30]
I guess the only thing I want to pursue before we move on relates to the individuals who I'm sure did work very hard in the tasks that they were assigned. There were a number of them, and I want to know from the minister where the project direction team, Messrs. McArthur, Heaney and
[H. Giesbrecht in the chair.]
It all relates to the hidden costs of this treaty that the government doesn't want anyone to know about. I think dishonest. If, as the Premier and minister say, they're proud of what they've done -- they're proud, apparently, of overspending a budget that they set -- then let them be forthright about the extent to which they've overspent that budget. I don't think they have been.
One of the issues that we touched on briefly, and which I think we'll come back to when we get to the implementation sections of the agreement, arises somewhat in this section. That is the method by which the agreement is given effect. It is still unclear to me what the government's or the Premier's or
[ Page 11097 ]
the minister's view is with respect to this treaty and future treaties as to the required involvement of this Legislative Assembly in order to give effect to a treaty -- a treaty, pure and simple.Obviously in this case there are issues that affect the jurisdiction of the province, and we're going to have that discussion. But, as I think the member for Powell River-Sunshine Coast said earlier, this section refers to the actions of the federal parliament as being separate from the actions of this Legislative Assembly. I want to know whether that is the model to be followed here and if it is the one that would be followed with respect to future treaties as well.
Hon. D. Lovick: My apologies to the member. I was looking at another note, so I have to make sure I understand the question. If I understand the member's question correctly -- namely, whether this Legislature will be called on to ratify other treaties that we might negotiate -- the answer is, presumably, yes. I can't imagine why not. I suppose there
Section 1 of Bill 51 approved on the following division:
| YEAS -- 38 | |||
| Evans | Zirnhelt | McGregor | |
| Kwan | Hammell | Boone | |
| Streifel | Pullinger | Lali | |
| Orcherton | Stevenson | Calendino | |
| Goodacre | Walsh | Randall | |
| Gillespie | Robertson | Cashore | |
| Conroy | Priddy | Petter | |
| Miller | G. Clark | Dosanjh | |
| MacPhail | Lovick | Ramsey | |
| Farnworth | Waddell | Hartley | |
| Smallwood | Sawicki | Bowbrick | |
| Kasper | Doyle | Janssen | |
| Weisgerber | G. Wilson | ||
| NAYS -- 23 | |||
| Whittred | C. Clark | Campbell | |
| Farrell-Collins | de Jong | Plant | |
| Abbott | Neufeld | Chong | |
| Sanders | Jarvis | Anderson | |
| Weisbeck | Hogg | Coleman | |
| Hansen | Krueger | Symons | |
| van Dongen | Barisoff | Dalton | |
| J. Reid | J. Wilson | ||
On section 2.
G. Wilson: I have a series of questions that relate to the language of section 2, because the language
Now, my series of questions
Again, to try and bring some order to this discussion -- because I have some questions -- I think it is important that people understand what sections 25 and 35 of the Canadian Constitution Act say, because we often refer to them. Perhaps those who read the constitution from time to time -- some of us even enjoy reading it from time to time
Section 35 talks about the rights of the aboriginal people of Canada. Section 35(1) says: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed" -- i.e., that there are existing rights of aboriginal people within the Canadian constitution and that those existing rights are constitutionally entrenched. Section 35(2) says: "In this Act, 'aboriginal peoples of Canada' includes the Indian, Inuit and Métis peoples of Canada." Section 35(3), an important clause, says: "For greater certainty, in subsection (1), 'treaty rights' include rights that now exist by way of land claims agreements or may be so acquired." That becomes an important consideration in my questions, which I'm coming to and which -- I hope you will bear with me -- I will get to very shortly.
Section 25 talks about aboriginal rights and freedoms not affected by the Charter. Section 25 reads:
"The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada, including: (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired."
[3:45]
That, essentially, is a pertinent point. Section 26, which also becomes relevant, says: "The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada." I think that that becomes an important consideration in my questions.My question is to the minister or the Attorney General or the Premier -- whoever it is over there who would like to answer it. Because this agreement anticipates that it falls within the language of sections 25 and 35 of the Constitution Act, is there anything in the language of the constitution that the minister could possibly construe as allowing a first nations government to apprehend children from people living on aboriginal land without their permission? Is that an anticipated right of aboriginal people?
Hon. G. Clark: If I could just start with a very brief preamble to my answer along the lines the member referred to, I think this is an important section -- although on plain reading, it should be self-evident. I just want to read section 2 for the record: "The Nisga'a Final Agreement is a treaty and a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982." So we are putting in statute what is a paragraph in the treaty. We are repeating a paragraph from the treaty and putting it into the statutes, so that everybody will know that this is not an amendment to the constitution and that this treaty is within the meaning of -- and will be so determined by any courts or otherwise -- and is to be treated in law as within the meaning of, sections 25 and 35 of the Constitution Act, 1982.
It is an explicit recognition by this House, if you will, that this treaty does not amend the constitution but that it must be
[ Page 11098 ]
within the meaning of the constitution. That's what's intended by the House, if it should pass, and by the parties. I think it is not an insignificant point. Really, I think it directly counters some of the propaganda against this treaty. It's a plain reading that says that this is part of the constitution of Canada and doesn't deviate from the constitution of Canada.To get to the specific point you mentioned, I think the answer is no.
Hon. U. Dosanjh: To amplify the Premier's answer, the fact is that some of the provisions in this agreement are intended to make sure that the Nisga'a have some authority over what is integral and internal to the Nisga'a culture. I think it's important that we recognize that as part of the agreement, Nisga'a laws about child and family services must include standards comparable to provincial standards, if not better, to ensure the safety and well-being of children and families. Therefore the only real basis for apprehension -- because there would be -- of a child by Nisga'a government would be the safety and well-being of the child. In fact, if Nisga'a government does not live up to that obligation, the provincial government would have the right to go into the Nisga'a territory and apprehend the children itself, if need be.
The Chair: The member for Powell River-Sunshine Coast -- on the same point?
G. Wilson: It is on precisely that point, hon. Chair, because it has been alluded to
Let me bring specifically to the attention of the members opposite -- because this has caused considerable concern among some of my constituents and people who have contacted me in the last 24 hours
I think the difficulty we have is that many, many British Columbians who heard that comment, many people who heard that comment, are now extremely fearful that somehow the anticipated rights under section 25 or 35 of the Canadian Constitution Act would provide the Nisga'a rights that would well exceed those kinds of guarantees that are provided for every other Canadian citizen, not only by way of their constitutional rights but by Charter rights, which are most specific. I think it's really important that we clarify that point and that if in fact that is not true, those words be retracted and people in British Columbia know that that was a false statement.
Hon. U. Dosanjh: It's very, very important that we debate and deliberate on these issues in the most comprehensive and dignified way possible. I think it's important for us to recognize that one of the fundamental reasons that treaties are being negotiated and that aboriginal people have asserted their right to have treaties is to make sure that they're able to deal with their culture and their language in the way they see fit within the constitution of the country, under the Charter of Rights and Freedoms. It was important for the Nisga'a to assert the right to look after their children. We have a sorry history in the province of British Columbia, and in fact in this country, of the children of aboriginal peoples being taken away. We all know about the sorry history.
So it's important that they asserted this right, and we recognized that as part of this agreement. They would have the obligation -- not only the right
G. Wilson: The point that needs to be taken, with respect to the implication that is provided in the language of the commentaries that came from the member for Richmond-Steveston, is that somehow there would be constitutional authority granted to the Nisga'a that is superior to or different than
This is an important point, because many who oppose this agreement are under the impression that somehow this treaty provides expanded rights that are not already anticipated under section 35 of the Canadian Constitution Act or which are not already protected within the Charter of Rights and Freedoms. I think that is completely wrong. It's important that British Columbians have the comfort that this will not provide the opportunity for there to be some form of superior law that allows Nisga'a to override provisions which are laws of general practice by the government of British Columbia or by the government of Canada. I think that's the message that was given. I think that message has to be made clear, because it is quite false: they do not have in this treaty, from my reading of it, those expanded powers. They certainly don't have them constitutionalized.
Hon. U. Dosanjh: It's true that when one sometimes makes bald statements in the heat of debate one can be misunderstood. Obviously, when for
G. Plant: I heard my name mentioned once or twice recently, so I thought I would just see if we could go over some ground. I, like the Attorney General, think we will probably return to this issue. But perhaps I could do it in a way that works occasionally when the Attorney General and I are debating things. Let me see if I understand some things correctly.
[ Page 11099 ]
First of all, this Nisga'a final agreement contemplates that Nisga'a government, as they exercise their powers in relation to child and family services in appropriate circumstances -- circumstances that will be defined by reference to standards that are themselves supposed to be comparable to those in the province -- will nonetheless have the power to apprehend a child who is considered to be, presumably, a child in need of protection. Is that a correct statement of the purport of this agreement?Hon. U. Dosanjh: It is a correct statement. I think the hon. member for Powell River-Sunshine Coast was raising another issue, which I really didn't want to address at that time, because I think we need to move on with this debate.
The hon. member for Richmond-Steveston made some remarks yesterday that were somewhat outrageous if one takes them out of context, because the hon. member didn't provide any context for those remarks. For instance, yesterday the hon. member said that people will be forced to practise Nisga'a culture against their will. But I'm sure that even a Nisga'a person living in Nisga'a territory would be free to experiment with different cultural traditions and values. Nowhere is it written in the agreement that anybody is going to be forced to practise certain cultural traditions against their will. We all have Charter rights. The Charter is going to apply to this agreement and to this treaty. I think it's important that we recognize that when we make these statements, we must provide some context. I appreciate the comments made by the hon. member today.
G. Plant: I don't think this is the appropriate point to try and conduct what would be, I suppose, a textual exegesis or whatever of what was a pretty compressed attempt to discuss an important subject in 30 minutes, so I'm not going to do that.
[4:00]
Let me ask the second question, which flowed from my first question. My first question was around the powers that Nisga'a government will have under this agreement in relation to child and family services. May I ask this question of the Attorney General: is it in fact a purport of this document that those powers will enjoy the protection of section 35? From the government's perspective, they will be in a land claims agreement that, by this section 2 which is before us, is expressly intended to be "a treaty and a land claims agreement within the meaning of sections 25 and 35." That's a long way of asking the question of whether the child and family services issue that we talked about a moment ago is one of the parts of this agreement that is intended to be cloaked by section 35.Hon. U. Dosanjh: This particular section, in fact, is an absolutely clear statement of the fact that this agreement is "a treaty and a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act." This section, in fact, responds to the question posed by the hon. member. If the hon. member has another question, I'd be happy to answer it.
G. Plant: I'll tell you, hon. Chair, why I was so cautious and perhaps less than direct. It's because not everything inside the document -- the schedule to Bill 51 -- is in fact going to be a section 35 agreement. There are clauses in this document that are expressly excluded from section 35.
The minister was careful to point out a moment ago that sometimes things we say are taken out of context, and I certainly don't want to commit that sin again. There are things in this agreement that in fact have nothing to do with section 35. So let me ask the question again. The powers that the Nisga'a government will have are in fact intended to be section 35-protected powers -- is that correct?
Hon. U. Dosanjh: The powers of the Nisga'a government would be powers within section 35.
G. Plant: I notice that the member for Powell River-Sunshine Coast, having had his say, has lost interest in the subject for the moment.
Let me ask this question, though, which arises out of the discussion that we've just had. I take it that the view of the government is that the way section 2 works is that even though section 2 says that the agreement is a land claims agreement and a treaty, the specific provisions within the agreement that purport to take those specific provisions outside the protection of section 35 would override that general statement in section 2. Is that correct?
Hon. U. Dosanjh: Yes.
M. de Jong: I just want to explore one aspect, one component, of this that we might return to again as we go through the treaty. That is the notion that what we are dealing with here is a codification of existing rights within the meaning of section 35. I'm going back to a briefing we had -- I think that members of the opposition were there -- and some others from the then deputy minister. We talked about boxing rights -- that is, existing rights and new rights that were being imported and brought into this family and being granted section 35 authority. What I'd like to explore somewhat is what the government's view is. What's in the box? What's out of the box? Is, for example, the section dealing with the creation of Nisga'a government a new right? Is that an existing right within the meaning of section 35? Where does something like Nisga'a government fall -- in the box or out of the box?
Hon. U. Dosanjh: I think that when one gets into this debate from that particular angle, one would be very confused. These were rights that were negotiated between three parties: the Crown in the right of the province, the Crown in the right of Canada, and the Nisga'a. Whether the rights existed prior or the rights were created now isn't an issue. Three parties have agreed to codify, pursuant to negotiations, these rights that are before us. They obviously, as explicitly stated, become section 35 rights.
M. de Jong: But surely it goes to the root of what it is that we are trying to accomplish by virtue of these treaty negotiations. If this is the exchange of uncertain existing aboriginal rights for certainty -- for a codification of those existing aboriginal rights -- then that is one thing; that is one approach to take. If it's something that goes beyond that, however -- if it's an exercise wherein we acknowledge that by virtue of this document and the section 35 protection that it receives, we are adding to that body of existing aboriginal rights -- then we should know that. We should know what in the government's view represents existing rights and what represents new rights that are appearing here and that will enjoy that constitutional protection. I think it goes to the root of what we are trying to accomplish.
Hon. U. Dosanjh: Historically, aboriginal people in Canada have asserted rights. Delgamuukw is the most recent and
[ Page 11100 ]
the most significant example of that to date. It is sometimes an academic debate. Section 25(b), in fact, talks about "rights or freedoms that now exist by way of land claims agreements or may be so acquired," and section 35 has the same wording. Therefore the explicit wording of those two sections renders this debate somewhat meaningless.I think the issue is that rights have been asserted. We have sat down and negotiated on behalf of the province, Canada sat down and negotiated on behalf of the country, and the Nisga'a negotiated on behalf of themselves an agreement to codify certain rights which we agree that the Nisga'a should have. Canada agreed, British Columbia agreed and the Nisga'a agreed that those are all the rights they will have. They shall claim no more after this. There are obviously certainty mechanisms to deal with that sense of finality, which we can go into later on.
M. de Jong: But surely it's not entirely moot to differentiate between what we believe are inherent existing aboriginal rights and those new rights which, for perhaps legitimate public policy reasons, we decide should be part of the new package -- this new entity. Surely it is not an entirely moot point to make that differentiation and to understand where that line is drawn. For example, my recollection of Delgamuukw is that the courts stopped short of arguing an inherent right to self-government. Now, the government can decide
But surely -- and I go back to the explanation that the then deputy minister offered
Hon. U. Dosanjh: I think the Supreme Court of Canada in Delgamuukw sidestepped that issue and did so for reasons known to them. We can speculate about that.
The model that we have put in place with respect to Nisga'a does not require us to determine what, if any, rights are inherent or agreed upon or delegated. We have agreed amongst the three parties that these are the rights. If someone wants to determine whether some rights are inherent or not, obviously the courts are there to pronounce upon it.
That's why in fact we have adopted this model, so that we can carry on having negotiations with other bands and other first nations to deal with these issues without getting into the debate of what's inherent or not. It's important for us to talk about what's required for the first nations in this province to be able to sustain themselves as the entities that they want to be within the context of a thriving province and a thriving country. We're prepared to sit down with them, talk about these issues and arrive at a codification of their rights and obligations, as we have done with respect to the Nisga'a.
M. de Jong: Again, I just don't accept the Attorney General's attempt to dismiss the significance of the point. Can I ask him this: if it's the government's position that all of the rights as they are codified within the document that we're dealing with today are existing rights that are merely codified -- uncertain existing rights that we've now made more certain by virtue of this document -- would it follow logically that those rights can be asserted by other first nations via the courts without going to a treaty?
Hon. U. Dosanjh: Well, any first nation is obviously free, as is any legal entity in Canada, to go to the courts to ask for their opinion on various issues. But the important issue for us is that we have sat down and have negotiated an agreement that's acceptable to the three parties without any reference to what's inherent, what's delegated, what's otherwise. So the whole debate is in fact academic and irrelevant to the issues before us.
If the hon. member wants to engage in some constitutional arguments -- and we can talk about that -- obviously the argument the hon. member is making may lead to a particular conclusion. We have arrived at a conclusion in British Columbia after 25 years of negotiations, six years of tripartite negotiations: we have agreed that these are the rights to be enjoyed by Nisga'a under this agreement. Nisga'a agree with that, and both parties, Canada and British Columbia, agree with that.
[4:15]
M. de Jong: But if all first nations people have these rights, then surely that is significant.Interjection.
M. de Jong: The Attorney General will say: "We didn't say that." Well, I guess I'm asking the Attorney General which
An example I've used is self-government. When the next band comes along, and if we find ourselves before the courts and the assertion is made -- "Look, that is an inherent right that we have; and as evidence of that, we point to its existence within the Nisga'a treaty signed five years ago and implemented five years ago" -- then I think it's relevant for us to know what position the government takes today. To dismiss it as somehow being moot
Hon. U. Dosanjh: Hon. Chair, even in Delgamuukw the court sets out certain principles and mechanisms whereby one can provide proof of what rights exist at any time. Other first nations may not have these rights, if one wants to talk about existing rights. The issue is that each first nation's experience, contrary to popular perception, is unique. Their histories are unique. That's why negotiations and treaties are important. That's why we are prepared to sit down with each and every first nation to try and arrive at a tripartite agreement to determine what, if any, rights we can agree they should be able to exercise in the context of a thriving province.
[ Page 11101 ]
M. de Jong: Well, one last kick at this point, hon. Chair. I distinctly recall being advised by some fairly senior people involved in the negotiation process that the government approached this from the point of view that the self-government rights that are contained within this document represent new rights for first nations people. The Attorney General knows my position with respect to the inclusion of that package, the body of rights, within this document. That's not really the issue here. The government has made a decision, and they followed through on that. But do the Attorney General and the government share that view -- that self-government rights, as set out in this document, represent something other than inherent pre-existing rights; that they are new rights that are created by virtue of this document?Hon. U. Dosanjh: I think we've exhausted this. I come again to the issue, and the issue here essentially is that we have agreed, subsequent to very difficult and complex negotiations, that these are the rights that Nisga'a would enjoy under the constitution of Canada, within the context of this province and this country. It really is irrelevant at this point to determine and to go back historically, to then say that right A may have been inherent; right B has been delegated; right C has simply been created. It is absolutely irrelevant, and if someone is interested in having pronouncements made on individual sections and subsections of this treaty, someone is welcome to go to the courts and have a reference. I have no difficulty with that.
It is the Attorney General's view and it's the view of the government that it is, in fact, absolutely irrelevant to engage in a debate about existing rights and delegated rights. What's important is that we move forward in British Columbia, that we try and deal with our history, that we try and put together negotiating tables, that we try and put together treaties with all the other first nations and move on. Now, that's what we're trying to do.
G. Plant: Earlier we had a discussion about the issue of child and family services, in the context of trying to tease out some of the implications of section 2 of Bill 51. There is another issue I want to just canvass for a few minutes, in that same context. We've talked about what it means, the significance of the fact that this treaty will be a section 35 treaty -- that is, it will ensure that Nisga'a people have the protection of section 35 with respect to the vast majority of the provisions of this treaty. One of the aspects of the treaty that is interesting in that context is the fact that in certain circumstances, subject to some qualifications, the treaty will change the status quo for Nisga'a people in the Nass Valley, because provincial laws of general application will, in some cases, apply. People have been looking at this treaty both for what it means for the Nisga'a and for what it might mean for other treaties. In assessing the extent to which they're prepared to support this treaty, they are concerned about its implications in other contexts.
Recently all of us have had the experience -- as newspaper readers, at the very least -- of watching what is happening on the Musqueam reserve in Vancouver. Yesterday the Minister of Aboriginal Affairs took the time and trouble, in fact, to bring some of those issues to the floor of the House. I want to understand one or two aspects of the connection which the Minister of Aboriginal Affairs drew for us in this House in terms of how they actually might really work in respect of this treaty. I'm grateful that the Attorney General is here, in the event that he chooses to answer this.
The Minister of Aboriginal Affairs has been saying publicly, and he said it here in this House, that one of the things that's good about the Nisga'a treaty -- that in fact provides an answer or a way out of the dilemma, if you will, that the people who are the residents of Musqueam Park face -- is that laws of general application will apply, including the Residential Tenancy Act. Here is my concern. I'm going to ask the Attorney General or whoever answers the question to see if I'm wrong in my understanding.
First of all, the Minister of Aboriginal Affairs is obviously better briefed on this than I am, but I'm told that the original lease which the Musqueam Park leaseholders signed was a 99-year lease and is a bare-land lease. I'm going to impose on the Attorney General
Now, is there something about this statement that I've just made that is incorrect? I welcome the government's opportunity to explain to me why my legal analysis -- which is really what it amounts to -- is wrong and therefore the analogy that the government has been drawing is in fact a good one.
Hon. U. Dosanjh: First of all, we must understand that in a larger context the Nisga'a agreement, this treaty, would provide certainty about the status of Nisga'a lands. They would either have a land title system of their own or they would be part of our land title system, which would provide certainty to dealings with land. That's the first issue.
The second issue is that laws of general application such as the leases act -- or whatever laws apply to leases of the nature that we're dealing with on the Musqueam land -- and the Law and Equity Act and other matters with respect to judicial review procedures, and the inherent jurisdiction of the court to deal with some of those issues -- common law principles that apply across the country
The issue that I think we need to understand, unfortunate as it may be, and as is definitely the situation on the Musqueam land
The hon. member well knows, as a prominent lawyer in British Columbia, that that statement was absolutely wrong, absolutely unjust, absolutely unfair. In fact, I was shocked. So this was a purely contractual issue that went to court, and the court ruled upon it. And the court may do exactly that for non-native land elsewhere. It happens every day in British Columbia.
[ Page 11102 ]
G. Plant: Well, I'm grateful to the Attorney General
You know, the problem is this. The provincial government waded into this fight. The provincial government, mainly using the Minister of Aboriginal Affairs as the spokesperson, said to the people of British Columbia who, for whatever reason, are asking questions about whether there's a relationship between what's happening on the Musqueam reserve and elsewhere
Hon. G. Clark: And you know there's not.
G. Plant: In fact, there is a direct relationship. You see, that's the problem. I have established the facts, which the Premier is totally uninterested in. The Minister of Aboriginal Affairs stands up and says: "Don't worry. We will negotiate treaties which will ensure that the Residential Tenancy Act will apply and that all the protections in respect of rent reviews will be there." He says that as though, were that the case, the people on the Musqueam land would be in a different situation.
The problem is this. The province says: "Don't worry, because there is no linkage." We've already established that the statements made by the provincial government with respect to the application of the Residential Tenancy Act are in fact entirely unrelated to the position of the Musqueam people.
Hon. G. Clark: That's not what your leader said.
G. Plant: No. We've established that your statements are in fact misleading. It is your statements
Interjections.
The Chair: Order, please.
G. Plant: It is this minister's statement in the House yesterday
Interjections.
The Chair: Order, please, hon. members.
[4:30]
G. Plant: The difficulty is that I am so constantly embarrassed to have to stand in the presence of a government that has so little respect for the real rights of British Columbians.
We've already established that in fact there's nothing in the Residential Tenancy Act of British Columbia that is in any way, shape or form related to the plight of the Musqueam tenants, even though the provincial government insists that that is the answer: "Don't worry. We're going to insist that the Residential Tenancy Act will apply, because it's a law of general application. So anybody who lives on core settlement land will be entitled to the rent review provisions in the Residential Tenancy Act." Not true? Absolutely and entirely not necessarily -- at least not necessarily -- true, unless of course
Interjections.
G. Plant: No. It all depends on the language of the leases.
Interjection.
G. Plant: Yes. I'll give the minister lots of opportunity
Interjection.
G. Plant: If the Premier wants to speak, he'll have lots of opportunity to speak. Perhaps he can explain how it is that the people of Musqueam would be better off if in fact this treaty were applying to them. They would not be one whit better off; they would be in exactly the same position, and that's the point.
Now let me ask this question: since we already know that the people who live on the Musqueam reserve who are the residents of Musqueam Park would not be one iota better off if they were under the Nisga'a treaty in respect to this issue, what does it mean to say, as this treaty does, that the Nisga'a government can create and regulate -- that is, pass laws with respect to different interests in land -- on Nisga'a lands? Is it the case under this treaty that the Nisga'a government would have the power to pass and to create their own residential tenancy act?
The Chair: I remind members to speak through the Chair.
Hon. U. Dosanjh: I have said laws of general application would apply. One of those laws is the Residential Tenancy Act. The Residential Tenancy Act would apply to tenancies that are covered currently on non-native land. It would apply to the tenancies in the same way on the Nisga'a land, if there are tenancies.
I think it's important for us to recognize that the Residential Tenancy Act does not apply to Musqueam land at this point -- the Musqueam leases -- because the leases are 99-year leases, and the Residential Tenancy Act doesn't apply to 99-year leases on non-native land in British Columbia. What the Minister of Aboriginal Affairs said was two things: that residential tenancy would apply on Nisga'a lands; and secondly, that there would be more certainty with respect to the foundations, land title and other aspects that go with the land under the Nisga'a agreement. Both of those statements are true.
I think it's important for us to recognize that the issue at hand here isn't Musqueam. The issue is this Nisga'a treaty. We know that under the Nisga'a treaty the Residential Tenancy Act would apply. We also know that 99-year leases would be the same anywhere. It would be the same if the particular house where the hon. member lives in Richmond was covered with those leases on private land, with a 99-year lease. It would be facing a similar problem in terms of interpretation by the courts. So it's important. Let's get on with talking about the treaty.
[E. Walsh in the chair.]
G. Plant: Perhaps I could just make this one final comment in this context, although we'll return to the subject. But I
[ Page 11103 ]
think, to complete the discussionHon. U. Dosanjh: The Nisga'a would be able to create different permutations and combinations of the way they use their land. There are strata title rights. There are other rights on the non-native lands in British Columbia, and the Residential Tenancy Act continues to apply to those kinds of rights that are created pursuant to different mechanisms. It is our view -- it would be the position of the province of British Columbia -- that the Residential Tenancy Act would continue to apply to the Nisga'a lands if there are tenancies in Nisga'a lands that are currently covered under the residential tenancy legislation in British Columbia.
G. Plant: Let me just get some clarity around one aspect of that. For example, the Nisga'a would not be able to, in effect, create tenancy interests under their lawmaking power with respect to their interests in their lands and then regulate them by their own residential tenancy act. Is that the view of the government with respect to what they've done here?
Hon. U. Dosanjh: Yes.
G. Wilson: I want to come back to issues around section 35, but before I do that, I wouldn't mind picking up on some of the points that the member for Richmond-Steveston was just making. There is now a considerable amount of fear engendered among people in British Columbia that somehow
I just want the people of British Columbia to hear something. In 1976 the Sechelt Indian band took over land management, and they later took over financial control, in 1978. They tried hard through till 1981 -- and in fact they even made application to the human rights committee to try to get full support
In 1991 the leases came up for renewal, and the leaseholders were faced with an 1,100 percent increase. The Sechelt government, for the first time, had a chance to sit down face to face and negotiate with landowners in the absence of the federal government, which had previously negotiated their leases -- and not only negotiated their leases at absolutely bargain-basement rates so that they were well below market value but then collected the money and often didn't even give the money back. So they were getting it from both ends, if you can see my point.
It's interesting that when the Sechelts negotiated with the tenants and implemented that increase, they came up with a settlement with a five-year pay-in. My understanding is -- I stand to be corrected, but I think I'm correct -- that they didn't lose a single tenant in the process. I think it's important that we look at the facts of this question. That doesn't resolve the questions and issues and problems and the hardship that is currently being looked at and faced by people living on Musqueam, but there are solutions to that.
From my perspective, they have absolutely no bearing whatsoever on the Nisga'a. It doesn't matter who the landlord is -- if you enter into a 30-year agreement that says that at the conclusion you will renew at 6 percent of market value, and if the market value has gone up 7,000 percent, that's what you're going to pay. If we need to find a way to get jurisdictional effect to get that into place and work away to make sure that people aren't forced out of their homes, that's the issue at hand, and that's what we deal with.
I frankly find it a little bit problematic -- and I'm trying to choose my words carefully here -- that this is being somehow characterized as an issue that is connected -- and these are not my words but the words of others -- to a "race-based government." I think that is grossly misleading. I think it's completely inaccurate and, frankly, doesn't even stand the test of the one self-government that has been effectively in place with virtually exactly the same powers, and the Sechelts have been able to work extremely well with the tenants they have living on Sechelt land.
I make those points, but I would like to come back, more specifically, to what we're debating, and that's section 35. I met with Mel Smith -- and I don't think he'll mind my mentioning that -- because I wanted to try to understand what the constitutional argument was under section 35. I wanted to try and figure out where it was that there had somehow been this impression left that this constitutional agreement did two things
The first point was: does section 35 of the Constitution Act, in its anticipation of new treaty rights
Here are my questions to whomever on that side feels that they would like to answer them. No, let me rephrase that: to whomever would feel obliged to answer them -- because none of you may feel like you want to answer them. With respect to section 35 of the Constitution Act, it is my understanding that the rights that are anticipated with respect to Nisga'a self-government are rights that are anticipated by virtue of the fact that self-government existed before colonial contact. All we are doing in this agreement is recognizing that those rights pre-existed; recognizing what they are, essentially, by describing them and codifying them in an exhaustive manner; and saying that this treaty, with respect to those rights to self-government, is an absolute and exhaustive list of what those powers are, and that in fact it does not create any new level of government in Canada. I'd like to get the government's view on that.
[ Page 11104 ]
Hon. U. Dosanjh: First of all, this is not a new level of government. Secondly, the experience of different first nations would lead them to assert different rights as we sit with them across the negotiating table. The assertion of those rights is then taken into account as part of the negotiations. There's give-and-take. At the end of the day, we arrive at an agreement such as the Nisga'a agreement. The Attorney General of the province doesn't need to say whether someone enjoyed certain rights 100 years ago; that's part of history. What we need to say is that we sat with them and negotiated, based on give-and-take, a compromise, which is this treaty, and that from that day on, from whenever the treaty is finalized and ratified by both Canada and British Columbia, they would have those rights.That's important for us to understand. I think it's important because we want to make sure that other first nations understand the basis of our negotiations, the basis of how we work, how we want to bring parties together to deal with these issues.
[4:45]
G. Wilson: Fair enough on the answer. The reason that I believe it to be important is not so that we can say in a paternalistic way that this is what we deemed to have existed before colonial contact. The reason that it's important for it to be on the record, certainly from my personal point of view, is because many who are in support of this treaty opposed, in the Charlottetown accord, the constitutional amendment that introduced a third order of government that was aboriginal government. The argument we used was that you don't need to entrench a third order of government constitutionally because aboriginal self-government predated colonial contact and therefore was an anticipated right under section 35. That was the argument we used. Therefore we said that if you negotiate your contract or your agreement under section 35, we will endorse it, we will support it, we will in fact honour it. That, from a personal point of view, is why I have such serious difficulty with some members of the Liberal opposition who stood with me on that argument and who now seem to have changed their position. That's troubling, because I think you have to stand on some principles at some point. Nevertheless, I'm sure they have their reasons, and I'm sure they're honourable and valid.The second point I want to get to is whether or not this in fact constitutes self-government. I become confused. Let me say to those members opposite that there are people in British Columbia who believe that somehow the Nisga'a government is going to provide powers equivalent to provincial statutes, which will allow them to have governing authority over non-Nisga'a. This becomes more confusing when they're hearing from some people that this isn't self-government at all, it's government. Now, I know that the member for Matsqui has just referred to it as self-government, and I believe that to be true.
But let me refer to the comments yesterday from the learned member for Richmond-Steveston, who said: "Moreover, it is not only difficult, it is impossible to see any foundation in section 35 for creating a new institution of aboriginal government which will have the power to govern non-aboriginal people. Yet Nisga'a government will have that power. That is why chapter 11 is not called 'Nisga'a self-government.' It's called 'Nisga'a Government.' "
And yet, if you look at chapter 11.1, it says: "The Nisga'a Nation has the right to self-government
From my reading of this agreement -- and what those powers are is set out in chapter 11 very explicitly -- I do not believe that the Nisga'a self-government is in any way comparable to provincial authority or powers. Nor do I believe that it in any way accommodates rights that would exceed those limited and express powers as set out in chapter 11 of this agreement. Yet that's the implication that has been made, and British Columbians are fearful of it. I think we need to put that to rest, because, again, I believe that to be completely fallacious. If I'm wrong, maybe the government might tell me, and then perhaps I'll be concerned as well.
Hon. U. Dosanjh: Obviously the hon. member feels quite passionately about this issue, and justly so. We have codified in chapter 11 the self-government rights that we've agreed to amongst the three parties. I'll leave it at that.
J. Weisgerber: Well, it's been a fascinating debate, and it's fascinating to sit beside my friend from Powell River-Sunshine Coast. We shared podiums during the Charlottetown accord debate, and I remember both of us being opposed to a new third order of government. I don't recall the member being quite so forthcoming in the area of existing inherent rights, and I expect that the member will provide me with some documented evidence, because there certainly are
G. Wilson: Count on it.
J. Weisgerber: Yes, something other than caucus meeting minutes would probably be good, but
Interjection.
J. Weisgerber: In any event, what I want to do under this section -- because I do believe that what's being created here is a new third order of government
What I'd like to know from the Attorney General or anyone else is if they could clarify the process for amending the self-government elements should they be seen to be flawed five or ten years down the road. If, five or ten years down the road, we see something like the Musqueam experience, which clearly works to the advantage of one group and the disadvantage of another, what mechanism is there for the province or the federal government or the Nisga'a themselves to come back and seek changes in a form of government that's entirely untried? I want to explore this, because I believe that some people who are not simply in agreement with one side or in opposition to the agreement have said that there should
[ Page 11105 ]
be a phase-in period, that there should be a ten-year review of the performance of the first model of self-government before it becomes clearly enshrined. That advice has been ignored. The government is going to go ahead, hell-bent for election, and they're going to implement this model of self-government without any experience at all. So I'd like to know, and perhaps more importantly, British Columbians should know: if this government model doesn't work as effectively as the parties believe it should, what's the process for amendment?Hon. U. Dosanjh: Hon. Chair, I think that one of the overriding concerns British Columbians had, and legitimately so, was the issue of certainty around these matters. They didn't want a treaty or an agreement that any party would be able to open up and renegotiate within a year -- that would create uncertainty -- or two years or three years or four years. These rights have been agreed upon to be exercised and enjoyed by Nisga'a, and if any party feels dissatisfied, then it has to contact the other two parties and see if they would come to a negotiating table to deal with this issue. That's the first option.
The second is something that might happen as a result of court decisions. If there is something the government is doing that's against the Charter, and the courts force us to take another look at it at that point
But there is also an overriding consideration that we must keep in mind when we talk about those kinds of concerns. We must say to other British Columbians: "The Nisga'a have patiently waited for 111 years. They've patiently negotiated for 25 years with the feds, six of those in a tripartite situation. They desperately want to be part of British Columbia. They desperately want to be equal Canadians. It is in their best interests and their vested interests to conduct themselves most democratically in a most egalitarian fashion. And so far, in the way they have written up their constitution and have conducted themselves, they have shown to the nth degree that they are committed to having a free and democratic society within the Nisga'a boundaries." I think those are the things that we need to keep in mind when we're discussing these issues and the legitimate concerns of all of the other British Columbians.
J. Weisgerber: I don't doubt the sincerity of the Nisga'a with respect to their desire to have a fair and evenhanded government. I don't doubt that for one minute. But I want to say also that those British Columbians who have, I think, been most concerned about the certainty issue were the same British Columbians who had great concerns about including self-government under the treaty. I travelled rather broadly with the select standing committee, and those two issues seemed most often to come hand in hand. People said: "We want certainty. We want clear language. We don't want to have any question about the direction it's going, and we have great concern about enshrining under the constitution an untested model of self-government." It seems to me that even with our Canadian constitution, the drafters of that saw the need for an amending formula -- saw that from time to time, where one province may or may not agree with changes that were going to apply to the whole, there needed to be some mechanism other than unanimity which would see amendments to our constitution.
So I don't think simply saying that all three parties will have to come back to the table is, quite honestly, good enough, because there are winners and losers. If a government model or legislation is flawed, it creates winners and losers. It advantages one and disadvantages another. Those advantaged
Interjection.
J. Weisgerber: The Attorney General says: "How?" I would suggest that
For that, among many other reasons, I believe the whole concept of constitutionally enshrined self-government, untested, is an enormous leap of faith and one that, quite honestly, is not warranted. I think there could have been a better mechanism. I understand also. I'm not naïve enough to think that at this point in time we're going to renegotiate the agreement. I understand full well that this final agreement is going to be implemented. The only hope I have is that there is something a little more constructive than simply the blind faith that all three parties might see the flaw and agree to come back and renegotiate it, should a major flaw in the self-government model -- the untested model, the untried model -- exist.
Hon. U. Dosanjh: I won't go over the old territory that I covered in my previous response; I would just add one more thing. I think it's also important to recognize that when you have Nisga'a governed within the Nisga'a territory, under chapter 11 and all of the other chapters they would be governed democratically. They would be free to express their opinion vis-à-vis the performance of that government, and if that government doesn't function for them, they would be able to re-elect a different government. They might be able to force that government, for the sake of all Nisga'a and non-Nisga'a, to come to the table with Canada and British Columbia to renegotiate something that might be this unsatisfactory for them and for other British Columbians and Canadians. Those are all of the different possibilities.
I understand the concerns that the hon. member has, but at some point, after years of negotiations, you have to have a sense of finality and a sense of certainty, and I think this treaty does that.
[5:00]
J. Weisgerber: Somehow the government and the Attorney would have us believe that Nisga'a self-government exists in a vacuum; that decisions taken by them are not going to impact their neighbours, are not going to impact people who live on Nisga'a lands, people who live on lands that are surrounded by the Nisga'a; that somehow the only people affected by Nisga'a government will in fact be Nisga'as living either on or off reserve lands. I don't believe that. If I believed that to be the case, then I would be quite willing to accept the Attorney's position that democracy works. If it isn't working for the Nisga'a, they'll re-elect a government who might then, I guess, decide not to exercise the powers that exist for their government. Basically what the Attorney is saying is: "Here are the powers of their government, but if they aren't work-[ Page 11106 ]
ing, somebody will run on a slate that says they'll ignore the powers that exist for our government under the law." What other explanation could there possibly be, if the defence is that if it doesn't work, they'll throw the bums out and elect some new ones? That can't be the answer to a fundamental flaw in the self-government model. I simply find myself unable to grasp the argument that the Attorney is making.It's the interaction with others that is going to be the primary source of friction in British Columbia. Again, I can't believe for a minute that if we pass this, then the next treaty that comes forward for ratification won't have exactly the same elements in it. Whether it's a band that's in the Nass Valley, relatively remote from others, or whether it happens to be one in downtown Vancouver or in the Okanagan, these frictions with their neighbours will become far, far more relevant than they are in this package. I don't think that simply a band election is at all a suitable answer, should the model turn out to be less than perfect.
Hon. G. Clark: I just want to take a bit of a stab at this. I say candidly for the government, in terms of mandate, that we've obviously grappled with these questions with respect to some notion -- which I think you're really promoting -- which is: why not, after ten years or five years, have a review, open it up? There's some appeal to that. I think, quite candidly, these are legitimate options.
Here's the other side of the coin, however; it's been kind of lost in the debate in British Columbia over the Nisga'a treaty, because we resolved it. Frankly, the biggest issue we faced with third parties -- including almost everybody -- was the question of certainty. If we put in some reopener at some point, then we dramatically undermine this notion of certainty. People would say: "Well, you're signing an agreement and you say it's certain. But ten years from now, who knows? Maybe we'll be back at the bargaining table." We had to grapple with that question.
I think there's some merit to this notion that maybe we should have a reopener, but we felt it was just overwhelmingly more important that we lay down those safeguards with respect to the treaty as best we can, and we've got all those. But the overriding importance of getting a final agreement, a resolution which allows us to move forward
Secondly, there is a kind of practical reason. The Nisga'a, I believe, would not have agreed to a unilateral change of the agreement by Canada or British Columbia. It would have been hard to conclude an agreement where there was the option of a government unilaterally reopening sections of it -- nor would they have agreed, I think, to a model in which their rights would potentially have been compromised at some reopener time at some future date. We had a real practical negotiations problem in terms of reaching an agreement that has in any way a potential to revisit the rights which
Finally, I have a couple of other points I want to make. One is that I don't see the neighbour-friction argument, particularly. It's sort of like the notion that somehow rights accorded to the Nisga'a by definition therefore mean they would take away rights from someone else, and I don't accept that. That's another debate, I suppose. But I believe fundamentally that's not the case with respect to this agreement.
Secondly, I think there are safeguards built into the agreement with respect to neighbours. That's what you were talking about: what is the impact of this on other parties outside the Nisga'a lands? Perhaps you have some, but you've yet to give us any examples of how you think they would be impacted and therefore need a reopener at some future date. I don't see it. In fact, the Attorney General's point is the more valid one: the only people who would really be impacted are Nisga'a people or non-Nisga'a people living on Nisga'a lands; that would be the argument. Of course, they have the democratic mechanism to try to make a change, etc. So I think that, while it's very legitimate, we've tried to make some decisions which on balance were preferable to trying to find some mechanisms for reopening.
My last point would be with respect to Sechelt. It's very interesting. The member, I think, is a fan of Sechelt. It was there, and we've acknowledged that. The Sechelt have self-government provisions which are almost identical to the Nisga'a self-government provisions, albeit delegated. I think that's a key point for the member, or some members.
We're in negotiations with the Sechelt, and I hope we get an agreement-in-principle within days -- or weeks, at least. We're very close, and I'm optimistic. Clearly, part of those negotiations, if I could prejudge them, is going to be to take the self-government that they have -- it's working very well -- and put it into a treaty. It's working well by all accounts -- at least, I've heard; and I think the member agrees.
No government has ever intervened and used that delegation to try to say: "Oho, we've caught you. We're going to change things." Nobody has acted unilaterally with respect to that. I wonder, then, if the member feels that it is inappropriate to take that delegated model and put it in a treaty rights model, when we've had more than ten years or 12 years of experience and it's worked quite well. So, if you will, we have a reopener right now, because we're in negotiations. What is likely to happen is that we're going to take exactly the model they have, and it's going to be rolled in now and protected by a treaty and therefore not a delegated model but a model of self-government protected by treaty rights.
If the member feels -- and I don't say this in a negative way -- that we know better than the Nisga'a, or the aboriginal people
In the case of the Sechelt we gave a delegated model. For 12 years it has worked extremely well. Now, should we retain that delegated right to intervene, even though it -- the experiment -- is working extremely well? We're reopening it in the discussion, so it seems to me now. It's very hard to argue that we should not move it into the treaty process and trust the
[ Page 11107 ]
Sechelt now entirely with the self-government management, which they've had and done well. Now it would be protected by the constitution.I say that maybe mischievously. But it would be very interesting to see how that member votes on the Sechelt treaty, which will be exactly the same as in Nisga'a, albeit with a 12-year -- or maybe by the time we get to it, a 13-year -- track record which is working. Is it now not time, therefore, to trust the Sechelt with managing self-government as rights under section 35 of the constitution?
J. Weisgerber: I appreciate being reminded of the difficulties of negotiations. I think some points are legitimate ones. But I would suggest to the Premier that if I were in the position of negotiating, I would certainly come at it with Sechelt, Nisga'a and others to take the self-government model that's existing with Sechelt and leave it outside of the treaty. It seems to me that the flip side of the Premier's argument is that if it has been working well for 12 years and nobody has challenged it, why mess it up? Why not leave it? Why not continue with it? Why not simply do what treaty-makers in this country have done for two centuries, including those in the Yukon as late as the 1980s: simply go ahead and do treaties without self-government?
Canada and the provinces are someday going to have to grapple with aboriginal self-government on a much broader spectrum than Nisga'a or Sechelt or anything else. So why do we want to rush ahead and get to the head of the line, be in the vanguard with this form of self-government and this particular band, when I would argue that a much better model -- and I have argued it consistently -- would have been simply to do self-government outside, to do delegated self-government, and use the Sechelt model, which I think has been a very successful one.
I think the issue of friction with neighbours is in fact there with Sechelt. Sechelt gets along very well with the people in its community, and it gets along incredibly well with the people who lease Sechelt land. But to suggest for a moment that there isn't friction and that the potential for friction with a government in which those non-Indian occupiers have no voice is not a point of concern would, I think, be less than honest. Certainly I think the member for Powell River-Sunshine Coast must be aware that for those occupiers who have no say in the government that sets their rents, sets their taxes, this is a cause of great concern. It may not be a cause of great dissatisfaction today, with the existing chief and council, but they change just the same way that governments in Dawson Creek, in British Columbia, in Ottawa and in Musqueam change. Attitudes change as the councils change and as governments change. It has to be very worrisome to be living on lands and to be taxed by a government over which you have no control, no say.
If there's a flaw in the Sechelt agreement, it's that flaw: it's the flaw that, as a society, we fundamentally fail to grasp or tackle this issue of occupiers of leaseholds on aboriginal lands. We simply haven't come up with a good model yet. Maybe Sechelt is a fine model of government. It's not perfect; it's not great. I would argue as vehemently against enshrining Sechelt under the constitution as I argue against enshrining Nisga'a under the constitution.
I don't think we're ever going to agree. I'm not going to persuade the members across the way; I don't even expect to persuade the members across the way or my colleagues sitting beside me. But I think it's important for us to put these issues on the record, and I appreciate the way the Premier and the Attorney and the minister have come forward and tried to rationalize the decisions they've made. That's great; I appreciate that. I'm not going to agree with it, and I expect that when we get to Sechelt, I will as much resist the enshrining of that government under section 35 of the constitution as I do with respect to Nisga'a.
[5:15]
Hon. G. Clark: Well, maybe we can convince the member during this debate. But I suspected he'd take that position.I just want to make a couple of points that flow from the member's remarks. Inadvertently, I think, one of the things he said which struck me as helpful in explaining why the Nisga'a would not agree to a delegated model is because provincial governments change. I'm not saying that because we're the government; I'm simply saying that for aboriginal people to negotiate an agreement and to negotiate a delegated model from the provincial government, they would be subject to a change, of course, by any provincial government at a future date. I think they wanted certainty with respect to that as well.
Finally, on this point, I think it is important that there be a level of trust with respect to self-government. I don't say trust in any airy-fairy way. I say simply this: why is it okay for us as elected people here to use that delegated authority to pass laws that might take away
I just asked a hypothetical question, an unfair one. What if in Sechelt they elect people who we find incompetent, and they make mistakes? Should we rush in, then, and use our delegated authority to try to intervene in their self-government, because we find the people they've elected to be unacceptable for whatever reason? Well, I say, actually, that the answer is no. Maybe this is a disagreement we have.
At the end of the day, if the Sechelt people elect people through the Charter of Rights and have models or if the Nisga'a people elect people, we have to at some point say: "They have the same right to elect an incompetent government that the people of British Columbia have to elect an incompetent government." I say it with great trepidation. That is what democracy is all about.
At some point we have to say that as long as those principles are enshrined and they're democratic, then we have to allow self-government to be truly self-government within the framework of the constitution, the Charter of Rights and laws of general application. That's perhaps a difference that we have, but I think it's an important distinction. At the end of the day, we have to allow democracy in this municipal-style model to allow them to vote for whom they wish -- even if they make mistakes or we think they make mistakes.
With respect to Sechelt, I want to make one further point. I apologize to the Chair and the members for this, but it's an important distinction. Why not pursue the Sechelt model in negotiations? Why is it not in the Nisga'a treaty? First of all, I want to say -- I don't know whether this helps or not, but for the record -- that up until fairly recently the provincial government did pursue the Sechelt model initially as the model of negotiations. We've been in negotiations, and our initial preferred position was a delegated model, as in Sechelt. As part of the agreement and the compromise agreement, we came to the view that this is not only acceptable but better in some
[ Page 11108 ]
respects, and we moved our position. I think someone asked if we are going to get into what positions governments took. We took the delegated position up until fairly recently. I just say that for the record, and I don't apologize for that. Nor do I apologize for the Nisga'a treaty. That was our bargaining position.
Here's the problem with the Sechelt model, aside from what the member talked about. There is a real problem, a fundamental problem, which we reject in British Columbia. While I say we pursued a delegated model, it was different from Sechelt in this respect: the Sechelt model means that the lands are section 91 lands and therefore federal lands. Right now the municipal-style delegated model of the Sechelt does not have British Columbia laws of general application applying, because it's federal land. By the way, this is a source of some tension right now with the Sechelt, because they prefer -- I think it's fair to say
It's our position as a provincial government -- and I hope the member agrees with me -- that what we've achieved with Nisga'a is that not only is it not delegated self-government, but that we have to move the Nisga'a into British Columbia's laws of general application. We believe that we should move the Sechelt into provincial lands covered by laws of provincial application, as part of the negotiations and trade-offs and reconciliation and integration that we're trying to accomplish with the Sechelt. And that's not an insignificant distinction. While we initially took the position of delegated authority, we also took the position that we wanted provincial laws of general application to apply. So as part of the negotiations, we've moved to a model of self-government here, which is, in fact, simply laid out and codified in the treaty, and which, of course, resolves the question of federal land. That's what our position is with respect to Sechelt. That is, I think, a very large flaw in the current, delegated model of Sechelt: that it's federal lands, and our laws do not apply.
J. Weisgerber: Quite honestly, I'm pleased and relieved to learn that the province at least went in and argued for a delegated model. I've often felt that the pressure was coming from Ottawa on that issue.
But I would say that I think each of these arguments has a side to it. Had Sechelt been enshrined under the constitution, with the flaws that exist with respect to section 91 lands, you would have been dead; you'd have been stuck. We would have been caught with that. And as good as the minds were that went into thinking up the Sechelt model -- with all due respect to the Sechelt and the people who work with them; they, like the Nisga'a, enjoy my greatest respect -- you can't anticipate all of these things coming at the head. I think the Sechelt issue demonstrates the need to deal with this issue -- and I've raised it before -- of rights of holders of leased land. Whether we handle it as delegated governments or as constitutionally enshrined governments, there is at some point an obligation by the province and the federal government to deal with the rights of those people in a more effective way than we've been able to do now. I think that's the challenge for self-government, and I believe that the responsibility
The Premier talked about the wisdom of the province deciding whether it knew more or was in a superior position to the Sechelts or the Nisga'a. I don't think that's the issue. I think the question is the protection of the rights of people who aren't governed by that level of government but who look to senior governments for some kind of protection. To argue that somehow it demeans the Sechelts or others to have a delegated form of government would argue
M. de Jong: I think the point that the member for Peace River South has just made, insofar as how it applies to local government, is a good one. I'm sure that local governments right across the province would love to take the speech the Premier has just made in defence of constitutional autonomy for aboriginal local government and have it applied to them. That, of course, is something that governments have steadfastly refused to do.
I guess the other point that is probably worth making, when the Premier says
But I want to return to something that I clumsily dealt with earlier in the debate and try it from a different angle, if the Premier will indulge me. In the political debate that took place around methods of ratification and the employment of referendum or not referendum, in defence of the position he took against any manner of referendum, the Premier often sought to
Interjection.
M. de Jong: Well, he quoted me -- he's correct. He quoted me out of context, but he did quote me.
But what he did was talk about his desire to defend minority rights. The difficulty I always had with that argument in defence of the Premier's position on that question was: what minority rights are we defending? What minority rights are there that the Premier believes will disappear if there were a referendum around this treaty or around treaty negotiations generally and it failed and people in British Columbia voted against that document? What rights that aboriginal people had the day before that vote did they lose the day after?
In all sincerity, I have never been able to answer that question. And it gets back to the issue that the Attorney General didn't want to talk about, and something actually
[ Page 11109 ]
I have to tell the Premier that the advice we have gotten from the negotiators, from the then deputy, was that there are new rights here. He disagrees with the position held by the member for Powell River-Sunshine Coast. This treaty does embody new rights. Placed in that context, maybe we can get at the issue I didn't deal with very effectively earlier on.Hon. G. Clark: Well, I hope I'm as eloquent as the Attorney General on this question.
The issue of new rights versus inherent or existing rights is a red herring. It's not helpful; it's not relevant, because we have agreed collectively to these rights. The reason it's not helpful is because in order to say, "Well, this is inherent, and this is a new right," we would have to go to court to adjudicate on the question, which is not really what we're trying to do. You made this point, and I apologize for repeating you; I think you made it well. Aboriginal people are exchanging undefined legal rights for codified treaty rights.
[5:30]
Interjection.Hon. G. Clark: No, that's exactly what we are doing: exchanging undefined rights for defined rights.
If we did not agree to this treaty, then they would go to court, and the courts would define those rights. What you're asking, I guess, is: would the courts have found -- because they would only look, presumably, at existing or inherent rights -- exactly the same as the treaty? We wouldn't know the answer to that unless we went to court and let them adjudicate it. We don't want to do that. So we have said that this is the full resolution of the question of rights -- existing, inherent, delegated, new, others. We have resolved that these are the rights of the Nisga'a people, and there are no more. This is it in finality. So we won't know; we would never know.
This is another question. In the future, if someone -- an aboriginal group -- chose not to negotiate but to go to court, what would they arrive at? Well, we may find out that question -- your point. My guess is that the courts will be guided by what legislatures, federal and provincial, and the aboriginal people are negotiating as codified rights.
So if we negotiate a dozen treaties and they're all similar to this Nisga'a treaty -- I won't use the word "template" -- the Sechelt, the Nisga'a, the In-SHUCK-ch N'Quat'qua, the Ditidaht
Hon. U. Dosanjh: And by the unique experiences.
Hon. G. Clark: And in addition, of course, by the unique experience of that particular aboriginal group.
But these are questions which I don't think are particularly helpful to the discussion. What we've done here is codify rights by agreement between the three parties.
M. de Jong: The problem with the response is that the government has done just that which the Premier now says it is unhelpful to do -- that is, it has made that differentiation. We know. We were told by the negotiators that the province wanted to preserve the option of not granting all of the rights that exist within this document to all first nations groups with which it is negotiating. It only, presumably, has that option if in its own mind it has made that differentiation -- if it has adopted a position different from what the member for Powell River-Sunshine Coast is advocating: that these are all existing rights, that there's nothing new here.
For the province to assert that it has the option in subsequent negotiations of deleting some of the rights that are granted via this document, particularly the Nisga'a government sections, it must necessarily be of the view that not all of these rights are existing rights. It must necessarily be of that view. For the Attorney General and the Premier to simply dismiss the question as being irrelevant
Hon. U. Dosanjh: I think the dilemma that one places oneself in when one asks questions such as the one the hon. member has raised would be apparent to the hon. member if I said to the hon. member: "Would you give me an exhaustive list of all of the inherent rights that you think the Nisga'a would enjoy?" I think it's really unnecessary, irrelevant and not useful to engage in that debate. We as government would not admit now or in the future, when we're negotiating with first nations, to any specific existing rights. We are negotiating these issues because we believe that the best way to resolve these matters is to sit with people across the table and talk about what we can agree on -- what rights they can enjoy henceforth, after the treaty has been signed and ratified. That's helpful.
It is extremely unhelpful, actually -- much less than helpful -- to engage in talking about lists of existing rights or not-existing rights in the context of a particular treaty or before we engage in negotiations.
M. de Jong: How does the Attorney General reconcile a statement like that with what we have heard in the past from members of the government with respect to existing and inherent aboriginal rights to a fishery and with what we've just heard from the Premier, who says that by virtue of what we are doing here today, we are creating that body of inherent rights?
Interjection.
M. de Jong: Well, we are defining them; we are defining rights. Perhaps I misunderstood the Premier, but I took him to be making that statement with this in mind. It's signalling other aboriginal peoples as to the body of rights that they are entitled to in subsequent negotiations. You see, we have always had this political debate around the question of templates from, I think, this point of view; that is, what you give to one group you are therefore morally obligated
But are we creating something else here? Are we creating a legal obligation? That's what I thought I heard from the Premier -- that by virtue of the codification process that's taking place here and if the distinction between existing, pre-existing and new rights is insignificant, we would look to a document like this, and that the courts would look to a docu-
[ Page 11110 ]
ment like this. What appears here therefore becomes the determinant of what aboriginal peoples are entitled to, if that day arrives when negotiations break down with a particular band and we do end up in court. That's very possible, and I think the Attorney General would admit that the likelihood of that happening with a band, an aboriginal group, is very real. To dismiss it, as he appears to be doingHon. U. Dosanjh: I think it's precisely for that reason that the Attorney General of the province would not admit to any specific existing rights with respect to any first nation with whom we want to engage in negotiations. There are two obligations on the Crown as per Delgamuukw. One is to consult when we are infringing on certain rights that may exist undefined. Two, we have a moral and a legal obligation, the court has said, to negotiate treaties, to negotiate these issues with the first nations.
For us to say, in an exhaustive kind of way, to say that a particular first nation has such inherent rights and not others would be to pre-empt the negotiations that would take place with other first nations. I think it's important for us to recognize that each first nation has a unique history and unique experiences. The rights that may be codified and agreed to for one may not be codified and agreed to for another. That's why I think it's important that one cannot take this particular Nisga'a treaty and then jump to general conclusions about other treaties.
Courts may be guided by the experience that we have with three or four or five or six treaties in the next few years with respect to any litigation that might be before the courts, but courts might absolutely ignore the experience of the negotiations and simply say: "We want to look at the unique history and the experiences of this particular first nation that is before us." I think that it's extremely unhelpful to begin now to delineate what the rights might be that might be inherent or delegated or otherwise in a particular treaty or outside the context of a treaty for a particular first nation.
M. de Jong: It is, I'm sure, unhelpful for the government, but let me try this with the Attorney General. It is not nearly as unhelpful or irrelevant for the people whom the government represents in these negotiations, many of whom want to understand -- well, let me put it in crass terms -- or want to rate your performance at the negotiating table. If what we are granting are existing rights which aboriginal peoples are entitled to in the first place, that's one thing. If we are moving, as I think we are in some of these areas, to granting new rights -- and in many cases it may be legitimate, it may be wise and it may be defensible -- then we should know that, as well, in terms of assessing these evolving agreements.
Since we're dealing with section 2, I guess the question is: is it the government's position that you can put anything into one of these agreements and turn it into a section 35 agreement? That's what I'm hearing. Is it possible that negotiations would take place with first nations people relating to some manner of trade with a foreign third party and that it becomes a section 35
Hon. G. Clark: I just want to try one more time on this. Nobody has fully defined yet the inherent legal rights of aboriginal people. The courts have not defined them. So if you want to avoid going to court and having them define rights, we have to define rights, inherent or otherwise. So you cannot give us a list of what the inherent rights of aboriginal people are, and therefore what are new rights and therefore not inherent, and we can't either.
M. de Jong: You do what is convenient.
Hon. G. Clark: No. We can't either. It doesn't matter, because we have said we're not letting the courts decide what the inherent rights are. We're sitting down and negotiating a package of rights which are agreed to by the parties and for which the Nisga'a have agreed not to go to court to pursue something further. In fact, there are aboriginal people who have said to me: "We have inherent rights which are not in the Nisga'a treaty." They think they didn't cover them.
Interjection.
Hon. G. Clark: Yes, they'll tell you what they are. That doesn't mean we have to agree. Nor does it mean we have to agree within a context
Hon. U. Dosanjh: I just want to correct the record. I think I may have uttered something that was untrue. These are very difficult and complex issues. And Hansard in this Legislature can be used before the courts. I want to say that I don't believe there is any legal obligation on the part of the province to negotiate. There is, the courts have said, a moral obligation to deal with these issues.
[5:45]
M. de Jong: In response to the Premier, I think the point that I have tried to make, without success, relates to the fact that it is notInterjection.
M. de Jong: I'm sorry?
The Chair: Through the Chair, members.
M. de Jong: I'll repeat what I said, because I've been engaged in debates with members of the government benches, and where it is convenient, I have heard those members say: "How could you argue with that? It is an inherent right with which we have no choice but to agree, and we had to negotiate, and it made sense."
No one is arguing with the wisdom around negotiating. But to say today, as part of this negotiation, that it is irrelevant to articulate clearly what the province's view is between inherent rights to which aboriginal peoples are entitled and
[ Page 11111 ]
other rights which will be the subject of negotiations and may or may not find their way into the treaties that are left to be negotiated in this province -- to say that that is an irrelevant issue for us to be debating, discussing and having a firm understandingHowever, now I'm getting a headache. I wonder, noting the hour, if I might move that the committee rise, report progress and seek leave to sit again.
Motion approved.
The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Hon. G. Clark moved adjournment of the House.
Motion approved.
The House adjourned at 5:50 p.m.
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