Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

[ Page 11113 ]

The House met at 2:06 p.m.

Prayers.

Hon. D. Lovick: I note that in the House today Ms. Kerry Findlay and some 130 Musqueam tenants are visiting. I had hoped to meet with a delegation from the Musqueam tenants group earlier today. Alas, that didn't happen, but I'm looking to do so this afternoon. I'd ask my colleagues to join me, please, in making these people welcome.

C. Hansen: Needless to say, the Minister of Aboriginal Affairs beat me to the introduction on that, but I do also want to express a welcome to the 150 residents and their families who are here today, either in the galleries or in the precincts -- not all could fit in the galleries. After question period today, they'll be gathering on the front steps, and I certainly urge all members of this House to take the opportunity to talk to them and get to know them, because they have a story that I think deserves the attention of this House.

Hon. I. Waddell: Last December, when I gave a statement to the House on our successful Canadian bid for the 2010 Winter Olympic Games, I mentioned that we had a great team. I'm very proud today to see in the House, in our gallery, the leader and the technical manager of that team, who put together the best technical bid in Canada. I'd like the House to welcome Arthur Griffiths and David Bentall.

R. Neufeld: It's my pleasure today to introduce two people who live in Fort St. John: Tammy Baragar and her son Mike. They're here to watch question period. Along with them is Tammy's mother Joyce Stanton from Parksville-Qualicum -- and I think all of us in this House remember very clearly what happened recently in Parksville-Qualicum. Would you make those three individuals very welcome.

J. Sawicki: This morning I had a chance to talk to one of the most attentive and inquisitive classes of elementary school students that I've met since I was elected in 1991. They are the division 4 -- grades 4 and 5 -- from South Slope Elementary in my riding of Burnaby-Willingdon. With their teacher, Ray Myrtle, they are watching question period today on television. Would the House please make them welcome.

Hon. D. Streifel: I'd like to introduce to the House, again, my wife Linda, who is visiting this week in Victoria with me. She is travelling with her very dear friends Mildred and Molly. I would also like to take this opportunity, for the first time, to introduce to the House my new administrative assistant, Sharon Lea, who just started this week with me. I look forward to good work around our office; she brings a nice, bright attitude.

K. Krueger: Visiting us today are my sister-in-law and brother-in-law, Murray and Martina Law, their baby Danica -- two months old -- and Danica's grandmother from West Berlin, Libuse Kohlus. Would the House please make them welcome.

S. Orcherton: I think all members recognize, understand and appreciate the support given to each of us from our family members. To that end, it's a very nice honour for me today to introduce to the members of this House my brother Tom, my sister-in-law Joanne and my favourite 12-year-old niece, Ruth Yvonne Orcherton. Would the House please make them all very, very welcome.

Hon. I. Waddell: I have two further guests, old and dear friends of mine, Robert and Miriam Bennett. Robert teaches with Corrections at Agassiz, and Miriam teaches ESL at King Edward campus in Vancouver. Would the House please make Robert and Miriam Bennett very welcome.

Oral Questions

FAST FERRY PROGRAM COST OVERRUNS

Hon. D. Miller: I certainly was very, very disturbed to be informed of the increased cost. I had been using numbers supplied to me by the Ferry Corporation. I'd been using them in good faith. No one was more unhappy than I, as you will appreciate, on being informed that that number was wrong. I think we've taken. . . .

Interjections.

The Speaker: Members, the minister has the floor; he's been recognized.

Hon. D. Miller: I think we've taken appropriate steps, hon. Speaker, with the installation of Philip Halkett as the new president and CEO, with a mandate to not only get to the bottom of this issue in terms of why this information was not there before but, as well, to aggressively look at the program in terms of driving costs down.

The Speaker: The member for Richmond Centre, first supplementary.

D. Symons: I find that answer totally unacceptable. British Columbians deserve an answer for this astonishing level of incompetence. I asked for an independent audit of the Ferry Corporation program last year, and the minister said: "Absolutely not." That answer is no longer satisfactory. "Absolutely yes" has arrived. I ask the minister again: will he do the right thing and call a public inquiry?

Hon. D. Miller: I've indicated that we have taken steps. I also said at a press conference this morning that all of that work will be made public, and I await the results of that work.

[2:15]

[ Page 11114 ]

Interjections.

The Speaker: Order, please.

Hon. D. Miller: I always try to accept my responsibility. We revealed this information to the public when we learned of it, and my responsibility is to try to get a handle on the problem. I've put someone in place. . .

Interjections.

The Speaker: Members.

Hon. D. Miller: . . .and I've indicated that we want to. When we get that information, it will be made public.

Interjections.

The Speaker: Hon. members, come to order. Just a quick caution about language and parliamentary language. We want to be very careful of what we're saying here. There are lots of words in the English language we can use.

First supplementary, the Leader of the Official Opposition.

G. Campbell: I absolutely agree with you, hon. Speaker. There are lots of words in the English language we can use, and "irresponsible" is the first one that comes to mind with this minister. This minister can no longer pretend that he's just recently discovered these facts. These facts were pointed out to this minister in 1996; they were pointed out in 1997; they were pointed out in 1998. And instead of exposing the facts and acting on them, this minister tried to lay off accountability to his staff.

We are in a parliamentary democracy. This minister is responsible, and this minister should have the jam to do what's right and resign.

Hon. D. Miller: I can see that the Leader of the Opposition is picking up some of my vocabulary.

This is a difficult and bad situation, but I repeat: I was given numbers by people in positions of responsibility, whom I relied on to give me those numbers. I was informed early in January that those numbers. . .

Interjections.

The Speaker: Members. . . . Members, take it easy.

Hon. D. Miller: . . .were incorrect, and we have taken steps to investigate why that happened and also to see if we can drive those costs down.

The Speaker: Second supplementary, the Leader of the Official Opposition.

G. Campbell: There is only one place that the responsibility for this rests: it's with this minister. This is the minister responsible for B.C. Ferries. This is the minister who assured B.C. taxpayers, after questions were raised in 1997 and 1998 in this House, that this was on budget. It was not on budget. And then when he was asked for a public inquiry so we could get to the bottom of it, he did not follow through. So again this minister has shown that not only is he incapable of holding his responsibilities, but he is not honourable enough to hold those responsibilities. I would suggest that it is time for this minister to resign his seat.

Interjections.

The Speaker: Hon. members, I wish to recognize the Minister of Energy and Mines.

Hon. D. Miller: Hon. Speaker, I know that in trying to make points, members often use excessive language. The comment that was made by the Leader of the Opposition is clearly unparliamentary, and I would like an unequivocal withdrawal.

The Speaker: Leader of the Official Opposition, it has been suggested that words that you were using were inappropriate, and I would ask you to withdraw that one word.

G. Campbell: I do not concur with the minister, but I withdraw.

The Speaker: Well, it's not a full withdrawal.

I now recognize the member for Matsqui.

M. de Jong: Hon. Speaker. . . .

Interjections.

The Speaker: Members, I have recognized the member for Matsqui, who has the floor.

M. de Jong: Madam Speaker, a minister who understood his duty wouldn't be looking for excuses. A minister who understood his duty to guard the public purse and the money that this government collects from British Columbia taxpayers wouldn't be running and hiding as this minister is. My question to the minister responsible for B.C. Ferries is: what information was he getting from the government's own representative on that board -- the member for Comox Valley, I think? What information was he getting from that member, who's supposed to be his eyes and ears, who's supposed to help him be a watchdog, who's supposed to help this minister and this government safeguard the tax dollars that they collect from British Columbians?

Hon. D. Miller: I relied on my information from the person who was in a position to give it, and that was Mr. Ward, president and CEO of the Ferry Corporation.

The Speaker: First supplementary, the member for Matsqui.

[ Page 11115 ]

Hon. D. Miller: Hon. Speaker, I didn't know that I was running and hiding. I thought I was here answering questions that the opposition members were asking.

I take my responsibility seriously. There is clearly a significant challenge with the project and with the program. I think we've taken appropriate steps to try to get a handle on it and to get some control on it. We are committed to the project, and I think British Columbians will be delighted when we launch the first vessel. . .

Interjections.

The Speaker: Members, members.

Hon. D. Miller: . . .and put that vessel into service.

MUSQUEAM RESERVE LEASEHOLDERS DISPUTE

Will the Aboriginal Affairs minister tell us why this government has stood by up till now, while these British Columbians are facing the prospect of losing their life savings and losing their homes?

Hon. D. Lovick: I know that when one has some 100-plus members of one's constituency in the gallery, the temptation to be theatrical is huge. But let us be very clear. The provincial government has no jurisdiction whatsoever on Musqueam land. I have agreed to meet with the residents of Musqueam to talk to them about how I might perhaps assist them in talking to my federal counterpart. But we would be dishonest indeed if we left the impression for even a moment that somehow the provincial government could magically walk in and solve their problem. And I deplore, Madam Speaker, the fact that the member from the opposition, who knows better, would persist in suggesting that we could do otherwise.

The Speaker: First supplementary, the member for Vancouver-Quilchena.

C. Hansen: Is it any wonder that the residents of Prince George have voted 97 percent against your cherished Nisga'a deal?

The Musqueam leasehold issue leads the public to question the credibility of this minister and this government. I would like to ask the minister if he will stand in this House today and give the Musqueam residents -- the leaseholders -- his unequivocal support in their campaign to pressure the federal government to ensure that there is some equity and some fairness brought and a solution to the issues that they are facing?

Hon. D. Lovick: You know, hon. Speaker, it's a real stretch to hear that member talk about credibility and then say that 97 percent of the people in Prince George voted, when we're talking about 7,000 out of more than 75,000. That's the problem with credibility, I would suggest.

I have said from the beginning that we the provincial government do not have jurisdiction. I have said, however, that I would use my best offices and our government's best offices to talk to my federal counterpart to see whether there is something that could be done to improve the circumstances for the Musqueam residents. I accept that I have no official status to do anything of that sort, but I think it's appropriate that we should make the effort. And that's why I have agreed to meet with these people today, even though, as I say, it falls entirely outside of my ministerial responsibility.

The Speaker: The bell ends question period.

Orders of the Day

NISGA'A FINAL AGREEMENT ACT
(continued)

On section 2 (continued).

[2:30]

The minister will know that part of the material that was, I think, made public was a list of full-time and part-time staff. That is the document that I am referring to. If I can use this as an example, under the heading "Project Direction," the name Doug McArthur appears. Mr. McArthur was at the same time acting as deputy minister to the Premier. As a function of accounting, therefore, I'm curious to know whether a portion of Mr. McArthur's income would have been charged to the budget for the Nisga'a treaty implementation project. Or would that have fallen outside of that global figure and simply been accounted for, as would normally be the case, as part of the Premier's total vote?

Hon. D. Lovick: Mr. Chairman, I must confess that I'm caught a bit by surprise. I thought we had canvassed that area,

[ Page 11116 ]

M. de Jong: Well, I draw that distinction between people like Mr. McArthur, for example, who were serving in other capacities in the public service, and Mr. Heaney, who, as I understand it, was under contract. Maybe I can ask the minister this: is it his understanding that in the contract for Mr. Heaney, that amount would have been accounted for within the $7 million or $8 million budget for the Nisga'a treaty implementation project?

Hon. D. Lovick: Yes, I can answer that with confidence. Mr. Heaney's contract is indeed embraced in the figures we gave regarding the project implementation team -- yes.

M. de Jong: Then the question that follows from that is: if there are these two groups of individuals -- from an accounting point of view -- who derive their remuneration from different sources, how many other people involved in this project fell into the category of Mr. McArthur? That is, how many people were spending their time working on the Nisga'a treaty implementation project, whose remuneration was being accounted for out of separate budgets?

Hon. D. Lovick: First let me clarify, if I might, that it's not about groups of people. We're talking about two individuals, essentially -- right? We're talking about Doug McArthur, the then deputy minister to the Premier, who took on the Nisga'a file as one of his significant responsibilities -- all right? In addition to that, then, there was a contract extended to Mr. Heaney, who did the day-to-day operations of the project implementation team. Those are the two things we're talking about.

The member's question concerned whether all those individuals who had other duties within government and went over to work with the team -- whether those, whether their salaries, were in fact absorbed by other ministry functions or were charged to the Nisga'a team. I will get that answer to the member, as I say, momentarily.

M. de Jong: Well, it won't surprise the minister to know that I think the distinction, from a costing point of view, is an important one. That's what gives rise to the question: how many other people working in other ministries assumed responsibilities in the way that Mr. McArthur did? And to what extent is that accounted for within the budget figures we have been provided with, which are already way in excess of what we were told the government was going to spend? Ultimately it becomes a question of how high that figure does become when you properly account for all of the governmental resources that were devoted to the Nisga'a treaty implementation project.

Hon. D. Lovick: I think we're in danger of overstating this somewhat, and I'll say why. The reality is that what is happening with Nisga'a impacts on many ministries. The reality of what we're doing on Nisga'a impacts on many ministries. There are a number of people in different ministries who, then, have some responsibility for Nisga'a affairs and Nisga'a activity. That's simply considered an ongoing cost of government.

It isn't a matter of saying that somebody who was working in forestry at one point and perhaps comes over to do something for Nisga'a ceases, in effect, to do everything that she or he might have been doing before. I think that's the distinction that probably needs to be clarified somewhat, because it isn't, it seems to me, a simple matter of saying that when you are working on Nisga'a, therefore you are ceasing to do anything else that you might normally be doing. I think the roles are rather more blurred because of the ubiquity of the Nisga'a process, in effect.

M. de Jong: I might be somewhat more prepared to accept that in its entirety if I were not led to believe by certain individuals that the relationship between these individuals, who formerly were otherwise occupied in government, and the treaty implementation project was somewhat more formal. That is, I am advised that individuals were purposely and on a full-time basis seconded to this committee from various ministries; that this wasn't purely a function of taking a couple of hours a week to devote to the exercise of treaty implementation work -- this was much more formal than that; and that individuals from within various ministries were seconded to this implementation team on, by and large, a full-time basis. The question becomes: to what extent does the cost associated with those secondments show up in the budget figure that the minister has provided to the House?

Hon. D. Lovick: First of all, I want to emphasize, if I might and if I didn't sufficiently last time, that when somebody of Doug McArthur's stature and qualifications takes on the role of heading up the Nisga'a implementation project, that doesn't mean that he lets go of all those other files that he might be managing within government. This is somebody who may have well been doing half a dozen different jobs at the same time. That's the first point.

The second point, though, is to say very clearly that individuals who worked in other ministries in government and were seconded to the Nisga'a team. . . . To be sure, their individual costs were not charged to the team. Rather, those became part of government's overall cost. That's because the venture -- the whole activity of the Nisga'a implementation project -- was indeed a corporate activity. This is something that the government was deliberately deciding to do, because it deemed it necessary and important and worthwhile in fact to carry on that activity and to give that kind of attention to it, because it was, as I say, a corporate strategy. It wasn't just Aboriginal Affairs or any other individual single ministry dealing with it.

M. de Jong: Well, I don't know how close we are to arriving at a response to the original question, which again relates back to how much, if we account for. . . . Well, let me back up. The minister focuses in on Mr. McArthur. I have suggested to the minister that what took place here is a much more widespread secondment of ministerial personnel from a whole range of ministries to work, essentially on a full-time basis, on the Nisga'a implementation team. I've really not heard the minister respond to that point. Let's leave Mr. McArthur aside for the moment. Did secondments on that large a scale actually take place?

[ Page 11117 ]

I want, though, to again emphasize that we are dealing with a number of people who are doing this job on the Nisga'a implementation project because they believe in its worth and its value. Many of them are returning to their ministries in the evenings and saying: "Now, how do I try to catch up with some of the backlog in my ministry?" These are people who in some cases, I think, are arguably doing double time. My conclusion to all of that is that I think the people of this province were indeed well rewarded by the effort their public servants made.

M. de Jong: The question that begs asking is: who are those people? How many were there? What amount of money are we talking about in terms of remuneration? With respect, if you can't answer those fundamental questions, it is hardly the transparent budget that the minister or, more particularly, the Premier would have had the House believe it was, last day in debate. We now know that there were a number of individuals that fell into that category. The minister tells us that today some of those individuals will return to their original positions.

But the fact of the matter is that we still don't know how high that budget figure would go if we properly accounted -- and that's what we're talking about -- with respect to what I think people have come to accept was a very political operation. How do we account for the dollars that were spent as part of that political operation? We're not able to do it if we don't know who was there and which budgets their salaries were coming out of.

[2:45]

M. de Jong: Well, indeed we received some information about who was on the team. What I am asking is. . . . I'm not as familiar with the other roles of the civil service as perhaps the minister is. We didn't receive information about who came from which ministry. And we never -- that's why I'm asking the question today -- received any indication of whether or not the salaries of those individuals who are referred to as being engaged full-time in this work are accounted for within the global budget of the Nisga'a treaty implementation team.

Hon. D. Lovick: My understanding is that there are only two individuals who in fact came over to the project and had to be replaced. Therefore money went to do that replacement. Otherwise, the various ministries absorbed them.

But lest the member try to say, "Aha! Hidden costs," or something, let me just point to what we have here in the House today. We are talking in the House today, answering questions about Nisga'a, about this piece of legislation. Sitting in the House today are the Deputy Minister of Energy and Mines, two people from the Attorney General's ministry, a contractor we hired for the process and somebody from Aboriginal Affairs. Now that, I would suggest to you, is pretty standard when you have corporate initiatives that go across all ministries within government. To say then that the costs. . . . I don't think anybody would suggest for a moment that that cost ought to be charged specifically to Aboriginal Affairs. Rather, we accept the fact, because it's a corporate initiative but it does indeed go across ministries. The same, I would suggest, is true of the implementation process.

M. de Jong: In spite of the minister's protests, I think it is a legitimate function of this committee to explore to what extent there were costs to government. I might characterize them as hidden costs, and I would submit to the minister that when you have seconded people full-time from a ministry and the bulk of their time, the vast majority of their time, is spent engaged in the work of a specially created committee, that is a cost that is accruing to that committee. The analogy he draws with the individuals present here in the chamber today is, I think, not accurate.

It's not accurate for a number of reasons, but let me explore one of them. That relates to the work the committee was undertaking, which I'm sure the minister would want to characterize as being entirely non-partisan and entirely dealing with the issues of, well, implementation -- but we've already learned that what this committee did had nothing to do with implementation of the treaty.

So I'm not really sure that I've heard a succinct characterization from the minister about what he saw the committee's real function to be, but the secondment of professional civil servants from individual ministries to engage in work that I'm going to submit to the minister was in just about in every way possible entirely partisan, I think (a) was improper and (b) at a minimum requires the minister to be more transparent than he is prepared to be at this point about the actual costs involved in the work that was done.

Hon. D. Lovick: I disagree with the member's conclusions.

The Chair: With that agreement to disagree, perhaps we could get on to section 2 of the treaty.

M. de Jong: Dealing with section 2, of course, as we have been throughout this debate since the last day, let me ask the minister this: is it his submission to the committee today that none of the work performed by any of these individuals, either those seconded from various ministries or those hired on a contract basis, would fall into the category of partisan salesmanship of the Nisga'a treaty?

Hon. D. Lovick: The members of the team worked assiduously and energetically to promote the treaty. That was the verb I used the other day, and I would stand by that. But to make the leap from their having an understandable enthusiasm for the project and for the work that we're doing and being convinced of the rightness of the project, trying to suggest that it's some kind of partisan activity is, I think, rather mind-boggling. I just don't think the two connect. You can promote, you can argue for, a government initiative -- and indeed, many people who work for government are doing just that -- but that doesn't by any stretch make you partisan.

M. de Jong: Would the minister proffer an opinion on whether or not he saw it as the function of this committee to

[ Page 11118 ]

Hon. D. Lovick: If members of his caucus had contacted the Nisga'a implementation team and said, "I want information on X," they would have been happy to comply.

M. de Jong: Well, that's helpful. Let's personalize the example a little bit. If I had contacted the Nisga'a treaty implementation team and asked them to draft a letter for my signature for submission to a local newspaper, offering a particular opinion about the Nisga'a treaty, would that be something that would, in the minister's mind, have fallen within the ambit of this particular team?

Hon. D. Lovick: I'm not sure I caught the entire question. But if the member is asking whether the team would have written a letter on his behalf if he had made that request, we certainly wouldn't have agreed to mislead the public, or anything like that. But beyond that, I suppose the request would be legitimate.

M. de Jong: Well, I want to be clear. I'm not sure I understood the answer, so I'll ask in abbreviated form. Is the minister telling the committee that, in his view, it would be appropriate for the committee to draft correspondence for submission to a newspaper on behalf of individual MLAs?

Hon. D. Lovick: All members were offered materials and were also offered opportunities to have public presentations in their ridings.

M. de Jong: I'll take that as a no. I mean, let's cut to the chase. When we made our FOI request back in the latter part of 1998, I was a bit surprised that amongst the various documents we received was a letter dated August 6, 1998, from the member for Cariboo South to the editor of the local newspaper there. It was rebutting, or attempting to rebut, certain arguments presented by the member for Cariboo North. I can refer to those arguments at length, but I think the salient point is that the letter is signed by the member, not in his ministerial capacity but as the MLA for Cariboo South. Its inclusion in the package of material submitted by the Nisga'a implementation team to us in the opposition, as part of our FOI request, suggests to me that that body was involved in either the preparation or the review of that document.

My question to the minister is: how on earth does the utilization of that committee's resources in that way fall within the mandate that he has attempted to assure this House was in force while this committee was doing its work?

Hon. D. Lovick: I said that the intention of the group was to promote the treaty, and one part of that was to respond to and indeed provide an antidote or alternative to what we regarded as misinformation. MLAs had the opportunity to take advantage of that. The member himself, as I say, could have done the same.

M. de Jong: I had no idea that the minister's and the committee's generosity extended that far, so I want to make sure I understand this. According to what the minister is telling me, I have been remiss in not taking advantage of this committee, presumably, preparing materials, letters and correspondence in a way that met my needs for promoting the debate of this. The minister is telling me that this executive branch of government -- this wing of the executive branch -- was available not just to NDP MLAs but also to opposition MLAs for preparing the kind of correspondence and the kind of material that, as he puts it, the government felt was necessary and required to sell and promote this agreement. That's significant, because I was engaged in a debate not so long ago with the member for Surrey-Whalley, who in defence of her claim for requiring more constituency funds for individual MLAs made exactly the opposite point -- that is, that ministers' offices and branches of the executive would never engage in the kind of work that this minister says was there and available for all MLAs to take advantage of.

So I'm a bit lost. Is the minister saying that the executive branch regularly provides this service to NDP MLAs? Or don't they? The evidence we have, based on this and a couple of other documents we'll get to, is that that's precisely what took place here. If it is, the minister should know that I think that's wrong -- entirely wrong.

Hon. D. Lovick: I don't know what the member for Surrey-Whalley might have said or what that conversation was about. I do know the historical argument regarding what ministers can do versus what MLAs can do, and I know that ministry staff are not able to go and do political work on behalf of MLAs. I know that.

The Nisga'a implementation team, as I say, was set up with a very particular purpose: to promote this treaty. That's what its mission was. It was announced; it was very public information when it happened. The members knew about it. As I've said, they had access to that body to make use of those resources. To the best of my knowledge, no such request was made.

M. de Jong: Well, the minister says they can't, a committee of this sort. . . . It would be improper -- if I say this incorrectly, I hope he'll correct me. . . . I thought I heard the minister say that a committee of this sort, a team of this sort, couldn't do political work for individual MLAs; I think those are the words he used. I can't think of anything more political than the preparation of a letter to the editor for an individual government MLA taking issue with something the opposition has said. What is there that is more political than that?

[3:00]

Hon. D. Lovick: My understanding is that the member in question saw a story on, I understand, the work being done by a federal Reform Member of Parliament talking about the Nisga'a treaty. The member accordingly contacted the project implementation team and said: "Will you have a look at this? Will you do an analysis of this -- because I want to respond?" That's what happened.

[ Page 11119 ]

So I don't think there's a huge difference, then, between what the member for Cariboo South did and what happens on a daily basis in terms of MLAs accessing information possessed by ministries and other government agencies.

I recognize that it is now 3 o'clock, and I believe that the members of the opposition had agreed earlier that I was going to go and meet with a delegation from Musqueam at this point. Is that agreed? Or do they wish for me to stay? I can do that if they so wish.

M. de Jong: I understand that it's helpful if the minister is available. I would only say that I'll reserve the right to pursue this upon the minister's return.

I wonder if I might direct some questions to the Attorney General. Some of this arises out of the discussion that took place the last day. In particular, I want to focus on some comments that the Premier made when we were talking about the question of section 35 and existing rights versus new rights. The Premier made this comment:

"So if we negotiate a dozen treaties, and they're all similar to this Nisga'a treaty -- I won't use the word 'template'. . . . If we've got a series of these treaties, and then an aboriginal person says, 'No, I want to go to court to assert my rights' -- which we're working hard to avoid -- what will the court decide? I suspect -- I guess this is the legal question -- the courts will be guided in their interpretation of rights by those that legislatures have approved and codified in treaties."

Hon. U. Dosanjh: I believe that tests for aboriginal rights will not be found in my utterances or the Premier's utterances. I think they'll be developed by the courts. And I think they have been, to a certain extent, in Delgamuukw. The court has suggested what we need to consider.

I said the same day as the Premier spoke -- and I tried to expand on the Premier's comments by saying it -- that the courts may look at the experience in terms of negotiations and the settlements that may have been arrived at. But the court would certainly look at the unique experience and history of the claimants before it at that time, because that would be the determinant -- the basic determinant -- of what the rights might be.

I think the Premier was making a very general comment. The Premier was not making a legal comment. When he does come back, you can ask him that question. I'm sure he'll agree with me that he in no way intended to bind the court or courts in any future deliberations that the courts may have with respect to any matters before them -- to being bound by or guided by any settlements that we arrive at.

M. de Jong: In fairness, I'm less concerned at this moment about what might be said to bind the courts than I am with what might be said to bind the position that the government of the day takes into court. If the position of the government is, as the Premier appears clearly to say, that it is legitimate for litigants -- that is, aboriginal parties on the other side of judicial proceedings -- to point to agreements that have been signed as being indicative of what constitutes an existing right within section 35 of the constitution. . . . If it is the Premier's view that it is legitimate for first nations to do that in terms of subsequent negotiations and proceedings, then we need to know that. That is not something that I have heard a member of the government say before. It's not a function of restricting the courts. At this point it is purely, I think, a function of restricting the arguments that the government of the day -- this or subsequent governments -- can take into court.

In that respect, I think these comments. . . . I don't see the ambiguity that the Attorney General is, I think, trying to work into them. I guess this is a legal question, so the Premier understood that we were talking about the possibility of judicial proceedings: the courts will be guided in their interpretation of rights by those that legislatures have approved and codified. I don't see anything particularly ambiguous about that.

Hon. U. Dosanjh: I think it's quite clear that in determining rights, the court will be guided by the history and the experiences of the particular claimant that's before it. The court may look at what has gone on before in terms of negotiations, or it may not. Courts are free to do that. Now the hon. member is turning it around to say whether this would be binding on governments, as governments appear before the courts or at a negotiating table, with respect to guidance from previous settlements.

I can tell you that this government will not be bound by any negotiations that may have gone on with any treaty party that we may have agreed to a treaty with. Each set of negotiations starts anew. Each set of negotiations may arrive at the same conclusion as the Nisga'a has, or it may not. Of course each party, particularly the party that's seeking the rights, is going to try -- the parties always try -- to look at what's gone on before in terms of the treaties decided or agreed upon. Then they try and seek the same, similar or better rights. We know that; that's a practical matter. So I don't understand the confusion that's being caused in the hon. member's mind with respect to the Premier's comments.

With respect to what the Premier said as to previous treaty settlements being guides to the court, I think the Premier was obviously not trying to bind the courts into determining what rights may belong to particular claimants. The Premier is not a lawyer; we know that. What the Premier meant to say -- and when he comes back into the chamber, you can ask him -- is that certainly courts always look at our experience in terms of what we have negotiated. Courts might look at that experience; they're free to do that. But the basic determinant of the rights of a particular claimant is that claimant's history, that claimant's experience, what rights they exercised over a period of time and usage, and all those kinds

[ Page 11120 ]

Interjection.

Hon. U. Dosanjh: Yeah, there's a shortage already. Let's not split them further.

It's very clear to me that any settlement that we arrive at with Nisga'a doesn't bind our courts with respect to another claimant before them.

G. Plant: I think we had already established that that was not the issue. The issue is not whether, for example, the Premier has said something that could bind the government legally. The issue is whether the Premier has actually stated the policy of the government. That is, we're really thinking about what it is about what the government intends to do here that we have a hint of from the treaty and from the government's statements in the course of this debate. I think the answers to those questions are important in terms of understanding what this treaty means. So we're not having a debate, I don't think, about the niceties of making legal admissions, and we're not having a debate -- at least, I don't need to have a debate -- about the legal requirements for the proof of aboriginal title and the extent to which those are a function of the customs and the usage of the aboriginal people. Although having regard to what the Attorney General said, I certainly look forward to having that debate when we get to some of the details of this treaty and we explore their relationship to the traditions, customs and usages of the Nisga'a.

Actually, what we're having a debate about, though, is the question: on what possible basis will the government ever say no to any claim of a particular right in a treaty, given that the government has set out here quite a large inventory of different kinds of rights, and given that the Premier seems to think that there is some importance in the cumulative statement of what these rights are? Now, I haven't put the question as clearly as I would like, but I guess the question is this: is it really the government's. . . ? Well, I'll put the question this way: what would the basis be upon which the government would, as a matter of political will, decline or object to an assertion of aboriginal rights or title from some other aboriginal group?

Hon. U. Dosanjh: Hon. Chair, I think the hon. member is asking a question that really doesn't require an answer. When you begin negotiations with a particular claimant, you begin negotiations anew; there's a blank page. Then there are positions put on paper by the claimant. They are considered by the government at that point. Then there are positions, and those positions change over time and go through many permutations and combinations. That then results, at the end of the day, in a treaty.

I think it's an abstract question that cannot be answered in a vacuum. I don't think one can say with any certainty what one might take to the table on behalf of the government with respect to a claimant A or a claimant B. That really depends on the government's view of that particular claimant's history, their experiences, their customs, their usage -- all of the Van der Peet tests and other issues that are looked at. It would be very difficult to answer that question in the abstract.

[3:15]

Hon. U. Dosanjh: I think that if one takes this line of questioning back to its logical origin, one really gets at whether or not a particular right is inherent or has been agreed upon. I have said very clearly, with respect to any particular clause in this Nisga'a treaty, that we are not prepared to say whether a particular right or group of rights is inherent or whether it has been agreed upon. These are rights that have been agreed upon between the parties. Many issues were looked at: the issue of the integrity of the Nisga'a government as it might operate, the issue of whether or not what the Nisga'a were demanding was integral to their ability to sustain their culture and their government.

All of those issues were looked at in considering the positions of the Nisga'a. I think it's important for us to recognize that we have made our position very clear. As a government, we're not prepared to say -- the Attorney General isn't prepared to say -- whether a particular right has been recognized because it's inherent or because it would be integral to the Nisga'a's ability to sustain their government and their institutions and their culture and language and the like.

I've given the answer, really, to the larger question the hon. member may have in the back of his mind.

G. Plant: The reason for the specific question was, in fact, to illustrate part of the difficulty that the Attorney General is trying to escape here. On the one hand, the government refuses to categorize, in legal terms, the particular treaty rights as being either inherent or delegated. Yet on the other hand, the Premier very clearly stood up and said that the cumulative effect of recognizing extensive treaty rights as it's done treaty by treaty is going to have some impact on what the courts do. It's going to be difficult at some point for. . . .

Maybe the point is that it doesn't matter, from the government's perspective, for the following reason. Having made something in this treaty a section 35 right, it's therefore capable of being a section 35 right, and therefore it's capable of being a section 35 right for any other aboriginal group in British Columbia. Frankly, the government's never going to oppose any assertion of a section 35 right that could conceivably be made in the course of treaty negotiations, whether that claim is made in the courtroom or on the treaty table, because the government has no principled basis on which to refuse any assertion of a section 35 right.

Hon. U. Dosanjh: It's very clear that we have said that our preference in dealing with all of the treaty questions is negotiation, rather than going to court. We may take one position in court. . . .I don't want to handicap our ability to take those positions in court by making statements here that might prevent us from then taking those positions. We may take an entirely different position at the negotiating table. That would be done on a case-by-case basis, as we look at the proposals put forth.

G. Plant: My concern is not with statements that the minister may make here. I must admit that I understand his

[ Page 11121 ]

Hon. U. Dosanjh: The hon. member well knows, as he is learned in this area of the law, that he's absolutely wrong. Any particular claimant may make any claims. That does not mean that what you agreed upon with Nisga'a, you may not be able to resist with another treaty party, another first nation. There is no logic in the argument, other than the fact of saying: "The experience would have been that we might have given the Nisga'a rights A, B or C; other first nations might want the same rights." What the hon. member is saying is that, legally, this becomes a template. I have never heard the opposition saying that this is a template. What the hon. member is saying is that it may in practice become the template, legally, and I absolutely disagree. That is, in fact, to preserve our ability to make the arguments before the courts. That's the main reason the Attorney General and any other member of the government benches would refuse to categorize any of these rights either as inherent or delegated or otherwise.

These are rights that have been negotiated. They have now been codified as a result of the negotiations, and there are no other rights for Nisga'a above and beyond these rights that are set out in this agreement. Any other first nations might say that yes, they would like rights A, B and C, but that would depend on the negotiations. We keep intact our ability to mount a challenge in court to those rights that we believe aren't warranted for a particular first nation.

G. Plant: The minister says words to this effect: "We, the government, keep intact our ability to resist other claims like that in the courts." But is he saying politically that he would ever do that?

Hon. U. Dosanjh: Yes.

M. de Jong: I'm much less learned and marginally less charitable than my colleague from Richmond-Steveston, and I can't help but draw the conclusion that the government purposely, though this debate. . . . I understand its desire to maintain as wide a range of options as possible. What I think the Attorney General conveniently chooses to ignore, however, is the rights of the people the government represents at the table to have some understanding of and some appreciation for the fundamental position that the government takes to the table with respect to these questions associated with the characterization of rights.

The Attorney General says: "We don't want to box ourselves in." If you believe what the Premier has said, that's precisely the road the government has headed down. The question that I think arises out of this discussion, or the conclusion that one is obliged to bring to this discussion, is that the government is of the view not only that its position is best enhanced by keeping these cards close to its chest, but that it has no obligation to non-aboriginal British Columbians -- on whose behalf it is negotiating at these tables -- to share with them its view of the section 35 debate that will take place either at the negotiating table or in the courts.

Hon. U. Dosanjh: I think the hon. members sometimes forget what the minister may have said the day before. Obviously some things stand out in the hon. member's mind, and you ask questions based on that. I do remember saying very clearly the other day that the Attorney General, on behalf of the government, will not admit to any particular rights being inherent, whether in the Nisga'a treaty or with respect to negotiations with another first nation. I would never admit to that. In court, of course, we will take a position based on our view of a particular matter that might be before the courts.

Also, I think it's important for us to remember that it's the best way of protecting the interests of other British Columbians. If one gives away in arguments here what rights may be inherent and what rights may not be inherent, then one loses for all time. . .to argue about any limits to be placed on those rights in negotiations.

The other comfort that British Columbians can have is that at the end of the day, each treaty may be different or may be the same. We've had agreements in northern parts of Canada. Canada has been a party to those agreements. They look nothing like the Nisga'a treaty; and there's no guarantee that one or more or many others in British Columbia, in terms of the treaties, would look like the Nisga'a treaty. They may look entirely different; they may look similar. That would depend on the outcome of the negotiations.

[3:30]

The Chair: The Chair might clarify that the line of questioning that the member took with the Aboriginal Affairs minister could certainly take place in section 3.

M. de Jong: I don't know that it can. Well, let me try to summarize. I don't know if there are other questions in the chamber relative to what we've been discussing just now.

As I look ahead in the treaty and see where the question of section 35, section 25 -- the whole notion of existing rights, the frequency with which it is referred to in this document and the importance attached to it. . . . The question that will arise -- and this will be my last stab at it -- from British Columbians reading this document is: what is the position that our negotiators are taking to the table?

[ Page 11122 ]

G. Wilson: I have only a couple of fairly short questions with respect to section 2. We can do the bulk of what I want to examine in section 3, when we look at the treaty. There were a couple of matters that arose out of discussions last week that I just want to get some clarification on.

With respect to the provision of powers and the limitation of powers that are extended within the prescribed self-government as outlined in the treaty, is it the position of the government that those are limited by section 35 of the Constitution Act? Now, that may open up some argument as to what was anticipated under section 35. The reason I ask this question is because there are those who repeatedly argue that what is being created is a constitutional form of governance that in effect creates a "third order." I haven't quite seen that defined, so I'm not quite sure exactly what they mean with respect to the provisions of the constitution. What I need to hear from the minister is whether or not it is this government's opinion that any delegation of power or authority, or the limitation of power and authority given to a Nisga'a government, is constrained by those rights that are either described or anticipated under section 35 of the Canadian Constitution Act, and that there are no other prescribed rights anticipated.

Hon. U. Dosanjh: Hon. Chair, I think that when we get to the certainty issue and talk about how certainty is achieved, one would realize that Bill 51, the Nisga'a Final Agreement, is final in every sense of the term. All of the rights are codified; releases are received; then finally, the legislation from the government of Canada puts an end to any common-law rights that they might have. So any past, present or future claims are eliminated as a result of the treaty. The only rights Nisga'a would ever have would be treaty rights, and there is indemnification by Nisga'a provided to British Columbia with respect to any claims that anyone might make for any past, present or future rights. I think that when we get to the certainty issue, we can talk about the mechanisms that we've used. Sections 35 and 25 refer to rights that may exist or may be acquired. This treaty is the totality of the rights under section 35 that Nisga'a are going to have.

G. Wilson: That answer is clear, to a point; it may be that I am trying to punctuate this point. But it's very important, I think, for those people who may be observing or may read our comments, because there is this notion out there that somehow what we are attempting to do under this section is to create something -- create an order of governance -- that constitutionalizes rights unanticipated by and outside of the scope of sections 25 and 35 of the Canadian Constitution Act. What I'm hearing the minister say is: "No, that doesn't do that. They're absolutely defined."

Lastly, I guess, it comes to the point of those who would prescribe that somehow three parties -- the federal government, the provincial government and the Nisga'a -- sat at a table and presumably, because none of them have asked for a constitutional amendment. . . . None of them proposed a constitutional amendment, and none of them went to the table saying: "We wish to have a constitutional amendment to entrench powers A, B, C or D." One would have to assume that the logic, then, of those who argue that what they have done is create a constitutional amendment. . . . That would have to be unwittingly done, since none of the parties sitting at the table went there with the intention of doing so.

Having said that, is it the Attorney General's opinion that the rights that are exhaustively described in the constitution do not foreclose for a Nisga'a person the opportunity to go back to court if they deem that whatever right they may have at some future time was not clarified, was not clearly explained, or was omitted? In other words, does this. . . ? People have said: "How can three parties foreclose on future rights that may be deemed to be of interest to a person, however many years down the road?" The question I want to ask specifically is: is it the Attorney General's opinion that this agreement does not foreclose on pursuing those rights if they should be identified through whatever means at a later date?

Hon. U. Dosanjh: I believe that any Nisga'a citizen who might decide ten, 20 or 30 years from now, or two years from now, to say that there were rights that weren't enshrined in this treaty and that those rights should be adjudicated upon would be met with a very, very strong wall of certainty and indemnification by the Nisga'a government at the end of it, if that person ever succeeds -- of which there are no reasonable prospects that I can see. You can't prevent people from going to court. I think I can say with absolute certainty that within the confines of the treaty, there is sufficient material to ward off any of those challenges.

J. Weisgerber: I just want to seek some additional clarification from the Attorney General. The Attorney General is saying that Nisga'a citizens reject any inherent rights or existing rights except those as aboriginal people, with the exception of those that are outlined under this treaty. Is that what the minister is saying -- that a Nisga'a is effectively giving up, as a process under this treaty, any special rights as an aboriginal person other than those that are outlined under this treaty?

Hon. U. Dosanjh: Yes.

J. Weisgerber: If a Nisga'a citizen living in Vancouver then claims under the Indian Act those special advantages -- if you want to term them that way -- toward post-secondary education, health care and other benefits. . . ? Because of their Nisga'a citizenship, with the commencement of this treaty they're effectively prevented from claiming those benefits that would be available to other status Indians living off reserve in a metropolitan area or anywhere off reserve. Is that the understanding?

Hon. U. Dosanjh: Hon. Chair, the Indian Act ceases to apply when this treaty comes into effect. But if there are any other federal programs to which aboriginal people are entitled access, Nisga'a citizens would be provided the same access whether they live on Nisga'a lands or elsewhere.

[ Page 11123 ]

Hon. U. Dosanjh: I must admit that I don't understand the thrust of the question. Maybe the hon. member could repeat himself, and I'll try to listen more carefully. I did try, but I don't get the thrust of the question. There are too many variations and differences in the question that the hon. member is trying to reconcile. I'd be happy to answer it.

[3:45]

Hon. U. Dosanjh: I have said that the Indian Act ceases to apply, and I think I'm correct in my statement to that effect. But we will come to chapter 2, sections 15 to 18 inclusive. When we come to that, we can certainly look at these issues.

It says in section 18 of chapter 2: "Subject to the Indian Act Transition Chapter and paragraphs 5 and 6 of the Taxation Chapter, the Indian Act has no application to the Nisga'a Nation, Nisga'a Villages, Nisga'a Institutions, or Nisga'a citizens as of the effective date, except for the purpose of determining whether an individual is an 'Indian.' " That's why I said that there are other programs that they might be entitled to but no programs, at least that I can think of, under the Indian Act. I would certainly seek further clarification as we come to the debate of that chapter.

G. Plant: I want to come back, by way of bringing closure, to a topic that I was pursuing earlier. I believe it to be the position of the government that there is not intended to be anything in this treaty which would preclude the government from resisting a claim for section 35 aboriginal rights brought by some other first nation, if the government, in the context of that other claim, thought that it was necessary to do so. Is that correct?

Hon. U. Dosanjh: Before I answer the question -- which I didn't fully grasp and I would ask the hon. member to repeat -- may I ask for leave to make an introduction?

Leave granted.

Hon. U. Dosanjh: I have a very dear friend of mine, who is a prominent journalist in India, visiting the legislative gallery: Jatinder Pannu. There are many other friends with him, who shall remain nameless. I would ask the House to make him and the others welcome.

G. Plant: I understand it to be the position of the government, as expressed by the minister earlier in this debate, that there's not intended to be anything in this treaty that would amount to a legal admission against the government in some other proceeding where somebody -- some other first nation -- is asserting the existence of a section 35 aboriginal right. Is that a correct statement of the position of the government?

Hon. U. Dosanjh: Absolutely correct.

G. Plant: Am I also right, with respect to the question of whether or not the Nisga'a could establish as section 35 aboriginal rights all of the rights which this treaty confers upon them, that the government's position is that it is not necessary to answer this question because the issues in that respect have all essentially been resolved by the treaty?

[H. Giesbrecht in the chair.]

Hon. U. Dosanjh: That's correct. It is not necessary to answer that question, because this is by agreement, not by litigation. We will leave it for another day, if there is ever litigation with respect to another first nation.

G. Plant: It could be contended by some people that some of the rights which will be conferred upon the Nisga'a by this treaty and which will become section 35 rights would not, upon proper inquiry into all of the facts, meet the tests applicable to section 35 aboriginal rights. But from the government's perspective, that is no longer material because the issues have been resolved by negotiation and therefore it's no longer necessary to determine whether some of the provisions in this treaty, for example, might not be recognized as aboriginal rights, whereas others might be. Is that correct?

Hon. U. Dosanjh: All of them might be considered to be aboriginal rights; all of them might not be; none might be -- the same way some people might argue that some aboriginal rights ought to have been in this particular treaty and aren't in this treaty. That's a debate that we believe -- and I said this the other day -- it is irrelevant to have at this point. This is a treaty that is the result of decades of negotiation and at least five or six years of tripartite negotiations and that essentially brings all of the rights for the Nisga'a into this treaty, codifies them and provides some certainty.

Section 2 of Bill 51 approved on the following division:

YEAS -- 37
Evans	Zirnhelt	McGregor
Kwan	Hammell	Boone
Streifel	Pullinger	Lali
Orcherton	Stevenson	Calendino
Goodacre	Walsh	Randall
Gillespie	Robertson	Cashore
Conroy	Priddy	Petter
Miller	Dosanjh	MacPhail
Sihota	Lovick	Ramsey
Farnworth	Waddell	Hartley
Smallwood	Sawicki	Bowbrick
Kasper	Doyle	Janssen
	G. Wilson

[ Page 11124 ]

NAYS -- 32
C. Clark	Whittred	Gingell
Campbell	de Jong	Plant
L. Reid	Neufeld	Coell
Chong	Sanders	Jarvis
Anderson	Nettleton	Penner
Weisgerber	J. Wilson	McKinnon
Masi	J. Reid	Dalton
Barisoff	van Dongen	Symons
Thorpe	Krueger	Hansen
Stephens	Coleman	Hogg
Nebbeling		Weisbeck

[4:00]

The Chair: I recognize the member for Matsqui. [Applause.]

M. de Jong: Well, that will inspire me through the remainder of the day, hon. Chair.

We are now perilously close to beginning the part of the debate that I think is going to be most useful and helpful. That is the actual treaty. Before we do that, and recognizing that the minister was briefly called away, I just want to finalize the series of questions that I was putting to the minister regarding the implementation team and again alert the minister to my concern that in providing a fairly all-encompassing FOI request to the Nisga'a implementation team, I did not expect to receive copies of correspondence that were apparently prepared by that body on behalf of individual MLAs, including the member for Cariboo South -- and including the Speaker, quite frankly. I have genuine concerns that the executive branch of government, on an issue that I understand they felt was very important. . . . I understand that, but the belief in the importance of that subject does not, to my mind at least, justify taking the resources of government and putting them to work in a partisan way on behalf of individual government members, who are provided with other resources for those purposes.

Hon. D. Lovick: Just to clarify that, because something is in those files doesn't mean it was prepared by the implementation team. That's point one.

Second, I want to caution the member that the use of "partisan," I think, is a little bit casual here and ought not to be. . . . Remember that for the duration of most of this campaign, if I can use that term, it was not yet clear whether everybody on that side was voting one way and everybody on this side was voting the other way. The partisan cleavage on this treaty is in fact a relatively recent phenomenon. I have said from the beginning that I had hoped it wouldn't become a partisan cleavage, and it hasn't been, entirely. For example, I see that the representative from the Progressive Democratic Alliance is obviously supporting the treaty, whereas his colleague from Peace River South isn't.

The point, I think, is that it's a little mischievous in effect to suggest that anything that was done necessarily had a partisan cast. I think it was, rather, pro-treaty -- I'd agree with that -- but to go beyond that and say "partisan" is unfair.

M. de Jong: Well, let me ask this, then. Were members of the Nisga'a implementation team involved in the preparation of correspondence for signature by the member for Cariboo South?

The Chair: Would the member repeat his question, please.

M. de Jong: Were members of the Nisga'a implementation team involved in the drafting and review of correspondence relative to the Nisga'a treaty by the member for Cariboo South?

Hon. D. Lovick: The answer is yes.

M. de Jong: And was similar work performed by members of the committee on behalf of other individual MLAs within the government caucus?

Hon. D. Lovick: Yes, it's true.

M. de Jong: The Nisga'a implementation team signed a contract, as I understand it, for media monitoring back in the fall of 1998. Can the minister indicate what the costs associated with that media-monitoring contract were?

Hon. D. Lovick: I don't have that specificity, but I think there's something under "General Contracts," a broader category, and it would be within that. We could break it out for the member if he wishes, and we'll do so.

M. de Jong: Is the minister telling us that the amount is contained within the global budget -- of $7 million, I now believe -- that has been assigned to the implementation team?

Hon. D. Lovick: Yes.

M. de Jong: I have a copy -- just so the minister is aware -- of the memorandum of agreement setting out what the objectives of the exercise were, including provincewide monitoring of all Nisga'a-related coverage, immediate notification of the Nisga'a communications unit of major issues, and daily summaries. Is that a service that was available, as part of the work of this implementation team, to all members of the House -- the results of that work?

Hon. D. Lovick: I don't believe that material went beyond the office. I don't think that was for distribution to MLAs.

M. de Jong: The question that begs asking is: having just heard the minister explain what he felt the purposes of this committee were and the fact that its services otherwise were available to all members of the House, what distinguishes this function of its work from that which the minister was referring to earlier?

Hon. D. Lovick: I think it's simply a tool to keep track of what is indeed going on under the heading of "Nisga'a" and to keep the project team advised, with a view to preparing materials that they thought might be necessary, given what they picked up to be particular questions and concerns in any given region or area.

[ Page 11125 ]

Hon. D. Lovick: The member's premise, I think, is right, but his conclusion isn't.

M. de Jong: Then will the minister try one more time to explain to me and the House why it would have been inappropriate to share the information? Maybe he can indicate whether the work of the media-monitoring agency is ongoing at this point.

Hon. D. Lovick: The answer is no. That particular contract apparently expired as of December.

M. de Jong: Do we now know the amount of the expenditure that relates to the contract?

Hon. D. Lovick: We do know, and I will have that information available to the member. I understand that it's probably being sent down as we speak, and I'll table it thereupon.

[4:15]

M. de Jong: Within the memorandum of understanding, there were a couple of lines that I thought I would quickly get clarification on from the minister, simply as a means of ascertaining how these campaigns, as it were, are handled now -- and presumably will be handled in the future.

The clippings. . . . By that I presume these are the media clippings it is said will be provided by several sources. "Today's News" will look after the Vancouver, Victoria and Chinese-language markets. Aboriginal Affairs will provide coverage of major regional markets. And it says here: ". . .government agents will provide coverage of other markets." I didn't understand who that was referring to. I presume it's not the government agents that members of the community would go to to get their driver's licence or government documents.

Hon. D. Lovick: The answer, hon. Chair, is that it is indeed the capital-A agents. Those agents were told, if they saw something of moment or interest in their particular community, in the region where their office was located, to share it.

M. de Jong: Well, I just want to understand. The people who staff. . . . The minister is saying that the offices that the average British Columbian would go to, to obtain an appointment with the residential tenancy branch or to facilitate contact with the government also now fulfil an information-gathering function relative to a particular government campaign. Do I understand that correctly?

Hon. D. Lovick: That would be true of the government agent, not necessarily of the people working within that office.

M. de Jong: When we refer to the government agent, are we talking about the person in charge of a respective office?

Hon. D. Lovick: Yes.

M. de Jong: Might I ask the minister where that function would fall within the normal purview of that individual's activities? Is this something that the government has utilized that personnel for in the past?

Hon. D. Lovick: I said before that here we're looking at a corporate initiative -- cross-government, not just one little ministry doing one little thing. Government decided that trying to make this treaty happen as the precursor to many others was absolutely important, was indeed significant. As I said before, we think of it as helping to grow a culture that would be receptive to the negotiation of modern treaties. Part of that exercise, of course, is to pay very close attention to what seems to be in the public mind, to concerns being expressed.

Government agents' offices. . . . By the way, I should clarify: rather than saying it's just an individual, it could be the government agent's personal staff, but not the line ministry people, who are involved. Those positions are obviously providing government services, but they are not unaware of things that are happening in the community. The request was simply made: if there are particular things that you as an agency and you in charge of that agency are picking up that you think ought to be of concern to government insofar as it's trying to further this particular objective and this priority, we would appreciate it if you would share that.

To the member's other question about whether that has been done for other particular things, I don't know. I would be surprised, frankly, if it hadn't.

M. de Jong: What I am hearing -- and the minister should tell me if I'm overdramatizing this, something I would never do -- is that, particularly in smaller centres, the government agent has assumed, in this case at least, a responsibility for tracking, for example, what is said in smaller media outlets. Well, the minister said he's not tracking. The word "monitoring" is used. If the minister wonders whether I am concerned that the person that people go to in order to facilitate their interaction with government may, the day before, have cut out the letter to the editor that they wrote opposing the Nisga'a treaty, then yes, I'm concerned about that. I think that is an inappropriate use of that office. I think it's wrong for that person and for that office to be engaged in that kind of activity. I was not aware that that was a function of the work they did -- although I am now.

There was a question at the outset of that submission, and it is: is that work, as I've described it, an accurate depiction of what those government agents would have been involved in, in terms of monitoring activities?

Hon. D. Lovick: If I might clarify -- and I apologize to the member if I didn't pick up the question after everything that followed it -- what the person or persons in those offices would be doing would not be sifting through the newspaper and saying: "Oh, here's a good one, and therefore we should report that." It was, rather, to give an overview, literally a report, on what was being said or what concerns were being expressed about Nisga'a -- good, bad or indifferent -- simply

[ Page 11126 ]

Hon. P. Priddy: I request leave to make an introduction.

Leave granted.

Hon. P. Priddy: I see someone in the gallery today who is a friend, has worked with me and is a constituent of mine: Jasvinder Hayer. I'm delighted to see him here. I'd ask the House to please make him welcome.

M. de Jong: Can I ask the minister this: to what extent, if any, did these duties, as assigned to these individuals and their staff as part of the Nisga'a implementation team's activities, impact on their ability to perform their usual range of functions, their usual work?

Hon. D. Lovick: I'm tempted to be glib and say that the reality of public service today is that there is always four times as much work as we have the resources to deal with, and therefore I think it would be a stretch to suggest that this would have some kind of negative impact. I don't know how one measures the impact. It might take four minutes a day or something to do a quick scan of the local paper and say: "Oh, look, there's this on page 2. Would you mind faxing that off?" -- or something like that. I don't think it's a significant impact in terms of their time, but I wouldn't for a moment suggest that it would have no impact.

M. de Jong: The minister describes a scenario that involves four or five minutes of media scanning. I am told that there were training modules provided to the individual agents and their staffs -- that it was somewhat more involved than the minister would have us believe. Will he confirm that as part of this campaign, government agents were provided with training insofar as monitoring local activities was concerned?

Hon. D. Lovick: I advise, Mr. Chairman, that most of these agencies we're dealing with are probably looking at media outlets that are published once a week, and the extent of the training model might well be nothing more elaborate, detailed and sophisticated than simply saying: "Please ensure that you put in the name and the date of the particular story that you're highlighting or featuring."

M. de Jong: In the document I've got in front of me. . . . I will say candidly that I am troubled by this, as I signalled earlier. When I read that the Deputy Minister of Small Business, Tourism and Culture should "direct government agents to adjust workload" to properly service Nisga'a media-monitoring needs and that "Today's News" and Aboriginal Affairs communications will provide direction and training, quite frankly, I interpret that as meaning something that goes well beyond the minimalist picture that the minister is trying to portray. I think it's important that people understand that the government, in a campaign that I understand it believed was being waged on the side of good and justice, was prepared to marshal every single resource to identify any segment of society that opposed the good work which it was about to do. When the deputy ministers are telling and directing government agents to adjust workloads to account for the monitoring work that's required and to account for the training to improve that monitoring work, I think that the Aboriginal Affairs minister is trying to minimize what I take very seriously.

I'll go further. The Deputy Ministers of Environment, Lands and Parks and of Forests, according to this document, should advise directors and communications to work with the Nisga'a communications unit to integrate regional staff into Nisga'a media-monitoring and issues-management processes. It goes further than that. It signifies a willingness on the part of this government to use every part of the public service that it can possibly involve in waging this campaign.

Hon. Chair, through you I've afforded the minister an opportunity to be forthcoming about the degree to which this government tried to marshal the public service to work on its behalf in a partisan -- I use that word purposely -- campaign. When government agents are being asked to scan through local media to find out who's saying what about something that the government admittedly believes strongly in, then I think we have taken one step beyond where we should be. The notion of Big Brother watching assumes new meaning in British Columbia. I don't think the minister is going to step back from his earlier attempts to say that this is no big deal. But I'm going to say to him through you, hon. Chair, that I think it is a big deal, and I think it's wrong. He may want this last opportunity to tell me why I'm wrong in saying that.

The Chair: The member for Matsqui continues.

On the schedule, preamble.

M. de Jong: I'd like to go to the actual document that brings us here, as part of the debate around section 3. I should say, as we embark upon that discussion, that first we have the preamble, around which I will have a couple of questions, and then chapter 1 dealing with the definitions. Now, it's possible to go through chapter 1 and ask any number of questions. But for the benefit of members in the House, I would signal now, from my part at least, that it is more helpful and more useful for us to engage in the debate around the definitions as those definitions appear in the treaty and to have those discussions around the context in which they appear in the treaty, rather than simply the abstract. However, we'll see. That would be my stated purpose.

[4:30]

Hon. D. Lovick: I think the answer to the question, for the member's benefit, is that it depends on whom we talk

[ Page 11127 ]

M. de Jong: The first statement that we're dealing with now in the preamble refers to the fact that the Nisga'a nation has lived in the Nass Valley and focuses, obviously, on that geographic location. This treaty, of course, purports to grant rights and powers that extend beyond the Nass Valley, beyond the Nass area, so that we should not assume in subsequent negotiations that the government -- as it was not here -- was bound by any geographical considerations. This is simply an assertion of the fact that there were Nisga'a in the Nass Valley. There may have been Nisga'a elsewhere. That's simply that assertion.

Hon. D. Lovick: Yes, the member is correct in saying that.

I would draw his attention, by the way -- apropos of something important -- to that: "Nass Area" is indeed explicitly defined within the definitions section. Let me just take this opportunity to say that, on what the member describes as the appropriate approach to definitions, I agree with him. I think that is the right way. If people have particular questions as we go, we can touch on them. But I think a better way in fact is to make our discussions of definitions contextual rather than a list of definitions. I agree with the member. We will accordingly proceed in just that way.

G. Plant: One of the aspects of the treaty process that is relevant both to this treaty and to the others yet to come is the relationship between the traditional territory of a particular first nation participant in the process and the area which the province or Canada is prepared to negotiate about. The two may not be the same -- that is, it's conceivable that a first nation could assert a larger traditional territory than the province or Canada is prepared to accept as the basis for proceeding with agreement, with substantive negotiations.

One of the issues that is, I think, sometimes the subject of concern is the extent to which, if at all, governments are in fact making enquiries into whether there is a basis -- both in law and in fact -- for a particular assertion of traditional territory by a first nation.

In the clause of the preamble that is before us, there are the beginnings of the kind of propositions that one might see, if one were looking to statements about the aboriginal title or the aboriginal rights of the people known as the Nisga'a. This statement is pretty carefully drafted. It doesn't, for example, say where within the Nass area the Nisga'a people have lived. And I acknowledge that it looks like pretty careful drafting.

Bearing in mind that the issue is significant for the treaties yet to come, I suppose the question now is: to what extent did the province undertake any inquiry to determine whether this assertion, which they admitted to in the preamble, is in fact correct? Or was it just simply one of those things that was taken on faith because of the history of these particular negotiations?

Hon. D. Lovick: There was apparently some considerable general historical research undertaken. Much of that obviously focused on the specific parts of our history -- for example, the 1913 petition to the British Privy Council, then the march to Victoria and things of that sort. However, to the specific question of whether there was an undertaking on the part of our federal or provincial negotiators to actually confirm and corroborate that the small percentage of what was referred to as their traditional territory was territory to which they had satisfied the test -- as in, say, Delgamuukw -- in terms of their own ownership and their occupation, no, that was not done.

G. Plant: We'll probably return to that theme in the context of the lands chapter.

One other aspect of the first preamble, which also actually refers to the second preamble, is the description of something called the Nisga'a nation. I think, again, that people who are interested in the aboriginal history of British Columbia might have questions about what that term means in the context of the history of the people who live in the villages in the Nass Valley. I take it that in that context it is significant that "Nisga'a nation" is also a defined term. It really is defined as a collectivity of people that share a common language, culture and laws. At least from one perspective, the government, in acceding to these two clauses in the preamble, is using this as convenient shorthand to give expression to something which, as a matter of history, might be a bit more complicated than describing four villages as a nation. What we have are four villages of people who share a common language, culture and laws -- in terms of their traditional laws -- and who, many years ago, agreed to work together to pursue the goal of obtaining a settlement of their land question. They organized themselves for a long period of time as the Nisga'a tribal council. We're superseding those terms and now using this term, Nisga'a nation, but the intention is to use that term very carefully as a term which is in fact defined later in the treaty. Is that a fairly accurate statement?

Hon. D. Lovick: Yes, I think that's an accurate rendition of what we are indeed doing.

M. de Jong: When we get to the fifth paragraph of the preamble, there is the reference to the land question. I feel compelled to ask the minister to confirm, as I'm sure he will, that what we are dealing with here is much more than a land claim agreement. Though that is certainly a component of the agreement that was uppermost in the minds of the negotiators, it is but one component of what has in fact become a much broader agreement under the terms of the constitution.

Hon. D. Lovick: Students of B.C. history know that the "land question" is something to conjure with. That's how all of the larger issues of aboriginal matters have been dealt with under that heading. Subsumed in that, and certainly the understanding of the Nisga'a, is that the land question means land, it means resources, and it means government. So if the member is asking me, "When we talk about it, do we mean all three of those?" yes, he's correct.

M. de Jong: Not to belabour the point, but we would distinguish that, for example, from the more recent Yukon agreements, which are more properly land claim agreements, insofar as the other elements that appear in this deal around questions of self-government and government do not appear in those treaties.

[ Page 11128 ]

G. Plant: I want to go back to the fourth preamble, which makes the point that the Nisga'a nation -- the defined term -- has never entered into a treaty with Canada or British Columbia. I think it goes without saying that insofar as British Columbia is the term used to describe the province of British Columbia, no other aboriginal group has ever entered into a treaty with the province of British Columbia.

The debate to date has focused on section 35 rights to some extent; we've talked about aboriginal title, aboriginal rights. The courts have made it pretty clear that aboriginal rights and title are issues that are within the legislative authority of the federal government, not within the direct law-making authority of the province of British Columbia. Some have argued over time that a question might arise as to whether or not the province in fact has the constitutional authority to enter into a treaty or a land claim settlement. I assume the answer to that question, from the government's perspective, is evidenced by the fact that the province has done so -- that it obviously feels it has the authority to do so.

I don't want to engage in a constitutional debate, but I am interested in having a brief statement of the government's position on the constitutional basis upon which it considers that the province of British Columbia has the authority to enter into an agreement which is almost entirely concerned with section 35 rights that are themselves primarily federal in nature.

[4:45]

M. de Jong: I am tempted to go to the second-last paragraph of the preamble, at which time the section 35 argument again arises. We've probably exhausted that for today, and yet it is something that is a recurring theme in the pages of this.

My friend from Richmond tells me he has a question above that which I'm now at, so I'll surrender to him.

G. Plant: Well, I had thought for a moment that my colleague was going to move off the preamble, and I may have gotten that wrong. But since I'm up, there is a preamble clause -- it's about two-thirds of the way down the page -- that says this: "WHEREAS this Agreement sets out Nisga'a section 35 rights inside and outside of the area that is identified in this Agreement as Nisga'a Lands. . . ." The treaty has a number of different defined terms for different areas. There's Nisga'a lands. There's also the Nass area; we've already talked about the Nass area.

I take it I'm right that in fact this agreement not only sets out Nisga'a section 35 rights outside of the area identified as Nisga'a lands, but that in some limited respects the treaty also sets out Nisga'a section 35 rights outside of the area identified as the Nass area. Is that right?

Hon. D. Lovick: Yes, the member is correct.

G. Plant: The last clause in the preamble says: "WHEREAS the Parties intend that this Agreement will provide certainty with respect to Nisga'a ownership and use of lands and resources, and the relationship of federal, provincial and Nisga'a laws, within the Nass Area. . . ." Given what the minister has just said, am I right that it is also the intention of the government -- this government, anyway -- that this agreement will also provide certainty with respect to the relationship of federal, provincial and Nisga'a laws outside the Nass area? Is that the government's intention?

Hon. D. Lovick: Yeah, arguably in two areas -- at least two that come to mind. The first would be in something like the hunting area, the wildlife area -- okay? But the second one could be in something like rights to adoption -- that kind of thing -- which clearly, as the member says, would go outside the particular area of the treaty, if you will.

G. Plant: I can think of one or two others, although they may not be earth-shattering. The treaty gives the Nisga'a government standing in certain court proceedings if and when certain issues arise. Of course, presumably those court proceedings could take place anywhere in British Columbia. I know I had one or two other similar examples.

I don't want to make more of this than is necessary. Some persons reading the last clause in the preamble might be concerned that in fact that clause doesn't speak about the objective of providing certainty with respect to the relationship of federal, provincial and Nisga'a laws outside the Nass area, because on its terms it looks like that certainty is an objective only with respect to "within the Nass Area." It may just be that the way the clause reads as a whole, it's not going in that direction.

Here's another example. Nisga'a urban locals would certainly be organizations that would have some status and standing outside the Nass area. That was the other example I had in mind. Again, the point is that this agreement is intended to provide certainty with respect to those matters, both within and outside the Nass area. Is that correct?

Hon. D. Lovick: Yes.

M. de Jong: I wonder if I could direct the minister's attention to the clause in the preamble which reads: "WHEREAS the Parties acknowledge the ongoing importance to the Nisga'a Nation of the" -- and I will use the English words -- "[hereditary chiefs and matriarchs] continuing to tell their. . . [oral histories] relating to their. . . [family hunting, fishing, and gathering territories] in accordance with the. . . [Nisga'a traditional laws and practices]."

I'm a little bit puzzled about its presence. When I say that, I don't dispute the facts. I don't dispute that those are things that are important to Nisga'a people. I think there are cultural components of any number of groups or components of any cultural entity that are important to that group. We spent a fair bit of time last day talking about codifying legal rights, legal powers and legal obligations. What I find a bit troubling is

[ Page 11129 ]

The question I've actually had from people who have taken the time to read this document is: where does it end? Where does it end, if we begin to wrap legal documents around assertions of this sort, when there are practices that are undoubtedly important to cultural and ethnic groups from all walks of life?

Hon. D. Lovick: I would point out, first, that if one looks at the clause carefully, one sees: "WHEREAS the Parties acknowledge the ongoing importance to the Nisga'a Nation" of the following. . . . That's probably the first crucial point to make. For a people with arguably a civilization that's somewhere between 4,000 and 10,000 years old, a largely oral tradition and oral culture, it matters that that whole part of their collective experience be acknowledged.

Probably more important for our purposes in terms of the question of why this is in a treaty -- a legal contract, if you will -- I think the important point to note is that their ayuuk, the Nisga'a traditional laws and practices, are not part of Nisga'a law. That's separate and distinct. This works within its own sphere in terms of Nisga'a culture, and therefore, I guess, Nisga'a quite understandably would say: "We want that part of our culture and history to also be acknowledged -- not necessarily to give it some power but to acknowledge that it is there; it is part of who we are."

M. de Jong: But does it logically flow, however, that at some point, in arguing on behalf of a particular governmental function or a means of administering justice five, ten, 20 years from now, we will be confronted by the argument that this is something we need to take account of and the minister can respond: "Well, it's in the preamble; it's not in the substantive provisions of the treaty"? Fair enough. But it seems to me that its presence in the document, in the treaty, is perhaps more than just important to the Nisga'a for cultural reasons. It suggests to me that it may be important or may become important for other reasons -- more legal reasons -- and be it the rules associated with evidence in proceedings. . . . It strikes me that it is the kind of clause that lawyers in particular are inclined to look back on and try to concoct legal arguments around.

Hon. D. Lovick: I think that the relevance -- relevance as the member is construing it -- would probably be that this is perhaps here to protect Nisga'a against somebody within the Nisga'a nation not allowing particular families to carry on telling their stories about. . . . That, perhaps, is simply an extra layer of comfort, if you will, to the Nisga'a that the body that makes this decision for all of them will not, in effect, take away rights and responsibilities that some of them would have. I think that probably captures its intent.

M. de Jong: I agree with the minister to this extent. To the extent that we see any kind of argument along those lines, I think it is likely to arise from within the Nisga'a nation, from amongst Nisga'a citizens. I would simply make the point that when we talk about hereditary chiefs and matriarchs, we are talking about a form of political organization. The kind of argument that the minister has alluded to, I think, shouldn't be discounted. One shouldn't discount the possibility that it is this kind of provision that will arise, and it's not something that will be dealt with exclusively on an internal basis. If that kind of dispute arises, it will ultimately find its way into courts outside of the Nisga'a collective, outside of the Nisga'a administration of justice. I would say, on the record, that on the one hand I am concerned when we make these statements around culture, because I think they lend themselves to use for other purposes. I think that's very possibly going to happen.

The other point I want to make with respect to the preamble relates to something that's not in the preamble. One of the things that we have heard from the minister and that we have heard from the Premier in the past is referring back to the select standing committee -- the fact that all of the majority recommendations from the main body of the report have been acted upon. Actually, at least one -- and several others. . . . But there's one I want to talk about today, which hasn't been. This would have been the logical place for it to be acted upon and for it to be included.

I'm talking about the notion of an apology, which was uppermost particularly in the mind of the member for Vancouver-Burrard, who was on that committee. I'll just read into the record, quickly, the provisions of the report of the select standing committee. I won't, obviously, read the whole thing, but just this section. I'll preface my remarks with the fact that we spent a lot of money. We spent a lot of public money on this committee -- upwards of $300,000 or $400,000, I think -- travelling around the province, taking evidence and taking opinions from British Columbians.

[5:00]

"Following the 'deliberate matter of policy' test described above, an apology to the aboriginal people of British Columbia is appropriate for the following reasons:

"[1] The Chief Commissioner of Lands and Works appointed in 1864 enacted measures to deprive aboriginal people of land and prohibited aboriginal people from voting.

"[2] Federal and provincial laws prohibited traditional ceremonies, including the potlatch, and fostered assimilation through the residential school system.

"[3] These deliberate acts of provincial policy represented injustices to aboriginal people in British Columbia.

"[4] An apology would offer reconciliation and healing to aboriginal and non-aboriginal people of British Columbia.

"[5] If there is to be reconciliation between aboriginals and non-aboriginals, both groups must come to terms with the past.

"[6] For any kind of healing to take place, government must acknowledge its responsibility for past policies of discrimination. As a society, we need to get this behind us so that, together, we can look to the future."

The recommendations that flowed from that were recommendation No. 67 -- "The Crown in right of the province

[ Page 11130 ]

I have two points, really. When the minister and the Premier indicate that they have accepted all the recommendations of the majority of the select standing committee, I suppose that might be technically correct. But the fact is that they haven't acted on at least one -- more, but we're dealing with one -- of those recommendations. Perhaps the minister could explain why that is. If the member for Vancouver-Burrard isn't curious -- and I think he is -- and if he's not inclined to ask the question, I am.

Hon. D. Lovick: Mr. Chairman, I also, of course, had some questions about that; I too wondered, as the member did, why that wasn't part of it. I understand it wasn't part of the AIP. The select standing committee report came out after the AIP. To be sure, Joe Gosnell, I am advised, did say: "Well, I guess if you offered us one, we wouldn't refuse it." But I think the important point is that the Nisga'a never brought it to the table as something they wanted in the treaty.

My imagination delights in grappling with the concept of a whole bunch of people on one side or on two sides of a three-part table saying, "But we want to apologize," and the third party, to whom you're making the apology, saying: "Well, it isn't necessary." So you have a wrangle over an apology where the party that is the most affected -- the aggrieved or injured party -- says: "It doesn't matter to us." I think that one can in fact see that that situation would become high comedy, and would be, frankly, ludicrous.

More seriously, I would just make this point. I think the action of signing a treaty is the principal gesture, if you will, of everything that would be embraced in an apology. The fact that Nisga'a culture, for example, has primacy -- paramountcy, if you will -- so that no government in this country could ever again take away its rights to potlatch, for example. . . . I think that in action is a much greater apology than any verbal rendition thereof.

So I accept the member's point, but as I say, it apparently never made it to the negotiating table, because the Nisga'a said: "We don't require it." That is the answer as completely and in as detailed a form as I know it.

M. de Jong: Lest there be some confusion on the record, all I can rely upon, not having been privy to the negotiations that took place, are those submissions that Chief Gosnell made on February 17 in Victoria. He said: "To me, it would be absolutely great if the federal government, along with the province, offered an apology to our people as part of a rebuilding of that relationship." Further on: ". . .we would certainly like to see, if at all possible, an apology with the signing of our final treaty. From our standpoint, it would be absolutely great." Now, that's not quite consistent with the impression that the minister has been left with from the negotiators. That suggests to me that there was a desire on the part of Chief Gosnell, at least. . .a recognition of the import that was obviously in the mind of the member for Vancouver-Burrard as he pursued this through the life of the committee.

I rather suspect that there was something of a reluctance on the part of, perhaps, Canada -- perhaps more so than the province -- to embark upon a discussion that would inevitably lead to the question being asked: "Ah yes, but can it be done without incurring some degree of unknown liability?" That is something that is relevant not just for this document but for the negotiations that will take place in the future. I guess what I would like to ask the minister is: was legal information obtained that indicated that a mechanism did exist by which this particular objective could be met without assuming any unknown or hidden liabilities?

Hon. D. Lovick: A couple of points, Mr. Chairman. First of all, to clarify what Chief Gosnell said or didn't say, my further information is that yes, indeed, he made the statement that the member quotes into the record, but it was in answer to a direct question: "If somebody offered you an apology, would you accept it?" But the Nisga'a people at the table never brought the apology to the table as part of their agenda. Second, it's worth reminding ourselves that Jane Stewart, the federal minister, has indeed issued a blanket apology to first nations in this country, and did so in response to the Royal Commission on Aboriginal Peoples. Moreover, the Premier in British Columbia has offered a formal apology.

[W. Hartley in the chair.]

I give those two direct answers to the questions, and now I want to deal with the larger question of the direction the member's question seems to be leading us in and my concerns. I want to answer every conceivable question one might have about this treaty and will do so to the best of my ability, as I know my colleagues will. But we're talking about the document, and in terms of talking about what happened in the course of the negotiation -- what made it to the table, what didn't, why something was on, why something was not -- I wasn't there. Also, I'm not really sure it serves our purposes. . . . I don't say this to be contentious at all, but it seems to me that what matters to us here and what ought to matter to us above all is simply the document before us. The other material will probably be the subject of five or six people's memoirs or something some years from now.

M. de Jong: I guess the discussion is helpful to this extent -- that is, in spite of the protestations from the member for Vancouver-Burrard and the now Minister of Small Business, Tourism and Culture, is this a dead issue? The Attorney General has referred, via the Minister of Aboriginal Affairs, to the blanket apology made by the federal Minister of Indian and Northern Affairs and the comments made by the Premier. Is that an end to the matter, or is this something we need to examine? Is this something that arises out of this treaty? If someone else brings it to the table, if that's the test. . . . Are we simply putting off dealing with something that will come up later? Or is it the province's view that that matter has been dealt with and that for whatever reason, that is not something that will comprise a part of treaties now or in the future?

Hon. D. Lovick: Of course, each negotiation is separate. But I think that the member's effort to extrapolate and say, "Here's what it will look like," is probably correct.

M. de Jong: Mr. Chairman, that's what I had with respect to the preamble.

J. Weisgerber: Listening to the answers that the minister has given has prompted me to try and clarify. The preamble is

[ Page 11131 ]

But it seems to me that if we take the argument presented by the Minister of Aboriginal Affairs -- who said that the issue of an apology didn't come up until after the agreement-in-principle was in place; therefore there's no material reason to consider it -- I would argue that the courts didn't make a decision on aboriginal title in the last Delgamuukw decision until after the agreement-in-principle was in place. So I have to ask, then: why bother adding this little addendum to the sentence, if in fact it wasn't part of the rationale which led to the decision to negotiate a treaty and to conclude an agreement-in-principle leading to this document?

Hon. D. Lovick: Two points. I'm glad the member posed the question. First, I did not try to suggest that because the AIP came out before the recommendation, that in itself was grounds for not having an apology. I said, rather, that the primary reason there isn't an apology is because it wasn't asked for. So if I didn't clarify that, I do so now.

Second, the member is quite right to say: "Well, wait a minute. Is it the case that aboriginal title is only on December 11, 1997, in Delgamuukw?" The reality, though, is that the courts have recognized something called aboriginal title for a great period of time -- long, long before Delgamuukw, for a long time indeed. What Delgamuukw did, I think, was simply define it more clearly. But the concept has certainly been around for a long time.

J. Weisgerber: Given that I'm certainly not schooled in the law -- and I know that while the minister is well schooled, he's not schooled in that area, either -- I don't think that up until the last Delgamuukw decision, the courts ever did recognize aboriginal title. If I'm wrong, I know the Attorney General will leap to his feet and point out precedents where it in fact happened.

I think that governments -- erroneously, I believe -- have jumped in to acknowledge something called aboriginal title. It started with the federal government and continued with the election of the Harcourt government in 1991. The point on which I was always critical of that was that until the last Delgamuukw decision, there never really was a definition of aboriginal title. So we had the Canadian government and the government of British Columbia saying: "We recognize aboriginal title."

I can go back to estimates of many years past, when I asked successive ministers responsible for aboriginal affairs in British Columbia: "What does this mean, this aboriginal title that you are so eager to embrace?" In fact, until the court provided some rationale for recognizing aboriginal title, I don't believe a definition ever existed.

[5:15]

I'm at a loss to understand. If aboriginal title isn't an important element of the negotiations and the treaty itself, and if there isn't a reference later on to aboriginal title -- which, from a lack of definition, I expect there is not -- I wonder why the need. What was the motivation to include this reference to the courts in the preamble? It could be that the next court decides to strike it down. It's certainly not a constitutional right, certainly not a constitutional issue at this point. So I'm a bit interested in the minister's or the Attorney General's response, or perhaps both.

Hon. U. Dosanjh: First of all, there's no question that the courts have stated that aboriginal rights may include aboriginal title. What that title may look like may be different. It may exist in certain areas for certain first nations; it may not exist in other areas for other first nations. A simple reference to that doesn't change that fact one way or the other, either enhancing the importance of aboriginal title or detracting from it.

What I want to emphasize is that at the end of the day, no matter what the preamble says, these -- the rights that are outlined in this treaty -- are the final rights of Nisga'a. That's why in fact the aboriginal title has not been defined. We're not really interested in defining aboriginal title, for other first nations to be able to use that as a tool to come at us. That's why we want to make sure that we have a look at the rights, we agree on the rights, we actually then concretely enshrine them in the treaty, and that's the end of it. There's no debate, then, as to what aboriginal title may or may not mean -- whether or not it may exist, even, if that was the question somebody was interested in.

J. Weisgerber: I've heard the Attorney argue that he's reluctant to define inherent rights and to differentiate between those and other rights which are included in the body of this treaty, the argument being, well, we're not sure that we want to lay on the table all of those things which we recognize as inherent rights. I'm not sure that I agree with this, that I accept it.

But the question is to identify inherent rights, not to define them, not to suggest that some are inherent and some are granted. But to say, "Well, we're not going to tip our hand as to what we think this aboriginal title is, which we've walked around for almost a decade recognizing," seems to me disingenuous. It seems to me to be less than forthright.

I can't imagine what you would possibly concede to other claimants by giving British Columbians a definition of this thing called aboriginal title, which the party opposite has been so eager to embrace over the last ten years or so. Why not define it? Why not allow British Columbians who are reading this document to look and see, rather than make them go through the only reference that I'm aware of -- that being in Delgamuukw -- to identify a definition of aboriginal title?

Hon. U. Dosanjh: Aboriginal title is what, at the end of the day, the Supreme Court of Canada said in Delgamuukw as to how to discern aboriginal title. If you want to enshrine that

[ Page 11132 ]

J. Weisgerber: It seems to me that we've kind of come full circle. I started this argument by suggesting that the recognition of aboriginal title is a new development, and the minister appears to want to disagree but is unwilling to provide me with an example of a court before the Delgamuukw decision recognizing aboriginal title. Why bother at all, then, if you don't want to define it, if it's a grey area, if it's an area that you think will cause confusion?

I have trouble accepting that this preamble is just kind of awesome words we threw together to start the thing off and get people thinking. I would suggest that a preamble would be very carefully worked through by the negotiators, by all three parties, and that there would be a great deal of deliberation word by word in this one-page preamble. I guess I'm back to my original question: why the reference to a recent court decision with respect to aboriginal title in the preamble?

Hon. U. Dosanjh: In fact, the Calder case -- if I remember correctly, and I'll stand corrected if I'm wrong -- referred to the issue of aboriginal title. Three judges said that it had been extinguished. They were split; three said it probably wasn't. I understand that one of the judges then -- a majority -- obviously threw it out on a technicality. At least before the courts, the question of aboriginal title. . . .

Interjection.

Hon. U. Dosanjh: My friend. . . .

Interjection.

The Chair: Through the Chair, please, members.

Hon. U. Dosanjh: The hon. member for Richmond-Steveston can obviously shed further light on this. He's the expert in this area.

I understand the concept of aboriginal title being crucial in the Calder case, so it's nothing new. It has been talked about for a long time before the courts and not before the courts, and Delgamuukw has in fact shed further light on how we can discern whether or not aboriginal title exists. But it would serve no useful purpose to include a narrower or a broader definition of aboriginal title in this particular treaty, when it wouldn't add anything to the substance of the treaty.

G. Plant: Listening to the member for Peace River South ask what I think are good questions, two thoughts occur to me. The first is that preambles are always fraught with more risk than with benefit. I don't think I can recall an instance, in what is coming up to something like 17 years of law practice, where I found helpful a preamble either to a contract or to a statute. Usually I found it the source of more uncertainty than certainty. That's the first thought that occurred to me when I was listening to those questions.

The second thought that occurred to me was that we're in an interesting situation here. Over the course of the last two or three days, people have attempted to get an answer from the government as to what is in this agreement that can be said to be representative of inherent rights and what is in this agreement that may be said to be more properly the exposition of delegated rights or any other kinds of rights. The answer to all of those series of questions was: "Well, we don't need to answer them, because everything is taken care of in the treaty."

Now we have an attempt to pursue a slightly different but important issue, which is: what is aboriginal title? It's defined in some court cases; now it's referred to in this preamble. To some extent, again, the answer is: "Well, we don't really need to know the answer to that question. Or we're not going to have a debate about it on the floor of this chamber, because the objective of this agreement really is to put all of those questions to rest." I'm not sure at what point in the discussion this becomes a serious and significant question.

But I can tell you that what I am about to ask or put on the table is already a question, having heard this part of the discussion. The question is whether in fact there are any principles at all underlying this agreement, from the government's perspective, beyond what might be called the admirable platitudes of fairness and justice and all of that. When we're looking at trying to explore the extent to which this agreement may represent a translation of recognized constitutional rights, we're told: "Well, let's not go into that area." When we're looking at the question of the extent to which this agreement may or may not have something to do with aboriginal title, we're told: "Well, let's not really go into that." So I want to put that concern on record.

Let me give it a bit more context. The agreement-in-principle had a preamble that said this: "WHEREAS section 35 of the Constitution Act, 1982 recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada. . . ." Now, two and a half years later -- presumably because of events taking place in the courts, presumably the Delgamuukw decision -- the authors of this agreement have added some more words. Well, I'm not sure that the addition of those words -- those words being "which the Courts have stated include aboriginal title" -- is actually going to serve us very well in the long term.

I'm mindful of the fact that the member for Peace River South, for example -- as does my colleague from Peace River North, I believe -- lives in a jurisdiction where his constituents live day to day with the uncertainties created by what people in 1898 thought was some pretty careful, precise and unambiguous language when they drafted Treaty 8. We're not talking about small-time uncertainties. We're talking about uncertainties which cause governments to commit to negotiate agreements to the tune of millions of dollars' worth of obligations in respect of petroleum and natural gas rights.

So I'm looking at this from the long perspective and saying that it is actually worth pausing for a moment to wonder what people are going to really make of the addition of these words -- they have the words "which the Courts have stated include aboriginal title" -- to a preamble when all of the people who are now standing or sitting in the chamber are dead and no longer able to assist and when in fact the courts, on two or three occasions which none of us can foresee, may have stated other things. In other words, the courts may over the course of time, in a way that we can't foresee, say that

[ Page 11133 ]

[5:30]

Hon. U. Dosanjh: I think we have said very clearly, right from the beginning, that the intention and purpose of negotiating treaties is to exhaustively take into account all of the possible sources of rights that the aboriginal people may have and then to codify those rights, whether they are acquired or inherent or delegated or whatever they might be -- to take a look at that. That's why, in fact, the term "aboriginal title" is mentioned in section 23 of chapter 2. We want to exhaustively set out all of the rights. Section 23 says:

"23. This Agreement exhaustively sets out Nisga'a section 35 rights, the geographic extent of those rights, and the limitations to those rights, to which the Parties have agreed, and those rights are:

a. the aboriginal rights, including aboriginal title, as modified by this Agreement, in Canada of the Nisga'a Nation and its people in and to Nisga'a lands and other lands and resources in Canada."

The purpose of actually particularizing some of these concepts is to make sure that in our treatment of these rights, whatever they might be defined as at the end of the day by courts or by other first nations, we take them into account and exhaustively set them down in a list, codify them and then put the lock on for certainty. That's the reason.

M. de Jong: Earlier, I pursued some questions around this whole notion of an apology. I did so with a specific purpose in mind and then didn't follow through with the minister to ask the question and try to make the point I ultimately wanted to make. That is this. So that the minister knows, I'm referring to the statement that was released by his ministry on May 14, 1998. It reads:

"After a comprehensive review of the committee's report" -- the select standing committee's report -- "the government of British Columbia has accepted all of the 72 recommendations made by the full committee. . . . To date, 36 recommendations have been implemented; 20 recommendations are being pursued with appropriate parties -- advisory committees, third parties, Canada, B.C. Treaty Commission and first nations; and 16 recommendations will be implemented at the appropriate stage of the treaty process."

Hon. D. Lovick: When the statement was issued, the assumption was that those actions would be taken with regard to all of those recommendations. As you know, we initialled the agreement in August -- some months later. Clearly at that point that was no longer part of the agenda, in terms of signing or initialling the agreement.

M. de Jong: Is that therefore the case with. . . ? Are there other recommendations that I should read with that in mind? I focused on one, because I thought it was easy to understand. What I'm hearing from the minister today is that the statement released on May 14, with respect to the 72 select standing committee recommendations, is no longer accurate by virtue of any number of things that have happened in the interim.

Hon. D. Lovick: Yes, the member is right. I would point out, though, that it is quite conceivable that in subsequent treaties the issue of apology may come back. Or one could argue about it the same way, in the same light -- that the Premier's statement is in effect an apology and therefore precludes the need to have it formally attached to a treaty. There are other ways to deal with the issue that the treaty isn't there, but the member's basic contention that the statement issued in May suggests -- he's quite correct -- that the apology would, in some way, shape or form, be accepted as part of. . . . That didn't happen. I accept that; there's no point in denying it.

M. de Jong: It is significant to this extent: the committee also had some very specific things to say about the fishery. I would argue that in reaching those conclusions about the model that we are going to discuss as part of this treaty, the committee made its comments and its recommendations cognizant of what existed in the agreement-in-principle. It rejected that model. Members on the government side will say: "Ah, they said this doesn't apply, but it can work in the Nass Valley because of some unique circumstances."

What I'm hearing the minister say today is that his earlier assurance that the government accepted the recommendations of the majority, which included a rejection of the fisheries model, I would say for the Nisga'a treaty but at a minimum for any treaty that would follow. . . . Now that is very much in doubt. I'm unclear. Does the minister intend to reissue a statement setting out which of the recommendations the government now accepts in light of whatever changed circumstances have taken place and other considerations that are now before the government?

Hon. D. Lovick: I have no intention of issuing such a statement, but I do want to clarify and correct one thing. I

[ Page 11134 ]

M. de Jong: I guess the conclusion one is forced to draw is that the earlier statement from government, accepting all of the majority recommendations, is no longer in effect. That's not very helpful if it isn't going to be followed with some further indication from the government as to which of those recommendations it does intend to adopt or implement. It's apparently not the government's or the minister's intention to follow through on the progress report he gave on May 14. Quite frankly, I think that renders the work of that committee virtually meaningless -- to have heard one response from government that talks about the 72 recommendations and to hear today that, for any number of reasons, the government no longer feels bound by that response given on May 14, followed immediately by a statement: "Not only do we not feel bound, we don't intend to tell you how we as a government now feel about those 72 recommendations." Then why have the committee?

Well, the minister is shaking his head and saying that I've misstated that somehow. At the end of the day, the question is pretty simple: which of the recommendations does the government intend to pursue, and which don't they? That apparently has changed since May 14, 1998.

Hon. D. Lovick: I shake my head only in exasperation, because the member opposite has this uncanny ability to overstate his case.

The point I made was this: that we. . . .

Interjections.

Hon. D. Lovick: I know you're all shocked, so let the record show there was a certain silence after that utterance.

The point I made is that this particular recommendation regarding the apology did not make it into the final treaty -- accepted, yes; done; true, absolutely. To the best of my knowledge, I say here before you today that all of those other recommendations have indeed been acted on, as we said in the report of May 14. I will need to go and get a quick scan from the ministry on that, which I would be happy to share with the member opposite, but I say with some confidence that I believe all those others have indeed been acted upon.

M. de Jong: If I might go to the section of the preamble that reads: "WHEREAS Canadian courts have stated that the reconciliation between the prior presence of aboriginal peoples and the assertion of sovereignty by the Crown is best achieved through negotiation and agreement. . . ." I want to put this proposition to either one of the ministers: on occasion, the mechanism by which you can best achieve that reconciliation may not be a treaty. I understand the context around which that statement appears in a treaty document. But lest we somehow think that the only manner in which you can effect reconciliation between aboriginal peoples and government and non-aboriginal peoples is via a treaty, I think the argument can be made that there are other forms of agreement -- Sechelt is an example; there are others -- where other manners, other forms or models, of agreement serve the purpose that they are intended for and work more effectively at effecting that reconciliation than a treaty of the sort we are debating here today.

Hon. D. Lovick: I don't think there's any disputing the fact that the courts have indicated a preference for negotiated settlements. That, surely, is the point being made here.

M. de Jong: Actually, the point -- in an unnecessarily long-winded way -- was that we don't always need a treaty to effect the reconciliation that is referred to in this section. Sometimes that reconciliation is best achieved through a negotiated settlement that is embodied in a statute, for example.

Hon. D. Lovick: If the member is merely saying that there are other ways, in small-wise, to achieve reconciliation, he's quite correct. We can sign all kinds of different agreements, and there can indeed be other mechanisms. But we're suggesting that to solve the large question of land claims, the treaty mechanism is the preferred mechanism.

[5:45]

I don't think it's helpful for people, during the course of a debate or a discussion, to continuously fall back on that as an argument, as a response and a defence of a take-it-or-leave-it kind of argument. We've heard it from Chief Gosnell. I rejected it, as I think most British Columbians rejected it, when Chief Gosnell made those statements. Let us, as I'm sure the minister will quickly do. . . . The Nisga'a have never resorted to that chaotic type of behaviour, and they deserve full recognition and regard for that. But it's not an option, and I hope the minister will take this last opportunity in the preamble to reassert that fact, in spite of what we heard last week from the Premier.

Hon. D. Lovick: I'm not going to comment on what the Premier said by way of his approach, except to say this. Those of us who have watched Nisga'a for any length of time at all and have seen the fact that it has been, arguably, 111 years in the making -- 25 years for two parties and nine years for three -- have also witnessed a number of other indicators out there in the province, some of which suggest that first nations are getting very impatient. They're saying: "We are tired of seeing. . . ." I could tell many stories, from my travels through the province, of first nations telling stories like, bluntly put: "We are tired of sitting here on our poor land with 70 percent unemployment and watching trucks go by every day of the week taking our resources off our land, and we're not sure we're prepared to put up with that much longer."

Similarly, we've all seen lots of evidence, sadly, in this province in recent years of our ability to persuade and placate

[ Page 11135 ]

I don't think that anybody on this side of the House -- or anybody anywhere else, for that matter -- is trying to say: "You better do this, or else." I don't think that's the case. But I do think it's true to say that this is probably our best chance to build a harmonious relationship with first nations throughout this province. This is as good as it gets, to coin a phrase. That is the government's position. This treaty is the product of years and years and years of hard labour, of hard negotiation. The conclusion, we believe, is that this will be better for all of us -- all the stakeholders within this province -- and that the alternative, quite frankly, is unthinkable, because the alternative will certainly be litigation, if not civil disobedience and other activities of that sort.

So in that regard, it isn't part of a preamble; the member is quite right. It could be, perhaps, but I think the assumption is that we must indeed reconcile those two kinds of ownership, those two communities and the rights of each. We must indeed try to build a better and more prosperous economic future for first nations culture and thereby for ourselves as well.

Perhaps at that, I see. . . . Does the member for Matsqui wish to make another quick point before we move the committee rise? If so, I will defer to him.

M. de Jong: The word I heard was "unthinkable," and the word beyond that, which I was hoping to hear, was "unacceptable." By alluding to the possibility of chaotic behaviour, I can only say that the Premier may indirectly encourage that kind of chaotic behaviour. I would hope that wouldn't be in the back of anyone's mind and that the minister would confirm that he rejects it outright. He can do that, or I can make the appropriate motion, which is that we rise, report progress and seek leave to sit again.

The Chair: On that motion. . . . The minister wishes to respond?

Hon. D. Lovick: Yes, Mr. Chairman, very briefly. I would just say this: I know the Premier would be as horrified as the member is to think that his words could in any way help to create that kind of situation.

Second, I rise to table a document that I referred to earlier -- namely, the media analysis costing for Verus Group International.

The Chair: Minister, we'll deal with the motion put forward by the member for Matsqui.

Motion approved.

The House resumed; the Speaker in the chair.

The committee, having reported progress, was granted leave to sit again.

Tabling Documents

Hon. D. Lovick moved adjournment of the House.

Motion approved.

The House adjourned at 5:53 p.m.

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