Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, JANUARY 19, 1999

Volume 13, Number 6

[ Page 11137 ]

The House met at 10:05 a.m.

Prayers.

Orders of the Day

Hon. D. Lovick: I call committee on Bill 51.

NISGA'A FINAL AGREEMENT ACT
(continued)

The House in committee on Bill 51; W. Hartley in the chair.

On the schedule, chapter 2.

G. Plant: We established yesterday, as sort of a general matter, that we would probably deal with whatever issues arose with respect to particular definitions as those issues arose in the context of the chapters of the agreement itself -- when those definitions were called into play. As a result, I'm rising to begin the discussion of chapter 2, the general provisions. In fact, I'm going to do exactly that in a moment.

Chapter 2, paragraph 1 says: "This Agreement is a treaty and a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982." I guess what I want to do is establish, first of all, that no one should read that casually, because the document that I am holding in my hand has two parts: Bill 51 Schedule, Nisga'a Final Agreement; and Bill 51 Schedule (Continued), Nisga'a Final Agreement Appendices.

Contrary to the impression that might be left by the reading of paragraph 1, in fact not all of the words of these two documents are intended ultimately to comprise what will be the Nisga'a final agreement. I guess I should point out that "Agreement" is defined as ". . .this Agreement between the Nisga'a Nation, Canada, and British Columbia and all Schedules and Appendices to this Agreement." But the real kicker here, of course, is that there are a couple of quite important things that happen later in the document, such as a harvest agreement with respect to fish. Although it is contained in the document which is called the Agreement, it is not intended to be part of the final agreement within the meaning of. . . . At least, it's not intended to acquire sections 25 and 35 protection. Is that correct?

Interjection.

G. Plant: I think we'll get to this in due course.

Another part of the agreement that is perplexing, at least on first reading it, is chapter 14, the "Capital Transfer and Negotiation Loan Repayment" chapter. That has a schedule -- in fact, it may have more than one schedule -- that is a chart that is supposed to have in it all of the amounts that are going to be paid as the capital transfer payments; I see that it also has another schedule that shows the loan repayment amounts. But schedule A, "Provisional Schedule of Capital Transfer Amounts," actually has no numbers in it at all; it's completely blank. So again, when we're talking about opening this with a discussion of the general provisions, we really don't yet have the Nisga'a final agreement in its final form, because, as I understand it, the intention of the notes to schedules A and B in chapter 14 -- or at least of the note to schedule A -- is that there is a formula that will eventually require numbers to be inserted in these blank spots on what is page 165 of the schedule to Bill 51, and the Nisga'a final agreement will not really become the Nisga'a final agreement until those amounts are filled in. Is that correct, or have I got something wrong there?

Hon. U. Dosanjh: The formula to determine those numbers is there, and that's part of the treaty.

G. Plant: But am I right that the formula itself, once it's been used, will be exhausted and therefore will be, in essence, deleted from the final agreement?

Hon. U. Dosanjh: Yes, it will be spent.

G. Plant: There may be one or two other places where that arises. I think that is actually the subject of some of the changes that were made between the document as circulated in early August and the document as it was later corrected. Am I right in saying that the purport of approximately half a dozen of those changes is to ensure that as a matter of drafting, the formulas which are intended to spend themselves will do that and will therefore not become part of the Nisga'a final agreement?

Hon. U. Dosanjh: Correct.

G. Plant: So when those, shall we say, documentary events take place in due course, there will obviously be a new version of the document itself that presumably will be the version the government hopes to actually sign. In that respect, when paragraph 1 speaks of "this Agreement," it will no longer be referring to those notes, because those notes won't actually be in the text. But readers of the Nisga'a final agreement will still have to take care to ensure that the chapters that they're reading, or the portions of the chapters that they're reading, are themselves in fact intended to be under the section 35 umbrella. Although paragraph 1 speaks in general terms about the whole agreement being a treaty and land claims agreement within the meaning of sections 25 and 35, in fact the whole agreement will not be a treaty and land claims agreement because, for example, of the provisions around the fish-harvesting agreement, which I referred to earlier. Is that correct?

[10:15]

Hon. U. Dosanjh: Correct.

M. de Jong: Moving into the paragraphs with the heading "Agreement is Binding" -- and I'm particularly looking at paragraph 4 -- I wanted to ask either the Aboriginal Affairs minister or the Attorney General. . . . I think it's good that this treaty is before this House, subject to this debate. I am, however, curious as to what the options were. As I understand it, we are having this debate because the government chose this method of ratification -- that is, to bring it before the House -- but there may have been other options. The

[ Page 11138 ]

document simply could have been signed; it wasn't legally necessary, from the provincial perspective, to bring this treaty to the House. Is that the case?

Hon. D. Lovick: To the extent that the treaty impacts and, in some cases, indeed changes provincial law, then it has to come to the House. But on the larger question, I think, it didn't.

M. de Jong: The point I'm trying to establish -- and I think I heard the answer -- is that the executive branch is empowered to sign off on this document without the necessity of it passing through this Legislature. Obviously there are incidental amendments that arise as a result. But we are here because the executive branch has chosen to give this Legislature the opportunity to debate, and that was not a necessity.

Hon. D. Lovick: Yes, that's correct -- also because, indeed, that has been the pattern for all treaties signed in the last 20 years, I guess.

G. Plant: Establishing that fact gives rise to the opportunity to make a political observation, I suppose, which is that what we're engaged in here may be of tremendous interest to those who are participating in the discussion, but it's completely irrelevant. The government has taken the position, essentially, that not one word of this treaty will be changed. They have -- I suppose, as a matter of courtesy -- indulged the Legislative Assembly of British Columbia in thinking that it has some role in this process, when in fact we know that there is really no opportunity to effect any change. I'm not sure if the phrase "rubber stamp" is completely apt, but if it isn't, we're pretty darn close to it.

I think that the moment shouldn't pass without making the suggestion that there has to be some better way to do this. I'm sure the minister would like to stand up -- I notice the Minister of Small Business, Tourism and Culture is here -- and say: "Well, yes, we took the agreement-in-principle out on the road, and we consulted with British Columbians." But I actually don't think that any of the recommendations made either by the majority in the unanimous report or in the minority report manifested themselves in any changes in the agreement itself. As I say, I don't want the moment to pass without making the observation that the government has really created a situation, in terms of bringing this to the House, where what we're doing here is perhaps having an interesting discussion, but it doesn't amount to a hill of beans in the long run.

I want to go back and ask a question about section 2. Section 2 says that this agreement is "binding on the Parties." Interestingly enough, the term "Parties," although it's capitalized, is. . . . The term "party" is defined, and it says: ". . .means a party to this Agreement." That's a wonderfully circular definition. Who are the parties to this agreement?

Hon. D. Lovick: The three parties are Her Majesty the Queen in right of Canada, Her Majesty the Queen in right of British Columbia and the Nisga'a nation.

G. Plant: The agreement-in-principle had three parties. They were the province, Canada and something called the Nisga'a tribal council. At what point and by what means did the Nisga'a tribal council become the Nisga'a nation?

Hon. D. Lovick: The Nisga'a tribal council was negotiating on behalf of the Nisga'a nation.

G. Plant: And by what means did the Nisga'a tribal council attract the ability to negotiate on behalf of the Nisga'a nation? What, for that purpose, is the Nisga'a nation?

Hon. D. Lovick: The Nisga'a nation is defined in the agreement. The Nisga'a tribal council's warrant to speak on behalf of the Nisga'a is the result of some 40 years of being in existence -- annual conventions, regular mandates given by those conventions to the tribal council over that time period.

G. Plant: So in the view of the government of British Columbia, is the Nisga'a nation currently an entity known to the law? Let me be clear about this. We don't yet have a Nisga'a final agreement; what we have is a document that this government hopes will become a Nisga'a final agreement. Perhaps that document will, when it attracts the force of law, create something called the Nisga'a nation, but it has not yet done so. Again, the question is: is the government of the view that the entity known as the Nisga'a nation is in fact a legal entity known to the law. And on what basis does the government come to that conclusion?

Hon. D. Lovick: Whether it is now or not, I am advised, is moot; but by the date of the effective agreement it will indeed become recognized in law.

G. Plant: I have to confess I didn't catch all of the minister's answer. I think he said that the question was moot. Perhaps he could explain just how it was that that question came to be moot.

Hon. D. Lovick: The question I referred to as moot, Mr. Chairman, is the question of whether the Nisga'a nation is a legal entity. We are saying in the treaty that, by the implementation date of the final agreement, the Nisga'a nation will exist legally.

G. Plant: I suppose the analogy would be to a pre-incorporation contract with a company that does not yet exist but, as of the date of the contract, will exist. But I have to say I've followed the minister's answers now, and they do fall under the same category as a number of other answers -- that is: "Interesting questions. Don't worry; these are no longer important questions. The agreement solves all." So we don't have to worry about whether they are inherent powers or delegated powers. We don't have to think about understanding aboriginal title. Apparently, neither do we have to understand whether or not there is something known to the law as the Nisga'a nation, because the agreement simply says there is, and that puts an end to the matter. Is that pretty much the government's. . . ?

Hon. U. Dosanjh: As we said earlier in the debate, the Nisga'a first nation and other first nations have asserted certain rights, and one of those rights has been to say that they are a nation. They have been, amongst themselves, a nation. We haven't recognized them legally, and the recognition of that is in this treaty. The Nisga'a nation, insofar as the province is concerned, would be defined legally for the first time by this treaty. I don't see any difficulty in the thing -- to understand this.

G. Plant: In fact, there's a lot less difficulty to understand it when the government answers the question, as it has just

[ Page 11139 ]

done -- that is to say, the government says that there is in fact something known to the law as the Nisga'a nation and that it feels it's capable of entering into an agreement with that entity. It has done that, and in doing that, it will give recognition to this legal entity known as the Nisga'a nation and the issue will be put to rest. Or perhaps I've got it wrong.

Hon. U. Dosanjh: Sorry, I would disagree. This is not a recognition. This is a defining of what we consider to be the Nisga'a nation in the treaty. Whether or not we recognized what they asserted isn't the question. The question is that what we now recognize in the treaty will define the Nisga'a nation vis-�-vis British Columbia and Canada.

G. Plant: While I appreciate the Attorney's answer, because it begins to highlight the point, which is to make sure that we understand that. . . . Well, it is to be sensitive to the existence of a risk that someone may argue that this agreement is not exhaustive, that this agreement cannot define that which is improperly defined, and that if there is something out there in the law known as the Nisga'a nation which is different from that which the government conceives it to be, then this agreement may not in fact be a complete answer to that. We are dealing in. . . .

The concern I have is to make sure that when the government stands up and makes a political statement that this agreement is exhaustive and binding and completely solves all of these questions for all times, the government has in fact thought through some of these questions and concerns, one of which is the simple question of who is the party to this agreement. This is not a philosophical discussion about what it means to be a nation or not a nation; I'm not pursuing that issue. I am simply pursuing the question of whether or not the province is in fact making an agreement with someone or some entity capable of making an agreement.

Hon. U. Dosanjh: Yes.

M. de Jong: Returning to an earlier statement, I don't think it's a moot point. Let me ask the question in this context. There are members of what I presume the government considers to be part of that Nisga'a nation who don't want to be bound by this agreement, particularly members of the Kincolith band. Let me begin by asking either of the ministers to confirm the status of the challenge that has been undertaken by members of the Kincolith band to. . .whatever the Nisga'a nation is that is presuming to bind them to this agreement.

Hon. D. Lovick: I understand that the challenge to the agreement-in-principle is now over. I'm not sure whether the other challenge was ever formally made. There have been some concerns expressed. I noted, for example, that Mr. Guno from the Guno family appeared at a public meeting the other night as somebody who had previously spoken against the Nisga'a treaty. But when he saw the campaign being waged by the Reform Party of Canada, he felt the need to stand up and defend the treaty on behalf of aboriginal people, regardless of his disagreements with parts of the treaty. So I think that may be the answer.

M. de Jong: Well, we can go through the individual history of each person who at one time or another voiced concerns or opposition to this agreement. But the point that I'd like the government to recognize is that there are members of that grouping of individuals which this agreement characterizes as the Nisga'a nation who don't want to be bound by this agreement. Let's start there. If the minister is of the view that everyone who to this point has been enrolled or is registered or is an aboriginal residing in the Nass area, as defined by this agreement, is now content and voluntarily prepared to be bound by this agreement, then he should say so. I think there are others who would disagree with him.

Hon. D. Lovick: I don't think the member opposite ought to confuse being content with acceptance. Canadian citizenship is sometimes considered to be a tenuous bond, and there are all kinds of people who periodically threaten to no longer pay their taxes because they don't like what the government of the day is doing.

[10:30]

What's important to note is that this treaty was ratified -- okay? Abiding by and pursuant to the mechanisms that were established, the treaty was ratified by a significant majority of Nisga'a people. Moreover, I understand that each of the villages within the Nisga'a lands ratified the agreement. It wasn't the case that there was one portion of the territory that didn't. In that sense, then, I think it's perfectly safe to say that the support for the treaty is there on the part of Nisga'a citizens in the same way that the support for anything government has done is from all of its citizens -- even though, to be sure, there will be some who may not be entirely happy.

M. de Jong: It goes to the issue, and it is significant and relevant to this extent: that is, there are people who to this day don't wish to be bound, don't want their rights -- as they understand them -- exchanged in the way that this agreement purports to do. It is relevant, I would suggest, insofar as section 5 of this document is concerned, in the "General Provisions." Can this entity that the government has chosen to recognize -- the Nisga'a nation, which is not defined in a meaningful way -- have the capacity to surrender the rights of individual members who don't wish those rights surrendered? It is a circular argument that the minister brings to this: they can because we've decided they can.

Interjections.

M. de Jong: Hon. Chair, we're dealing with two ministers. We're happy to deal with three, but it's increasingly difficult. If the Minister of Small Business, Tourism and Culture wants to answer the question, then maybe they can work that out on that side of the bench.

[E. Walsh in the chair.]

Hon. D. Lovick: Madam Chair, in our history there are many stories of treaties. Treaties have always been found to be historically binding on all the members of a given aboriginal entity or first nation or nation or culture -- whatever term one chooses to use. This one is no different. That's what section 5 in "General Provisions" is about: representation and warranty. The Nisga'a nation, as represented by the tribal council -- based, as I say, on a period of legitimacy dating back 40 years -- has said that it warrants to represent the people. The point is made. I'm not sure what the member is asking me: do I think that that's good, bad or indifferent; or do I agree with that? The fact is that it's the utterance made in the treaty. Frankly, I don't see what the debate is about.

[ Page 11140 ]

M. de Jong: Two questions flow from that. How did they establish that standard? How did they, in the government's mind, acquire that standing? And what, if anything, is the significance of the fact that at this point the government has noticed that there is a group of people within that broad body of the populace that challenges their right to have that standing? That's an important distinguishing feature. This is not a case of someone coming along a generation after the fact. The government has noticed today that there is a group of people who challenge the Nisga'a nation's standing to represent them. What is the significance of that?

Hon. U. Dosanjh: The Minister of Aboriginal Affairs alluded to a 40-year history of the Nisga'a tribal council and a 25-year history of negotiations leading to this particular treaty. There are always elements within any group, community, country or province that might disagree with what is being done. If that will is determined collectively, with a substantial majority to warrant a treaty, there may be dissenters. That doesn't make the treaty somehow unlawful or illegitimate for the Nisga'a.

M. de Jong: That's starting to get helpful, because what it's starting to tell us is that in carrying on these negotiations, the government is less interested in the rights of individuals than in the rights of a collective that it chooses to define or recognize on the basis, I suppose, of history. That is what we're being told: that the 40 years of involvement is the significant feature. All we're asking is: what is it that satisfies this government that the group it has chosen to deal with in concluding this agreement is in fact representative and legally has the standing necessary to bind people that we know do not want to be bound by this agreement?

Hon. U. Dosanjh: It was the 63 percent approval of this treaty by the Nisga'a that led us to believe that there is significant consensus amongst them.

G. Plant: Well, let me pursue the point with this in mind: the agreement-in-principle contained a representation and warranty. The representation and warranty was as follows: "The Nisga'a tribal council represents and warrants to Canada and British Columbia that it represents all Nisga'a people who may have any aboriginal claims, rights, title or interest in Canada based on their identity as Nisga'a." The representation and warranty in paragraph 5 of chapter 2 of the Nisga'a Final Agreement speaks about the Nisga'a nation, not about the tribal council.

I understand -- at least I think I understand -- the mechanism by which people who are Nisga'a attracted what they believe to be the authority to negotiate on behalf of the Nisga'a -- that is, that there is an entity known as the Nisga'a tribal council. There were -- there are today -- in the law four Indian bands within the meaning of the Indian Act whose members comprise the majority of the people that we consider to be Nisga'a. There were probably resolutions of the members of those bands, sitting in the Nisga'a tribal council so assembled, that gave the Nisga'a tribal council the authority to negotiate this agreement.

The question is again: how did the Nisga'a tribal council become the Nisga'a nation? What is the process by which the government is satisfied that this thing called the Nisga'a nation has the ability to make this representation and warranty? Frankly, the Attorney General's last answer is completely beside the point. I want to know what the process is by which this thing called the Nisga'a tribal council has already become in some way the Nisga'a nation.

Hon. U. Dosanjh: If I remember correctly, this treaty has been initialled. It hasn't been finally approved. This is the process of that approval. Once the province passes legislation here approving this, the federal government would pass legislation approving the treaty -- settlement legislation -- at that point. Nisga'a have already approved this treaty; it is at the time of signing that they make this warranty. By that time, the province and the federal government would have recognized by implication, by passage of the legislation, their transition from being a mere tribal council to being a first nation -- the Nisga'a nation.

G. Plant: So it is in effect the process of legislative ratification by this House and by Ottawa that will constitute the means by which the governments recognize the creation and the existence of the Nisga'a nation and the ability of that nation to give a representation and warranty. Is that correct?

Hon. U. Dosanjh: If there was a question, I missed it.

G. Plant: Well, I restated the proposition to be sure I understood it. I'll try again. Essentially, what the government is saying is that it's what's happening here and what will happen in parliament, by implementing and ratifying the treaty, that will in fact constitute the necessary recognition in law of the status of the Nisga'a nation for the purposes of this agreement. Is that what the Attorney General means?

Hon. U. Dosanjh: Yes, but the hon. member also understands that it didn't have to be this way; it could have been by order-in-council -- at both levels. Legislation isn't required.

G. Plant: Recognizing that we had the discussion earlier about the fact that government could, arguably, enter into this treaty as an executive act without engaging the Legislature in the process of ratification, I think that what the minister is saying is this: if the federal and provincial cabinets choose to recognize something called the Nisga'a nation and choose to accept from it a representation and warranty in an agreement, then that is sufficient, from the provincial government's perspective, to constitute the necessary assurances on behalf of the 5,500 people in British Columbia who may be considered to be Nisga'a. That certainly sounds like a unilateral, top-down. . . . The government makes a decision: "We don't care what the Nisga'a think about who they are or how they are to be represented." It certainly sounds like the government is saying: "We have decided to recognize you, therefore you exist, and that is good enough."

Hon. U. Dosanjh: They have decided, in large numbers, to ratify this treaty, and as a result of our process of legislating here and in Ottawa, we would be bestowing that recognition upon them with the attributes of the Nisga'a nation contained in this treaty. But it could be different for another first nation, for another government.

G. Plant: I think what the Attorney General is now saying is a variation, perhaps, on what he's been saying so far -- which, if I understand it correctly, is not unreasonable in the eyes of the law. The point is that from this perspective you

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could say that the Nisga'a nation doesn't really yet exist in the way that it will come to exist. This agreement will in fact create something which is new, and then it will confer upon that thing which is new all of the rights and obligations in this agreement, including the government rights, the resource rights and the various ways in which those may be exercised.

The government, as I understand it, is saying that they could choose, in the next treaty, to have some different process. They could, for example, choose to create some new entity called the Sechelt nation, which may have some connection with those people who are traditionally considered to be Sechelt people. But we're creating something new here, and that is sufficient. What we're creating has about it all of the necessary attributes of recognition, representation, warranty, status and identity -- and really, that is sufficient.

Hon. U. Dosanjh: Yes.

M. de Jong: If I could just ask this one question arising out of that. The Nisga'a people have recently made known their intention or desire to consider extending the notion of Nisga'a citizenship. I think the Attorney General recalls hearing an announcement to that effect for the purposes of establishing, for example, the right to vote for people we would consider non-Nisga'a. They could have done that a couple of years ago, and that would have altered the makeup of the group of people that might have been eligible or might have comprised that entity known as the Nisga'a nation. That would have been an internal decision. It's the kind of thing that might become more of an issue as we move into other areas of the province.

Is the Attorney saying that the government will recognize decisions of that sort and will deal with whatever group of people the nation or the group of aboriginal peoples decides they are going to be the representative of?

[10:45]

Hon. U. Dosanjh: When you are one of the three parties at the table negotiating a treaty, you have to be convinced and persuaded, as you are representing the people of British Columbia, that the people you are negotiating with -- at least one of the parties: any first nation and the representatives that are sitting at that table -- have some credibility and are the representatives of the majority of those people, elected duly or in another fashion. That's why, to make doubly sure that that is the case, we had the ratification process, where in fact over 75 percent of those who voted for the Nisga'a ratification on behalf of the Nisga'a people supported the treaty.

G. Plant: My colleague's question reminds me that this would be a reasonably good opportunity, I suppose, to identify or at least begin the discussion about what you might call the problem of overlapping status and identity. The party giving the representation and warranty here is the Nisga'a nation. That is defined as a collectivity of aboriginal people. This agreement contemplates the possibility that persons who would not fall under the definition of Nisga'a nation will have rights and perhaps even obligations.

My colleague has pointed out the fact that it appears to be open to Nisga'a government to define Nisga'a citizenship so as to include persons who would not be members of the Nisga'a nation. At least at this point that gives rise, in my mind, to this question: will any of those persons -- that is, people who are. . . ? Let's take, for example, the case of somebody who not only is not a Nisga'a but is in fact not aboriginal, but nonetheless acquires the opportunity, perhaps, to participate in a Nisga'a public institution like a school board. Is there anything in this agreement that would give those persons section 25 or section 35 rights?

Hon. U. Dosanjh: No.

J. Weisgerber: I still have some questions about the establishment of the Nisga'a nation, the mechanism by which the Nisga'a nation as such has been or will be created. I wonder if either the Attorney General or the minister could tell me whether it is because it is through the process of signing a treaty that a group of aboriginal people attains nationhood or whether it is by the signing of this particular treaty that a group of people attains nationhood.

I ask that question because my sense is that. . . . We don't have a Treaty 8 nation, although there has been a treaty in place with the Treaty 8 signatories. There is not a Yukon Indian nation or a group of nations within the Yukon Indian grouping. I wonder if the minister could tell me: is it by signing a treaty, or is it by signing this treaty? If it is simply by the mechanism of signing a treaty, could he identify for me any other aboriginal nations with a legal definition within this country?

Hon. U. Dosanjh: I think the debate is kind of going in the wrong direction. I think we're stuck on the terms "first nation" or "nation." All I have said is that what would be created at the end of the process of ratification is a collectivity of people that would have the rights that are in this treaty. You could call them first nation; you could call them Nisga'a nation, Nisga'a people, Nisga'a tribe. The Nisga'a people preferred to call themselves Nisga'a nation, and we had no objection to that. The question is what rights they have; that's the more important debate.

J. Weisgerber: Many first nations have chosen to refer to themselves as nations or first nations or first nation people, and certainly that's their choice. You can refer to yourself in any way that you choose. But within the Confederation and within the English language, the word "nation" has a very clear connotation. I don't think most people can misunderstand the word "nation" or the implications of the word "nation." It seems to me that for the first time in Canada, we are establishing a legally defined nation within Canada. If there are previous examples, I'd be happy to hear them, and I will then pursue a different line of questioning. But if in fact this agreement, as I believe is the case, is for the first time in Canadian history creating a legally defined nation within Canada, then I think it's important for us to know that as well.

Hon. U. Dosanjh: I think the way the hon. member is speaking about a nation would lead people who don't know what's in the treaty to believe that this nation would be able to raise an army, have external affairs, have embassies abroad and confer independent citizenship that would amount to being able to carry a Nisga'a passport across borders. That's not the case. That's why it's really important to focus on what the attributes of the Nisga'a nation are. They preferred to call themselves "nation," and we agreed that that's fine with us as long as we agree on what the limitations, restrictions and restraints on their rights are. That's what is defined by this

[ Page 11142 ]

document, and that's the more important debate. For all I care, the hon. member could call them "tribe." They prefer to call themselves Nisga'a nation. The Nisga'a nation would be constituted under this treaty and would have the attributes that are provided for in this treaty. I hope that the hon. member will go out there and tell people what this means. It is not very confusing; it is a very simple concept.

J. Weisgerber: Well, the minister may not attach any significance to the word "nation." He may simply, in his own mind, dismiss it as nothing more than an extended tribal council and want to define it that way -- and we can agree to disagree in that respect. But the reality is. . . . Will the minister confirm for me whether or not, to his knowledge, the government of Canada or the government of British Columbia has ever before defined an aboriginal group as a nation -- a legal definition of a nation? That's straightforward. Do treaties by their very existence create nations, or does this treaty create, for the first time ever, an entity called a nation within the context of British Columbia and Canada?

Hon. U. Dosanjh: I'm not aware of any other treaties that refer to the tribe or the band as "the nation" in the text of the treaty. I understand that there was an agreement arrived at in the Yukon which referred to the particular Vuntut Gwich'in first nation as a first nation.

I don't think that that really matters. I think that all we need to focus on is that this Nisga'a nation would have the attributes that are prescribed in this particular treaty -- no more, no less. For all I care, other people could refer to it as the Nisga'a tribal council; but they prefer to call themselves Nisga'a nation. We have acceded to their demand on that issue, with the proviso that this is all they get; these are all the rights and obligations they have.

J. Weisgerber: I would argue that the creation of this Nisga'a nation is directly connected to the establishment of constitutionally enshrined self-government. Without a self-government agreement -- without a constitution that the Nisga'a will develop and without the self-government provisions of this agreement -- there would be no mechanism by which you could create and establish a legal entity called a nation. If you don't have that self-government, then you have a treaty with a group of individual bands or a tribal council, which are the only other legal entities with which you can make an agreement. I believe it is the self-government provisions of this agreement that set it apart from the other agreements, through the establishment of a nation.

Hon. U. Dosanjh: They could have changed the name of the Nisga'a tribal council to Nisga'a national council at any time. It's absolutely possible to create the same kind of agreement with these attributes, without the protection of the constitution.

G. Plant: When we're in this area trying to figure out who or what the Nisga'a nation is, and we're looking at section 5, the question may arise as to whether or not the persons who are alive today and who are caught by the description of Nisga'a nation can bind their successors. I think that I have a perspective on that issue, but I want to understand what the government's perspective is on that issue.

Hon. U. Dosanjh: The hon. member is learned in the law, as I said during one of the earlier days we were here. He knows full well that when you enter into a treaty or an understanding, as was the case, for instance -- although there is no parallel here. . . . Let me give you an example. When British Columbia entered Confederation, we bound our successors and heirs for perpetuity, essentially, until something is constitutionally changed. I think it's important for us to recognize that any group of people collectively gathered and organized, when they democratically decide to enter into a treaty, can bind their successors.

G. Plant: I think I would have been happier if the minister had simply said that aboriginal rights are held collectively and that therefore, when representatives duly authorized on behalf of the collectivity purport to bind the collective interest, they're capable of doing so not only on behalf of those who are currently members but also on behalf of those who may eventually be born and become members.

I didn't catch all of the minister's analogy, but if he was beginning to suggest that this parliament is capable of binding itself in non-constitutional circumstances, then there's a problem with parliamentary supremacy. I'm sure the minister didn't intend to open that door. The real point here is that from this government's perspective, when it is dealing with section 35 rights, it's dealing with rights held collectively. It is of the view that when people representing and with authority to negotiate on behalf of those who hold those rights do so, they can do so both for themselves and for their successors. Is that correct?

Hon. U. Dosanjh: Correct.

The Chair: Hon. member. . . .

W. Hartley: I ask the members for leave to make an introduction.

[11:00]

Leave granted.

W. Hartley: Visiting us today from rural Maple Ridge, a wonderful part of the constituency called Websters Corner. . . . In fact, from the Websters Corner Elementary School, with their teachers Mrs. D. Johansen and Mrs. Mansfield, we have some 50 grade 4 and 5 students visiting us, and some adults are with them as well. They are learning about history and government. Would the House please welcome them.

M. de Jong: I actually got my next question from one of those students, hon. Chair, so. . . .

Interjection.

M. de Jong: Indeed.

I'm dealing now with section 6 of the general provisions, and my question is this. By virtue of it agreeing to be bound by this agreement, I think the provincial government signals its belief that it has the authority to irrevocably transfer jurisdiction that it is granted by the Canadian constitution to another entity. The very short question is: what if it's wrong? What if it doesn't have that authority and it has made this representation as part of this agreement? What flows from the fact that the government may not have that authority? And does this section create some manner of liability for the government if it is determined to be wrong?

[ Page 11143 ]

[W. Hartley in the chair.]

Hon. U. Dosanjh: The fundamental premise of the hon. member's question is incorrect. We're not transferring jurisdiction to Nisga'a.

M. de Jong: We will get to that part of the agreement very shortly, when we can have that discussion in more detail. But leaving the specifics, then, if it is determined that the provincial government lacks the authority to follow through on any portion of this agreement, does this section create a liability for the province insofar as the Nisga'a people are concerned?

Hon. U. Dosanjh: I don't understand the thrust of question. All of this treaty is a collection of warranties, agreements and understandings on behalf of all three parties, and it would be in the interest of protecting the honour of the Crown. The province will live up to its part of the obligations as agreed upon in the treaty; so will the federal Crown.

M. de Jong: I didn't hear the first part of the Attorney's answer. The question, though, related to the possibility that this section created a lingering and hidden liability in the event that the Attorney is incorrect in his assertion, which I acknowledge he believes in most strongly.

Hon. U. Dosanjh: This particular provision simply says that we have the authority to enter into this agreement. What the hon. member is saying is: what if we're wrong? Well, courts are always free to decide as they wish and as they determine appropriate, and at that time we'll deal with it. That's a very hypothetical question at this time.

M. de Jong: It's not nearly as hypothetical as if there weren't an action before the courts that everyone in this room is aware of. It's not nearly as hypothetical as I'm sure the government wishes it were. We'll pursue that, but we'll pursue that at different stages through the debate on this chapter and elsewhere in the agreement.

Let me now ask about dealing with the section on culture and language. This province went to court to interpret a section of the Canadian constitution dealing with language and education rights, and it lost. It took a position. . . .

Interjection.

M. de Jong: French language, as the Premier says. That upset the Minister of Small Business no end, apparently. It went to court, and it lost. It took a position about what its obligations were under that constitutional provision. The court ruled otherwise.

The question that arises out of a section that bestows in very general terms a set of rights on Nisga'a citizens. . . . I think we've already established that Nisga'a citizens are those people that the Nisga'a themselves decide are going to be citizens, and they will have rights to practise Nisga'a culture and to use Nisga'a language. I think an argument can be made that this implies certain rights vis-�-vis education. The question I'd like to put to the government is: what advice has it received or what argument can it present in this chamber today to assure British Columbians that it won't be met at some point in the future by a similar challenge, where it makes similar arguments to the ones it made in the case involving French language instruction, and that it won't similarly find itself on the wrong end of a decision that seeks a very expansive interpretation of this particular provision?

Hon. G. Clark: I think the answer is self-evident. If you look through the treaty, you'll see the section on education, for example, which describes their rights. This right to practise Nisga'a culture and to use the language is also qualified by saying "in a manner consistent with this Agreement." So educational opportunities -- the opportunity to teach Nisga'a language in the educational institutes or schools of the Nisga'a -- are contained entirely in the section on education here. We're protected from any lawsuits, if you will, because this is the document that defines those rights as so accorded in the treaty.

M. de Jong: I don't find any comfort in that answer, and I hope the government can do better than that. I've read the sections dealing with the issue of education contained within the relevant chapters. It talks about the rights of Nisga'a citizens residing off Nisga'a lands.

The challenge, if there is to be one, isn't likely to come from the Nisga'a nation itself, necessarily. It is more likely to come from individual Nisga'a citizens who seek as broad and expansive an interpretation of their rights under this agreement as possible. The possibility exists that a Nisga'a person residing iin the Kootenays or elsewhere in British Columbia would seek to invoke the provisions of this agreement that are contained in this particular statement right at the outset -- contained right in the "General Provisions," section 7, the first page -- and would seek to invoke these provisions that we're dealing with now as somehow bestowing upon them a right not just to practise their culture but to receive language instruction. I'm sure that somewhere over on those benches there is a better answer than the one the Premier tried to offer a few moments ago.

Hon. G. Clark: Maybe I need some clarification on the question. If the member is saying that a Nisga'a person -- a person of Nisga'a descent -- living in Burnaby would have the right to have the government require that the Burnaby school board teach in the Nisga'a language, if that is the extension of his argument, then clearly that's not the case. Again I point to the sections of the treaty -- including the sections on culture and language in chapter 11, sections 41, 42 and 43 -- which limit rights with respect to culture to those defined in the treaty and not to some abstract notion that we're granting rights to the Nisga'a people, regardless of where they live, to be taught in the Nisga'a language. They're defined and codified specifically in the treaty.

M. de Jong: Let's deal with K-to-12 education -- I think it's section 102 of chapter 11 -- where the Nisga'a government is empowered to make laws. . . . At the request of Nisga'a government, British Columbia and Nisga'a government will "negotiate and attempt to reach agreements concerning the provision of Kindergarten to Grade 12 education to. . .Nisga'a citizens residing off Nisga'a Lands."

The section's pretty clear. If the Nisga'a government is called upon, presumably by a Nisga'a citizen residing elsewhere in British Columbia or, more realistically, a group of Nisga'a citizens -- it might be a small group. . .

An Hon. Member: In Terrace.

[ Page 11144 ]

M. de Jong: . . .in Terrace, my friend says, or elsewhere -- the government is obliged to engage in those discussions, and of course there is a financial component to those discussions. You can rest assured that the proponents of expanding that educational service will go back to section 7 and say: "I am a Nisga'a person, and I have the right to practise my culture; I have the right to practise my language, and part of that involves obtaining an education in that language for my children."

I purposely began with the example of the French language case, because the government was dead certain that it had fulfilled its constitutional requirements in that case. That was the argument it took to court. And it hadn't, and it costs a ton of money now on a yearly basis to finance the fulfilment of those constitutional requirements. I'll say to the Premier: I don't find his argument terribly convincing when read in light of section 102 of chapter 11.

Hon. G. Clark: Well, the Nisga'a nation has no provision to provide educational services, in the Nisga'a language or otherwise, off Nisga'a lands. There is a section that says we're prepared to discuss it with them if they want to provide education. The member's correct that the place where this would be likely to be an issue at all would be Terrace and possibly Prince Rupert. Let's assume the Nisga'a people in Terrace would like to be taught in the Nisga'a language. We have agreed in the treaty to discuss that with them. They have no rights to it, as per this, with respect to education. It's very codified, very clear. But we have agreed to discuss that question with them. Of course, they would have to pay for it; that would be part of the negotiations, presumably. There's no right to be taught in the Nisga'a language at all; but on the Nisga'a lands, the Nisga'a nation can choose to do so. We agreed to discuss with them the possibility of provision of some instruction in the Nisga'a language off the Nisga'a lands. But there's no commitment to do so.

G. Plant: I just want to make sure we understand the context in which the question is going to arise. Let's assume it is Terrace. A group of individuals who have never spoken to Nisga'a government but are Nisga'a want to be taught the Nisga'a language in the schools in Terrace. The government says, "Well, we can negotiate with Nisga'a government to make provision for that under section 102(b) of chapter 11," as my friend has pointed out. And then those negotiations fail -- or they don't fail. But while they're going on, there's an individual who is a Nisga'a person in Terrace who says: "My constitutional right to use my language is being infringed by your failure to teach me in that language."

That constitutional right is not territorially limited in the clearest of possible terms. The argument, I assume, is that it is. But section 7, right up front, in terms of remarkable generality, says: "Nisga'a citizens have the right to practice the Nisga'a culture, and to use the Nisga'a language, in a manner consistent with this Agreement."

[11:15]

In the case that we have before us, it's not just an ordinary British Columbia school child saying: "I have a right under the School Act." Someone is saying, "The Terrace school board is denying me my constitutional right, my section 35 right," which this treaty creates to allow that person to use his language. Oddly enough, not only is there no expressed answer or refutation of the argument, but, in fact, the treaty contemplates the possibility of agreements being entered into which will lead to that result.

Again, I want to ask the government: how is it that they are so confident that in fact they have a completely airtight answer to the claim that will be made by this fictional Nisga'a child in Terrace that his or her constitutional rights are being violated because he or she cannot be taught in the Nisga'a language?

Hon. G. Clark: Let me try one more time. In section 7 the member refers, in a sense, to an absolute right -- a bald statement -- that "Nisga'a citizens have the right to practice the Nisga'a culture, and to use the Nisga'a language. . . ." That is correct. But there's a huge qualifier to that in the same sentence. It says "in a manner consistent with this Agreement." Then if you go to section 102 -- this is to get to your logic -- it says that if the Nisga'a government makes laws -- first of all, if they make laws under paragraph 100 above, on kindergarten-to-grade-12 -- at the request of the Nisga'a government or British Columbia, those parties will "negotiate and attempt to reach agreements concerning the provision of Kindergarten to Grade 12 education. . . ." So there's no right here; it is an attempt to negotiate the provision in the Nisga'a language.

Then if you move further, to the fiscal provisions, you will see -- I think it's section 5 -- that it says that on the questions of Nisga'a language, there is no obligation for the Crown to fund any such thing. So the rights are prescribed as in the agreement. In the question on education which the member has referred to, the possibility of extending rights beyond Nisga'a government, you have to then read that this will somehow become a right, which it is not here. Further to that, there is no obligation for the Crown to fund Nisga'a culture, language and education even on Nisga'a land, let alone off Nisga'a land.

I hope that if you read them all together, as you do in the treaty, you will find that there is no constitutional obligation on the part of the government to provide for funding or the exercising of rights off Nisga'a land, other than those prescribed in the agreement -- and that's clearly not there.

G. Plant: The Premier refers to what I take is section 5 of chapter 15. Unfortunately, that doesn't have the slightest relevance to the issue. We're not actually talking about whether the province has an obligation to fund some program by Nisga'a government; we're actually talking about how the province is going to respond to an argument made by an individual Nisga'a child in Terrace who says: "My constitutional right to use my language is being denied because I can't use my language in the public school system. You know, most of the other people," this person will say, who looked around, "may not even have the right to use their language at the same level of constitutional protection as I do." They're just ordinary citizens; they don't have section 35 rights. Now, they may have rights under some other provision in the constitution that I can't think of at the moment. But in fact we're not talking about whether or not the province has an obligation to give Nisga'a government the money to do some program; we're talking about how the government is going to answer the claim made by the Nisga'a child in the school system in Terrace.

[ Page 11145 ]

In that context, let me also make this observation. The Premier places a lot of stock in the words in section 7: "in a manner consistent with this Agreement." I mean, this is not the place to get into a debate about the details of drafting, but that's certainly not the same as saying that Nisga'a citizens have the right to practise Nisga'a culture and use the Nisga'a language subject to the provisions of this agreement. It is in fact an enabling clause rather than a limiting clause in the purest sense, because someone could argue that what they're doing is seeking the right to use the Nisga'a language in a manner which is consistent with this agreement. Now, if the words here were that "Nisga'a citizens have rights to use culture and language. . . " -- and then there were express limiting words which said that those rights could only be used in a way that is subject to this agreement, as opposed to "could be used in a manner consistent. . . " -- I probably wouldn't be asking some of these questions. I might, because I think this issue is still of concern. But my concern, in part, is because section 7 does not contain quite the protections in respect of this issue that I think it should, if the government's argument is in fact to have the weight that the Premier gives to it. So again, recognizing that I don't think section 5 of the "Fiscal Relations" chapter has anything to do with it, I'd like to give the Premier one more chance at telling us why he is so confident that this argument, this concern, will hold no water at all.

Hon. G. Clark: Certainly my advice is that there's very little that turns on the question of whether it says "in a manner consistent with this Agreement" or "subject to this Agreement." So I don't accept that.

The reason why I was referring to the fiscal transfers in the section on Nisga'a government assuming responsibility for education and the possibility of negotiating off Nisga'a lands is because that was, I think, where the member's argument was trying to flow -- at least in making a point. Now I think there's a different point -- and correct me if I'm wrong. The member is saying that to the individual Nisga'a citizens, we are granting, if you will, certain rights with respect to the Nisga'a language, which they can then assert anywhere in the province or off Nisga'a lands. That's the fear.

Honestly, all I can say to that is that I obviously disagree, and I disagree profoundly. It says "in a manner consistent with this Agreement." The only way you can exercise those rights is contained in the rest of this document. On the question of education, it turns on the section on education, in which there is no provision for the absolute right to be taught the Nisga'a language off Nisga'a lands. In fact, there is a very explicit recognition that they do not have that right, but we can negotiate. Then, finally, there is the further protection of the fiscal transfers with respect to that. So it's the effect of those individual rights, if you will, with respect to section 7, which can only be implemented with respect to the Nisga'a government exercising the powers that are given to them through this treaty, and not through individual actions on the part of individual members.

M. de Jong: Well, let me try this in the way that I think the argument is going to confront the government. A Nisga'a person outside of the Nass Valley is going to say: "I've got a right to practise my language. For me that means the right to educate my child in that language. This document, from which my powers and my rights as a Nisga'a person emanate, includes a provision that contemplates an agreement between my Nisga'a government and the province of British Columbia to do just that -- to ensure that I can educate my child in the Nisga'a language -- and I'm going to take both of those organizations to court to assert that right."

The Premier, in light of all the constitutional jurisprudence we've seen around the language issue, is telling us today that he doesn't see any way in which a court would yield to the assertion of that individual person, who is saying: "I want an order compelling my Nisga'a government and the province of British Columbia to come to an agreement, so that I can assert my rights under section 7 to have my child educated in the Nisga'a language and to speak the Nisga'a language."

Well, I have not heard a very convincing argument. And if that's what the government intends to use in response to one of those arguments, then I think we're going to be zero-and-2 on the language issue in the courts of British Columbia, hon. Chair.

Hon. G. Clark: Section 102 does not confer rights. It's simply a section on education, which gives the Nisga'a people the power to take over the question of education functions on Nisga'a lands, including the teaching of Nisga'a language. So I fail to see how this confers individual rights on a member to go to court to assert them. It does not.

G. Plant: Thus far I think we've tried to explore, in the context of section 7, the implications of what it means to have the rights that are discussed in section 7. Now I want to talk about who has those rights, because I thought we had earlier established fairly clearly that it was entirely possible that persons would become Nisga'a citizens who were not members of the Nisga'a nation. It would appear to me to be possible for the Nisga'a nation to make laws -- let me see if I can make sure of that -- because I think the term "Nisga'a citizen" is defined to mean a citizen of the Nisga'a nation as determined by Nisga'a law. So it would be open to the Nisga'a nation to make laws to allow persons who are not aboriginal by heritage, for example, to become citizens. As a result, they would then have the rights in section 7 -- that is, people who are not even aboriginal by birth would have a section 35 right to practise Nisga'a culture and use Nisga'a language. Is there something that I have gotten wrong in that explanation? If so, I invite the government to correct me.

Hon. U. Dosanjh: I think one needs to sort of look at the process. When you become a Nisga'a citizen and you're a non-aboriginal person, you don't suddenly become an aboriginal person. Therefore all of the aboriginal rights don't flow to you under section 35. You have a contractual right. When you become a Nisga'a citizen, Nisga'a government tells you what rights it is able to give you. But you don't have any of the rights under section 35, unless the Nisga'a government by itself wants to actually support and observe those principles and those rights for those Nisga'a citizens without any cost to either the federal government or the provincial government.

Nisga'a can say: "We will pay the cost of treating you, a non-Nisga'a who has now become a Nisga'a citizen, as a Nisga'a citizen; we'll bear the cost" -- and that's fine. But if you are not an aboriginal person, just because you become a Nisga'a citizen doesn't make you an aboriginal person and therefore doesn't grant you the protection under section 35.

G. Plant: But the point is this: if you become a Nisga'a citizen, then you get section 7 of this chapter 2, don't you?

[ Page 11146 ]

Hon. U. Dosanjh: Yes, that would be. . . . Contractually, yes. But they don't have any of the rights under section 35. Nisga'a government itself can give treaty rights to those citizens, but not vis-�-vis the province or the federal government.

G. Plant: That's very interesting, but I must admit I'm not at first glance persuaded that it's right. First of all, let's put this in context. One of the hardest things to understand about this agreement is the different types of status that it creates. There are Nisga'a participants; there are Nisga'a citizens. Sorting out what it means to be a participant and what it means to be a citizen, and then trying to figure out what it means to be enrolled and whether you have to be a citizen or a participant to be enrolled. . . . All of these things are not -- to a casual reader of this agreement, at any rate -- all that clear. In practice, on the ground they may work themselves out in a way that makes some sense. But what I thought was very clear was that persons could become Nisga'a citizens who were not, for example, Nisga'a participants.

[11:30]

It seems to me that the government, by writing section 7 or entering into what is section 7 in chapter 2, has said something that's pretty clear and pretty simple: "Anybody who's a Nisga'a citizen -- which is a question that will be defined by Nisga'a government -- will then have the right to practise Nisga'a culture and to use the Nisga'a language." The Attorney General says that's a contractual matter, but that's not right. This is not a mere contract. This is a treaty and a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act of 1982 -- that is, everything that this document says is not just an ordinary contract. It's in fact intended to create rights and obligations that have constitutional protection.

There is, it seems to me, only one way out of this problem, and that is if the Attorney General is going to try to persuade me that Nisga'a government has the power to create citizens and to deny those people the rights accorded to Nisga'a citizens under this treaty by qualifying the terms of their citizenship.

Hon. U. Dosanjh: When Nisga'a provide or grant citizenship to non-Nisga'a or non-aboriginal people, they may impose conditions on them. I don't know what they will do. That's for them to determine -- what particular rights will be afforded to non-aboriginal people who become Nisga'a citizens. It's an issue that they need to determine.

However, when you become a Nisga'a citizen, you will enjoy the rights that are defined in this treaty. It will be a contractual right between the Nisga'a government and the non-Nisga'a person who becomes a Nisga'a citizen. As a result of that contract, that oath or whatever promise you make to become a Nisga'a citizen, you would then have these rights, but that would place no extra cost or obligations on the government of British Columbia or on the government of Canada.

G. Plant: First of all, I went along with this analogy of a contract for the purpose of making the point I wanted to make last time. But I don't even begin to see how someone who becomes a Nisga'a citizen who would not otherwise, by virtue of their ancestry, be considered to be a Nisga'a person has a contractual argument.

Surely what's happening, surely what's contemplated here, is that the Nisga'a nation, the Nisga'a government, will use the powers they have under chapter 11 and elsewhere to make laws with respect to Nisga'a citizenship. They may therefore make laws which would permit citizenship to be conferred upon people who are not otherwise members of the Nisga'a nation. People who fall under those categories will then become Nisga'a citizens. There's nothing contractual about that; that's legislative. That's about government; it's not about contract. So I don't believe that the analogy of a contract holds true at all. In that respect, I already have difficulty with what the Attorney General is saying.

Let's move, then, to another way in which I begin to have serious concerns about the government's answers here. The Attorney General knows as well as anyone else that one of the issues that has been talked about as being an issue with respect to this treaty is the question of the extent to which Nisga'a government will have legislative authority over persons who are not Nisga'a, who are not members of the Nisga'a nation, in circumstances where those persons may not have the right to vote. We'll get to that important question in due course.

That is, by way of context, to explain another part of my concern here. As part of the public debate about this treaty, a concern has been registered about the relationship between Nisga'a government, on the one hand, and persons who are not members of the Nisga'a nation but who may be subject to that government. That's part of the political dynamic here. Now, last month the Nisga'a negotiators, people who will presumably form part of the Nisga'a government, said: "What we're going to do is in fact pass a law, exercising our powers in relation to citizenship, to make persons, who are not Nisga'a by ancestry, citizens. We're going to make them Nisga'a citizens. Therefore they'll have the right to vote for Nisga'a government."

Well, it seems to me very plain that if they do that, the persons who become Nisga'a citizens will automatically -- do not stop, do not pass go, do not pay $200 -- have the rights in section 7, because those persons will be Nisga'a citizens as this agreement defines them to be. Therefore they will have the rights in section 7.

Now, the reason that gives me some concern is because it opens up an interesting situation where people who are not aboriginal by origin have section 35 treaty rights, because of the way this treaty has been drafted. Section 7 doesn't say: "Members of the Nisga'a nation have the right to practise Nisga'a culture." It doesn't say: "Nisga'a participants have the right to practise Nisga'a culture." It says: "Nisga'a citizens have the right to practice the Nisga'a culture. . . ."

So at the moment, having listened to the government answer the questions, I am actually convinced, rather than having any doubt, about the conclusion that I've reached. That's really why I want to hear the government tell me that in fact section 7, when it confers rights on Nisga'a citizens, could never confer section 35 rights on people who are not members of the Nisga'a nation.

Hon. U. Dosanjh: I think one thing we need to understand is that this is the comprehensive, exhaustive definition of section 35 rights for the Nisga'a people -- acquired, inherent, delegated or whatever. So any Nisga'a citizens who become citizens, who aren't Nisga'a or aboriginal people, will have no more rights than this. Their rights under section 35

[ Page 11147 ]

have been exhausted. How does that -- the fact that a non-aboriginal person becomes in essence a Nisga'a citizen -- adversely impact, in the view of the hon. member, the government of Canada or of British Columbia?

G. Plant: The answer to that question is not at all difficult, and it goes like this. The courts have been pretty clear when talking about section 35. They've talked about the importance that section 35 of the Constitution Act of 1982 has in relation to the culture, the traditions, the laws and the history of aboriginal people in Canada. Section 35 protects aboriginal and treaty rights of aboriginal people. Yet section 7 of this agreement appears to extend the protection in section 35 -- for the first time, so far as I'm aware -- to people who are not aboriginal. That's the significance.

In terms of how that manifests itself in the fullness of time, it's a matter of speculation. Will that mean that people who are not aboriginal will be able to say, "I have a section 35 right under section 7," and therefore there will be a burden on the public purse? I don't know. In fact, at this point that is almost of less interest to me than simply. . . .

It seems to me that as soon as the Attorney General moves to that issue, he's avoiding the threshold question. The threshold question is this: are there people, for example, who are not aboriginal who might acquire Nisga'a citizenship -- because the Nisga'a nation has the power to make that decision -- who will then, for the first time in Canada so far as I'm aware, have section 35 treaty rights?

Hon. U. Dosanjh: Absolutely not. Section 35 rights belong to the aboriginal people, and a non-Nisga'a, non-aboriginal person becoming a Nisga'a citizen isn't directly entitled to claim any rights under section 35 per se.

G. Plant: But this agreement gives it to them. This agreement will ensure that they do, because it says that all Nisga'a citizens will have the rights in section 7, and those rights in section 7 are expressly defined to be section 25 and section 35 rights. So how can the minister avoid the conclusion that the rights in section 7 will be anything other than section 35 treaty rights?

Hon. U. Dosanjh: Those people who are non-aboriginal who become Nisga'a citizens would have rights that are agreed upon in this treaty -- treaty rights -- but they would not, outside of this, have to go and claim, as an aboriginal person, any rights under section 35. Section 35 rights of the Nisga'a people, aboriginal people, have been exhaustively listed in this particular treaty. They have no more rights other than this, once this is ratified and agreed upon. I don't see the point.

G. Plant: I'm pursuing this, in part, because I'm not sure the Attorney General and I are on the same wavelength. His answer is not responsive to the problem. Anything outside this document is not a matter of concern to me at this moment. What I'm concerned about is what this document does. What this document generally purports to do is recognize, translate and then enshrine in the constitution a bunch of rights and obligations. They are special rights and obligations; they are section 35 rights and obligations. They are not section 35 aboriginal rights; they are section 35 treaty rights.

This agreement calls itself a treaty within the meaning of sections 25 and 35 of the Constitution Act. Then this agreement goes on to say what that means. That means that certain people, including the governments -- certain actors -- will have obligations and rights, and among the people who will have rights will be people who are Nisga'a citizens. It is expressly contemplated by this agreement that people who are not Nisga'a by origin may become citizens. Therefore they will have, under section 35, the right to use Nisga'a culture and language in a manner consistent with this agreement, because that's the way section 7 works.

Let's not worry about what else is outside this agreement, and let's not worry about the fact that the agreement is intended to be exhaustive. There's lots inside the agreement that could cause someone to be concerned and interested in the implications of the question. For the purposes of this question, I accept that the treaty is exhaustive. There's lots in the treaty.

Now, are people who are not Nisga'a, who are not members of the Nisga'a nation as that's defined, going to have a section 35 right to practise Nisga'a culture and use the Nisga'a language if they become citizens in accordance with the authority that the Nisga'a nation has to create that status?

Hon. U. Dosanjh: First of all, one must understand that Nisga'a government will not have the right to confer section 35 rights on anyone. Within their government structure, they would have the right to bring somebody in and make somebody a Nisga'a citizen. That citizen would be able to force that contract, to exercise the rights that are entrenched here. But those rights of a non-Nisga'a, non-aboriginal person who becomes a Nisga'a citizen would not be constitutionally protected under section 35, and therefore that individual wouldn't be able to hold us or the federal government responsible.

G. Plant: The Attorney General helpfully identifies a fictional person who may come into existence and says that he would not have certain rights. Would that Nisga'a citizen -- the person the Attorney General has just defined -- have the right to practise the Nisga'a culture and to use the Nisga'a language in a manner consistent with the agreement as set out in section 7? In other words, would that person have the rights in section 7 of chapter 2, which appear to be rights afforded to Nisga'a citizens?

[11:45]

Hon. U. Dosanjh: Yes.

G. Plant: Is there anything in this agreement that says that those rights are not section 35 treaty rights?

Hon. U. Dosanjh: For that individual, those rights are not constitutionally protected vis-�-vis the province of British Columbia or the federal government. They might be protected as for the treaty, as against the Nisga'a government.

G. Plant: By what means does the government reach that conclusion?

Hon. U. Dosanjh: I understand that the definition of a section 35 right is that it is only afforded to aboriginal people.

G. Plant: So the minister is saying that there is something in the constitution itself, in section 35, that limits the extent to

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which the government is capable of conferring section 35 rights on individuals, because they could not, for example, confer by this document aboriginal or treaty rights on persons who are not aboriginal. Is that the gist of the minister's answer?

Hon. U. Dosanjh: Correct.

G. Plant: Accordingly, if, for example, it could be argued that nothing in section 35 of the Constitution Act of Canada begins to contemplate the possibility that an aboriginal collectivity would have the authority to make laws in relation to post-secondary education, gambling, gaming or intoxicants or the other areas of legislative jurisdiction conferred upon the Nisga'a by chapter 11, then in fact that could also be a problem. The constitution might limit the rights that this government and the government of Canada are capable of attempting to confer upon Nisga'a government.

Hon. U. Dosanjh: Hon. Chair, I disagree with the hon. member's analysis.

G. Plant: Perhaps the minister could explain the basis upon which he does so.

Hon. U. Dosanjh: We've had a debate for some time, and we've differed on this particular issue. If there is another question that the hon. member wants to ask, I'd be happy to answer.

G. Plant: Let's be clear, then, about my understanding of the debate so far. Maybe I'll put it in terms that the Attorney General is likely to disagree with, to see if that does in fact excite his disagreement. I thought that it was more or less the position of the government that the government could put anything into this agreement in terms of government powers and cloak it with protection in section 35, just because it did so in the context of a negotiation. As we look at these issues from one perspective, the government's animating principle is: "Not to worry about what the constitution says in terms of limiting section 35 rights. We've just sat down and agreed on these things, and they must therefore be so."

Yet when we get to section 7, we find that, oh no, the plain reading of section 7. . . . It would be a mistake to take anything from the plain reading of section 7 with respect to the potential of people who are not Nisga'a to exercise the rights conferred on Nisga'a citizens, because, in fact, the constitution limits the rights that are available to people who are or are not Nisga'a. In other words, for the purpose of fending off questions and debate around self-government powers, the government says: "Don't worry about these important issues in the constitution; we've made an agreement that puts them all to rest." But for the purpose of a debate about section 7, the government says: "Actually, we are very concerned about the constitution. There is no way that people who are not Nisga'a could in fact have section 35 treaty rights, because section 35 says something about who can have those rights."

It seems to me that the government can't have it both ways. The government can't, on the one hand, essentially say, "Let's not have a debate about the constitution; for the purpose of the Nisga'a government, these are not questions we need to concern ourselves with," but then, on the other hand, say: "My goodness, no. In fact, the constitution, in the context of section 7, is quite important. Although section 7, in its plain language, says that people who are Nisga'a citizens -- which may include non-Nisga'a -- will have section 35 treaty rights to practise culture and language, it won't be read that way, because we have to read the constitution in the end to qualify what section 7 says."

I just want to be sure. If there's something about the government's position that I've misstated, then I'm sure the Attorney General will correct me.

Hon. U. Dosanjh: The hon. member is trying to make a point that sometimes escapes me. I have not once said that the government of British Columbia, in the way it's agreed to this treaty, would disregard the constitution in any way, shape or form.

G. Plant: I certainly had not intended to say that the government was disregarding the constitution. What I had intended to say was that the government was essentially fending off a discussion about what the constitution meant, in the context of land claims agreements and treaties and with particular reference to issues around what it meant for an aboriginal group to have inherent versus delegated powers and what this treaty says about that.

I can certainly appreciate that the Attorney General doesn't want to see the force of the distinction that has been drawn here. The problem I have is that I still don't know why, on the one hand, it's essentially irrelevant whether or not, for example, it is possible for a government to create section 35 treaty rights around issues like human resource development. We can't really have that debate, because the government doesn't want to. Yet as soon as we touch on this issue of who might have culture and language rights under section 7 in circumstances where, in the plain language of the agreement, it looks like persons who are not Nisga'a or members of the Nisga'a nation may end up with those rights, the government says: "Oh no. In fact, we're very interested in exploring the extent to which the constitution influences that debate, because we want to assure you that no one would ever read section 7 in that way."

I'm still thinking about that, and frankly, I hope the Attorney General takes the opportunity to think about it over the next little bit. Noting the hour, I move that we rise, report progress and ask leave to sit again.

Motion approved.

The House resumed; the Speaker in the chair.

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

Hon. D. Lovick moved adjournment of the House.

Motion approved.

The House adjourned at 11:55 a.m.

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