1998/99 Legislative Session: 3rd Session, 36th Parliament
HANSARD
(Hansard)
WEDNESDAY, JANUARY 20, 1999
Afternoon
Volume 13, Number 8
[ Page 11175 ]
The House met at 2:06 p.m.
Prayers.
Hon. I. Waddell: Members will be aware that the B.C. Festival of the Arts had a hugely successful festival last year in Prince George. They'll be in Victoria this year, and in the millennium year they'll be in Nelson. I'm pleased to introduce to the House -- and I hope the House will make them very welcome -- Paul Winn, the acting president of the B.C. Festival of the Arts, and Gabrielle Levin, the executive director.
F. Randall: In the precinct today, we have approximately 60 grade 6 and 7 students from St. Michael's School in Burnaby-Edmonds. They're accompanied by five adults and a teacher, Mr. P. Roder. Would the House please make them welcome.
FAST FERRY PROGRAM COST OVERRUNS
G. Campbell: Yesterday the minister responsible for the fast ferry debacle said he knew that the ferries were being built under open-ended, cost-plus contracts. But on May 25, 1998, in this House, the minister said: "It's not like a cost-plus [contract, where you] just keep working and send us the bill."
Will the minister tell the House whether he was misleading the House on May 25 or misleading the public yesterday?
Hon. D. Miller: I have not misled anyone. I also said yesterday, Madam Speaker,
that the yards were unable to take the risks which would normally have taken place if we
were simply building a conventional vessel and they put in a bid for that vessel. In this
case
Interjections.
The Speaker: Members, the minister's not finished.
Hon. D. Miller:
The Speaker: First supplementary, the Leader of the Official Opposition.
G. Campbell: The minister's explanation simply avoids the question. This minister was asked directly about this question in 1998. He was fully cognizant of the fact that these ferry contracts were being built on a cost-plus basis, yet in May of 1998, in this House, where every minister is duty-bound to tell the truth, this minister said: "It's not like a cost-plus [contract, where you] just keeping working and send us the bill." They are not my words; they are this minister's words. How can the minister possibly reconcile these totally contradictory statements?
Interjections.
The Speaker: Members
Hon. D. Miller: They are not contradictory. I have explained
Interjections.
Hon. D. Miller: Whether the members want to listen or not, I have explained that
the risk was
The Speaker: Minister, one moment, please. I'm sorry to interrupt.
Members will come to order. It's very difficult to hear the answer to the question when so much other language and other words are being spoken.
Hon. D. Miller: The risk was assumed by CFI because this was new technology and
there was a steep learning curve for employees. That's why the decision was taken to form
CFI and then consequently to work with the yards under a system of control, which has
Interjections.
The Speaker: Members
Hon. D. Miller: Hon. Speaker, I'm speaking to the point of what I said and explaining that it is not inconsistent with what I said yesterday. There was a system of control. Clearly there are significant problems with that, and we have taken steps -- the appointment of Mr. Halkett and other steps -- to find out why those controls were not there. When we get that information, that will be made public.
The Speaker: I recognize now, for a second supplementary, the Leader of the Official Opposition.
G. Campbell: The minister has said that these are cost-plus contracts. They are unequivocally cost-plus contracts. The minister knew they were cost-plus contracts, and yet in May of 1998, he stood in this House and said they were not cost-plus contracts. That is why the public does not believe this minister. It's why the public calls for this minister to resign. I ask the question of the minister again: will he not do what's right? Will he not perform his duty, and will he not resign today?
Interjections.
The Speaker: Order, members.
Hon. D. Miller: When the information came to me in early January that the costs had risen dramatically, I took immediate steps to try to get to the bottom of this.
Interjections.
[ Page 11176 ]
The Speaker: Members
Hon. D. Miller: I was given a report on January 14 which indicated that the cost had risen to $113 million and perhaps more. I made that information public on Monday. I stated then and I'll state it again: I was relaying information that was given to me. I now have an obligation to continue to do two things: get to the bottom of this mess to find out why this happened and try to take some steps to bring costs down. And, hon. Speaker, that is what I intend to do.
D. Symons: On something very similar to what was going on
[2:15]
Hon. D. Miller: Again, I will explain that we have put some people in place to get
to the bottom of this issue. All of that information
Interjections.
The Speaker: Minister, just a minute. Members will come to order.
Hon. D. Miller: We have put the process in place to get to the bottom of this question. When the information is assembled, we will make that information public.
Interjections.
The Speaker: Members, come to order. I recognize, for the first supplementary
Interjections.
The Speaker: The member for Richmond Centre would like to ask a question, if the members on both sides of the House would pay attention.
D. Symons: I asked a question about a business plan. There was no answer whatsoever to that question in the minister's answer. So I take it, as an obvious answer to my question, that there never was a business plan. The minister said he "could care less" about the total budget for the fast ferry program. This is the same minister who said he knows how to run a business better than the banks -- just before he got fleeced for $300 million at Skeena Cellulose. Will the minister admit to us today that he is an incompetent -- a complete incompetent -- as manager of taxpayers' money, and will he agree to quit now, before his wasteful spending gets any worse?
Hon. D. Miller: Far be it from me to comment too much on the banks, although they certainly have helped a lot of businesses shut down. I was struck by an opposition that rose yesterday to demand an emergency debate on Highland Valley Copper, but when 7,000 jobs at Skeena Cellulose were at stake, did they get up and ask for an emergency debate? No, they didn't; they said: "Shut it down."
C. Clark: Let's get this straight. For over a year, everyone has been telling this government that the Premier's pet project was dangerously over budget. It was just last March that the company itself came out and said that the first ferry was already $16 million over budget. And the Deputy Premier wants British Columbians to believe that he wasn't even a little curious about any of this information that was being raised -- not a bit. How could that be? Would it be because (a) the Deputy Premier was so busy spending his way out of the boondoggle at Skeena Cellulose, or would it be that (b) this is the Premier's boondoggle, and the Deputy Premier didn't really care? Or is it that (c) the Deputy Premier knew that this government's credibility is so low that even if he told British Columbians the truth, they still wouldn't believe him?
Hon. D. Miller: At the risk of sounding somewhat critical, I thought the question was a bit rhetorical. Notwithstanding that, I relied on the information that was given to me by people in positions of authority. I relayed that information to the public. When those numbers changed, I relayed that information to the public. We've now outlined steps we've taken to get to the bottom of this.
The Speaker: First supplementary, member for Port Moody-Burnaby Mountain.
C. Clark: We can try another tack with this question, then. It was November 1997 when the chief financial officer of the fast ferries said that the project was being regularly audited not just by B.C. Ferries but also by an outside auditing firm. Now, no one in British Columbia believes the minister when he says he didn't know what was going on. But they do want to get to the bottom of this cover-up. Will the minister stand today and table every single one of those audits, so British Columbians can determine for themselves who's telling the truth?
Hon. D. Miller: We have people, I think, with impeccable credentials. We put them in place to determine what the problem was with respect to this project, in its reporting. All of that information will be made public.
Interjections.
The Speaker: Members, come to order.
B.C. HYDRO RATES FOR INDUSTRIAL CUSTOMERS
K. Krueger: In an internal B.C. Hydro memo, ex-CEO John Sheehan admitted that the
NDP government has been secretly gouging its B.C. industrial customers for years: "I
think our prices for a number of our customers are out of line
[ Page 11177 ]
Hon. M. Farnworth: Well, it appears that the hon. member isn't aware that B.C. Hydro has amongst the lowest power rates in all of North America. In fact, they are significantly lower than almost any other jurisdiction in all of the continent of North America. In fact, it's B.C. Hydro's policy to keep them at the lowest rate possible. That's why they've been frozen since 1992. And when you take inflation into account, they have actually gone down.
The Speaker: First supplementary, the member for Kamloops-North Thompson.
K. Krueger: They might be frozen for us, but they're not frozen for the Americans. We understand that B.C. Hydro has sold power to Longview Fiber of Washington State for roughly 1.8 cents per kilowatt-hour. B.C. companies like Highland Valley Copper pay twice that rate for their power. Can the minister tell us why his government has directed Hydro to pursue a secret strategy of gouging B.C. workers, while subsidizing American jobs by selling cut-rate, bargain-basement power to companies like Longview Fiber? Tell us why.
Hon. M. Farnworth: I think what the hon. member might be interested in is a comparison of power rates that B.C. Hydro charges industrial consumers in British Columbia with the ones that are charged south of the border. Let's look at what happens in the copper-producing states of the United States: in Arizona, 8 cents per kilowatt-hour, compared to 3.4 cents here in British Columbia; in New Mexico, 7.8 cents per kilowatt-hour for producers down there, compared to 3.4 cents per kilowatt-hour here in British Columbia; in Nevada, 7.1 cents per kilowatt-hour, compared to 3.4 cents per kilowatt-hour in this province. Hon. Speaker, we have the lowest power rates in North America. They are better than any other state and jurisdiction in the United States. And B.C. Hydro is committed it to that; that will continue into the future.
The Speaker: The bell ends question period.
I recognize the member for Richmond Centre -- who rises on what point?
D. Symons: I rise, hon. Speaker, to reserve my right to raise a matter of personal privilege against the minister responsible for B.C. Ferries.
The Speaker: Note taken, thank you -- you reserved the right. The right has been reserved; we recognize that.
Hon. D. Miller: I rise to respond to questions taken on notice for the member for Powell River-Sunshine Coast yesterday.
The Speaker: Proceed.
REGULAR B.C. FERRIES FLEET UPKEEP
Hon. D. Miller: The hon. member had questions with respect to B.C. Ferries vessel Queen of Chilliwack, specifically regarding information suggesting that 5,000 litres of bilge oil-water were pumped through the sewage system on the vessel. Hon. Speaker, I have looked into this matter and would like to report that the issue has been subject to two investigations, the first done by Nanaimo-based Transport Canada staff and the second by an internal investigation that was conducted on October 16, 1998. These investigations have found no conclusive evidence that the bilge water had gone over the side in an inappropriate manner.
Interjections.
The Speaker: Members will come to order. The question was asked; the answer is now appropriate.
Hon. D. Miller: In addition, an initial informal review by the senior chief engineer on the vessel determined that nothing had gone amiss with bilge oil-water on that day. In fact, the internal study concluded that misinformation had been given to the engineer on the vessel, who in turn reported it for investigation.
The hon. member for Powell River-Sunshine Coast also had a question about repairs required on the Queen of Sidney. Hon. Speaker, the B.C. Ferry Corporation has already taken steps to correct this situation. The oil mist that the member referred to was caused by oil leaks from the generators, which are old and obsolete. These generators will be replaced during the current refit. In addition, the funnels on the ship will be extended, which will improve the ventilation in the engine room.
Lastly, the hon. member for Powell River-Sunshine Coast asked if the B.C. Ferry
Corporation would rethink the refit currently being conducted on the Spirit of
Vancouver Island. The capital cost currently planned for the Spirit of Vancouver
Island to increase the size of the retail sales area gift shops, expand the video
arcades and conduct minor
Interjections.
The Speaker: It makes it very difficult
Hon. D. Miller: Hon. Speaker, the purpose of question period and the purpose of
taking questions on notice
Interjections.
The Speaker: Minister, take your seat for just a moment.
Members will come to order. This question was put and was taken on notice. There are
answers coming forth. I wish the members to come to order while we hear the rest of the
answer. I'm sure the minister will be brief in completing his
Hon. D. Miller: Perhaps the rights of the member for Powell River-Sunshine Coast ought to be respected, at least. He is, I am sure, interested in the response.
Hon. Speaker, the capital costs currently planned for the Spirit of Vancouver Island, to increase the size of the retail sales area gift shops, expand the video arcades and conduct minor upgrades to the Lantern Coffee Bar are $1.1 million, not $9 million as reported by the member yesterday.
The objective of this project is not to make cosmetic improvements, as the hon. member has said, but to increase on-board revenues from the most profitable areas on the vessel. Presently, the Spirit of Vancouver Island generates over $1.8 million in revenue from the retail shops and video arcades, but sales are constrained by limited capacity. A review of the
[ Page 11178 ]
financial analysis indicates a positive revenue return of $1.2 million per year and a positive net present value. The normal operational maintenance being done to this vessel is about $1.5 million.
Interjections.
The Speaker: Members will come to order before we proceed. The Minister of Forests has a report to table.
Hon. D. Zirnhelt: I have the honour to present the 1996-97 annual report of the Ministry of Forests.
Interjections.
The Speaker: Members
[2:30]
ROBERTS BANK BACKUP LANDS
Hon. C. Evans: Thirty years ago the government of W.A.C. Bennett expropriated 4,056 acres of prime farmland in Delta on Roberts Bank. Back then, in '68 and '69, the government of the day told farmers that the land would be used for an industrial park and a superport. Then in 1974, shortly after the expropriation, the land was also included in the agricultural land reserve.
At the time of the expropriation, landowners were paid full market value for the land, and those who chose to lease the land back were offered reasonable leasehold terms. But we in this chamber all know what happened to that land in the last 30 years. There was no industrial development. Worse, there were no long-term leases, and that farmland was farmed for 30 years on a short-term cash basis -- essentially mined. Some buildings and land suffered because of the absence of the long-term security of tenure.
Then on February 20, 1997, I met with farmers and municipal councillors in Delta and promised to attempt to fix the Roberts Bank problem once and for all. At that time I said that it was time to move from debating polarized positions, which has gone on for three decades, to a meaningful discussion of how we were going to make this work for everyone. I promised then to attempt to find a workable solution and get the land back into full agricultural production.
Today I am announcing that we are in the final stages of addressing this 30-year concern. Letters will go out today to seven of the farmers who are farming that land, offering them the opportunity to purchase that land, so that we can fulfil our commitment to them and they can begin to farm the land as well as only they know how. Letters to the remaining leaseholders will go out within the next few weeks.
The land is being offered at very fair prices for agricultural purposes; the land is not being priced at its speculative value, its development value or an industrial value. About 60 percent of the properties, known as Roberts Bank backup lands, will be offered over the course of the next few weeks to the farmers who are currently working them. Twelve parcels of land are being offered to seven potential buyers today, who are the lessees. The letters seek expressions of interest for specific properties at specific prices -- as I said, prices that are fair agricultural value -- and we expect the first sale of this land to be finalized soon.
It's been a tough and longstanding issue, and I know it's one that some members on both sides, actually, may continue to have concerns about. It has been my position, however, that we can't go back 30 years and fix everything and turn the clock back; but what we need to do is go forward, get this land and these farmers out of limbo and start working the land for the future.
I personally think it's great news, and I want to say here and now that this change is not due to my work. Thanks belong to the farmers of the land themselves, the Tsawwassen first nation, Delta municipal council, the Delta Farmers Institute and all the rest of you who've worked so hard and for so long on this. I think it's an excellent solution, aiming us toward the future. The best part of it, hon. Speaker, is that now the folks can go farm the land, make a living, make the whole thing work and move forward.
The Speaker: In response, I recognize the hon. member for Okanagan-Boundary.
B. Barisoff: Many farm families were seriously uprooted because of unnecessary expropriation in 1969. It's a credit to the farmers on this land that their perseverance and their love for the soil has kept them there. This land has been underfarmed because of uncertainty and insecurity of tenure. Farmland that is farmed on a short-term basis suffers over time. The necessary crop rotation and soil management does not take place, leading to long-term loss of soil productivity.
I just want to read a quote here: "The agricultural sustainability of these lands has diminished substantially over the past 30 years. This is a result of the refusal of provincial governments to enter into long-term leases that recognize the need for reinvestment in good soil enhancement practices." I understand that Mr. Noel Roddick, who has been taking soil samples from this land for many years, has made the results available. He is the appraiser working for the government.
The MLA for Delta South, who is not here today, would speak to this. He has a lot of concern for the tenants living in houses on these properties, who also need to be treated fairly. Some of these people have lived on these lands for a number of years and have also developed some attachment to the land. The minister says that the sales will be at prices that are very fair agricultural value. We hope that the pricing of this farmland is more realistic than the proposals recently announced for the pricing of the shellfish leases. I hope this is not just an exercise to raise quick money by the government because it's facing serious, ongoing deficits. Unless resource industries like farmers and shellfish growers get realistic pricing from government for land, they will not be able to function in a competitive market. Provision must also be made so that family farmers who, for financial reasons, are unable to reacquire the farmland at this time are offered long-term leases with options to purchase the land.
Another item: is the government also willing to look at the situation in the category C lands for repatriation? In closing, since the member for Delta South isn't here today -- and he has worked on this issue since 1991 -- I'd like to ask the House whether the member for Delta South, who comes back tomorrow, would be entitled to speak to this issue.
[ Page 11179 ]
W. Hartley: I have a petition from the Catholic Women's League of Canada, from St. Patrick's Parish in Maple Ridge. It's a petition in regard to their 1998 white-ribbon campaign against pornography.
The Speaker: Hon. members, I would now like to respond to the question raised yesterday: a request for special debate under standing order 35. On January 19, the Leader of the Official Opposition sought to move adjournment of the House to discuss a definite matter of urgent public importance under standing order 35 -- namely, the closing of the Highland Valley Copper Mine and the effect that it would have on the economy of Kamloops and of British Columbia.
Before dealing with the merits of the hon. member's application, I wish to make one or two observations related to the procedures that were followed. The appropriate time to make the application is after routine business has been concluded and before orders of the day are embarked upon -- that is, after question period. In this instance, the application was made before routine business had been concluded and, as such, will not be used as a precedent.
Second, the member making the application states the matter briefly and tenders the Chair a motion with supporting statement. The motion is not read or moved until the Chair has determined that it qualifies under standing order 35.
Third, the member making the application makes a brief submission, and the Chair will allow a brief reply. Both the submission and the reply are intended to deal with the question of whether the issue qualifies under standing order 35 and are not to be a debate on the merits. The member for Kamloops-North Thompson sought the floor on what the Speaker assumed would be a technical submission relating to the application. The hon. member, however, launched into a debate on the matter.
From submissions made, then, the Chair is aware that an announcement has been made by Highland Valley Copper that the mine will be closed as of May 15, 1999 -- some four months from now. The Deputy Premier, the Minister of Energy and Mines and Minister Responsible for Northern Development, advised the House that he had had discussions with representatives of the company with respect to the mine situation and that the discussions were ongoing.
On numerous occasions, Speakers of this House have ruled that an ongoing matter did not qualify under the test of urgency of debate required under standing order 35. It is evident to the Chair that while the issue at hand is a most serious issue, with repercussions for the economy in the Kamloops area and throughout British Columbia, the test of urgency is not met under standing order 35.
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 (continued).
[2:45]
G. Plant: There was an issue that was canvassed for a few minutes yesterday between
the member for Powell River-Sunshine Coast and the Minister for Aboriginal Affairs. It
left me a bit confused at the time. I've gone back to reread the Hansard Blues,
and I'm still a little bit confused about it. Before we pick up more or less where we left
off yesterday, I want to go back to it. That had to do with
There are, roughly speaking, two categories of land within Nisga'a lands, as set out in the "Lands" chapter, which we'll get to. The first is a parcel described as being 1,930 square kilometres, more or less, and the second is 62 square kilometres, more or less. I understand the latter description to refer to lands within the external boundary of Nisga'a lands which are currently Indian reserves within the meaning of the Indian Act; whereas the 1,930 square kilometres is land that is now provincial Crown land, land held by the Crown in right of the province, over which the Crown does in fact have jurisdiction, subject to whatever restraints or restrictions may arise if and to the extent that those lands are subject to aboriginal rights or title. Have I got that generally right?
Hon. D. Lovick: Yes.
G. Plant: Outside Nisga'a lands
Hon. D. Lovick: Yes, that is correct.
G. Plant: Dealing with the lands that are currently Indian reserve lands, this
may be
Hon. D. Lovick: I'm going to read a paragraph in a background note of legal advice from the AG, because this is technical material in terms that I'm not familiar with. I understand that there is a distinction in law -- the member opposite may be more familiar with it than I am -- between what's called radical title and Crown ownership of land. It goes back
[ Page 11180 ]
to colonial times. The former, apparently, is a concept of international law, while the latter is a common-law concept. We are talking about the latter in this case.
G. Plant: So that I keep up with the latters and the formers, we're talking about radical title, then? If that is so, what is the provincial government's position with respect to which Crown has radical title to the lands that are currently set apart for the use and benefit of Indian bands, as Indian reserves in British Columbia under the Indian Act?
Hon. D. Lovick: My apologies for the delay. This is obviously a question that resonates with legal counsel. I understand that the province has taken the position in various court cases -- typically those involving OIC 1036, which is the regulation governing highways, access and all of that -- that the title is indeed conferred in the provincial Crown, and it is radical title. That is the terminology we use.
M. de Jong: I wonder if I could direct the ministers to section 19 of the general provisions. We have heard much from various sources -- aboriginal and governmental sources --- about the potential chaos that may result in the event that this treaty or a portion of this treaty were somehow found to be invalid or otherwise inoperable. I just want to confirm that despite what we have heard from people like the Premier in that vein -- of the chaos that will result -- this section actually contemplates and anticipates the possibility that a portion of the agreement might be severed. It might be necessary to sever it, in the event that it was found to be invalid. So a mechanism does exist by which to deal with that eventuality.
Hon. U. Dosanjh: Yes.
M. de Jong: I'm sure that at the time this was drafted, that was a purely
hypothetical matter. The fact of the matter is that today there are actually a couple of
challenges to the agreement that are working their way through the courts. By way of
example, I wonder if I could use one of those cases, in which an order, a declaration, is
being sought as follows: "
I know what the position of the government is. They take a different view of that matter. I'm wondering to what extent, however, the government has planned for the contingency that this declaration is granted by the courts.
Hon. U. Dosanjh: I don't want to make even an indirect comment on what's before the court. I would say, without meaning to comment on what's before the court, that this section or paragraph is designed to protect the balance of the treaty if a provision or provisions of the treaty are struck down in whatever action there might be, whenever it might be.
M. de Jong: The hypothetical
Hon. U. Dosanjh: I'm not making a specific reference to the self-government provisions. Whatever provisions we're dealing with, if they are struck down, we believe that the treaty remains whole. Then we have the obligation to make best efforts to arrive at a settlement with respect to whatever provisions might be struck down.
M. de Jong: Can I ask the Attorney whether he believes that it would be prudent -- as a matter of public policy, recognizing the fact that the agreement is met with a very specific challenge that is working its way through the courts -- for the government to undertake some work to plan for the event, to plan for the possibility that the self-government provisions would be deemed to violate certain constitutional provisions? Would it be wise to plan for that possibility? Have they done so?
Hon. U. Dosanjh: It is important that we remember that I have said I don't want to make even an indirect comment on what's before the court or on what might be the outcome of what's before the court, even by way of saying to the member that we may have anticipated the outcome. That would be an indirect comment on what's before the court.
Let me say this, however. The government has gone through long negotiations on behalf of the Crown in right of the province. That's why you would see this treaty replete with provisions that take into account the need for readjustments or for renegotiations if things are struck down or we face new challenges. That's why I think it's important to simply say that this paragraph takes into account any court challenges that might be faced by this treaty in whatever the outcome might be.
M. de Jong: I don't want to belabour the point. I'm mindful of comments that the Premier has made, where he anticipates to this extent: if the courts were to rule the document or a portion of it to be unconstitutional, that would, he said, leave him in a very difficult position. I do think there is a certain obligation on government not to leave itself vulnerable to being in that difficult position -- to have a contingency and to understand how it would respond.
We're not dealing with a purely hypothetical situation any longer; we're dealing with a challenge. Let's not kid ourselves; my colleague and I are part of that. We have an opinion that we have asked the courts to rule on, and the government takes a different position. But I would suggest that it would be irresponsible for the government to find itself in a position where, the moment after that decision is tabled, it asks, "Where do we go from here?" when it certainly has notice of those proceedings.
[3:00]
Hon. U. Dosanjh: Obviously government is always prepared to deal with those issues that may arise from time to time. I think there are many checks and balances in this treaty and many provisions that provide for many eventualities, one of which may be that a particular challenge or a particular application by one plaintiff or the other might or might not succeed.
[ Page 11181 ]
M. de Jong: Let me move off that to the next section.
We spent some time last day, I think, discussing the interplay between the Charter and the rights that are incorporated into this treaty. I guess one of the issues that arises for me with respect to section 20 of the general provisions is when I think about the possibility of an individual Nisga'a person who brings that challenge to a Nisga'a government provision, and we get into that discussion about individual rights versus the rights of Nisga'a government and all that implies for how the Charter is going to operate here.
In observing that transaction taking place before the courts, other levels of government, for genuine reasons of public policy, genuinely believe that the interests of the individual should be paramount and that this is a matter that should be resolved in favour of the individual as against the interests being expressed by Nisga'a central government and, in other circumstances separate and apart from the aboriginal component of this, would want to intervene in the matter that's before the courts. Does section 20 operate in a way that would preclude either the federal or the provincial government from acquiring that status as an intervener on the side of that mythical and hypothetical individual?
Hon. U. Dosanjh: I think it's very clear that parties have agreed that they will not support a challenge or, of course, mount a challenge themselves to the validity of any provisions of this agreement. If the hon. member is speaking about the exercise of some of these rights that Nisga'a citizens might have within this treaty, and if we believe that Nisga'a citizens are being denied Charter rights that they should be entitled to by Nisga'a government in the exercise of the authority vested in them in this treaty, we are free to intervene at that point. That's a different issue.
We're talking about two different issues. One is whether or not we would support a challenge or challenge a provision of the treaty. We will not. The other is whether or not we would have the right to intervene in the unlawful exercise of power -- violating the Charter of Rights -- by Nisga'a government that's vested in Nisga'a government in this treaty.
M. de Jong: I can think of different situations in which this might arise. I will try, at this point, to restrict my comment to the example we've been using regarding the individual. I presume the response from Nisga'a government would be that this challenge that we are facing relates specifically to the powers and the validity of those powers, as granted to us by this treaty. I'm not saying that would be the correct argument, necessarily. I think I understand where the Attorney is going with his response as to the distinction between the exercise and the interpretation of those powers versus their validity. But that is the argument that undoubtedly Nisga'a government would bring. What I'm hearing the Attorney say is that he believes there is nothing in this provision that would preclude government -- federal or provincial -- from intervening on behalf of the individual in the example I've given to him.
Hon. U. Dosanjh: In the matter dealing with the exercise of that authority, there is nothing to prevent federal or provincial Crown from intervening. We may have, at that point, a different interpretation of what's happening from the Nisga'a government itself. If we don't, obviously we would not intervene; but if we do, we have the right to.
M. de Jong: Let me change the example slightly and determine whether or not the Attorney General's answer changes at all. The other scenario that I thought likely to occur relates to the possibility of a jurisdictional dispute as between levels of government or governments -- perhaps most likely Nisga'a government and regional government in the area. I don't think there's any doubt, with all of the areas of jurisdiction that are dealt with in this particular document, that there are going to be times when the courts are resorted to. I hope not often; I fear otherwise -- that the courts will be resorted to, to work out those jurisdictional overlaps. Again, the resolution of a particular question along those lines may have implications for what the provincial government is doing elsewhere in the province -- or other regional governments. They may also, therefore, seek to intervene and articulate a particular point of view.
Has anything that the Attorney General said with respect to the former example
involving the individual
Hon. U. Dosanjh: No.
M. de Jong: I'm going to turn my attention to section 23 unless members have
Interjection.
G. Plant: I thought we were going to spend a moment or two on section 22, which says: "This Agreement constitutes the full and final settlement in respect of the aboriginal rights, including aboriginal title, in Canada of the Nisga'a Nation." There are three points of interest here that I'm hoping the government will clarify or explain.
The first has to do with the question: what does it mean to settle rights? Lawyers, for example, are accustomed to talking about the settlement of a claim, the settlement of an action, the settlement of a dispute. Less often, at least in my recollection, do we hear people talking about the full and final settlement of rights. I'm wondering if the government can explain or give some sense of why it is that that particular language has been chosen.
That question takes me to the second issue, which is in the preamble. For example, settlement is talked about in the context of the land question. That is, the preamble speaks about the Nisga'a nation having sought a just and equitable settlement of the land question. Of course, paragraph 22 of chapter 2 doesn't refer to the land question, so perhaps the minister could shed some light on the reasons for that omission.
Thirdly, this is one of those places where I'm wondering why there are the qualifying words "in Canada." I guess when I see those words, I get nervous for a moment that there may be some people who are Nisga'a who are not in Canada who will look at that and say that this doesn't apply to them in some way. I suspect that the answer to that is: no, it does. Those are really not significant objections or concerns, but rather points of clarification that I'm hoping one of the ministers here -- there seems to be a growing group -- can shed some light on.
Hon. U. Dosanjh: I think that when one looks at section 35 of the Charter of Rights in the Constitution Act, that
[ Page 11182 ]
answers the question adequately -- in fact, more than adequately. In section 35(1) -- answering the third question first -- there's a reference to the aboriginal peoples of Canada. So we're only talking about the rights of the aboriginal peoples in Canada, people who are in Canada.
Secondly, with respect to the land claims, again that's a reference to the same in section 35. Aboriginal title is obviously part of the entire issue. That's why, in fact, those matters have been exhaustively taken into account in the two provisions that the hon. member referred to.
G. Plant: I appreciate the answer.
What does it mean to settle rights? I guess that was the first question, and I'm sure I didn't put it clearly enough. I know what it means to settle a dispute, but what does it mean to settle aboriginal rights? I can think of other things that we can do with aboriginal rights, or argue about doing: we can recognize them, affirm them, modify them, extinguish them -- all of those other things. But why has the government said that what we're doing here is settling rights? What does that mean?
Hon. U. Dosanjh: The treaty refers to settlement legislation: what we're doing here and what the federal government is going to do. Obviously this is about the settlement of aboriginal rights and land claims and aboriginal title. If the hon. member is asking me to define what settle means, we can go back to the Oxford dictionary. Whether you settle or you conclusively determine amongst yourselves, it amounts to the same thing. I'm not going to get into semantics here. It's pretty clear on the face of it what settling rights means. This is a treaty, part of which is a land claims settlement, aboriginal rights and settlement of other issues involved.
M. de Jong: Going to section 23 of the general provisions, I find it to be a difficult section to read and a very important section. Of course, the heading is "Nisga'a Section 35 Rights." We've had a pretty exhaustive and exhausting discussion around the whole issue of section 35 rights. But let me read this back to the minister in abbreviated form, in a way that I hope will demonstrate that what the section refers to are three groups of rights. Here's how I read it. This agreement exhaustively sets out Nisga'a section 35 rights, and those rights are (a) the aboriginal rights, as modified by this agreement of the Nisga'a nation and its people, (b) the rights of Nisga'a government, and (c) the other Nisga'a section 35 rights.
So it subdivides into three distinctive areas, and I'd like the minister to explain, to the extent that he's prepared to, the difference between those three groupings of rights.
[3:15]
Hon. U. Dosanjh: There is really no difference. They're all section 35 rights.
M. de Jong: I recognize that we've had the discussion. I didn't draft this agreement. I didn't presume to take section 35 rights as referred to in the first paragraph of the section and then further define them in three very distinctive ways. That, I'm sure the minister will be advised, has some relevance. If it doesn't, then the question that begs asking is: why do it? But the drafters of this agreement have decided that it does have relevance, and part of the exercise we're engaged in here is to discover what that relevance is.
Hon. U. Dosanjh: If one was drafting it to suit the hon. member's desire to have it simpler, one could have simply had this provision continue and not have (a), (b) and (c) as the subparts of it. If you read (a) and (b), then there is "the other Nisga'a section 35 rights." Previous rights are also section 35 rights. They obviously relate to different endeavours in life, but they are all section 35 rights.
G. Plant: I guess someone reading this, perhaps from a different perspective than the Attorney General has, might wonder if what was really happening here was that the government wanted to say something different about self-government. The government wanted to say something different about self-government rights than about other aboriginal rights, and that's why they went to the trouble of creating clause (b). Then the government wanted to cover off the possibility that there might be something in section 35 other than the aboriginal rights and title which are recognized to date and self-government, which has not been but is being recognized here in this agreement, and therefore drafted (c).
I understand that the minister may not have any interest in explaining to British Columbians why this clause is written this way. That's what we're asking here. So far, frankly, there hasn't been an answer. So far the first answer is that they're all section 35 rights -- which is cute but, frankly, totally unresponsive.
The question is: why has someone written this in a way that separates out three different kinds of rights? What's the logic or the rationale? I'm not suggesting for a moment that I feel like redrafting it. I didn't draft it; the government drafted it. Why did you draft it this way?
Hon. U. Dosanjh: I have no intention of entering into a debate on drafting; far
be it from me to do that. In fact, I totally despise drafting, if I might say that. But
it's very clear
Interjections.
Hon. U. Dosanjh: Drafters are wonderful people. I love the drafters.
Interjection.
Hon. U. Dosanjh: They are, actually. Some of my best friends are drafters.
But it's very clear that there is no hidden motive behind this. You essentially have a grouping of rights. You have the aboriginal rights, including aboriginal title. You read (a). Then (b) is somewhat in addition to that. It talks about Nisga'a government: the authority, jurisdiction, rights of Nisga'a government. Then whatever else is left is caught by the catch-all phrase in subsection (c). There's no magic to it; there is nothing hidden behind it.
This is the same sort of debate that we just had a moment ago, about settling rights.
People prefer different language sometimes and a different technique for doing things. If
the hon. members think that there is a hidden design behind what we did
G. Plant: It's hard to say whether there is a hidden design, when the government won't even say what the design
[ Page 11183 ]
is. Let's try this -- and let me pause for a moment. I don't want to engage inappropriately in a debate about the use of language, but there is something like half a billion dollars at stake here. In fact, something like half a billion dollars is at stake, really, right on the page that we're looking at now.
Let me ask this: are there some other Nisga'a section 35 rights that are not aboriginal rights, including aboriginal title?
Hon. G. Clark: I thought I would simply enter the debate, because these debates between lawyers need to be interrupted from time to time. I thought that I would try to give a lay interpretation of this section.
This section is pretty straightforward. It is an attempt to state unequivocally that
section 35 rights in the Nisga'a treaty are all contained in the agreement. There
are no other rights that are not contained in the agreement. So subsection (a) is a
limiting clause with respect to section 35 rights. The first subsection is a broad,
general definition. Frankly, as is the wont of legislative counsel, I think -- and I'm not
blaming them -- perhaps subsection (a) would have been sufficient, because it says that
everything is exhaustive: "This Agreement exhaustively sets out Nisga'a
section 35 rights, the geographic extent of those rights, and the limitations to those
rights
For greater certainty, there is some repetitiveness. There is some concern that the broad definition is not inclusive enough to ensure that all section 35 rights are included in this treaty. That is an interpretation that we find repeatedly, in my experience, with legislative counsel -- to make sure that we have canvassed the turf. So there's a general clause. Then, for greater certainty, there's a subsequent one referring to Nisga'a government. Finally there is a further limitation where it's saying "the other Nisga'a section 35 rights" -- again, just to give complete comfort and certainty that all of the Nisga'a section 35 rights are contained exhaustively and inclusively in this treaty.
M. de Jong: The first thing I would say is that (c) doesn't say "any other Nisga'a section 35 rights." It says "the other Nisga'a section 35 rights," and I presume it says that purposely.
I understand that the government doesn't want -- and I think it's wrong -- to get into an exhaustive listing or categorization of rights. But maybe the Premier could help us to this extent: give us an example of a right that falls within subsection (a) in this section, and give us one example -- not an exhaustive list -- of a right that falls within subsection (c), in order to demonstrate the difference.
Hon. G. Clark: Well, we can't do that, quite simply, because
My contention would be that subsection (a) probably does cover all the exhaustive rights, and I don't believe there's any distinction between "the other Nisga'a section 35 rights" or "any other Nisga'a section 35 rights." It's a catch-all, if you will -- legalese -- to try to ensure that we have captured all of the section 35 rights in this clause. I think the concern was that if we had not so limited the section 35 rights, someone may make an argument that this clause was not all-inclusive. So it was simply an attempt to further and further refine, limit and box in section 35 rights as contained in the treaty.
M. de Jong: I don't want to dwell on that point. I think we've exhausted the
debate, and it will be apparent to anyone following these debates that the section has
been drafted in a particular way and that there isn't, apparently, an answer to a pretty
basic question, which is
I have to say this. I think that the people who drafted this document have probably, to
the greatest extent possible, been very careful about the language they have chosen and
have tried to follow the instructions they received from the negotiators. So when the
Premier says, "Any rights; the rights -- let's not get caught up in the
language," I think the people who put this deal together or drafted this deal did get
caught up in the language
G. Plant: And rightly so.
M. de Jong: And rightly so, as my friend points out. There's a lot at stake -- not just money, but certainly money; and in the case of the "Release" language, particularly money.
Let me, though, ask the Premier or the Attorney or the minister
Hon. G. Clark: Let me start, because I want to try again to answer that question
because of the way you phrased the last question with respect to section 23. It strikes me
that section 23, in a way, is a limiting clause, as are sections 24, 25, 26 and 27. It's
not an expansive clause; it's actually attempting to define and limit to the agreement the
section 35 rights. And to the extent that a future court could rule that self-government
is a section 35 right
Similarly -- just for the purposes of anybody watching -- 24, 25, 26 and 27 are very
key clauses, perhaps amongst the most significant. If I could give a generic answer for a
second, traditionally the 1890s treaties had what was called "extinguishment
language" -- aboriginal rights were extinguished as a result of treaties that were
entered into. In subsequent treaties there was an attempt to alter that language, which
changed it to
What we grappled with here is quite simple and on the public record. That is to say, is there a way with which we could guarantee certainty -- which "cede, release and surrender" does -- without asking aboriginal people to extinguish their Indian-ness? This is a key question which we
[ Page 11184 ]
grappled with, and it was a difficult legal question. For me, as a layperson, it seemed
self-evident that we could find language which gave the requisite certainty but which did
not ask aboriginal people to, if you will, extinguish permanently their Indian-ness or
their rights. However, having said that it seems easy to a layperson
[3:30]
The resolution contained here has met, I think it's fair to say, broad support in legal
communities, including from critics of treaties, who felt it was difficult -- in fact,
impossible -- to come up with language other than "cede, release and surrender,"
which captured the essence of the matter, the certainty question. What we have done here
is very simple. We have used the term "modification" of rights to import, to
define and, in section 35, to take in its totality that these are the aboriginal rights
that the Nisga'a have -- no more, no less -- and that we are to
Then a further section, the "Release" section -- which is common language by lawyers, I'm led to believe -- with respect to releasing obligations on parties as a result of settlement, says that we're not asking the Nisga'a nation to extinguish their aboriginal-ness; we're not asking them to surrender their rights. We are asking them, in effect, to exchange those undefined rights for treaty rights and to release us -- Canada and British Columbia -- from any future obligation of any future court which might decide that there are rights that exist somewhat beyond those which were in the treaty.
I'm trying to give a broad definition of these three critical sections that I think have accomplished, broadly, what we've tried to do. These are what we call -- at least around here -- the certainty provisions. Fundamentally, the concern people had, and have, is that the settlement of aboriginal treaties will be a full and final settlement. There will not be recourse to the courts at some future date by anybody to try to achieve something which is not in this treaty, which would therefore render the treaty a work in progress. Therefore we would not have the kind of certainty for investors and others that we are desirous of.
So there's the attempt to exhaustively say that these are the section 35 rights --
that's in section 23
M. de Jong: Well, I think it is useful for the Premier to provide that very broad and general description of the philosophies that were at work in the government's mind, in seizing upon language that it thought would best achieve the objectives of certainty that I think most people brought to this whole exercise. To a certain extent, that is the nature of the discussion that we have had to this point. I think the Premier has correctly identified that there has been widespread interest and a notably muted criticism of the language.
But now we're at that point in the discussion where I hope the Premier will agree that it is legitimate for us to move beyond the abstract and the general and to deal with the question of how these provisions will actually operate to establish and maintain that certainty -- create that certainty that is everyone's objective. It was with that in mind that I tried to provide a specific example. These are all hypothetical examples, but I would say respectfully that this is not something fanciful. During this debate we will try not to merely stand here and create examples that have no prospect of ever arising.
But the possibility that someone elsewhere in this country, an aboriginal person would
bring that claim and have it established that tax exemption is an inherent right and that
a member of the Nisga'a nation would then want to rely upon that decision to avail
themselves of all of the benefits that would follow
Hon. G. Clark: Let me try. I appreciate the member's question. I hope we can -- I'll try to -- answer it perhaps more specifically.
The member's concern -- and I think everybody on British Columbia's side and the Canada side has been concerned -- is this: how do we ensure that undefined rights aren't defined by a court in a way different than that which is specified in the treaty? Of course, at the end of the day, we are not guaranteed that a court would not find inherent aboriginal rights that are not in the treaty.
The member makes a point, perhaps, about tax exemption. That's not likely to be the case, but let's say for the sake of argument that it's the case. We have protected the people of British Columbia and Canada from that eventuality by this language; or a better, more honest answer is that we have attempted to do that. We believe we have done it exhaustively. We have done it, really, through a series of things. First, we have done it by taking these undefined rights -- inherent or otherwise -- and saying that they are modified. So whatever Nisga'a a or aboriginal rights may exist or may be decided are now modified in the form of this agreement, this treaty. That is very clearly spelled out. We have at the same time stated that Nisga'a section 35 rights have a series of belts and suspenders, to try to ensure that they are completely defined within this treaty. Perhaps, again, to the member's earlier point, why is it that it says "the other Nisga'a section 35 rights"? It is surely there to capture anything else that might come up with respect to section 35 rights and import them into this treaty.
Finally, there is a release. So for any rights that are not listed or are different from those listed, and that some future court might rule on, we are released from the obligation to pursue those rights. This is a release of any claim of infringement of a Nisga'a aboriginal right prior to the effective date. So we are released from any claims.
[ Page 11185 ]
Then, finally, on the next page there is an indemnity, which I think also goes further
to the point: "The Nisga'a Nation will indemnify and save harmless Canada or
British Columbia, as the case may be
That is the package which we've put together so that it is impossible for an aboriginal person to go to court to try to assert aboriginal rights which are different from this. We are released from that by the Nisga'a people.
M. de Jong: We're getting there.
Let me say first off that I'm not sure I understand how these indemnification provisions would operate in the example I've given, where we're talking about tax-exempt status. I mean, I think I know how they would operate theoretically; I'm not sure I know how they would operate in practicality. I think the Premier was drawing my attention to section 26 of the general provisions, and I think he was making the argument that by operation of section 26, the kind of claim or the kind of argument that I have referred to in my example would be precluded from carrying the day or having any sort of detrimental effect on the province.
If I go to section 26, however, and if I'm incorrect in my assumption that that's what
the Premier was referring to, then I ask myself the question
Hon. G. Clark: I just don't think that it's possible. I want to read, for the record, section 26. It's absolutely unequivocal, at least to those of us who aren't lawyers:
"If, despite this Agreement and the settlement legislation, the Nisga'a Nation has an aboriginal right" -- in other words, as founded by a court -- "including aboriginal title, in Canada, that is other than, or different in attributes or geographical extent from, the Nisga'a section 35 rights as set out in this Agreement" -- in other words, if they have rights which are not in this agreement -- "the Nisga'a Nation releases that aboriginal right to Canada to the extent that the aboriginal right is other than, or different in attributes or geographical extent from, the Nisga'a section 35 rights as set out in this Agreement."
It is just unequivocal. And, for those who are watching, the reason that it's released to Canada and not British Columbia is because that's the only place that they can release those rights to, because it is a national question.
The next section:
"The Nisga'a Nation releases Canada, British Columbia and all other persons from all claims, demands, actions, or proceedings, of whatever kind, and whether known or unknown, that the Nisga'a Nation ever had, now has or may have in the future, relating to or arising from any act, or omission, before the effective date that may have affected or infringed any aboriginal rights, including aboriginal title, in Canada of the Nisga'a Nation."
My goodness! How much stronger can you get than that? It completely releases us from any obligations in every respect by anybody who seeks to go to court to assert something different from what is in the treaty. I think it is unequivocal, which is why, I remind the member -- you're right -- the critics who were so loud on this very question have been very muted on it: because it is, I think, an absolutely unequivocal statement from the Nisga'a people with respect to their rights.
I apologize for reading that for the record, but it just seems so transparent. The question was, I think, that this didn't refer to section 35 rights. I'm sorry, but it seems so unequivocal to me that I don't know how you can make that case.
M. de Jong: There's a couple of ways, and I will deal with only one of them. I'm
going to read the section back to the Premier, deleting some of
Interjection.
M. de Jong: As set out in the agreement.
I have deleted some of the words, and the Premier might want to say that I've deleted significant words. I don't think I have. When I read it in that way, it's nowhere near as clear as when the Premier reads it in its entirety -- by virtue of how it's drafted. Look, I agree. When the Premier reads out the paragraph in its entirety, the first thing that comes to my mind is that that's exactly what we're dealing with: section 35 rights. When I read it in the way that I just have, I'm less certain.
[3:45]
We're not going to settle this here, and the Premier has his view. But the one thing I
have learned, and I have not practised law anywhere near as long as anyone else in the
room, is that until something has been tested by the courts -- and I think my friend from
Richmond-Steveston will have some submissions on that point -- I'm awfully reluctant to
make the kinds of blanket and unequivocal statements that the Premier has. We all hope
Hon. U. Dosanjh: The Premier has made the case very, very strongly. Obviously we will simply agree to disagree, but the hon. member should pay heed to the remarks of his colleague sitting next to him, the hon. member for Richmond-Steveston, who made a statement at the University of British Columbia that there is no question about the certainty of this agreement. There is no question whatsoever.
G. Plant: What I want to add, firstly, to this discussion is a bit more about the context, partly because I think we are at a fairly important point in the discussion of the agreement. This is going to be a long discussion, and when we're at a point that I think is important, it might just be useful for a minute or two to expand on the context a little bit. When he began his general discussion about this question of certainty, the Pre-
[ Page 11186 ]
mier made the point that in the 1890s, treaties used the language of "cede, release and surrender."
That's true, but so too have the treaties of the 1990s -- that is, even up until just five or six years ago, treaties in Canada have been using that language. The Gwich'in comprehensive land claim agreement in 1992 was an agreement in which the Gwich'in ceded, released and surrendered all of their aboriginal claims, rights, titles and interests. In the Nunavut agreement of 1992, the Inuit ceded, released and surrendered all of their aboriginal claims, rights, titles and interests. In the umbrella final agreement of the Council for Yukon Indians in 1993, there was a provision that each of the Yukon first nations which signed its own final agreement would cede, release and surrender all of their aboriginal claims, rights, titles and interests.
This concept of ceding, releasing and surrendering is not simply an antique historical relic. It is in fact very much part of the history of treaty-making in Canada up to this agreement. This agreement marks the first example of a treaty -- of a land claim agreement -- in Canada, that I'm aware of, that does not contain language of "cede, release and surrender." Over time the political dynamic around treaty negotiations changes, and that's to be expected. The aboriginal people of Canada have indeed formed the view, which I think the Premier accurately summarized a few minutes ago, that there is something about ceding, releasing and surrendering aboriginal rights and title that strikes at their sense of identity in a way that is objectionable. Both Canada and the provincial government have here sought to find a way to achieve the objective of certainty through a means other than traditional means, in order, in part, to accommodate that very real expression of concern by aboriginal people.
Let me suggest -- although I don't know for a moment how we could pursue the point -- that when a party, like a first nation to a first nation treaty negotiation, says, "Well, yes. In the past other aboriginal groups that have been prepared to cede, release and surrender were not prepared to give you that kind of certainty," some could suggest that governments might say: "Well, if we're not going to get that level of certainty, then in some respects the agreement may not be 'as rich' " -- that is, we're trading to some extent on the risk. It may be that that happened here.
Given the lack of success that we've had to date in understanding the principles motivating the provincial negotiators, I don't expect for a minute that we would have much success trying to probe that issue here. In concrete terms, for example, did the province say: "You can't have as much land, because you the Nisga'a are not prepared to make the same concession that treaty claimants before have made"? Or did the province simply say: "This is not a factor, in terms of the negotiation of lands, resources and other benefits"? The answer to that may come in due course from the ministers or the Premier. That seems to me, though, an important part of this discussion.
Let me then say this. The governments, including the provincial government, have said from the outset that they are committed to the objective of certainty. The AIP stated that objective and then left open the technique for achieving it. What we have before us, including clauses like 23, 24, 25, 26, 27, 30, 31 and 32 -- that's not an exhaustive list, but that's probably the heart of it -- represents the legal technique that the province and the other parties are choosing to achieve the objective of certainty. I will say, for my part, that while I have a lot of questions around what it means to attempt to modify rights, and while I have a lot of questions around the certainty that could be achieved by that objective, the fact that the parties here have, if you will, insulated or surrounded the concept of modification with releases and indemnities provides a kind of collateral level of assurance that goes a very long way down the road.
It may be that the governments will end up in court some day, arguing about the effectiveness of the modification concept. My view is that even if the governments lose that argument, they should be in a position to rely on the release and indemnity provisions. That is why I think I probably fall into the camp of the people the Premier has described as having "muted voices" around the issue of certainty, recognizing nonetheless that this is also a brand-new attempt to solve a problem, and there is always some higher level of uncertainty -- immeasurable, perhaps, in the sense of being incapable of measuring. There's no doubt in my mind that there would be a different kind of certainty achieved if the time-honoured language of "cede, release and surrender" was used. We're going to live with this model; we're going to see how it works. In that context, one of things I am particularly interested in is: how and by what means, in practical terms, would the province in effect be able to exercise and make meaningful the indemnity from the Nisga'a nation?
Hon. G. Clark: First of all, that was a very long preamble to the question and, I think, very well said. I want to go on the record, though, because I want to clarify on the earlier points that you made.
It is true that aboriginal people in British Columbia have stated unequivocally that
they would not sign a treaty that contained language like "cede, release and
surrender," because they found the surrender language particularly offensive -- and I
have canvassed that. I want to also say, however, that I agree with them, that I think
they have a point. What we are doing here is
[E. Walsh in the chair.]
Having said that, we also said, as you pointed out, that we had to find language that replaced this language, which gained us the required certainty. I think it is a fair point to make that we know the certainty of "cede, release and surrender" because it has been tested for years and because it was clear. Therefore we have to be extremely careful of any different language which has not been tested. I accept that criticism, if you will, that this is the first treaty to come up with different language and therefore it will likely be tested. We are confident, as the member sort of carefully supported, that we have done enough here to protect ourselves from any eventuality.
The specific question is this: how would the indemnity work? First, we would argue that the modification of the rights is included, in total, in the treaty. So the first hurdle is that we have to argue, of course, that the rights are modified
[ Page 11187 ]
as set out by the treaty. If we are to lose that -- an unlikely eventuality but a possibility -- then the Nisga'a have released us. The next hurdle, then, is that if that is unsuccessful -- again, which one cannot envision at the moment; we cannot envision a case where those first two steps would be unsuccessful -- the question would be, and the question from the member is: how would the Nisga'a indemnify us and save harmless Canada?
I think we have to look to the clause specifically to say how that would be. It says
very clearly in section 30 that the Nisga'a nation will "indemnify and save
harmless" Canada or British Columbia, as the case may be, from any costs, damages,
losses, or liabilities. Then it goes on in further detail. In section 31
So the question would be: how would it work in practice? It seems to me that it is
highly theoretical and difficult to answer, because the possibility of the first two steps
failing is so remote. Then we have tried to specify how they would indemnify us with
respect to any subsequent case. Perhaps, if we want to try some hypotheticals
J. Weisgerber: As the members across the way will know, I've long been a supporter of "cede, release and surrender" language, and I suppose one of the most vigorous criticisms I had of the agreement-in-principle was its failure, at that point at least, to deal with this question of certainty language. I know that there's a huge resistance among aboriginal people to that language. I also know that it's not so huge that it prevented the McLeod Lake people from agreeing to that language in the adhesion to Treaty 8, which we expect will be signed almost anytime now.
Having said those things, I want to commend the negotiators and the government on the work they've done with respect to certainty language. I do believe, having read through these sections, that the debate that has gone on today is useful, not only in clarifying where the government has come from but in identifying any possible concerns with it.
[4:00]
But I don't believe that anybody looking reasonably at this could believe that the language contained in sections 22 through 31 would be inferior to the simple words "cede, release and surrender." While we're going to be critical of elements of this agreement -- and I certainly will be over time -- I think that this is one example, and probably one of a good number, where the negotiators and the government have basically got it right. I feel obliged to stand up and say that at this juncture, because I do believe very much that this is superior to those words.
As much as I like the words and the history behind "cede, release and surrender," I think that before we're much further down the road, we'll see challenges to that language. When I listen to what's going on within Treaty 8, I know that they're looking at their treaty and believing either that their treaty is flawed or that their treaty hasn't been properly implemented. Whether or not they will succeed -- that's a question. But I do believe, and I simply want to go on record as saying it, that we've got it right in these sections. I commend the government for the work they've done in this area.
G. Plant: I want to take up the Premier's invitation of a moment ago with respect to seeing how the indemnities might work. I recognize that certain other things have to go against the government before the issue of the enforceability of the indemnities arises. One of the reasons that the indemnities are here is because you can't foresee all things, and someday we may be met with an argument that does cause the indemnity to come into play.
The argument may be that the assertion of a right that is hitherto unforeseen, which
makes it almost impossible for me to give an example of it
The basic theory of the indemnity is that the province would then have a claim against the Nisga'a nation. How would that work? For example, are there assets of the Nisga'a nation that the province would be able to seize in order to enforce the indemnity? Or would Nisga'a nation assets which are immune from seizure in some circumstances be immune from seizure in this circumstance? Do we know the answers to those questions?
Hon. U. Dosanjh: Those are obviously complex questions.
The Nisga'a have committed themselves to indemnify Canada and/or British Columbia with respect to costs, damages, losses or liabilities that might flow. With respect to the hypothetical issue about an injunction, it is my view that if there is ever a claim made by any Nisga'a citizen outside of the Nisga'a territory or what rights are contained in this, this treaty would be a full defence to any application for an injunction outside of the rights that are contained in this treaty.
G. Plant: Just so that no one's unclear about what just happened -- and I'm quite prepared to try to keep this going in an objective way -- the Premier said: "Well, let's see how it works. Give me an example." So taking the Premier on faith, I gave an example, and the Attorney General stood up and refused to answer the question. The Attorney General stood up and said: "Don't worry. The agreement would be a complete answer to your hypothetical example, because presumably the government would say: 'Well you can't make the argument that this is a new section 35 right.' "
Let's assume that the Premier, the Attorney General, the Minister of Aboriginal Affairs
and all of the good people who have worked so hard to write this are wrong. I'm sorry. I
would like to have this debate, but it's so hard to
Hon. G. Clark: Obviously the Attorney answered in such a way because -- and I say this with respect, and I know the
[ Page 11188 ]
member agrees with this
The indemnification is quite simple, it seems to me. This would be my interpretation. First of all, the Nisga'a nation would honour their indemnity -- that's the first premise -- by making the province or the federal government whole with respect to any losses of revenue or income, etc. If, of course, they did not honour it, then I assume we would have to sue them to live up to the indemnity with respect to costs, damages, losses or liabilities as stated here. It's simple.
G. Plant: Then there's nothing in the treaty that would make the Nisga'a nation immune from any such claim. In fact, the assets of the Nisga'a nation would theoretically be available for execution purposes in the entirely unlikely event that such a claim would ever have to be made. Is that correct?
Hon. U. Dosanjh: There are some limitations with respect to suing or seizing assets of the Nisga'a, but Nisga'a Lisims government would be a legal entity, and of course there is a whole dispute resolution chapter that one can deal with. At the end of it, if things don't work out, courts are always available for the Crown to sue a legal entity such as Nisga'a Lisims government.
G. Plant: If such a claim had to be made, then the immunities that do exist in respect of some matters would not apply. That is part of my question. I recognize that there are in fact immunities. I also recognize and acknowledge that the Nisga'a Lisims government will be a legal entity and therefore something that would ordinarily be capable of being sued. What I want to be sure of is that the immunities that Nisga'a government will have won't bar an attempt to recover under the indemnity. That's the point I was seeking assurance on.
Hon. U. Dosanjh: The provincial Crown would have the right to sue and recover damages, except as limited by this treaty. There are some limitations. But there is access to the courts and to all of the mechanisms that are available to the Crown to deal with that issue. We can deal with them as we come to them.
G. Plant: We're dealing with the one that we've come to, which is the indemnity. I understand that the question may be overbroad, in the sense that I'm asking in effect for an opinion about the cumulative effect of all of the little individual immunities that exist. But what I want to be sure of is that this effect has been thought about and provided for in a way that ensures that the province will in fact be able to enforce a judgment against some Nisga'a assets, if it should ever have to do so.
Hon. G. Clark: The answer is yes, it's certainly been considered. There are some caveats with respect to property, which we'll get to in the treaty. But I think we can give you some comfort that there is income coming in -- for example, the revenue that the province could withhold. There are fiscal transfers in negotiations that come up. So there are ways of enforcing the indemnity, should the unlikely event arise and should other dispute resolutions not work.
M. de Jong: As the temperature in this room rises and drops during the course of
this debate, it occurred to me
Interjections.
M. de Jong: The Attorney General didn't extend his arm far enough to encompass the Minister of Aboriginal Affairs, whose looks of consternation from that side of the House are quite telling.
In any event, let me say this to the Attorney General and government benches: as this
debate has unfolded
Interjection.
M. de Jong: Gee, you could just about have a cabinet meeting in here right now, couldn't you?
You know, part of what I think this debate is about is challenging some of the philosophical approaches that government has taken and written into this treaty. But we're under no illusion that we're going to change the government's mind about that now, and hopefully, we won't dwell on that for too long. But another function is to accept what the government has done, for the purposes of this argument, and to make sure that they're going to reach their objectives. So if we present those hypotheticals, if we challenge some of the arguments, I mean, that's our job. I think the Premier, at least, accepts that; I hope he does, and I think he does.
Let's go back to the question of release, because if
I want to say this at the outset: I don't challenge the result of the referendum that the Nisga'a people had. They had the vote. I don't challenge the process by which it took place. The people who voted spoke very clearly about their desire to adopt this agreement, and that is a fact.
But I want to run some other numbers past the Premier as a means of confirming that this release and the people who have participated in this process indeed speak for all and that we can rely upon this provision of the agreement. We are told by the federal minister that there are about 5,500 Nisga'a, 60 percent of whom -- or about 3,300 -- are of eligible voting age. The numbers that I have indicate that the Nisga'a ratified their treaty by a referendum that had 2,376 eligible voters, which tells me that about 1,000 eligible Nisga'a voters, for one reason or another, weren't registered to vote. So of the 2,376 Nisga'a who did vote, I'm told that 1,451 voted in favour. But that only represents 44 percent of the 3,300 Nisga'a adults that the federal Minister of Indian Affairs believes exist and might have been eligible to vote. I'm not challenging the result.
But what I am asking and what I think is relevant is: what legal assurance does the government have that the number of Nisga'a who voted in favour of this treaty is sufficient to legally bind the entire Nisga'a nation, given that if you accept the federal minister's numbers, it wasn't an absolute majority?
[4:15]
Hon. G. Clark: I'm just checking to see if there are any legal opinions, because I think that was the question. I'm getting legal advice here that, legally, everything is fine. But I don't know if that's a legal opinion or not; it's an opinion from legal people sitting here in the front benches.
[ Page 11189 ]
I think it is an interesting question. There's an estimate of the number of Nisga'a, based, I think, on status cards, etc. Then there was an enrolment for this vote. The vote was set up and prescribed in such a fashion for ratification, which you'll see set out in the treaty. So it had to be prescribed this way, because another option would have been, to the layperson, well, let's have every status Nisga'a just vote. But there's an enrolment provision. I hate to give these sort of tautological answers all the time. But the treaty itself sets out the enrolment and ratification provisions and therefore gives legal support to the way in which it was ratified.
I think one can get some comfort from the fact that it was a significant majority, albeit, I grant, not everybody was enrolled. I believe that enrolment should grow over time, quite simply because to take advantage of this treaty and treaty rights, one has to be enrolled in the Nisga'a nation. But clearly, because of the dispersed nature of Nisga'a people -- a whole bunch of reasons -- and the time frame, not everybody enrolled. But the treaty requires, I think, reasonable opportunities, etc. All of those, we are advised, were fulfilled -- mind you, by the federal government and also our legal advice.
M. de Jong: I think there are two groups of people that you distinguish here. You distinguish that group of Nisga'a who were enrolled, who voted and who voted against. I think that includes many of the people that we were referring to earlier as part of the Kincolith group, who were opposed. We explored that in terms of what status they may have, to oppose. Quite frankly, I would think that the strength of their argument would be much diminished, as a group of people who would presume to argue: "You can't release our rights. I voted against this deal." Well, they lost.
But the group of people that we're talking about now is a group of upwards of 1,000 people. I'm accepting all of these numbers at face value, as provided by the federal minister. I presume that it's based on the counting of status cards, and I'm accepting that.
I guess what we're left with is to confirm that the minister is of the view that for those 1,000 Nisga'a who weren't identified or registered to vote, this process is such that it can effectively release them and modify their rights, notwithstanding the fact that they may come along later and say: "Not only was I not supportive of the deal, I didn't know about the deal, and I never had an opportunity to vote against it." That, presumably, is the argument and the advice that the Attorney General has.
Hon. U. Dosanjh: The answer is yes. It is the view of the Attorney General and the government that there has been sufficient care taken to deal with these issues, and they've been dealt with satisfactorily. And once the province, the federal government and the Nisga'a have ratified this treaty, it is a legally binding document. I take that very seriously.
In a similar vein, one should also think about the fact that when elections take place
in British Columbia or Canada, not all the voters are ever registered in those elections.
We make decisions on behalf of British Columbians and parliamentarians make decisions on
behalf of Canadians that may bind them for centuries to come. That's part of the process.
I think due diligence has been done. Appropriate steps have been taken, and the provisions
that have been set out in the treaty, after due deliberation with respect to this matter
M. de Jong: Just one or two further points on this. Is it the government's position, then, that the threshold by which an aboriginal nation can bind its members is a majority of eligible voters or, as is the case here, a majority of eligible enrolled members?
The Chair: Attorney General?
M. de Jong: With respect, it was an either-or question -- and a very clever answer by the Attorney.
Hon. U. Dosanjh: Sorry. I missed the "or." The appropriate steps have
been taken, and it's our view that yes, a majority of the voters
M. de Jong: It's unclear to me from the Attorney's response -- and I don't think he meant this to be ambiguous, but it was to me, at least -- that the government actually took a position to these negotiations with respect to that ratification issue. Or was it purely a function of saying to the Nisga'a: "You provide us with your view of what it is that is required to ratify and bind and release your members from subsequent claims"? Is this something that the government intends to take from this treaty and apply elsewhere? Or will it be more a function of what the next aboriginal group we're negotiating with proffers as their preferred mechanism?
Hon. U. Dosanjh: Firstly, I think that each treaty, as I've said before, may be different. It may have similar provisions, and parties may agree to the same or a higher standard of consent from other first nation members than we did in this. I'm not aware of what went on in the negotiations. I don't think that's relevant. I think what's relevant is that we were satisfied that there was a high threshold to meet, and that threshold was met. It may be different for other treaties that may be signed.
J. Weisbeck: I seek leave to make an introduction.
Leave granted.
J. Weisbeck: In the gallery, watching the proceedings, is a friend, Greg Spievak. Would the House please make him welcome.
M. de Jong: I don't want to belabour this, in spite of doing just that. The
government, then, doesn't have a preferred position -- or does it? -- as to whether or not
this should be a question of the majority of people who are eligible to vote or the
majority of people who are registered and eligible to vote? Or should it be a higher
threshold, like societies
Hon. U. Dosanjh: I think that I have answered in the best possible way that I'm going to. I'll repeat the answer. I think a high threshold was established by the agreement of all of the parties. We were satisfied, Canada was satisfied, and the Nisga'a were satisfied that that is the threshold that needs to be met. That was that you enrolled, and 75 percent of those
[ Page 11190 ]
who vote should support or approve the treaty. That has happened in this particular case. The requirements might be different for a different treaty down the road.
Interjection.
Hon. U. Dosanjh: Well, 70 percent, I believe. That's for the constitution, yeah.
M. de Jong: The Attorney General talked about a high threshold. It was my understanding that the threshold was 50 percent plus one. I'm not sure I understand.
Interjection.
M. de Jong: Of those eligible, as the Aboriginal Affairs minister
The Chair: Through the Chair, please.
Hon. U. Dosanjh: First of all, let me just give you the figures. Let me put on the record that 85 percent of the eligible Nisga'a voters cast a ballot, which is probably the highest in my memory here. I'm an immigrant to this country, and no more than 70 to 72 percent of the people ever vote in federal or provincial elections.
M. de Jong: Eligible meaning enrolled?
Hon. U. Dosanjh: Yes.
And of those who voted, 72 percent voted in favour. Overall, 61 percent of the eligible voters supported the treaty. We are satisfied with that: that this binds, for good, the Nisga'a citizens.
M. de Jong: Just two things arise from that. The Attorney General will, I'm
sure, recognize that of those eligible, enrolled voters, there were as many as 1,000
additional Nisga'a, and he will accept that those were people who, had they been
enrolled, would have been eligible to vote. That's the first thing. The second thing,
which I think the Attorney General still hasn't answered as clearly as I would like, is:
does the province have a position with respect to what is required
Hon. U. Dosanjh: I'm quite mindful of what the hon. member is trying to establish. The hon. member is not going to be able to establish that, because I will not give an answer that binds the government to a particular issue in the next set of negotiations. Governments make treaties; we arrive at compromises. There might be a higher threshold than was expected in this particular situation. There might be a different process. We are satisfied with the mechanisms established for the approval of the Nisga'a treaty by the Nisga'a people, and we are satisfied that the kind of vote that took place permanently binds the members of the Nisga'a nation.
G. Plant: Part of the challenge here is to understand this agreement in terms of what it might mean for other agreements, so we can sort out if in fact this agreement is the right agreement. When the Attorney General says that he doesn't want to bind the province in terms of the position it might take in other negotiations, I understand that. I'm not sure that I would quarrel with that. I suppose the question, though, is: what is the policy the government is taking forward? It's one thing to say: "Well, we want to keep our options open." But does the government, in fact, have a principle or position or policy around this issue that it will use as a guide for what comes after so that we can examine that in the context of what was done here?
Hon. U. Dosanjh: A fundamental principle is the majority assent to any treaty, and the majority of those that voted, who were eligible to vote, supported this.
G. Plant: I want to go back to two things that have already been canvassed to some extent. When I was reflecting on the discussion that we had about sections 22 and 23 and the challenge that we faced in terms of getting some understanding around what might have been meant by the addition of 23(c) -- that is, the thing called "the other Nisga'a section 35 rights" -- what I had forgotten to do then was draw the government's attention to the fact that those words are not in section 22, for example. I understand that those two provisions were probably intended to achieve slightly different purposes. Really, it was an attempt to understand what those different purposes where that was underlying our questions.
[4:30]
But someone reading 22 and 23, without the benefit of the explanation that I'm sure the minister is about to give, might wonder why it is that this phrase, "other Nisga'a section 35 rights," isn't there in section 22, because they might be led to worry that the agreement, as section 22 says, constitutes the full and final settlement in respect of only those matters which are dealt with in 23(a) and leaves out 23(b) and 23(c). If that's helpful in terms of one more attempt to explain where we were going with those questions, can the minister shed any further light on that issue?
Hon. D. Lovick: I'm advised that the principal reason for the difference is simply that in paragraph 22 we're talking about the concept, and what we're talking about in paragraph 23 is the defined term within the treaty. As you know, it is a defined term. I think that probably explains it.
G. Plant: That's a bit more helpful, and I appreciate the answer.
The other thing I want to canvass for a moment to sort of play catch-up, if you will, goes back to the extinguishment issue. When the Premier and I had our exchange about "cede, release and surrender," the Premier made the point and I made the point that aboriginal Canadians have a lot of hesitation around ceding, releasing and surrendering their rights, because they consider it demeaning to their sense of identity. The Premier took the trouble to stand up and say that not only did he respect the fact that this was the view of aboriginal Canadians, but that it was also his view. He also considered that to be unnecessarily intrusive or offensive or violative, I suppose, of the sense of identity of aboriginal people.
That leads me to ask this question, then: did the government ever take the position in its negotiations with the Nisga'a that it would require the aboriginal rights and title of the Nisga'a to be ceded, released and surrendered?
[ Page 11191 ]
Hon. D. Lovick: I don't wish to be less than cooperative, but as I've said before
in this debate, it seems to me that
M. de Jong: I have some questions relating to section 28, but I think the member for Powell River-Sunshine Coast had some questions relating to the release-and-certainty language in sections 22 to 27.
G. Wilson: On listening to the debate, I think what I would prefer to do, actually, is pick up those questions with respect to the section on lands, because they relate specifically to rights on lands. Maybe I could do it under chapter 3 -- if we ever get there before the summer.
M. de Jong: We have just come through a discussion, broadly speaking, that deals with the issue of certainty and finality. We have talked about the legal mechanisms by which that may or may not be established, and the government has indicated its preference, obviously, for what appears here.
There's another function, though -- another aspect -- of certainty that is associated
with any agreement of this sort, and that is the substantive provisions that relate to
questions of consultation -- the interaction between the various boards and agencies and
panels. As this debate has unfolded, not just in this House but in the public at large,
the opposition has at times tried to argue that that certainty doesn't exist, necessarily.
The government has pointed to provisions of the deal that say it does. But lost in that
whole discussion has been the degree to which
So the question I want to put to the minister is for him to give us and the people observing these debates a sense of the degree to which that actually exists. There will be many results, many things, flow from this agreement that lead to uncertainty, that create uncertainty. Now, some of that is a natural function of how any treaty would operate; some of it isn't. We'll talk about that, and we'll get to the specific provisions. But I want to give the minister an opportunity now to acknowledge that much about this treaty is cloaked in uncertainty by virtue of the obligation that exists for local, provincial and federal governments to consult with and to manage, in a dual way, the Nisga'a government. That's something I want to talk about as part of this section.
Hon. D. Lovick: Let me be very blunt, politely blunt: I disagree with the member. I do not think that at the end of the day we will look at this treaty and say: "This leads to more uncertainty." I just don't think that's a proposition that's supportable.
It seems to me that certainty is achieved in two ways, pre-eminently. One is about the land base, so that we know precisely who owns the land base and what the boundaries are. The second has to do, ultimately, with a much clearer definition of that hitherto undefined thing called aboriginal rights. Those are the two broad explications, if you will, of what certainty means. I think the member's question refers specifically to self-government and those provisions, suggesting that that's perhaps where the uncertainty is to be found.
I see that the member is saying that that's not the case, so rather than my going on in anticipation of what I think he means, why don't I give him the opportunity to tell me, then, where the uncertainty that he apprehends is to be found.
M. de Jong: I think what I'm getting at
This treaty imposes on the provincial government -- and the federal government, but let's deal with the provincial government -- an obligation in a whole range of areas, be it wildlife management or resource allocation, to consult, for example, or to engage in further negotiations. Some of those negotiations have taken place and side agreements have been reached; most of them haven't. I think it's important that people have some appreciation of the work that this treaty leaves undone or that it anticipates will be done. Whenever those negotiations and those consultations are called for, the result of the negotiations and consultations is far from certain, so there is uncertainty to that extent.
Hon. D. Lovick: I think the short answer is to say that
Interjection.
Hon. D. Lovick: Yeah, exactly. We've done so, and I think the member agrees with me.
I think it's a little dangerous, dare I say, if we start saying that because there are other things that happen, people will be uncertain about them. We shouldn't confuse that with the certainty argument.
Interjection.
Hon. D. Lovick: Well, call it equivocation, if the member wants. But I don't think we ought to do that.
More to the point, though -- and I think the more particular and specific answer -- is that governments are subject every day of the week to particular regimes and systems that they set up, involving them in negotiations and discussions with others -- ongoing establishments of how they function and fit together. So, too, with this agreement. Because those
[ Page 11192 ]
new arrangements haven't yet been tried, therefore one can argue: "Well, we're not
quite sure how that's going to work
M. de Jong: All right. Well, let me try to establish a level of comfort with the Aboriginal Affairs minister. Let's call it unpredictability, then. Let's relegate the term "uncertainty" to those legal provisions of the agreement that we've been talking about.
[4:45]
But if we do that, let's not underestimate the significance of how that new relationship is going to play out. Let's not underestimate the numbers of boards, tribunals, joint commissions, consultations and negotiations, and let's not underestimate the cost associated with that on an ongoing basis. That's something, quite frankly, that no one has talked about a lot as part of these negotiations: the -- I was going to use the word "burden," but that's unnecessarily negative, perhaps -- obligation, and the cost associated with that obligation, that is created within the pages of this treaty. I'm interested to know the government's thoughts about the cost that it will assume on an ongoing basis -- or maybe the government takes the view that there are no costs. Quite frankly, having reviewed the document, I would find that difficult to believe.
Hon. D. Lovick: I wouldn't for a moment pretend that there are no costs; clearly there are. I would point out, however, that (a) we know where those costs come from -- we know what particular obligations to consult are conferred upon us -- and (b) we also know what those costs are. Those costs are spelled out in some detail in the fiscal financing agreements.
I would also, in the broader terms, just point out to the member something that I know he's already familiar with. The world of dealing with aboriginal communities has been changed pretty radically since December 11, 1997. We have obligations conferred on us now in terms of consultation with first nations that, frankly, governments never before anticipated. That too has then called into question a number of things that we take for granted and, if you will, has produced arguably a greater uncertainty and a greater unpredictability than anything in this agreement.
M. de Jong: All right, that's helpful. The government identifies that judicial obligation that has been imposed on it -- and fair enough. And I think it says that this, in part, is our response to that and that we intend to go on responding through subsequent negotiations. The minister says: "We know where those costs are and we know what they are." Then he says they are reflected in the fiscal framework documents.
I can ask the question: okay, where are they? What is the government's understanding of where those costs are? I can ask the second question -- what are they? -- because I'd have to say, in fairness, that I don't see where they are reflected in the part of the agreement that the minister referred to.
Hon. G. Clark: First of all, yes, there are obligations to consult, and that does cost money. But in general it's absorbed by the government in its day-to-day business. It's part of doing business in British Columbia, particularly in light of the Delgamuukw decision.
Secondly, the consultation costs with respect to this treaty will be dramatically less, I believe, than the costs we now incur -- which are significant and growing -- as a result of legal requirements to consult aboriginal people with respect to, particularly, land use decisions. So we can't give you, nor do we worry too much about, a quantification of the costs. They're quite minimal here. But there are routine costs of government, in terms of consultation, required as a result of this treaty.
I must say -- and this is a bigger question -- that there are enormous costs now associated with government, which are really challenging, as a result of the new obligations, if you will -- or at least the codification of those obligations under Delgamuukw.
M. de Jong: I think the Premier wants to
G. Plant: Have it both ways.
M. de Jong:
G. Plant: And they're enormous.
M. de Jong: And they're enormous. But under this agreement, they're modest. We
can't really quantify them -- because they're so modest, I presume. That is the agreement.
I don't think the Premier can
Interjections.
M. de Jong: You know, if it's difficult to quantify, then say that. But apparently, they're enormous now. Okay, how enormous? Tell me how much they are under the Delgamuukw regime.
Hon. G. Clark: In the current
With respect to this treaty, it's absolutely clear who we must consult at what time. That both improves dramatically the efficiency of consultation and minimizes the costs of the consultation. I don't know if you're listening, but in the Delgamuukw case we have a vast array of people to consult. It is a costly endeavour. We haven't quantified it; it's hard to quantify it. But it's a large amount. Here it should be modest, because it's clear and concise, and we know who we're required to consult at what stage and what time.
[ Page 11193 ]
M. de Jong: Here's the difficulty I'm having. The government, I think, wants to minimize its obligations, in terms of its discussion of this. On the one hand, we have the very onerous obligations that exist under Delgamuukw, and yet we have resolved that in this treaty, and minimized them to the extent that we know precisely what those obligations are. When they exist, they are minimal. They are much more affordable this way.
Interjection.
M. de Jong: Well, okay. The Premier said he couldn't have said it better himself.
I'm going to take a moment here -- actually, more than a moment. I went through the
agreement, because I have heard this argument before from some of the people associated
with the implementation committee, and I've asked the question: all right, where do these
obligations exist in the treaty? I would be told: "Well, there are four or five. Try
chapter 3; there's a couple there." So we went through the agreement, and I want
there to be, somewhere on the record, a compilation of where those obligations exist. The
Premier or the minister
Chapter 2, paragraph 19. If any provision of the agreement is struck down by a superior court, the parties are required to get together to remedy those provisions. Makes sense.
Interjection.
M. de Jong: Yes.
Chapter 2, paragraph 34. If any provision of the agreement adversely affects section 35 rights, the parties are required to make best efforts to remedy that.
Paragraph 35. If any other land claim agreement or treaty adversely affects the section 35 rights of the Nisga'a nation, the parties must attempt to reach agreement on replacement rights or other remedies -- not so hypothetical, I might add.
Chapter 3, paragraph 77. The federal government must consult with the Nisga'a and respond to all questions regarding the expropriation of Nisga'a lands.
Paragraph 84. If there is expropriation of Nisga'a lands, Nisga'a and Canada must negotiate the terms of the transfer of that expropriated land.
Chapter 6, paragraph 9. Nisga'a will consult with Canada and B.C. in respect of any proposed Nisga'a laws that would significantly affect the regulation of public access to Nisga'a public lands.
Chapter 7, paragraph 42. At the Nisga'a's request, B.C. will consult with the Nisga'a with respect to regulation of traffic and transportation on provincial roads adjacent to settled areas.
Paragraph 45 of chapter 7. The Nisga'a will consult with B.C. in regards to development decisions on Nisga'a lands adjacent to the Nisga'a Highway.
Chapter 8, paragraph 20. B.C. and the Nisga'a will consult with the joint fisheries management committee in regards to any in-season adjustment to the salmon harvest.
Paragraph 21 in chapter 8. B.C., Canada and the Nisga'a will enter into a harvest agreement to govern the allocation, harvest and disposition of salmon.
Paragraph 44. B.C. and the Nisga'a will negotiate and attempt to reach agreement about studies required to determine an annual escapement goal for summer-run Nass steelhead.
Paragraph 58 of the fisheries chapter. Canada, B.C. and the Nisga'a will negotiate and attempt to reach agreement on basic Nisga'a fish entitlements.
Paragraph 83. If Canada or B.C. proposes to establish fisheries management advisory bodies for areas that include part of the Nass area, they will consult with the Nisga'a in developing those bodies and provide for the participation of the Nisga'a in those bodies.
Paragraph 115. Canada will consult with the Nisga'a nation with respect to the formulation of Canada's positions in international discussions or discussions that may affect Nisga'a fishery resources.
Chapter 9, paragraph 11. The Nisga'a and B.C. will negotiate and attempt to reach agreements concerning the Nisga'a contribution to any provincial fund dedicated to wildlife conservation and habitat protection.
Paragraph 28. B.C. and the Nisga'a will negotiate and attempt to reach agreement on a Nisga'a wildlife allocation for species of wildlife, if the minister has designated a total allowable harvest.
Paragraph 50. B.C. or Canada will consult with the Nisga'a before enacting regulations or policies that will significantly affect wildlife management or harvesting in the area.
Paragraph 53. If B.C. or Canada proposes to establish a wildlife or migratory bird management advisory body for any area that includes a portion of the Nass Valley, consultation must take place.
Paragraph 76. B.C. will consult with the Nisga'a before approving any proposed transfer of or change in conditions of, an existing trapline.
Paragraph 77, chapter 9. B.C. and the Nisga'a will negotiate and attempt to reach agreement in respect of the Nisga'a authority for the management of some or all of the traplines that are registered to the Nisga'a in the Nass wildlife area.
Paragraph 82. B.C. will consult with the Nisga'a before approving any proposed transfer or change in terms and conditions of any guide-outfitter certificate or licence that applies in the area.
Paragraph 85. B.C. will consult with the Nisga'a before approving any proposed transfer, or change in terms and conditions, of an existing angling guide licence that applies in the area.
Paragraph 95, chapter 9. Canada will consult with the Nisga'a in respect of the management of the harvest by aboriginal people of migratory birds within the Nass area.
Paragraph 96. Canada will consult with the Nisga'a in respect of the formulation of Canada's position relating to international agreements that may significantly affect migratory birds.
Chapter 10
Interjection.
[ Page 11194 ]
M. de Jong: Well, I'll go as quickly as I can. Part of the exercise is
Chapter 10, paragraph 1. At the request of any of the parties, the parties will negotiate and attempt to reach agreements to coordinate and avoid duplication of any Nisga'a, federal or provincial environmental assessment requirements.
Paragraph 5, chapter 10. If a proposed project on Nisga'a lands is expected to have adverse environmental effects off Nisga'a lands, there needs to be consultation.
Paragraph 6. If a proposed project located off Nisga'a lands is going to have adverse effects or any effects on Nisga'a lands, there needs to be consultation by a special body.
Paragraph 15. B.C. and the Nisga'a will negotiate and attempt to reach agreements concerning the performance of specified provincial environmental protection functions by the Nisga'a within an area to be defined in those agreements.
Chapter 11, paragraph 19. Nisga'a government will consult with non-Nisga'a residents within Nisga'a lands about government decisions that affect them.
Paragraph 28. After the Nisga'a government has given notice that it will exercise its lawmaking powers with respect to adoption or preschool-to-grade-12 education, the Nisga'a will consult with Canada and British Columbia in respect of those matters.
Chapter 11, further paragraphs 30, 64-67, 68, 80, 81, 85, 92, 102 and 141; chapter 12,
paragraphs 18 and 24; chapter 15, paragraphs 3, 7 and 14; chapter 16, paragraphs 17 and
31; and chapter 18, paragraphs 3 and 7. They all impose, in my reading of the document,
obligations for either direct consultation or tripartite or direct negotiation between the
governments. My point is that there are costs associated with that, and the Premier
[5:00]
Hon. D. Lovick: Well, Mr. Chairman, I appreciate the fact that the member for Matsqui wanted to read into the record so many of these particular points that confer obligations, but I'd like to put this in a little bit of context, if I might. I don't mean to be cheeky or anything, but as I was listening, I felt like asking the question: so what's your point? I know there's a serious point, and so I will treat it seriously; but I think I can be forgiven for asking the question, given what I'm about to say.
We're talking here about a treaty that establishes a new relationship with the Nisga'a
people. It's not a severance package. It's not a matter of saying: "Here's a treaty.
It's done. See you around. You're out of our hair. We'll never talk to you again."
It's about establishing a framework for a new relationship. The Nisga'a have said
very clearly: "We want to negotiate our way into Canada and into British
Columbia." Therefore when the member reads something like, "The Nisga'as'
obligation to work with us regarding environmental assessment
Well, what else would happen if they're going to be part of our society as well as maintain their own? Inevitably, there will be those relationships -- the same kinds of relationships, in many instances, that go on with municipal governments. We do things with municipal governments; we have ongoing relationships. We have to consult; we have to touch base.
Interjections.
Hon. D. Lovick: I hear members opposite saying: "Insufficient." All right.
But the whole point
I would point out, as well, three things. Number one, the beginning obligations that
the member quoted, largely from chapter 2 -- and he would be the first to agree -- are
broadly hypothetical
Interjection.
Hon. D. Lovick: Yeah, but those are big ones. The member, I'm sure, would agree with me. Those were ones that could conceivably confer a significant cost. Those are hypothetical. We have said time and again that it's highly, highly unlikely, in our minds, that those would come to be. That's point one.
The second one is existing obligations. Even without a treaty, there are a number of points that the member referred to which are obligations that we already have with first nations people. That's the reality of the law of the land in British Columbia and in Canada.
Third, as I say, is that some of these other matters he referred to are, quite frankly, the same kinds of activities that we now carry on with regional districts, municipalities, town councils and others.
My conclusion to all of this, then, is that I don't, frankly, see this as in any way alarming or of special concern. I think it's merely an illustration of the reality of the new relationship that we are crafting with the Nisga'a nation in this province.
M. de Jong: I think I detect a degree of defensiveness on the part of the minister, which I'm not sure the questions warranted. I haven't levied anything in the way of criticism -- yet -- but have simply tried to pursue the matter with a view to ascertaining the inventory of obligations that the Crown is assuming by virtue of the treaty itself and section 28 of the general provisions.
I should just say quickly that of the three arising out of chapter 2, the one that we'll get to in a moment in section 35 is hardly hypothetical when you consider that the Gitanyow claim is working its way through the courts. That's precisely what that section is designed to contemplate, and indeed there's something there for it to deal with. I don't know what the outcome of that claim is going to be or whether these provisions will be invoked as a result.
The point I tried to make, which I think is legitimate
[ Page 11195 ]
stage of the game is: how has this government reorganized itself to take account of that new relationship that the Premier says is a natural function of signing treaties? If the minister is going to suggest to me that it doesn't need to, then I think he's dreaming in Technicolor.
That is a question, I think, that deserves answering today. Are all of these functions going to be assumed by various line ministries? Is there going to be a separate ministry? Is he going to head a superministry? The minister might say: "I already have a superministry, and they're super people." But is he going to require a vastly expanded empire to deal with this? How has government changed itself to take account of that new relationship? I think that's a fair question.
Hon. D. Lovick: We do not believe that there will be a huge attendant cost to doing this. We see this, rather, as the ongoing provision of services from our government and interactions with other governments -- in this case, the Nisga'a government.
G. Wilson: I'd like to pick up where the member for Matsqui left off and offer a couple of thoughts and ask a question. That might give the member for Matsqui time to carry on. It strikes me that one of the issues that is out there in the public mind around Nisga'a is that somehow section 28 and other sections that are in this agreement require the government to either delegate to Nisga'a or provide in some way some powers to the Nisga'a to be able to put prohibitions on resource development, resource extraction and so on.
There are people in British Columbia who believe that somehow the requirement for consultation means that there is going to be expanded opportunity for first nations to be able to interrupt what has previously been almost an exclusive right of the province to be able to provide resource extraction licences and make agreements with companies. To a certain extent, I think that that concern is a legitimate concern, because up until now there has been an almost exclusive right for the Crown to enter into direct negotiation with or agreement with corporate powers and provide them tree farm licences or provide them access to resources or give them mineral exploration licences, and so on.
I think what this section is telling us, and what the Delgamuukw ruling told us in no uncertain terms, is that the days of unfettered powers by the province to have access to those lands and the resources upon them and to make licences are now gone. That's over. Those days are gone. I think that what is important is for us to acknowledge that the corporate entities in British Columbia are well aware of that and are already prepared on the consultation side of it. Many of them are already dealing with first nations on a direct basis. In fact the provision of section 28, notwithstanding the need to consult with first nations -- in this case, the Nisga'a -- provides protection against the kinds of problems that will result from non-treaty aboriginal people who have yet to see their interests in land protected and who consider that there is a problem with lost revenue as a result of extraction of resources on what they deem to be treaty lands.
The reason I say that is because the language of this is very clear. In the concluding
sentence it says -- and this is after we've done the consultation: "
That's a very critical point in this particular section, because it provides
So this is an important section, because not only does it require consultation but it provides certainty that once it has occurred, there can no longer be an obstruction to the ongoing, orderly process of economic growth in the province. Just by way of finalizing the comments on this -- and then I have a question -- I very recently attended a meeting of professional Canadian foresters in which this issue came up. Here we have some of the top professional foresters talking with members of the forest industry, in the forest sector in British Columbia, who are well ahead of the game. These people are well ahead of the game. They're already involved in joint ventures with first nations, they're already involved in new agreements, they are already fully in the consultation process on traditional territories, and it's working -- and in many, many instances, working well. In some instances there are problems, and those problems have to be resolved.
I guess my question -- by way of that long, sort of, preamble -- to the minister is
Hon. D. Lovick: I think the member's analysis is absolutely correct. I therefore agree entirely with his conclusion.
G. Wilson: Having said that, that's not to suggest
That's why I put to the minister that surely, now that this treaty is before us, the door is also open to a broader interpretation of Delgamuukw, which might suggest that what the ruling really provided us with, the opportunity, was an opportunity to move to a new system of management of Crown land, which effectively is joint tenancy.
It strikes me -- and I know that this is an issue I've spoken with the Premier about, with the federal minister about and with many of the first nations leadership about --
[ Page 11196 ]
that surely this ultimately solves the problem brought up by the member for Matsqui. If we recognize joint tenancy and we recognize provincial laws apply, the kind of consultative model in here can apply, but it can apply to the province as a land base rather than to each of these 51 individual agreements. That would take care of the concerns that we're hearing from the member for Matsqui. It's an idea that certainly I've had excellent feedback on today.
Hon. D. Lovick: However appealing the concept is, at face value, of talking about joint tenancy, I'm very reluctant to embrace it in any formal way. The reason is simply because in this post-Delgamuukw universe, as I'm sure the member is well aware, we're having ongoing discussions with the Summit and various other first nations about possible models for a treaty settlement. Therefore, as I say, I'm very reluctant to attach the government, if you will, to any particular model. But it's certainly a concept that obviously resonates hugely with a number of first nations in the province. I think the member has a point, as well, that certain corporate private interests would also be attracted to it. Details are obviously difficult to nail down. We're certainly not dismissing the model, but I'm not about to embrace it here.
G. Wilson: I think that even that response from the minister is important for
the public record, because it defuses the most unfortunate characterization that Nisga'a
is a template to be repeated 51 times. It clearly is not. I think that the response we've
heard from
[5:15]
Interjection.
G. Wilson: I hear the Premier saying he regrets that. I don't doubt that he does. He probably will regret saying that right till his dying breath as a Premier.
But I do think that this should be underscored, notwithstanding what is provided here -- that there are other models contemplated. In fact, we can have a much better process of consultation that will not do what the member, I think, quite rightly has concerns about -- that is, to get forced into a 51-treaty conglomerate of consultative requirements.
G. Plant: It's interesting to talk about other models. I've seen some of the framework agreements in some of the other negotiations that are underway. Framework agreements have lists of subjects that are going to be negotiated. The lists, I think, are oftentimes a good sneak preview of the chapter titles. Although the member for Powell River-Sunshine Coast puts forward an interesting, challenging and quite different perspective from that which has traditionally been taken by the federal government and the provincial government, all indications that I see at the moment are that the basic structure of the agreements that are being negotiated is very similar to the basic structure of this agreement.
In part, that's why, when the Premier said -- in words he may now regret -- that this agreement was a template, those words rang true. The Nisga'a final agreement is in some respects a template; that is, the model set out here is in fact going to be the model that's going to be followed in lots of other treaties. That's part of what is meant. That's why, when we look at the 50 or so consultation and negotiation obligations that my colleague the member for Matsqui has identified, it is pretty much a relevant question. What is the impact on the ability of the province of British Columbia to govern itself going to be when you multiply this list of 50 or more explicit requirements to consult and negotiate agreements by 50 or 60 more treaties?
For the sake of argument, let's assume for a moment that the Premier is also right to this extent -- that is, he's right in regretting the full implications of the idea of a template, because he wants to accommodate the fact that there are first nations that will have slightly different interests on different issues. What that actually means is not that we're going to have 50 or 60 different treaties in which these 50 obligations exist. What it means we're going to have is a totally unpredictable and, in practical terms, almost infinite variety of differing types of obligations -- interwoven requirements to administer the Forest Act of British Columbia one way on Nisga'a lands, another way on Westbank lands and yet another way on some other lands, some other first nations settlement land. And the cumulative effect of that -- altogether apart from its impact on the ability to deliver good government -- is an impact in terms of cost.
I think we've established the point that while the government wants to argue in general terms that "Well, it's more expensive now than it will be later," they really don't have any objective basis for making those assertions, because the work really hasn't been done. In this respect -- and I don't say this totally critically -- the government's making it up as it goes along here. That is, the government doesn't have a clear vision of what's going to result at the end of all this, because it really didn't take the time to sit down and develop that vision before it got so far along in the process.
Would the Minister of Aboriginal Affairs seriously contend that the cumulative effect of 50 or 60 treaties which roughly follow this model on the ability of the province to manage itself in a way that is fiscally prudent is negligible? Surely it's pretty darn significant.
Hon. D. Lovick: Well, at the end of the day, I think it's absolutely counterintuitive to pretend that the effect would be negligible. The issue is whether the effect is (a) manageable and (b) necessary. I would suggest it is, and I would remind the member what the status quo is. Let's have no illusions. The reality today is that we have an unknown number of consultations going on for an unknown number of purposes in an unknown number of areas. I mean, nobody at any given moment in time could say: "Here are all the consultation activities that the province is involved in with other jurisdictions and other levels of government or other authorities." I just don't think anybody would make that claim.
What this agreement does -- and presumably what others that follow will do -- is give us the certainty, so that we know precisely what the obligations to consult are. Again, let's be absolutely candid, one with another. Somebody has used the phrase -- I think it may have been the Premier -- that we are talking, frankly, about a new social contract. I for one don't find that alarming; I find it exciting, actually. Conceivably, at the end of the day, yes indeed, there will be different responsibilities assigned to the provincial government -- no question. But in terms of saying that it means that the sky is falling and it's unaffordable or something, I don't think that follows at all.
G. Plant: One way of testing the logic of the minister's response would be, for example, to choose a hypothetical
[ Page 11197 ]
community somewhere in British Columbia that had a population of 2,500 people and then to say: "All right, in respect of that -- putting to one side, of course, all the general obligations that exist under provincial law -- does the government of British Columbia have 52 separate memorandums of understanding in respect to different issues that it has to deal with uniquely in that village or community?" I suspect the answer is no. In fact, the answer is that it's hardly conceivable.
Part of the challenge here is to see in what respect the effect of all this is going to create a whole lot of government for aboriginal communities, which doesn't have its parallel for ordinary municipalities. Let me make this a little more concrete for a moment. One of the themes of this debate for me, anyway, is to keep in mind the apprehension that no matter how certain we are today, things are going to come along that defy our expectations and, frankly, surprise us. One of the challenges for those drafting this agreement is to try and anticipate as many of those things as they can.
A specific example of that problem occurs in Treaty 8 country. The people who negotiated Treaty 8 a hundred years ago probably thought they had achieved complete and utter certainty. Unfortunately, probably none of them had ever heard of oil or gas. So what is happening up in the Peace country in British Columbia is that there is tension created between, on the one hand, the activities of companies that have oil and gas rights and, on the other hand, the hunting and trapping activities of some of the Treaty 8 bands. The way that's working out on the ground is, I think, something that would in fact be really surprising to the people who negotiated Treaty 8. As I understand it, the province is committed to entering into a series of memorandums of understanding with as many of the Treaty 8 bands as they can to create a new process for consultation, so as to ensure that the oil and gas industry is allowed to continue its business without running into the obstacle of Treaty 8 claims.
We're not talking here about aboriginal rights. We're not talking about the undefined, uncertain world of aboriginal rights and title; we're talking about the supposedly defined and certain world of treaty rights. That is the world that we're supposed to be creating with the Nisga'a final agreement. Yet, as I understand it, the province is committing itself to paying hundreds of thousands of dollars a year to the Treaty 8 bands under the heading of what's called capacity-building, so that these bands can hire senior technicians and junior technicians and project monitors and such, all in order, I guess, for the province to purchase the right to say to oil and gas companies: "You'll be able to go about your business without interference." It's sort of the price of peace, if you will.
This seems to me to be a good example of why it's dangerous to be confident, because we can't foresee the things that are going to come down the pike. In fact, what I foresee here is that this list of 50 in the Nisga'a Final Agreement is but a beginning. It will multiply -- with the Nisga'a, leaving aside other aboriginal groups. If the Treaty 8 bands can come along and say, "Well, I know there's nothing about this, really, in the treaty, but we're going to make your lives difficult if you don't start paying us a lot of money," then lo and behold, there's another consultation obligation.
Putting this into context, is the minister truly confident that these costs and challenges are really to be completely discounted?
Hon. D. Lovick: I can't comprehend how the member opposite could say, in all conscience, that I am, to use his words, completely discounting the concerns expressed. Rather, I have said that I understand. I said that we accept them. My conclusion has been that they are manageable, however, that they are not beyond the pale and that the sky is not falling and other such expressions.
I have to say, though, that I am just a little disturbed by the comparison with Treaty 8. Remember that Treaty 8 was over a hundred years ago, before there was such a thing as the Charter of Rights, before there was a constitution of Canada that had been patriated. Treaty 8 doesn't do anything about defining aboriginal rights. The concept wasn't even acknowledged at that point -- except by a few jurists in Great Britain, I suspect.
The reality is that what we have done in our modern treaty is take the lead from the
Supreme Court and the constitution and try to work out a detailed, modern treaty. To say
that because people are coming back and saying that Treaty 8 doesn't work in the context
of 1998, and therefore we'd better worry about a 1998 treaty because maybe in 2088 or
something, that may be problematic
I'm sorry, I'm waxing more passionately than I ought to be, but frankly, I find the Treaty 8 comparison invidious.
[5:30]
G. Plant: If the minister is saying that the stage of enlightenment that he has achieved will stand the test of time, then I must commend him for his optimism. I think the reality is much more likely to be the contrary, that in fact given the elapse of not very much time at all, people are going to have a different conception of these things, and there are going to be people who are going to look at the Nisga'a final agreement and say that it's unfair or oppressive. After all, the minister knows well that the Alaska native claim settlement, which was hailed at its onset in 1971 as the most liberal settlement ever made, is now universally condemned as being a complete failure. The Quebec James Bay agreement of 1975, the first modern treaty in Canada, is rejected by the Cree as being oppressive. And those are only 20 years ago. We really can't even say anything about an agreement that was four or five years ago. Yet we are constantly faced with the bald assertion of the government that: "This time we've got it right. Don't worry. We have achieved an advanced stage of enlightenment around these issues, and we've provided for all the contingencies."
What I see, for example, is that in Treaty 8 -- where I think there is, in fact, a basis for an analogy -- there are additional costs now being imposed on government in the order of hundreds of thousands of dollars every year -- $235,675 in the case of one of these memoranda. These are costs that no one thought would ever have to be borne by a government. I suspect that the same thing is likely to happen with this agreement. With respect, it seems to me, from the
[ Page 11198 ]
answers the minister has given to these questions so far, that he is discounting these possibilities, saying that they're not significant enough to warrant being concerned about. If that's the government's position, then so be it. But it does sound to me like an excess of optimism in a context where we should be trying very hard to be practical, really hard-nosed and cautious.
M. de Jong: If I can try to bring some closure to this discussion -- and I'll
have no more delay tactics from the minister, I'll have you know, hon. Chair
Hon. D. Lovick: We anticipate -- and this sounds like stating the very
self-evident -- that wildlife issues will be dealt with by Environment and the wildlife
branch, forestry issues by
Regarding Nisga'a, no, we don't think there will be a huge impact. We think we can continue to deliver those services, notwithstanding the fact that there are other obligations spelled out there. In anticipation of another question that might come, I might say that after doing a number of other treaties, we may need to rethink that. We may discover that there is something like an overload of demand. But for this treaty, no, and this treaty is, after all, what we're discussing now.
M. de Jong: Sometimes we have criticisms that can be categorized as being more political and more partisan, but I will say this as genuinely as I can muster, and that is: if this is the model that we are to follow, then government needs to get on with the job of considering how it is going to reorganize to deal with this.
The government says we're going to have ten more of these treaties in the next year.
The government wants to move ahead, and if we're not undertaking this work
This treaty and the obligations that I went through in terms of consultation and negotiation become constitutional obligations. I want to make that point, because at some point during the exchange someone on the government side -- it might have been the minister -- talked about similar obligations that exist vis-�-vis municipal government. Well, that's a pretty fundamental distinction when we're talking about a constitutional obligation versus one that exists statutorily. So let's clear up that misconception right away. It's a constitutional obligation carrying with it all of the force that that implies.
Hon. D. Lovick: I think the fact that the treaty and the terms of the treaty are protected by section 35 of the constitution is, frankly, irrelevant. The treaty is a solemn promise; we have made a contract with the Nisga'a. We have said that we will do certain things; they have said that they will do certain things; Canada has said that it will do certain things. And that's the end of the matter. The constitutional dimension, I think, is irrelevant, frankly.
M. de Jong: Well, I beg to differ. I wasn't really intending to get bogged down in this, but you can't on the one hand argue the significance, for example, of the Delgamuukw decision and those obligations, talk about the government's response to that via a document like this treaty, contrast it -- incorrectly, I would submit -- with what exists between provincial government and local government, and dismiss out of hand the significance of that distinction.
Interjection.
M. de Jong: The minister is saying that it doesn't make any difference. Well, for the life of me I don't understand how the minister can make a statement like that and at the same time sign a document that assumes, on behalf of government, the degree of constitutionalized obligation that exists. Maybe I misunderstood what the minister was driving at.
Hon. D. Lovick: I thank the member opposite for his willingness to acknowledge
that maybe he misunderstood, and I will reciprocate by saying that perhaps I didn't say it
as clearly as I ought to have. So let me try again. I am making the point that many, many
-- indeed, the preponderant majority -- of the items that the member referred to as
conferring new and different obligations, I would suggest, are routine kinds of activities
like environmental assessment, like wildlife -- those sorts of activities, those sorts of
consultations. The fact that the treaty is a promise, is a contract, is all that needs to
be said, it seems to me, to suggest the obligations
M. de Jong: All right. At the risk of coming full circle, the minister used a word in his reply that I was hoping we would eventually get to as a way of analyzing this whole point. That is, there are very few new obligations that we as government are assuming. I think the minister said that, and I may agree or disagree. But the essence of the question -- and it brings us to a point that we were at some time ago -- is: what are those new obligations?
If they are new obligations, then maybe the minister is right. Maybe the extent of those new obligations is so minimal, when you contrast the obligation that existed under Delgammukw with what exists under this document, that they are negligible or nominal. But what are they? What in the minister's mind constitute the new obligations to consult or negotiate that don't exist until such time as this becomes a signed and ratified treaty?
Hon. D. Lovick: I think the concept, again -- and it's one we've heard many times in the course of our discussion for the last few days -- is probably best dealt with by going back to the concept of undefined aboriginal rights versus defined rights. What we have in the document, of course, is simply trying to nail down, to define, what those obligations are.
[ Page 11199 ]
The specific one -- just one, because it comes to mind, and it's top-of-mind for me for some reason -- is in the forestry chapter; I think it's section 75. It effectively says that we, the provincial Crown, have an obligation to provide information to the Nisga'a re cutting plans and so forth. It spells out the relationship in terms of how we deal with a new landowner. That's a new obligation -- all right? If the member is looking for a definitive list beyond that, I would suggest that a starting point might be the one that he read into the record. He could probably find a number of others there.
M. de Jong: Let's just be clear about the argument that we've heard from the government benches today on this point: "Fear not. You are overstating the costs and significance of this whole matter and the obligations that government is assuming by virtue of these provisions of the treaty" -- which I read into the record earlier. "It is minimal. If there are additional costs, they relate exclusively to those new obligations we have assumed. There aren't many of those, but we're not going to tell you which they are" -- for reasons that the minister has alluded to earlier. "That's not helpful, but trust us, there aren't many new ones."
I mean, I can pick one at random. I presume, for example, that the obligation to consult with the Nisga'a government when drawing electoral boundaries is a new obligation. I presume that it is not something that the minister would say is an obligation that exists now. I'm trying to get a sense of what represents new and what represents old, but I suspect I won't have any more luck than we had with the Attorney General earlier.
Hon. D. Lovick: Do I understand correctly that the question was about electoral boundaries and whether this is indeed a new obligation?
[5:45]
M. de Jong: Yes.
Hon. D. Lovick: Okay. The answer is yes.
G. Plant: By way of closure for my part on this part of chapter 2, leading up to, I guess, the non-derogation provisions in section 33, there are two things I want to pursue briefly. First of all, the minister discounts the significance of section 35 in the context of these promises, in part by saying that these are solid promises, and: "We take them seriously and intend to honour them, and that's that." I may be unfair to the minister. If I am, I'm sure he'll correct me. But let me draw this analogy, because it will be a way of expressing what I think the section 35 significance is.
If the government enters into an agreement with a municipality to consult with it on matters relating to environmental protection or electoral boundaries or whatever, that may be a contract that's enforceable in the courts in the ordinary course. But if the government decides that this contract doesn't represent what the government wants to be public policy, the government can come into this Legislature and pass a law that would set aside the contract. It can do so retroactively and can create immunities and essentially deny the municipality any recourse; the province is perfectly competent to do that. But none of that obtains, I think, here -- that is, the province, having constitutionally promised to consult, would lose the ability to repeal unilaterally its end of the bargain. If that's so, then it does seem to me that there is some significance in characterizing these as section 35 promises. Maybe if I'm wrong, the minister will correct me.
Hon. D. Lovick: First, I want to deal very briefly with the point
I never talked about discounting. I'm sorry, but that verb -- the use of that terminology -- is inflammatory.
Interjection.
Hon. D. Lovick: No, no. I clarified for the member
Interjection.
Hon. D. Lovick: Yeah, exactly. Please, then
Interjections.
The Chair: Order, members.
Hon. D. Lovick: I'm tired of dealing with this on a regular basis, hon. Chair; that's all.
Interjections.
The Chair: Members, order.
Interjection.
Hon. D. Lovick: Yeah, let's look at the transcript. What a good idea!
The question the member poses, however, is whether we -- the province -- lose our ability to change our minds, to break contracts unilaterally. Yeah, we do. There is that additional protection in the treaty. He's quite right -- however, with one cautionary note. As I understand it, for a very long time the courts have said that any agreement, pre-treaty or otherwise, that any government enters into with an aboriginal people necessarily involves one in an arrangement involving the honour of the Crown. In that sense, the courts traditionally would say: "You can't unilaterally renege or change your mind without being subject to some kind of penalty."
G. Plant: Which I suppose is a way of saying that if the minister's analysis is right, not only is there section 35 but there is also this additional element of the honour of the Crown, which affects, shall we say, the ability of the province to act unilaterally in a way that would abrogate a treaty promise, as opposed to some other contract with a non-aboriginal entity.
I certainly didn't mean to take the minister out of context or put the point wrongly a moment ago. I thought I had actually heard the minister say that the fact these are section 35 promises didn't matter, and obviously I misunderstood what he meant by that. Now we have some clarity, and that's always a good thing.
The last point I want to ask about is a final return to the certainty issue. I gave my own view on how the various
[ Page 11200 ]
components of these clauses work to achieve certainty and the limits on that. There's one point I didn't cover. In the Delgamuukw decision, the Supreme Court of Canada talks about surrender. It talks about surrender in a pretty important context. It says that there is something important about the idea of surrender in reinforcing the conclusion that there are limits on aboriginal title. It essentially says that if aboriginal people want to use their lands for purposes outside that permitted by the law of aboriginal title, then they must surrender those lands. That would provide a basis on which the provincial government might hypothetically go to a first nation and say: "Well, look. The court is giving us some direction here. That direction includes concepts of surrender." Yet, of course, the province has not taken that path here. Why is that?
Hon. D. Lovick: Two points, briefly. Number one is that the treaty stands apart from whatever Delgamuukw might have said, and therefore we chose the language we wanted in the treaty. Second, as I believe we've canvassed already, our conclusion is that the language we are using achieves comparable certainty, and therefore we didn't need "cede, release and surrender."
M. de Jong: I can continue by moving to sections 30 to 33. It might be an appropriate time, though, to make the usual motion that the committee rise, report progress and seek leave to sit again.
Motion approved.
The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Hon. D. Lovick: With that, hon. Speaker, I call private members' statements.
LIONS GATE BRIDGE: SENSE OR NONSENSE?
J. Dalton: I was going to lead off by saying that we'll be competing with the news hour, but we beat them to it, so even better.
My topic is "Lions Gate Bridge: Sense or Nonsense?" Actually, my wife suggested that I'd misspelled "sense," so I'll leave that to your imagination.
On October 1, 1998, the government, through the B.C. Transportation Financing Authority, released the request for proposals on the Lions Gate Bridge project. Now, I need not tell anyone that the bridge has been a hot topic since the day it was opened, which was November 12, 1938 -- for example, why three lanes? Well, the bridge was originally designed with two, and a third lane was squeezed out, causing 60 years of driving in unsafe traffic lanes. In fact, why the bridge at all? It was actually built so that prospective purchasers could get to a new development in West Vancouver, the British Pacific Properties.
Over the years, endless discussion of third crossings has occurred, led by such good people as the late Ed Keate. The condition of the bridge declined. I remember in the fifties and sixties when you would always see painters swinging from the cables, keeping Vancouver's number one landmark bright and shiny. The bridge deck was repaved on occasion, but due to erosion, it is no longer possible to do so. Engineering reports indicate that vehicle wheels could actually break through the deck. Needless to say, the government must do something. If not, then scrap the bridge and turn it into Toyotas.
Our current government and its Harcourt predecessor and the Socred governments before that have studied and discussed and delayed the inevitable -- namely, fix it or lose it. Unfortunately, in all the discussion, the opportunity to do the right thing in the long run has been discarded.
What is the right thing? I would submit that the right thing is not the three-lane rehabilitation, which is a band-aid at best. It is not the status quo causeway; that is not the right thing -- a causeway where head-on and rear-end collisions are numerous. It is not a plan that ignores the congestion problems at the north end; this is a plan that doesn't even have adequate money to do the proposed band-aid job properly.
So what is the right thing? I submit that the right thing is long-range planning of how we move people and goods around the lower mainland. Our traffic system is a piecemeal pattern, challenging anyone to get from point A to point B without headache and delay. We are promoting a 2010 Olympic bid but giving little thought as to how to get people from the airport and UBC to downtown, North Shore and Whistler venues. So there's no sense to the Lions Gate project other than to fix what is long overdue for fixing.
We have had three lanes for 60 years. This gives us three lanes for another 50 or 60 years -- big deal. The West Vancouver Chamber of Commerce, through its president, John Clark, has presented an alternative proposal in a letter of July 14, 1998, to the mayors and councils of the North Shore. Mr. Clark writes that the government project "lacks vision, responsibility, consideration and common sense." He suggests that a three-lane tunnel with provision for LRT be constructed before the bridge rehabilitation is done. That would allow traffic to be diverted to the tunnel while the bridge is fixed.
As Mr. Clark and many business people on both the North Shore and in downtown Vancouver have pointed out, the proposed closures of the bridge would be devastating to business. They would also have a detrimental impact on Whistler, the very resort we are promoting to host the 2010 Olympics. Did we learn nothing from the negative impact of repairing the Second Narrows Bridge? It seems not.
Personally, I would like to see a third crossing located from Pemberton Avenue to Main Street, or in that approximate area. Such a crossing would take the pressure off the First Narrows and allow traffic to move across Burrard Inlet and around the lower mainland instead of being forced through downtown Vancouver. Light rapid transit would be a component, incorporating use of the BCR right-of-way.
[6:00]
Whatever alternatives there are, there is a reality. That reality is that the proposed project is shortsighted, underfunded and potentially devastating to business as well as to people's normal travel plans. The government announces megaprojects on an almost weekly basis, most of them being
[ Page 11201 ]
more photo ops than substance. Well, I invite this government to put some meat on the bones of the Lions Gate project and avoid the inevitable short- and long-term problems that the proposal invites.
After the hon. member opposite has responded, I will be commenting on the recent Marktrend poll that invited people around the lower mainland to comment on this project that the government has put forward. The results are of interest. I'm sure they will be of interest to the members opposite and, hopefully, to the Highways minister, as well. I thank the members for their time and anticipate a response.
T. Stevenson: I thank the member for West Vancouver-Capilano. Ironically, the member for West Vancouver-Capilano and I actually grew up about three or four blocks from each other and have watched the Lions Gate Bridge for many, many years -- all through the fifties and sixties. So we're both very familiar with the bridge. Of course, as the member already stated, this government and preceding governments have studied the problem of the Lions Gate Bridge for quite some time. Until this government, nothing whatsoever had been done.
But the government under the previous Premier, Mr. Harcourt, started a consultation process with a great many people, organizations, groups and municipalities. From this, the decision to go ahead with rehabilitating the three lanes was taken. In fact, the municipalities and the mayors of Vancouver and the North Shore were all in agreement.
I recognize that of late, the chamber of commerce in West Vancouver have stated that they would like a four-lane bridge, and they would like to have tolls on it. But West Vancouver was very clear that they wanted no tolls whatsoever and wanted the provincial government to pay the whole tab. The mayor of Vancouver, of course -- as I'm sure has been noted by many -- said that he was very pleased with the decision that we've made.
Part of the reason that this decision was made was so that there would not be any increase in traffic into the downtown Vancouver core. That's been a major concern of not only the mayor but also the city council and the MLAs from the Vancouver area. As you are probably aware, there is potential for substantially increasing traffic from the North Shore and elsewhere. Everywhere that more lanes have been built, cars have always come and followed up and taken them. We are opposed to more traffic coming into the downtown core, and consequently we are opposed to any more than three lanes.
The bridge indeed needs to be repaired and will be repaired -- $80 million is being put aside for this project -- and it will be earthquake-proof. There will be new sidewalks on the outside, and the lanes will be widened so that the safety factor on the bridge itself will be taken care of. There will be much better lighting. Hopefully, the chances of accidents will greatly diminish in the evening, when there are a fair number of accidents, as the member has already stated.
I would agree with the member that a crossing from Pemberton Avenue to Main Street would be a very nice answer to the problem. Unfortunately, this will cost approximately a billion dollars. The government is not prepared at this time to finance that, nor are there any private companies coming forth to finance a tunnel to the tune of a billion dollars. Possibly that will be done in the future, and hopefully, it will be done. At least this way keeps that hope alive. If we were to have built a tunnel, as the parks board suggested, that option would probably disappear.
I think that both of us are united in the wish that we will have a new tunnel from Pemberton Avenue over to Main Street in the future. In the meantime, I think this is the answer to the problem. Certainly, in all our polling and in all our discussions with the various stakeholders, including the municipalities on the North Shore and in Vancouver, we have found that they are indeed in agreement with this decision. I look forward to the member continuing with this.
J. Dalton: I congratulate the member for Vancouver-Burrard for being able to
Hon. Speaker, I just want to clarify a couple of things. The member mentioned the consultation process and three lanes as a result. Well, actually, we started with four lanes, but because of controversy and lack of money, obviously, it's been reduced to the three that I've commented on.
The member also mentioned $80 million. Actually, the original package was $78 million, as the Highways minister admitted on May 13 in the House last year. Then he went on to say, and this is important, that what's available on May 13, 1998, is $65 million to $70 million. This is now January of '99, and I'm told by good sources that what's available today is $55 million. We need $100 million, give or take, to do this job properly, even though I don't think this is the proper job. So I think we've got a problem.
I've made reference to a Marktrend poll of 503 people that was just recently commissioned by the West Van chamber as a GVRD-wide poll: "Do you support the proposal?" Twenty-seven percent said yes. These are not just West Van or North Van or North Shore people. Sixty-one percent said: "No, we do not" or "Do something else; this is not adequate." "Would you support a tunnel, and if necessary to finance it, would a $2 round-trip toll be acceptable?" Fifty percent responded yes to that question. "Has the public been kept up to date on the Lions Gate project?" Fifty-two percent said no. In fact, I went to the web site the other day, and the last update on the project was November. They told me they're going to update it, but they're not even keeping up with the new technology.
I've already commented, but I just want to re-emphasize this: there is not enough money in this project to do this job. It'll be interesting to see, on February 9, when the bids come in -- that's the deadline, and I'm told there are four companies that are going to bid -- if the bids fit within the guidelines. If not, then what do we do? The last thing -- again, to put it on the record -- is that on both sides of the water, including the businesses and the constituents in the downtown core, they are very concerned about the negative impact of these closures: theatres; restaurants; hockey games; basketball games, if they ever get back to playing; plus downtown businesses. They are equally as concerned about the implications of closing the Lions Gate over these periods of time as the people on the North Shore, in Whistler and Pemberton, and elsewhere.
FOOD FOR THOUGHT
J. Sawicki: Later this year a select standing committee of this House, Agriculture and Fisheries, will be going out to talk to British Columbians to inquire into and make recommenda-
[ Page 11202 ]
tions with respect to an agrifood policy for the new millennium. While I know that we were just working on our business plan, I really get a sense that all of the members of this committee, on both sides of the House, under the able chairship of the member for Maple Ridge-Pitt Meadows, are really looking forward to the discussions we'll have on that. Perhaps by accident or design, we really do represent the four corners of this province: Peace River North, Abbotsford, Comox, the Kootenays -- even myself, as an urbanite, so to speak.
I think that we're looking forward to it because it's an extremely important issue, and that's why I've chosen to talk about it this evening. With all of the issues that each of us deal with, whether it's in our everyday lives or in our communities or in the Legislature, there's nothing much more basic than the food we eat. And I think that there's nothing that we take more for granted in British Columbia, whether it's the quality or quantity of our food, the producers who produce that food, the price or the variety. It's long past time that we think about these issues.
I was looking in the Legislative Library at the last time there was a select standing committee that went to talk about food in the province. It was over 20 years ago, headed by Len Bawtree at that time. They produced a huge volume of material on agricultural land -- present and future requirements -- on production costs, on food processing and distribution and merchandising. There was also a people's food commission, which was concerned especially about healthy food.
As an aside, I just want to say how pleased I was just this week that we got good news on that front, when at the urging of the province -- and it's certainly an issue that I've been working on for many years -- Ottawa rejected the use of rBST in dairy cattle here in Canada. I think it's a real credit to our producers in Canada that they said that they didn't want to follow in the footsteps of their American counterparts and feed this hormone to their cows.
I think that we're going to hear some constants out there when we go to hear what British Columbians feel about food and agriculture, and perhaps some of those constants are ones that came up in the previous select standing committee that went out to the province. Another constant, of course, will be the protection of the agricultural land base, because, as we all know, even with a successful history of 25 years, we are a growing province. There continue to be pressures and strong arguments for and against using farmland for other uses.
There will also be new issues, I suspect, such as globalization and trade liberalization -- things that our farmers didn't have to deal with 20 years ago, but they certainly have to deal with it now. I think that that is the key focus that people out there will have. I know that an issue that the minister wants our committee to talk about is the viability of our food sector and how the farmers who produce this food are going to be able to make a living on that land and what we, the rest of society, can do to support them in doing so.
It's timely, because I think that in the last year agriculture has demonstrated,
perhaps more than in previous years, just how important it is to both our provincial
economy and to the rural communities. The contribution to our domestic product -- $2.2
billion in 1996 alone
But the good news doesn't mask the fact that the very diversity of opportunity we have in British Columbia is also our Achilles' heel. Ours is a small industry, because we've got a small land base, and it's very difficult for our producers to be competitive in changing world markets. While I know the minister has worked hard, certainly in this past year, in terms of the fuel tax reduction, the corn silage crop insurance that has been introduced and several other programs -- the very popular Buy B.C. and B.C. Sharing, which also puts locally produced foods in the hands of local food banks -- viability continues to be the major issue facing the food industry.
[6:15]
I know that several members on the committee on both sides of the House accompanied the
minister to Naramata just a few weeks ago and heard the issues from the agriculture
industry themselves. I think it's also timely because of emerging issues like
environmental issues, water quality and quantity in the Okanagan, nutrient management --
otherwise known as waste, and I want to commend the member for Abbotsford for the work
that he has done on mushroom composting -- growth management, wildlife habitat, salmon
habitat
B. Barisoff: Well, it is timely that the hon. member for Burnaby-Willingdon would bring this up. In front of me I have "Agriculture: British Columbia's Forgotten Industry." We see this all over, where the industry is being forgotten. Agriculture is by far the most important industry that we have in British Columbia. We see it in the food chain all over.
With the minister appointing the Select Standing Committee on Agriculture
Hon. Speaker, there's no doubt in my mind that what's taking place in the industry is extremely important. With the select standing committee, I hope that when we can get throughout the province we can bring the profile to the people of British Columbia that it deserves. I note that the Chairman of the select standing committee is looking at travelling throughout the entire province, setting up meetings all over. This will be positive, just to bring to light what's happening for the people of B.C. to see.
There's no doubt that there will be a lot of things that we'll be looking at as members from that select standing committee. Probably, in particular we will be looking at the effects on the agrifood industry. We'll be looking at regulation,
[ Page 11203 ]
red tape -- a number of issues that are affecting farming today. As a group from this Legislature, I hope that we go forward with positive recommendations so that farming in British Columbia can become a viable industry.
It's there, but it's suffering substantially. I know that the grain-growing industry in
the Peace River region had two or three years of really tough times. The farming industry
in the Okanagan, particularly fruit-growing, is having a very difficult time this year.
We're fortunate with grape-growing, which is the wine industry. It's just taking off; it's
one of the most positive things that we've seen happen. I know also that in the Fraser
Valley there are problems with the dairy industry; there are problems with the mushroom
But all in all, I hope that the select standing committee can work to be as positive as can be and bring to light the most positive things for agriculture in British Columbia. I thank the member for Burnaby-Willingdon for bringing it up, because now it's no longer a forgotten part of the industry. If we can keep profiling agriculture in British Columbia, I'm sure that the farmers can benefit from it. We can benefit as consumers. In the long run, it will probably make for better and healthier people in British Columbia.
The Speaker: Thank you, member. Final reply by the member for Burnaby-Willingdon.
J. Sawicki: Thank you, hon. Speaker. Thanks also to the member opposite for his very thoughtful comments.
One of the reasons that I labelled this statement "Food for Thought" is because I hope British Columbians will indeed put a great deal of thought about food into their comments and the opinions that they will bring to this committee, because while our collective task is to come up with an agrifood policy for B.C. for today, we shouldn't do that in isolation.
I want to spend my final three minutes to put our task into a broader global perspective, because the major drivers on our planet are two things: one, human population growth, and two, accelerating resource depletion. Now, the figures on our population growth, I think, are familiar to many of us. But we need to remind ourselves that we have doubled in population on this planet in the last 40 or 50 years and, unless things change radically, will do so again in the next 50 years.
During that time, we have lost an amazing amount of highly productive food lands to urbanization, to salinization, to erosion, to nutrient loss. Any new lands that the world is bringing into production tend to be marginal lands. Or they tend to be at the expense of other resource uses, such as forestry. We can no longer comfort ourselves that we can make up the difference through increased yield and productivity, because those productivity gains are already reaching their limits. Finally, let's throw into the mix the factor that we're only now beginning to appreciate greenhouse gases, global warming and climate change as a result of our use of fossil fuels in agriculture as well as in most other human activities, particularly in the so-called developed parts of the world.
So when you think of it, food is a necessity. There are no substitutes for it. When we're dealing with such an irreplaceable resource as food land in such a global environment, wisdom suggests caution; wisdom suggests that we keep all our options open. As the select standing committee and British Columbians talk about the future, I hope that that, too, will give us food for thought.
SEISMIC UPGRADING IN SCHOOLS
C. Hansen: In November, I received a news clipping from a constituent, and it gave me a lot of cause for thought when I read it. This is a news clipping that starts out with the headline: "Desperate Search for Child Quake Survivors at Vancouver School. Death count at elementary school 88 -- likely to rise." The opening paragraph, which is all I'll read, is: "Vancouver. Weeping family members kept a grim vigil throughout the night as rescuers continued to pull dead and critically injured children and their teachers from an elementary school that collapsed in the earthquake that struck Vancouver yesterday."
Those are very powerful words. The date that these parents put on this news clipping was January 22, 1999. That's this coming Friday. They put out this news clipping as a way to draw attention to the problem that we have with the lack of seismic upgrading in our schools today. These are parents who have no choice as to where they will be sending their children to school, yet their children are going to school in a building that desperately needs seismic upgrading.
There have been many reports done on this particular issue. They say that Vancouver has more at-risk schools than any other area in British Columbia, because most of the schools in Vancouver are aging brick buildings, with walls and ceilings that are not bolted together. In most areas of the province where we have population growth, there have been new schools constructed as years have gone by. In Vancouver, what we have seen is a fairly static population. As a result, it's not the expansion of these schools that is so desperately needed; it is their upgrading, so that we can ensure that our children are safe when they are in those facilities. A 1991 school board report said that in a quake, 70-year-old Vancouver Tech "can be expected to suffer damage levels enough to create unacceptable risks to human life." There are a series of schools that are on a very high-priority list.
The problem that we have today is that guidelines that were in place that allowed for stand-alone seismic upgrading were changed in 1994. My message tonight is to put this case before all members of the House, hoping that we can all join together to urge the changing of those guidelines so that stand-alone seismic construction can once again become part of our capital spending priorities. We all recognize that there are scarce dollars for any kind of capital construction in British Columbia, whether it's for hospitals or schools. But certainly, if we have a situation where children are unsafe, that should be one of our highest priorities for whatever scarce resources there are.
In recent years we have seen the provincial government put $2 million into seismically upgrading our liquor distribution centre on East Broadway in Vancouver. When it comes to that kind of stand-alone upgrading, far more money has been put into the protection of the safety of liquor bottles than we have put into the protection of our children in all of the schools throughout British Columbia in the same period of time.
The school that I am probably most familiar with is Kerrisdale Elementary School. It's thanks to the diligent efforts of parents who have really been trying to bring this
[ Page 11204 ]
issue to the forefront. In 1998 there was a preliminary seismic survey that identified 109 unreinforced masonry brick buildings that were of the highest priority, and one of these is Kerrisdale Elementary. There are many others. Kerrisdale Elementary is not even the highest priority, but it is certainly one of the top ten. A 1990 seismic study of this school that was done by a reputable engineering firm came up with these findings, which I'd like to share with the House.
First of all, there is virtually no capacity inherent in this structure for resisting lateral forces. Secondly, this building will be at high risk during an earthquake. This school is probably one of the higher-risk buildings because of its reinforced masonry brick structure, and it should be placed near the top of the list for structural retrofitting. This is in the recommendations that are coming forward from this engineering firm.
Next, the floors and buildings are not attached, which will result in exterior walls collapsing or peeling away from floors in even minor earthquakes. This type of building has exhibited the poorest behaviour and suffered the most damage or collapse in previous earthquakes. There is the potential for pounding damage, as Kerrisdale consists of three separate buildings or three separate wings which are not connected. The covered play area on the west side of the school will perform poorly and possibly collapse because of inadequate column strength and ineffective roof design.
Those are the views, recommendations and findings that were put forward by one of Vancouver's most reputable engineering firms. That was 1990. Here we are now nine years later, and the problem still persists, and those children are still at risk.
There have been programs developed. For example, they have programs that will attach bookshelves to walls, so that bookshelves don't fall over during seismic activity. That's obviously important, but as one of the parents pointed out to me: "Here we have bookcases attached to the walls, and yet the walls are not attached to the ceiling." As they point out, if we wind up with an earthquake of a moderate to severe magnitude in Vancouver, the bookcase attached to a wall that is not fundamentally sound is not going to be of any assistance.
I understand that when the previous criteria were in place, Kerrisdale Elementary School was listed as the seventh-priority school when it came to capital needs in the Vancouver area. As a result of the change whereby the stand-alone seismic criteria were taken out of the criteria that could be used, that school dropped to No. 197.
The message that I would like to give to the House is that we have to stand together to see that our children are protected in British Columbia and that we have an opportunity to ensure that those criteria are put back in, so that whatever scarce capital dollars are available can be used to protect our children from seismic risks.
[6:30]
H. Giesbrecht: In response, let me say that the government is actively fixing the problem. In 1991 a provincewide review of needs and costs for seismic upgrading was conducted. The Ministry of Education provided funding to all school districts to undertake this review of every school in every district. In 1994 the government initiated the facility audit process. School districts, using standardized measures, review the condition of all their facilities every five years. They develop capital plans and prioritize renovation projects and structural upgrading of projects. These plans are forwarded to the ministry, and then projects are ranked provincially.
It is not correct to say that nothing is being done. The province has about $40 billion worth of buildings. To bring all those buildings up to seismic code standards is a tremendous cost. There are 1,700 schools in the province. It is estimated that the cost of seismic upgrading of all government-owned and government-leased facilities to existing codes ranges from $1.5 billion to $6 billion. To bring all buildings up to code immediately is not financially possible. The limits to what can be done are set by the taxpayers of the province and also by those out there, like the member for Vancouver-Little Mountain, who just the other day, in an article in the Times Colonist on January 6, in response to issues around tough budget decisions, said: "I don't think this government should be spending an extra penny."
The government policy is prudent, and it's as follows: first, all new construction on both renovations and new buildings must meet all current codes around seismic standards; second, the priority is to save lives, not buildings, if that is a choice that can be made. Recognizing that the greatest concentration of lives at risk is in schools, the schools are the priority. It is money well spent, deficit or no deficit, debt or no debt.
Since 1991, about $750 million has been spent renovating and replacing older school buildings -- $750 million. Approval has been given to replace over 50 of the older schools, and for major renovations and structural upgrades of 16 additional schools.
Projects are always considered as to their ability to withstand seismic events, but
remember that structural upgrading is not the only way to save lives. Falling debris,
glass, ceilings, shelving, light fixtures
The limits are as I have mentioned, but one cannot argue in this House for less spending one day and for more the next.
C. Hansen: I want to point out to the hon. member who just spoke that what I'm talking about is not new dollars. I think we all recognize that there are limits in the financial resources that the provincial government has at its disposal. Obviously it would be wonderful if this entire problem could be addressed tomorrow. Quite frankly, when you talk about the priority for expenditures and start looking at the money that's gone into Skeena Cellulose and into fast ferries, that alone would have addressed this problem.
As I pointed out in my opening remarks, the issue before us is that when we do have
dollars available for capital construction in schools -- and only a few months ago, we had
an announcement of $300-and-some-odd million that was put into school construction in this
province
[ Page 11205 ]
is that the guidelines we're operating under do not allow any of that money to be used for stand-alone seismic upgrading, and that's what has to be addressed.
I want to go back to this fictitious news clipping that I opened with. As I mentioned, this is a news clipping dated January 22, 1999. The closing paragraph says: "Rescue coordinator Ryan Strankley confirms that the school was particularly unsuited to withstand an earthquake, despite the fact that a quake of Thursday's magnitude has been predicted for decades. 'The school came down like a house of cards,' he told reporters. 'Those little kids just never had a chance.' "
That's fictitious, hon. Speaker, but let me read you this. What I'm about to read is
not fictitious. This is from an article in the July 11, 1997, Globe and Mail, which
reported an earthquake in Venezuela. The article states: "Rescuers in eastern
Venezuela yesterday searched for dozens of children trapped in classrooms ruined by a
powerful earthquake that killed at least 59 people
I implore all members: let's address this issue before that becomes a news story that happens in British Columbia.
EDUCATION PRIORITIES IN SURREY
J. Smallwood: My statement this evening has to do with a topic that I think most of us would have hoped had left us years and years ago. That topic is one of banning books. It conjures up images of the Inquisition, when books were piled in the town square and set afire.
In Surrey we have a school board that has, I think, some of its spending priorities a little topsy-turvy. What I'm talking about here is the banning of the kindergarten and grade 1 class books: Asha's Mums; One Dad, Two Dads, Brown Dads, Blue Dads; and Belinda's Bouquet. These are books that our school board made a decision to ban and to not make available to these particular classrooms.
There were several Surrey teachers and parents who took the board to court, saying that the banning of the books violated the Charter of Rights. The judge, Justice Saunders, agreed. On January 12, 1999, the Surrey school board announced its intention to appeal Justice Saunders's decision that it improperly banned three children's books that addressed issues of same-sex parents. Justice Saunders found that the school board is required to adhere to a high moral line which is consistent with the Canadian Charter of Rights and Freedoms. The Charter, she found, protects the rights of gay and lesbian people, including their relationships. Justice Saunders found that because the Surrey school board gave significant weight to personal and parental concerns that the books would conflict with their religious views, it acted in a manner contrary to the School Act, which requires schools to be run on strictly secular principles. She noted that the School Act draws a sharp distinction between issues of morality and religious considerations. Therefore, because the Surrey school board decision was based in a significant way on religious considerations, it could not stand.
My statement not only deals with the actions of the school board with respect to the court case with respect to the banning of books but also with respect to its spending priorities. Financial considerations are considerable with respect to this battle in the courts. While it is well within their rights to do so, I hope that the trustees recognize that there is a significant cost to their actions. Up to December of '98, the board spent about $400,000 in legal costs in this case. It takes a minimum of about $25,000 to launch the appeal, with legal costs escalating far beyond that.
I believe that the school board would have been far better to not only follow the School Act and the principles within it but to prioritize its actions to ensure that all children in the school district shared the opportunities for education on an equitable basis. It seems that some trustees on the Surrey school board believe that they have sufficient money to pay the legal fees without impacting education. It's ironic, then, that on the very day that the board decided to appeal this decision, they asked the minister for more money for their inner-city schools.
I was one of the strong proponents of this government's inner-city school program, and I was very proud when we introduced it. The program provided an opportunity not only for lunch programs but for educators to top up their budgets and allow inner-city school children the same opportunities that more affluent schools and school children have for things like school trips -- opportunities that those children may not otherwise have that would help round out their education. This particular program that our government introduced was a program that relied on school districts and school trustees to identify the needs in their communities, to identify the particular schools, to register their schools as schools in need and therefore qualify for that money. When the program was introduced five years ago, the school district of Vancouver was very quick off the mark and identified schools and took advantage of the program, and the consequence of that is by comparison, Surrey has only half the funding money by population that Vancouver schools, which took advantage of the program, have been able to accrue.
That is just one example of a school district and a board of trustees that, in my view, have been putting their priorities over the needs of the majority of children. They didn't act on the program, and now that the program is capped, they are in a situation where they're asking for more money and spending the scarce education dollars that are available to all school districts on challenges that are based on their personal and religious beliefs.
The board chair, Heather Stilwell, said that if the board loses the lawsuit, a subsequent lawsuit against the government to recover the board's costs will be considered. The trustees are in the process of appealing a decision by the province's school protection branch that denied the financial assistance to the board's defence. It seems to me, hon. Speaker, that this board is not only spending precious resources but a great deal of time that could be spent elsewhere.
So who supports this Surrey school board's position? Well, it's very clear that the
vice-chair and the chair of the school board have been very vocal on this. Gary Tymoschuk
The Speaker: Hon. member, your time is now completed for this part of your presentation.
[6:45]
A. Sanders: Let's look at the facts in the Surrey school board situation. First you can ask the question: "How did this situation arise?" It arose when the Minister of Education was
[ Page 11206 ]
derelict in his duties. The minister can approve all resources that are used in the classrooms of British Columbia schools. The minister was asked directly by the gay and lesbian alliance to do so, and he refused at that time. If he had given written approval at that time, we wouldn't have a court case. There would be no court case on which to base this entire private member's statement. Because the minister refused to make that decision -- a decision he says he stands behind -- it went, by default, to the Surrey school board.
Now we find the board using moneys that are coming out of the operating of classrooms to defend their point of view. This was a decision, again, of the minister, that that would come out of the operating budget of the Surrey school board. Usually school board cases come out of an amalgamated fund called the school protection fund, and that is a fund that all the different school boards pay into. They pay into it to subsidize and neutralize any great cost to any school board when they have legal fees, and as a result they help each other, through a buffer system, to provide that safety valve.
The minister has refused to let the Surrey school board use that fund -- a fund that is available to all other school boards in decisions that involve legal costs. Why did the minister do that? It's a question only he can answer.
So what are the educational priorities of the Surrey school board?
I worked the last two years with 60 school boards, and I worked with individuals on all boards. I have seen that these are people who really have a finger on the pulse of their communities -- who do a lot of volunteer work on behalf of their communities.
There are many things that the Surrey school board has done. They have competently administered a $312 million operating fund. They have competently administered a $173.3 million capital budget for building schools. The results: balanced budgets. The board has delivered to Surrey teachers a contract that is the envy of the teachers' peers in other districts. The board has been a vocal advocate, an aggressive advocate, for issues in education for Surrey kids. Is that a punishable offence? The board has provided an accountability structure that enables taxpayers to see how their dollars are spent in Surrey and to decide for themselves whether they feel that the board has done a good job. There is a summary report of the accomplishments on behalf of students, 1997 to '99, which I would share with the member. She can see what positive things the school board has done.
What we're focusing on is an amount of money. That amount of money is 0.1 percent of the entire budget that Surrey is using. My caution to the member when she casts aspersions on how Surrey spends its money is to realize that they are an elected body. There are many glass houses, one which government itself may occupy.
Does the Ministry of Education have a good track record? We've got seven unbalanced budgets. We've got a contract negotiated by the Surrey school board through collective bargaining, where government had to legislate theirs. We have Surrey using an accountability structure that is transparent, when our own Ministry of Education, with a budget of almost $7 billion, has no accountability structure, according to the OCG report.
If we really want education money, let's take $7 million from Nisga'a
We need to focus on the principle that school trustees are part of a democracy. They are elected in their communities. They are governed by the School Act. They know their communities and the wishes of their communities. When people in the community of Surrey feel that they have not done their job, they can vote them out of office. You know what? They can do it in November. I look forward to seeing what the public opinion is, because that, to me, is the real opinion. If we have a democracy, let's use it.
The Speaker: Hon. member, your time is up.
Before we begin with the final comment, I'd like to just gently remind everyone about
one of the points that's made about private members' statements. I know that I'm going to
spoil everybody's fun here, but I do have to remind all of you that there are some
limitations to the notion
J. Smallwood: I'd like to thank you, hon. Speaker, for your caution. Given the response to the statement, I'm sure you'll forgive me if I at least say that the defence was preposterous.
Let me continue my comments with respect to the issue of banning books and the effect that it has on not only the children of same-sex couples but also on gay youth in the school system. Let me reflect on the question that arises out of this court case. I think that it is best said by quoting the School Act. The School Act states:
"WHEREAS it is the goal of a democratic society to ensure that all of its members receive an education that enables them to become personally fulfilled and publicly useful, thereby increasing the strength and contributions to the health and stability of that society;
"AND WHEREAS the purpose of the British Columbia school system is to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy
. . . . "
I don't have to remind anyone in this House that banning these books violates this goal. The message of inferiority that children from same-sex families receive is loud and clear. It is that they and the relationships of same-sex couples -- no matter how loving, caring and nurturing -- are immoral, inferior and unacceptable. In denying all children the right to read or have read to them these books, the Surrey school board is denying all children the minimal tools they need if they are to grow up to be more informed and enlightened on issues of homosexuality and to be less homophobic than the generation before them.
Gay and lesbian youth or children of gay and lesbian parents are highly vulnerable. It is hard enough being a kid in school today if you are even a little bit different. Even if you're
[ Page 11207 ]
wearing uncool clothes, it makes you a target. This government supports a harassment-free environment for these and all of B.C.'s children to learn in. I find it most regrettable that the opposition member didn't understand the significance of this issue and was not prepared to stand up for those children.
The Speaker: That concludes private members' statements on this occasion. I call on the Government House Leader.
Hon. D. Streifel: I thank the members for their thoughtful statements this evening, and I move that this House do now adjourn.
Hon. D. Streifel moved adjournment of the House.
Motion approved.
The House adjourned at 6:53 p.m.
[ Return to: Legislative Assembly Home Page ]
Copyright � 1999: Queen's Printer, Victoria, British Columbia, Canada