Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

[ Page 11221 ]

The House met at 2:06 p.m.

R. Kasper: Joining us in the gallery today are 40 grade 11 students from Brentwood College. They are accompanied by their teacher, Mr. MacLean, and other adults. Would the House please make them welcome.

R. Masi: It's a great pleasure today that I introduce my nephew, Matt Dolmage. He's a high school student in Campbell River, and a young man who is very interested in politics and has already been in correspondence with the Minister of Aboriginal Affairs. Would the House please make Matt welcome.

Hon. J. Pullinger: I have three individuals that I'd like the House to help me welcome today. With us from Vancouver are Dierdre and Bob Strachan. Bob is the former commodore of the Jib Set Sailing Club, and they're both avid sailors. I'm not sure if they sailed over today; it would be a little cold. Dierdre is also a registered nurse. With them is Colette Gill Wickstrom, who is a friend and supporter and the partner of my ministerial assistant. Colette is also a nurse in the labour and delivery room at St. Paul's Hospital. Would the House please make Dierdre, Bob and Colette very welcome.

B. McKinnon: In the gallery today are 60 grade 11 students, along with their teacher, Mr. Hardy, and several adults from Lord Tweedsmuir Secondary School in my riding. They are here to learn something on government and parliamentary procedure. Lord Tweedsmuir is probably the most overcrowded senior secondary school in the province. Please make them welcome.

G. Robertson: With us this afternoon in the House we have His Worship Russ Hellberg, the mayor of Port Hardy. Accompanying Russ is Rob Grivel, the administrator- treasurer for Port Hardy. I would ask the members of the House to please make them welcome.

Hon. D. Miller: It's my pleasure to introduce Richard Morgan and Heber Clifton. Heber is from Prince Rupert. They are representatives of the Area-Four First Nations Commercial Fishers Association. They are pursuing with vigour a case against the federal government for the loss of millions of dollars of their and other fishers' livelihoods. I certainly wish them well in their pursuit of protecting the jobs of people up on the coast. I would ask all members of the House to make them very warmly welcome.

J. van Dongen: Visiting us in the House today is an old friend who has been working for many years with the Farm Credit Corporation. Allan Tovee spent many years lending money to farmers, and now he's in the business of expanding the market in the fish farming industry. I ask the House to please make him welcome.

Hon. C. Evans: Visiting us in the gallery today and for meetings later on this afternoon is Louise Neveu, the vice-president of the Farm Credit Corporation, an organization that is always assisting British Columbia farmers with capital. This would be a great day for questions about the agriculture industry, because she's going to watch. Will the House please make her welcome.

Ministerial Statement

FFAC RECOMMENDATIONS AND B.C. FILM INDUSTRY

While I am very supportive of the domestic film industry, the Canadian film industry, we cannot negatively impact foreign production without having an impact on B.C.'s domestic industry. Putting federal money into the Canadian film industry is fine -- outside of the PSTC -- but historically B.C. has not got its fair share of that money. That's why we have a north-south industry rather than an east-west industry in Canada.

Today's committee review of the film and television industry is very shortsighted. To say that this is a "comprehensive review of Canada's film policy," as the committee said, is wrong. They clearly do not understand the impact that the recommendations being made will have in other regions within Canada. It is clear that they are only looking after the interests of the central Canada domestic film industry. This is, unfortunately, classic: no consultation, no sensitivity to B.C.'s interests, no recognition that we have a unique film industry here in British Columbia.

What's important to remember is that it's because of the well-being of foreign film and television production in this country that so many more domestic productions are flourishing. With the boom of foreign production has come more studios, post-production facilities and education and training programs. This is good news for everyone in the industry.

In British Columbia our film and television production industry has grown over 300 percent and is expected to double in the next decade. We do not want to see anything implemented that may impede its continued growth. It generated over $630 million in economic revenue to the province in 1997, and we expect that that will be exceeded when we release our 1998 production numbers. It employs 25,000 directly. This is not to mention the thousands that work in the spinoff industries. Every dollar spent in the industry means three dollars spent on services like hotels, restaurants, construction companies and many other business, especially small businesses.

British Columbia implemented a comprehensive plan last year to attract foreign filmmakers to this province, but we first introduced a domestic tax credit for B.C. producers. Then Premier Clark travelled to Los Angeles to meet with studio executives and producers. As a result, we implemented a tax credit aimed at foreign producers. That hard work has paid off in spades in an increase in revenue productions being filmed in British Columbia. This has been good news for the province and good news for the federal government in tax revenues.

Recently our Finance minister, my colleague here, met with Finance minister Paul Martin, and I've spoken and written to Revenue minister Herb Dhaliwal. . . .

The Speaker: Minister, just a moment. I don't wish to interrupt you, but there is such a hum of noise in the chamber

[ Page 11222 ]

[2:15]

What I was saying was that I and other government ministers have been in contact with our federal counterparts. I've sent B.C.'s film commissioner to Ottawa with a group of B.C. producers who will also be lobbying Paul Martin, Herb Dhaliwal and Sheila Copps. The latest report I have from our film commissioner this afternoon is that things are going well in the lobby. I want to make particular note of Minister Dhaliwal in Ottawa, who is working very hard on the issue of foreign actors' taxation and is fully informed on the issue.

To conclude, it is imperative that we let the federal government know that B.C.'s film industry is unique, is flourishing and is expected to grow significantly. Changes that they are proposing in Ottawa now would seriously jeopardize this industry. I'm asking Ottawa to be sensitive to that.

The Speaker: I recognize, in reply, the hon. member for Vancouver-Little Mountain.

G. Farrell-Collins: I'd like to take the position of responding for the member for Okanagan-Penticton, the critic for Small Business, Tourism and Culture.

I would like to throw my support in some way behind the minister opposite, in his comments. For a long time in Canada, the film industry in eastern Canada has been predominantly a domestic industry, whereas in British Columbia the industry has been predominantly one where we have brought in foreign producers and foreign projects to shoot here in British Columbia. The two are very different industries.

There has been a battle raging in Ottawa for a number of years over how this film tax credit system is going to be structured. I think it is crucial, it's important and it's urgent that the message get across to Ottawa from British Columbians that our industry is different. It requires a different type of structure and a different type of system if we're to ensure that one of the very few industries in British Columbia that is succeeding has an opportunity to continue to succeed. Hon. Speaker, I'll be talking to the critic. We too will be conveying our comments and concerns about this to the government in Ottawa.

G. Wilson: I seek leave to respond to the ministerial statement.

Leave granted.

G. Wilson: The minister said today that the concerns for the B.C. film industry are very much threatened by the policies that have been put forward by way of advice from the Feature Film Advisory Committee. I've had the opportunity to speak with Minister Copps's office today on this matter and bring to this House some assurance from that office that in fact they will not move in a speedy manner to implement these recommendations without full and proper consultation with British Columbia. I think that's good news.

Certainly I understand that the B.C. film commissioner is in Ottawa currently. I think the fact that Minister Copps's office is aware of the serious concerns that come out of this province allows us an opportunity now to build a bridge with Ottawa, with respect to a cooperative approach to this situation that will both endorse and build a domestic industry without threatening the industry that is currently active, which comes from south of the border.

ROBERTS BANK BACKUP LANDS

Leave granted.

F. Gingell: Thank you, hon. Speaker, and I thank all members of the Legislature. I'm just glad that our friend Mr. Tanner isn't here, because I'm sure I wouldn't have got it.

As you know, hon. Speaker, this is an issue that I have spoken about many times in this House, an issue that's close to my heart and close to many of my constituents. I did have the opportunity of watching the ministerial statement and listening to it on TV. I must admit to the House that I was somewhat surprised; I was surprised because I didn't know what the ministerial statement was about.

This government has been promising since 1994, when then Premier Harcourt stood on the steps of the Delta municipal council and said: "Something will be done about this long- outstanding miscarriage of justice, and it will be done soon. . . ." It has taken us almost five years. And what has happened? Nothing yet. No offers have been made, no proposals have been accepted, no sales have been completed. The minister purely and simply stood up and said: "We're going to be sending out some letters. I can assure you and can assure the farmers that these will be at fair values."

What are fair values? I was hoping to hear him say that the values would be based on the economics of soil-based agriculture in Delta. We shall wait and see. The farmers in Delta are most concerned and are anxiously awaiting the receipt of these letters.

What's going to happen to those farmers? Some of the family farmers farming their old family farms don't even have leases right now. What happens if they can't afford to purchase the land? Is the farm going to be pulled out from under their feet? Are they going to be dispossessed, with their possessions thrown onto the street? The only purpose. . . .

I was actually expecting, after the minister made his statement, that there would be a couple of farmers sitting behind him, so there'd be a photo op. But I guess none of the farmers was willing to come. I guess the purpose, in the end, was to make an announcement to Canada Post to expect this sudden deluge of seven -- seven -- extra letters in, I hope, yesterday's post.

Hon. Speaker, it's just that we want to see action. The minister doesn't need to stand up and make statements about what they're planning on doing. Let's get it done. Let's deal with fair prices, let's have arrangements that the farmers can afford, and let's look into some issues around seller financing. But until something happens, we're still waiting. We're still waiting -- 30 years later.

[ Page 11223 ]

Oral Questions

FAST FERRY PROGRAM COST OVERRUNS

My question to the minister responsible for B.C. Ferries is: will he admit to the House today that he fully understood how those contracts were structured and all of the risks involved, and in fact that he understood that those contracts were vastly over budget months ago?

Interjections.

The Speaker: Order, please.

Hon. D. Miller: Hon. Speaker, I seek your guidance. I believe the member for Richmond Centre rose and reserved his right to proceed with a motion of privilege, and my sense was that it was on this question. Now we find a line of questioning in question period. Could I please have some advice with respect to the matter?

Interjections.

The Speaker: Members. . . . Hon. minister, no motion of privilege has come forward. So at this time we will proceed until one does. Minister, that's the reply.

Hon. D. Miller: Hon. Speaker, I'm happy to respond. That was a sincere question to the Chair, because I fully expected that the member, having reserved his place on this issue, would have risen and proceeded with a motion.

Interjections.

The Speaker: Minister, please proceed to respond to the question.

Hon. D. Miller: I can say two things. With respect to the contractual relationship, what has been referred to as cost-plus -- including by myself -- was not, in the strictest sense, cost-plus. I should advise that that was generally well known, and in fact. . .

Interjections.

Hon. D. Miller: . . .it was conveyed in a letter to the member for Richmond Centre on May 21 of this year. It was a letter sent to the member for Richmond Centre this year in response to a letter that he sent in January to Mr. Tom Ward, the then president and CEO of B.C. Ferries. In that letter, the following statement appears under the heading of point No. 3, "Catamaran Costs": "The contracts for the fabrication of the first fast ferry are on a time-and-material basis, using agreed production targets for each module and a costing formula that penalizes poor performance and provides incentives for good performance." The letter goes on.

The Speaker: Thank you, minister.

Hon. D. Miller: I would remind you, hon. Speaker, that the letter was not from me; it was from the then president to the member, and outlines -- and this is in March of last year -- what the projected costs of this program are.

The Speaker: Minister, I thank you very much for these comments.

Hon. D. Miller: It was well understood and well known by many people.

The Speaker: Minister, you have exceeded some time limits. I appreciate the point, though.

Leader of the Official Opposition, first supplementary.

G. Campbell: I have a copy of an internal B.C. Ferries document. It is a heavily severed document. But it is a document from Tom Ward to Maureen Headley, just days before she took leave of absence to run the Premier's leadership campaign when she was chair of B.C. Ferries. The letter says that Vancouver Shipyards was prepared to work on full recovery of their labour costs plus "a base profit in the order of" -- severed comment, blank -- "percent." That is a cost-plus contract; there is no question about it. And the higher the costs, the higher the profits for Vancouver Shipyards. That's an open-ended, cost-plus contract.

My question to the minister is: will he act according to his responsibilities and table in this House today all of those contracts that have been involved in the fast ferries contract?

Hon. D. Miller: Further to the response to the first question with respect to the information. . . .

Interjections.

Hon. D. Miller: Hon. Speaker, it's very difficult to respond to a question if they don't want to listen. Further to the information that was contained in the letter to the member for Richmond Centre, I want to quote from Hansard of May 25, 1998. I want to quote the member for Richmond Centre, and I'll quote the following: "I wondered then how the contracts were with these shipyards, and I got a bit of an answer. But it still left me somewhat concerned, because basically in the answer it said the contracts for the fabrication of the first ferry are on a time-and-material basis, using agreed production targets for each module and a costing formula that penalizes poor performance and provides incentives for good performance." That fully describes the general nature of the contracts.

Later in that same exchange on May 25, I said the following: ". . . .they're fixed labour rates. But they are targets built into the system. . . ." I say again that it's not like a cost-plus. The cost-plus definition that typifies the construction industry or other sectors is: "Build it and send me the bill." That was clearly not the case in this instance, and the opposition and others were well aware of this in the spring of last year.

[2:30]

[ Page 11224 ]

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

G. Campbell: All that proves is that this minister should not be the minister responsible for B.C. Ferries and that the representative from Richmond Centre should be the minister responsible for B.C. Ferries. This minister has been an absolute disgrace -- a disgrace to his office and a disgrace to the people of British Columbia. Today this minister is saying to us that he didn't have a clue how this project was managed. He has told us this week that it was a cost-plus contract. Before, he said it wasn't a cost-plus contract. This minister clearly doesn't know what kind of contract it was. That's why we're looking at a project that could cost the taxpayers of British Columbia up to $400 million.

It's time for this minister to accept his responsibility. Instead of keelhauling Tom Ward, won't he accept the responsibility and walk the plank himself today?

Interjections.

The Speaker: Order, members. You're just delaying things, members.

Hon. D. Miller: What is interesting is that the member for Richmond Centre was fully aware of this, and yet he is not participating. . . .

Interjections.

The Speaker: Members. . . .

Hon. D. Miller: Let me amend that, hon. Speaker. Let me say this. The member for Richmond Centre and I were fully aware of it, and the Leader of the Opposition wasn't. Far be it from me to use this position as a critic, but I am struck by the fact that all we get from the Leader of the Opposition, in the face of the facts, in terms of responses to answers, is bellicose rhetoric -- something that he has become very good at. But you actually need a few more qualities if you're going to get over here.

Interjections.

The Speaker: Order, please. All sides, come to order.

Interjection.

The Speaker: That's not the role in this House at this time. It is question period.

FAST FERRY SEA TRIAL MISHAP

Hon. D. Miller: No. I will give a response that I've received from the corporation with respect to that issue. It's very brief. I'm informed that during the sea trials an electrician was testing a series of circuits and inadvertently tripped a circuit, which closed a damper on one of the air trunks leading to the blower on one of the engines. It was believed that the resulting vacuum could have sucked some crankcase oil into the intercooler and may have reduced the cooling efficiency of the intercooler.

Interjections.

The Speaker: Will you finish up, minister, please.

Hon. D. Miller: It appears there are vivid imaginations on the opposite benches.

Briefly, to continue. . . .

The Speaker: Minister, will you please conclude. Thank you very much for your answer.

Hon. D. Miller: Well, I do have, briefly, very briefly. . . .

The Speaker: We have a supplementary that may well relate to that. We have to get on.

First supplementary, the member for Powell River-Sunshine Coast.

G. Wilson: The supplementary on this is an important one for the people of this province. We need to know whether or not the company has taken the position, due to that inadvertent mistake of the electrician, that the warranty on that engine is now voided.

Hon. D. Miller: Very briefly, to continue with my answer, the intercooler was inspected with a boroscope the following day and was found to have sustained no damage. Detroit Diesel-Allison's representative was on board at the time of the incident and had no concerns about the incident. The engines are still under warranty.

Beyond that, I can advise all members that I've asked Mr. Halkett, and he is conducting and asking for a thorough technical report on all aspects of the vessel. Once I receive that, I'm quite happy to make it available to members of the House and to the public.

FAST FERRY PROGRAM COST OVERRUNS

Let's refresh his memory a little more on the financial side of things. At a March 12, 1997, meeting of the B.C. Ferry board, the agenda included a discussion of "alternative financing and financing of the high-speed craft." Furthermore, the minister is listed here as being an attendee of that particular meeting. If the minister has nothing to hide, will he release the entire uncensored minutes of this meeting immediately?

Hon. D. Miller: Hon. Speaker, I have made many, many statements, both in this House and outside of this House, and it's no secret that in fact the member for Richmond Centre and I engaged in considerable dialogue -- I believe in estimates -- over the issue of alternative financing. There has been abso-

[ Page 11225 ]

We have been quite open that we've been pursuing those issues. We have no progress to report on that question, but there has never been anything hidden with respect to our pursuing that particular avenue.

The Speaker: First supplementary, the member for Richmond Centre.

D. Symons: I didn't hear in that an answer to my question, which was: would you release the full minutes of that particular meeting? I would like to see the minister say yes to that.

The Ferry Corporation knew that things were spinning out of control in April of '97. In their "Fast Ferry Program Budget Review," the board recognized that two years earlier the cost of the ferry program had been capped at $224 million. Then it went on to say, in that particular document: "Given new and revised circumstances and assumptions, the forecast cost of the construction program has been reviewed and is now estimated at" -- my goodness, the number seems to be missing here -- ". . .million."

They've left the number out. We've got a blank. If the minister really has nothing to hide, can he tell us exactly what his board knew in April of '97 -- fill in the blank, please -- so that the people of British Columbia can know how long his government has been covering up the true costs of this fast ferry -- this "fat" ferry -- program?

Hon. D. Miller: Hon. Speaker, I believe it's my responsibility, and I do not quarrel with any criticism that has been directed at me on this particular issue. But it's very clear, and I referred to, in answer to one of the previous questions. . . . The member received a letter from the then president of the B.C. Ferry Corporation. . .

Interjections.

The Speaker: Order, members.

Hon. D. Miller: . . .in May of 1998. In addition to reporting on the contractual relationship, which we had already discussed, in that letter he uses definite numbers for the forecast cost of the fast ferry program. That wasn't a letter sent to me, hon. Speaker; that was a letter sent, independent of my knowledge, to the member opposite.

What I have been saying. . . . I have used the information that has been supplied to me by officials in the B.C. Ferry Corporation, as has that member. And hon. Speaker, all I know at this stage is one thing: those numbers have not been correct. Now, I have put in place people who have integrity, who will get to the bottom of this issue. . .

Interjections.

The Speaker: Thank you, minister.

Hon. D. Miller: . . .who will conduct a thorough investigation, who will produce a report that has the accurate numbers. . .

The Speaker: Minister, thank you very much.

Hon. D. Miller: . . .and when we have those numbers. . .

The Speaker: Minister. . . .

Hon. D. Miller: . . .hon. Speaker, we will make them available to the opposition, to the public and to anybody who wants them.

The Speaker: Question period is now finished. Thank you very much. The bell has gone.

Interjections.

The Speaker: Order, members.

Petitions

G. Campbell: I also rise to table a petition. This is a petition from 884 Port Alberni citizens, who request support for their fight to keep Rebco Wood Products in business.

A. Sanders: This is a petition from 28 employees of the Vernon Lodge in Vernon, who are concerned about changes to the liquor laws.

Orders of the Day

NISGA'A FINAL AGREEMENT ACT
(continued)

[2:45]

J. Weisgerber: Before we broke for lunch, we were discussing the overlaps in the Nisga'a traditional territory, particularly the claims of the Gitanyow and the Gitxsan. I put forward, just before lunch, the assertion that if indeed one compared the uncontested traditional territory of the Nisga'a with the amount of land that make up Nisga'a lands in total in the settlement, it would represent 24.8 percent of the uncontested territory. The government tells us that they've never examined the challenges with respect to overlaps, but I wonder if the minister could tell me whether he agrees that the amount of land that makes up the so-called Nisga'a lands is about 25 percent of the uncontested traditional territory of the Nisga'a.

[ Page 11226 ]

Hon. U. Dosanjh: I said earlier today that it's our view -- and it was our view during the negotiations -- that the Nisga'a lands in the treaty are about 8 percent of the claimed Nisga'a territory. In terms of trying to ensure that we don't concede anything on any other claims that might be put forward, I'm reluctant to be any more specific than that.

J. Weisgerber: I certainly can understand the reluctance of the government to concede to these competing claims, because when we get into section 35 of the Nisga'a agreement, it will become painfully clear why the government doesn't want to acknowledge the possibility of there being some successful competing claims.

But one has to assume that in the process of seven years of exhaustive negotiations, our negotiators -- considering, as they obviously did, the possibility of overlaps in drafting these current sections of the agreement -- must have examined in some measure or another the validity of those competing claims. I simply can't believe that the government negotiators would ignore the possibility or the evidence that might be there with respect to those claims, which are widely known. The members of our negotiating team, who spent a good part of the last seven years in the northwest, can't have been unaware of the Gitxsan claim, the Delgamuukw activities -- all of the very high-profile debates that have gone on around this issue.

So I'm troubled, because I have a sense that on one hand we, the province, must have known that there were claims that were not simply annoyances but substantive claims to large parts of the traditional territory; yet there appears to have been no attempt to verify those competing claims. Perhaps if I'm wrong, the Attorney will correct me now and tell me that these claims have been looked at and give me a sense of the advice the government has received with respect to the claims, particularly from the Gitxsan and the Gitanyow.

Hon. U. Dosanjh: I've said several times -- and that's not to avoid or evade the question. . . . I think I've very firmly and clearly answered the question. Government considered all of the issues. And that's how specific I'm going to be -- no more specific than that. Government considered all of the issues. As a result of those deliberations, the Nisga'a treaty was signed. Therefore the Nisga'a treaty itself is an indication of what we believe.

J. Weisgerber: If the government considered all of the evidence, all of the information, then it's fair to assume that the government looked at the documentation around the 1916 delegation from the Nass to Ottawa, where the Nisga'a chief was represented by Mr. Mercer and where there was a specific description at that time of the Nisga'a lands. One would also assume that the government had looked at the evidence of Chief Peter Nisyok, a 70-year-old Nisga'a chief who went before the McKenna-McBride commission and spelled out the description. That's a 70-year-old chief telling the McKenna-McBride commission in 1915 the extent of the Nisga'a territory. I assume from the minister's statement that the government examined that and took that into consideration in its decision to move forward.

I also assume -- and I think it would almost go without saying -- that if the government has looked at all of the evidence, they would have looked very clearly at and would have been very painfully aware of the evidence given by Mr. Calder in the Calder case, the 1973 Supreme Court case, where there was debate on. . .and presentations made on behalf of the Nisga'a on their traditional territory.

Before I move on, perhaps the Attorney would just confirm that among all of the evidence that the government examined, these three -- and I select only three bits of evidence or information -- were considered by the government in its deliberations with the negotiators.

Hon. U. Dosanjh: I said earlier, and I reiterate the position: the government considered all of the relevant issues and matters that were brought before it. Without commenting on the merits of any of those specific items that may have been considered, we arrived at the decision that the Nisga'a treaty was the appropriate compromise to make.

I think that the issue, at the end of the day, is whether we want to tie our hands, in terms of our arguments before the courts when the province is being challenged or may be challenged. I want to make sure that we protect the interests of the province and of British Columbians in dealing with this debate the way we're doing it.

I have answered the question. I recognize that the hon. member is very knowledgable -- much more knowledgable than I ever could be on this particular issue -- and I respect the comments that he makes. But the reason that the Attorney General is answering these questions, and not my colleague the Minister of Aboriginal Affairs, is that there are very, very complex legal issues involved. I am treading very carefully, with the utmost respect for the hon. member's right to know and our duty to advise and divulge that information in the public interest. But it is also in the public interest, in the interests of all British Columbians, that we tread very carefully in terms of trying to retain the integrity of the positions that we might have to take before the courts.

J. Weisgerber: I'm not going to press the Attorney any further. I'll accept that for the purpose of these cases before the courts, he is showing an abundance of caution, and I'll respect that.

Let me say only that I firmly believe that had these overlaps been resolved at the outset of this process, as was the commitment of all the parties, these particular cases wouldn't have to be before the courts. If it is the desire of us as a jurisdiction to avoid litigation in favour of negotiation, I think it seriously calls into question the decision to abandon the policy with respect to overlaps.

I want to go back a little bit to the August 4 signing, a very significant event in the Nass Valley -- the initialling of the final agreement. It seems to me that in the period of time between 1996, when the agreement-in-principle was signed, and August 4, 1998, when the final agreement was signed, there were some significant improvements -- and I mean that in the most complimentary way. As I said yesterday, I think many of the concerns about certainty language were addressed in that period of time.

And I will argue that the motivation for that new commitment to certainty was in large measure the decision of the Supreme Court of Canada with respect to Delgamuukw and

[ Page 11227 ]

But I would argue that if that was the case, there was at least as strong an argument in Delgamuukw to reopen the issue of overlaps. I don't think it would have been prejudicial to the Nisga'a, understanding that there had been an agreement at the start of the process to resolve overlaps, and given the Delgamuukw decision, in which the Supreme Court said -- and I'm just going to quote a very small paragraph: "Aboriginal title encompasses an exclusive right to the use and occupation of land, to the exclusion of both non-aboriginals and members of other aboriginal nations."

It seems to me that in the spirit of negotiations and settlements post-Delgamuukw, given that decision and given the overlap claims -- which everyone was aware of and which, according to some of the information and more that I've raised, were well documented and not frivolous overlap claims but very serious overlap claims -- there was an obligation on the Crown to go back and resolve those issues before that agreement was initialled on August 4.

Hon. U. Dosanjh: I'm advised that many attempts were made in good faith to have the Nisga'a and Gitanyow, with the assistance of Canada and British Columbia, resolve their claims.

[3:00]

But that aside, there was an opportunity to simply say: "It's going to have to be resolved, or we don't move forward." That wouldn't have broken faith with the Nisga'a, and that was the only real motivation. As long as the parties said to the Nisga'a, "We hope you'll resolve this, but if you don't, we're going to go ahead and settle anyway," then there's very little impetus for settlement.

I don't want to carry on. I'll be happy to listen to the Attorney or the minister, if they have a rebuttal.

Hon. U. Dosanjh: No, hon. Chair, I won't offer a rebuttal other than saying that I respect the hon. member's view, and I appreciate it. We needed to move forward, and this is what happened.

J. Weisgerber: Now, in the context that we're at today and in the context of this agreement, I want to move to look particularly at section 35 of the agreement, because I hope I've made an argument that would say there is a high likelihood that some of the competing claims in some of the territory will be found to be valid. It seems to me that logic says that here are what appear to be very well documented claims to two-thirds of the so-called traditional territory of the Nisga'a. When we finally resolve it, one portion or another almost inevitably will be found in fact to be a valid claim, when you consider that with respect to the Gitanyow almost 90 percent of their so-called traditional territory lies within these overlaps.

What I want to examine, then, is. . . . Making an assumption for a minute, without the government conceding anything, but trying to look into this agreement. . . . Assuming that there are found to be some overlapping claims, some claims to which another party has a valid and legitimate and predominant claim, what remedies are there going to be under section 35 for the province and the federal government to offer the Nisga'a? Very clearly section 35 says that if there are proven to be competing claims, then we will find some method. I believe the words under subsection 35(a) are: "Canada or British Columbia, or both, as the case may be, will provide the Nisga'a Nation with additional or replacement rights or other appropriate remedies."

Now, one has to consider, if there's a loss of access, of opportunity on some of those disputed lands, what other rights or replacement rights or additional remedies could there possibly be? Would more fish out of the Nass River be an appropriate additional compensation or right -- or additional or more concentrated rights to hunting on those Nisga'a lands that are uncontested or which have, at the end of some process perhaps two decades down the road, defined themselves? Will there be a change in the harvest agreement with respect to the amount of wildlife that's available to Nisga'a and other British Columbians? Or will it be cash? Will indeed the province and Ottawa find themselves obliged to make additional cash compensation to the Nisga'a? Or would it be all three of the above, or other possible remedies? I just don't know what remedies there are, given that we've said we've made an agreement that is exhaustive on the inherent and other rights -- that we have codified those rights.

But now the agreements says: "Oh, if we made a mistake on the territory, then we'll find additional replacement rights." I'm very genuinely confused by the contradictions in those sections, which are less than ten apart under chapter 2.

Hon. U. Dosanjh: I think that section 35 is obviously quite clear. It is only if a claim is successful and adversely affects Nisga'a treaty rights or we enter into a treaty with another first nation, adversely affecting the Nisga'a treaty rights. . . . It is at that point that section 35 kicks into action -- and we're talking about section 35 rights.

What the solution would be. . . . There is a process outlined here. The hon. member fully understands the process. The thrust of the hon. member's question is what shape an agreement might take. It is very difficult to talk hypothetically about a case. Therefore I won't attempt to do that, other than to say, as this treaty so elaborately makes evident, that the settlement of that kind of an issue might have many permutations and combinations of various items. They would go into a bundle, which would be the solution for that particular problem at that time.

It is difficult -- in fact, I would say it is unwise -- for an Attorney General to say hypothetically that the answer to X, Y, Z would be A, B, C, because the answer might be different at that time. One doesn't want to bind future governments to what I may have said hypothetically in response to such a question.

[ Page 11228 ]

But as we look at subsection (a) under section 35. . . . It's unfortunate that they happen to be numbered that way, because when we start talking about section 35 rights and section 35, are we talking about section 35 of the Indian Act or section 35 of the. . . ?

Hon. U. Dosanjh: We'll call this paragraph 35.

J. Weisgerber: Okay, let's call it paragraph 35.

If one looks at the benefits or the options under paragraph 35, it seems to me that if the remedy is not cash or is only cash in part, then the other remedies in this hypothetical situation -- which I think I've gone to great pains to try and demonstrate is far from hypothetical and is not only probable but very likely. . . . If, indeed, the remedy is something other than cash, then the other remedies have to affect the rights of non-aboriginal British Columbians or other aboriginal groups. If there are new rights -- for example, wildlife rights or fishing rights -- that flow out of paragraph 35(a), and if you give those preferred rights to someone, you have to take them from someone else. There is no unallocated wildlife, there are no unallocated fish stocks, there are no mineral rights. There is nothing available to the Crown that it can give without taking it from somewhere else. If there's something I've missed, I would again be grateful to the Attorney General, should he point it out.

The point I want to make here is that I think that we are setting ourselves up, by an unwillingness to follow through on the overlaps for a substantive cash claim in addition to those moneys that make up the settlements today. . . . It seems to me, at the end of the day, that if there is a need for a remedy under paragraph 35(a), it will logically be a cash compensation. How big it would be or how small it would be, I don't know, but I've gone through this argument because I believe that the repercussions from the failure to resolve overlaps are far more than hypothetical; they're very probable, and they're going to have a substantive effect.

I genuinely fear that as the precedent is set here, it will flow. It's going to be incredibly difficult for the province to say to the Sechelt: "Absolutely no way are we going to enter into an agreement with you until you resolve your overlapping claims." Therefore I believe you will find in the Sechelt end agreement another paragraph 35, which says: "When you get around to settling your claims and if there are some infringements, here will be the remedies." And the cash register will continue to ring and ring and ring again, simply because we decided that it was not worth the fight to sit down with the Nisga'a -- as they had agreed, as the summit had agreed, as all of the parties had agreed -- and simply fight our way through that issue of overlaps and set the appropriate precedent the first time around.

Hon. U. Dosanjh: With the utmost respect, I disagree with the hon. member, in terms of his conclusion that we're setting ourselves up. We have to try and find solutions to these very, very difficult problems. I don't want to go into a speech mode, but we have been stuck with this issue for a long time, without any movement forward. We have to have the faith in ourselves and the courage to move. We are never going to be perfect; nothing is ever perfect. As I said the other day, the constitution of Canada is not perfect, but we still have a great country. I think that that's the kind of spirit in which we're moving forward, and we will continue to do that.

J. Weisgerber: Let me just conclude my remarks on this section. I believe that the resolution of overlaps is probably one of two of the most important issues. It seems to me that self-government and the unresolved overlap claims probably represent a couple of the most serious flaws in this agreement. When someone attacks me because I have decided that I can't in good conscience support this agreement, I want it to be clearly understood that I feel very strongly about these things and that I think these are fundamental mistakes in the approach to resolving land claims. They are part of what I hope are some reasonably and carefully thought out critiques of this agreement.

[3:15]

Hon. U. Dosanjh: I don't wish to comment on what the hon. member has said. He genuinely believes what he says, and I respect his views. Obviously we differ -- generally.

M. de Jong: As one who has spent most of the time observing the exchange, let me try to bring closure and not unnecessarily prolong this debate. I would make these observations.

Let me offer this perspective on the sections. As I have listened to the exchange and reviewed the material leading up to this debate, I think an argument can be made for requiring a mechanism of this sort to be built into a treaty in order to respond to unanticipated, unknown claims. We've been talking about the overlap of claims. The member for Peace River South talked about the notion of rights and how that might arise. We don't really know that, because we're somewhat precluded from having that discussion. But I think you can make an argument that says that you need some manner of mechanism to deal with those unforeseen and unanticipated claims that might be made. Fair enough.

But I don't think the member for Peace River South or the member for Richmond-Steveston were as concerned about those kinds of claims as the ones that were not hidden and not unforeseen. We knew about them. In fact, we knew about four of them and settled two of them. So I think you have to make that distinction, insofar as what this mechanism is designed for. The strategic -- and I'm glad that word was used -- consideration relates to how you respond to those claims that you know about, heading into the final throes of concluding these treaties.

The Attorney General asked the question earlier: would it be fair to hold up the signing of this treaty until the two outstanding claims have been resolved? Would it be fair to the Nisga'a to deny them what they are due after so long? And the answer, I think, is yes. From the point of view of negotiat-

[ Page 11229 ]

The Attorney General says that would be unfair. I guess it's a function of will. I guess it's a function of whether you have the will to exercise that leverage to ensure that the settlement takes place. Well, the government didn't have that will, and as a result, we are asked to consider a document today. . . . We are obliged now -- and I accept some of the reasons that the two ministers have offered. . . . We're required to consider a document that is going to affect the rights of a whole range of British Columbians, and we're unable to fully canvass how the rights of a select few British Columbians are going to be affected -- that is, those people who are involved in the litigation. And the Attorney General has good reasons for not wanting to get into that.

But we are in that position because on July 13 the government made a very deliberate decision to step back from a policy that was apparently in place. As I listened to, I think, the very good exchange that took place between the government and the two previous members, those are the impressions that I have been left with. I have to ask the question: to what extent, by July 13, had the government committed itself to a political agenda that precluded it from considering other tactical issues, like: are we now in a position to encourage, even to force, a settlement of these overlap issues?

Hon. U. Dosanjh: First of all, the hon. member opposite is assuming that any overlapping claims, either before the court or that may come, may translate into aboriginal rights -- that's a huge jump -- that might be adversely affected by the Nisga'a treaty, or that the Nisga'a treaty might affect other section 35 rights. The hon. member is asking. . . .

I said this yesterday. I made some political remarks this morning, and the fire went up on the other side. I want to say this most humbly, as humbly as I can say it: if the hon. members believe that this is a popular thing to do -- to enter into the Nisga'a treaty -- why are they not supporting it?

M. de Jong: We are engaged in a debate, as I said just a few moments ago, around a document that is impacting on the rights of British Columbians, and it is impacting on the rights of different British Columbians differently. We are precluded, for reasons that the Attorney General has alluded to, from discussing one of those groups of British Columbians and how their rights are affected, because a matter had been left unresolved -- contrary to the policy that the founding minister thought was in place, contrary to the policy that most British Columbians thought was in place.

I don't think it adds anything to the discussion to try and somehow shift attention away from what the focus of this discussion is, and that is: why, on July 13 -- and I'm using an arbitrary date -- as we moved toward the conclusion of negotiations, did the government decide not to take advantage of that negotiating leverage that was available to it at that point and maybe settle these, maybe avoid this litigation? Or was there something else at work? Was there, as the member for Richmond-Steveston indicated earlier, this overwhelming need to have a ceremony? Had the government committed itself to that and therefore precluded itself from taking advantage of the leverage that was available to it at the significant moment when it could have best been utilized?

Hon. U. Dosanjh: I say, with the utmost respect for the hon. member, that what we're now slipping into is not the debate on the merits of the treaty. We are actually slipping into casting aspersions on the motivation of the government in entering into this treaty.

Interjection.

Hon. U. Dosanjh: But we are. If we are engaged in seeking some information about motives, that's not the nature of the debate here. Why do the hon. members think that it's politically expedient to enter into a treaty? If it is politically expedient, if it's the popular thing to do. . . . One shouldn't do things only because they're popular to do, but if it is so popular, I haven't seen them standing up and saying: "Well done."

M. de Jong: I would have thought it would have been clear to the Attorney General by now, following the exchanges he's had with two members previously, that the manner in which this question of overlaps has been dealt with is one of the reasons certain people, including members on this side of the House, aren't saying: "Well done."

I began this exchange by saying I didn't want to unnecessarily prolong this, and we are quickly descending, going down that path.

Having said that, when as part of a request for information from government, I obtained documents from earlier in June and July of 1998 that talk about Mr. Heaney booking theatres and making arrangements for ceremonies weeks and months down the road. . . . It occurs to me, in fairness -- and I will say this to the Attorney General -- that at a time when the government should have been maintaining all of its options with respect to perhaps exerting some pressure that would have led to the resolution of these overlap claims, it had other things on its mind.

Let me ask this. As a result of this entire discussion, I'm far from certain and far from clear as to what the government's policy is with respect to these questions of resolving these overlaps. I have been taken on a journey that began with: "There was a policy." It wasn't directly applicable to this round of negotiations, but the province felt bound by it.

The province, for reasons that we've heard today, decided to abandon that policy. I think -- I know -- I am left with the impression that the province no longer approaches negotiations with a view to insisting that aboriginal peoples resolve the overlaps with the three or four neighbouring bands that may have interests in the subject lands; that is no longer a priority for the government. They will continue; they will move ahead and negotiate these treaties and ratify them. Quite frankly, it will be in the best interests of first nations people to get to the head of the line, because the burden that they will be under in order to establish a claim will be much lower than if they're at the back of the line and have to come along after the fact. But I'm not certain what the government's policy is at this point.

Hon. D. Lovick: I will, alas, be guarded in my comments, simply because of the delicacy of the matter and because the

[ Page 11230 ]

The principle that we as a provincial Crown take to the table and in all of our negotiations is that overlaps ought to be resolved and ought to be resolved between or among the first nations themselves rather than by us. That's the principle; that's what we want to achieve.

What I can say with absolute confidence and certainty, because I have been watching this closely for some time now, is that every significant effort was made to solve this problem -- every significant effort, huge efforts on the part of ourselves, of the federal government, of Gitanyow and of Nisga'a. We had efforts at mediation. As a matter of fact, this goes back some years. There were even efforts to use the traditional ways to try and solve some of these problems. Alas, none of those bore any fruit, and that's too bad. I think nobody is happy about it.

[3:30]

We are not for a moment, then, saying we are happy that we may indeed have to invoke sections 33 or 34 provisions of this agreement. We would be much happier, obviously, if those could be settled by negotiation. That may still be the case. At the moment, alas, our efforts haven't worked. But we believe this is the appropriate and fair second-best strategy.

M. de Jong: Well, it's protection that nonetheless places a burden on the band that comes along after the fact. But let me ask this: is it unfair for me or for someone watching these debates to leave with the impression that in a negotiation where all outstanding matters have been resolved, except for a lingering overlap, the government reserves unto itself the right to settle that claim and perhaps invoke provisions similar to this to deal with that overlap?

Hon. D. Lovick: For the reasons explained by my colleague earlier, no, I'm not going to comment on what future policy might be or on whether you can deduce that there is a future policy, based on this decision.

M. de Jong: What I will conclude, therefore, is that there is no policy. The government doesn't have a policy.

I would like to move to some of the amendment provisions, but I notice that the member for Powell River-Sunshine Coast is here and may have some questions in this area of sections 33, 34, 35. I'm not certain that he does.

G. Wilson: Thank you to my colleague from Matsqui.

I have a couple of questions. Those who have heard my second reading debate on this agreement, and who know that on balance I am in agreement with this treaty, will know that this matter of overlapping claims is an issue that I think is extremely serious. It is going to have to be dealt with. It's not like maybe this will occur; we know with almost absolute certainty that there is going to be some remedy required on the question of the Gitanyow claim.

I've had a chance to meet with their negotiators and to sit down with their legal advisers to take a look at their maps. I fully understand the history of the process. I don't disagree with the minister when he says that there were great efforts made to resolve it; I understand that. I think that nobody can be faulted for not attempting to come to a conclusion. But the nut we have to deal with in this particular section is that we didn't deal with it; it's not resolved. It almost certainly will be resolved in court, and I'm not asking the minister or the Attorney General to talk about the case before the court. I'm more specifically interested in what is looked at here with respect to the matter of replacement rights or other appropriate remedies.

I know there's been a fair discussion on that up until now. Unfortunately, I had other commitments, and I haven't really been able to keep my ear to this debate as closely as I would have liked. But it strikes me that the Gitanyow have taken the position that on the matter of land, because of the mapping and where those lines were eventually drawn -- whether they were on the drainage divide or in the mouth of the river, and so on. . . . There are fishing sites that are critical to the Gitanyow, which are going to have to be resolved, and that also sit on an overlap with the Nisga'a. If parties concerned couldn't remedy the problem, if the federal and provincial governments with the Nisga'a couldn't remedy the problem and if mediation couldn't remedy the problem, the courts are probably going to do it for us. Should they do that, we may find that this section will be invoked a lot more quickly than any of us might have originally anticipated, upon its negotiation and completion.

I think we have to have a pretty clear understanding of what is in the mind of the government with respect to what "replacement rights or other appropriate remedies" actually means. It would strike me that there may well be a requirement on this government, by court order, to enter into some final arrangement with the Gitanyow which may, in fact, require some amendment or alteration to what it is we're looking at here in terms of the Nisga'a lands. On that question. . . . How do we remedy that? Cash remedy -- is that one? You can say that, yes, these are some of the options. Additional cash remedy? Is there a land remedy? What are the remedies that are going to have to be made with respect to the provisions that are affected by that overlap? We are going to have to deal with this, and I think it's appropriate, at this point, to have at least some understanding of what the government's thinking is with respect to the options available as a result of these sections.

Hon. U. Dosanjh: I believe the hon. member is referring to section 34 -- in the event a court determines the matter adversely -- impacting our position. Obviously, at that point, ". . . (a) the provision will operate and have effect to the extent that it does not adversely affect those rights; and (b) if the provision cannot operate and have effect in a way that it does not adversely affect those rights, the Parties will make best efforts to amend this Agreement to remedy or replace the provision." Implicit in the words "to remedy or replace the provision" is a desire that there may be replacement rights.

[ Page 11231 ]

I think some of the language in section 35 may lead one to conclude or speculate on what might happen as a result of section 34 as well, because section 35 is a little more explicit than section 34.

G. Wilson: I have just a couple of other questions. I think it's fair to say, then, as a result of the answer to the question, that notwithstanding the fact that agreement with the Gitanyow was not arrived at. . . . Notwithstanding the fact that this agreement may, in a matter of weeks or months or whatever, receive final ratification in the two Houses -- provincial and federal -- that does not then foreclose on the Gitanyow right, either through action in court or through subsequent negotiations, to see amendment with respect to their provision.

In other words, the argument is that if we pass this, it forecloses on the rights of the Gitanyow. What I'm hearing the Attorney General tell me right now is that no, it doesn't foreclose on them, because there are provisions through which remedy can be found, should there be a successful challenge in court or through some negotiated or mediated process. What I'm trying to get a handle on here is that in sections 33, 34 and 35 -- because I think we're almost certainly going to be there; I think any rational person looking at the situation knows that you have to solve this problem. . . . When we get there, it's important that we have on the record today a full understanding and agreement of the members that are here. We're not going to get unanimity, obviously, but it would seem to me that we have to be on the record as saying that the ratification of this agreement does not foreclose upon the right of the Gitanyow, or the Gitxsan in more general terms, to seek remedy in those areas where they believe this treaty compromises their position. That's a fair and safe assumption -- is that correct?

Hon. U. Dosanjh: Let me say, very briefly -- and we've said that; my colleague the Minister of Aboriginal Affairs has said that, and I'll repeat it. . . . We believe -- upon considering all of the complex issues that have been raised here and were raised earlier during negotiations, and any other issues that may have come to the minds of the negotiators -- that it has been decided that paragraphs 33, 34 and 35 provide a complete answer and mechanism to deal with any eventualities.

G. Wilson: All right, I'll take that as some level of comfort.

The reason that I ask this question in the way that I do is because I, for one, have given my word that I'm not about to vote in favour of an agreement that forecloses upon the rights of other first nations -- or non-first nations, for that matter -- without process of remedy. The reason I need that on the record now is because I have given my word that I will not support this document if those remedies are not available. And what I'm hearing the Attorney General say is that those remedies are entrenched and are available in sections 33, 34 and 35. So having said that, I would like that underscored on the record, because we are going to face that eventuality, in my opinion, in the not so distant future.

I'd like to just come to one other question, and I believe it deals more specifically with section 35. It's the view that is out there in the public that somehow there is a ratchet-up clause -- that what we're providing here is an opportunity for protection against first in, first served not being dampened on by having something that's finalized that doesn't provide you an opportunity to. . . . The generic term is "to ratchet up." If the Attorney General's looking a little confused, he might want to just chat with the member next to him. He's only too familiar with the term "ratchet-up clause," because we've had many, many a discussion on this over the last year and a bit.

We need to know the extent to which that ratchet-up clause is affected, because what it looks like is that it is actually only likely to kick in should the Nisga'a prove a section 35 right were being compromised. It isn't wide open. It isn't on a question of appended agreements or, for example, on a commercial fishery right or on other appended agreements that might be determined with respect to mineral rights or access to minerals or those sorts of things.

If my understanding is correct, that so-called ratchet-up clause -- although this isn't actually a ratchet-up clause, but it's similar to it, I suppose -- is limited to section 35 rights and nothing other than that. Is that right?

Hon. U. Dosanjh: Paragraph 35 is not a ratchet-up clause, as I understand that to be; it is simply a replacement. If one wants to find, sort of, the word that sums it up, this is a replacement clause for rights that may be adversely impacted.

[3:45]

I think we can call it whatever we want. I mean, they're out there. . . . I'm trying to put this into the terms of the lay British Columbian, who has heard, over and over and over, from many people, both advocates and detractors from this agreement, that the agreement has a ratchet-up clause. They say that if any other aboriginal band or first nation goes into negotiation and completes a treaty and gets a better deal than Nisga'a, the Nisga'a can come along and get the same deal. That's what's being said out there among the general public.

I don't believe that to be true, and I believe this section limits it. Often people don't take my word for it; they'd like to know. Because there has been a general perception that this is a wide-open agreement -- that whatever anybody else gets, it automatically applies -- I think we need to clarify that point for the general public.

[E. Walsh in the chair.]

Hon. U. Dosanjh: There is no ratchet-up clause in this agreement whatsoever, and that includes paragraph 35 as well. There is, however, an exception with respect to a tax-exemption clause, and that's a very circumscribed clause that members are aware of.

Interjection.

Hon. U. Dosanjh: Yes, that's right. The hon. member opposite was worried about my use of the word.

I think that if there are people out there who are worried, they should understand that there is no ratchet-up clause in this entire agreement. That includes paragraph 35, specifically.

[ Page 11232 ]

Hon. U. Dosanjh: The Minister of Aboriginal Affairs says that it's a makeup clause, essentially. It's not a ratchet-up clause; it's a replacement clause.

G. Wilson: I'm pleased, because that is consistent with what I've been telling people. That's encouraging to me, because I wouldn't want to be misleading people on this agreement. Furthermore, I understand that the replacement clause is limited to section 35 rights. Is that correct?

Hon. U. Dosanjh: Yes.

M. de Jong: Sections 36 through 43 deal with some of the amendment provisions. Some of the sections that we've been dealing with thus far in the debate point to the various possibilities through which amendments might be forced upon the parties. There is, of course, the other scenario that can develop, where the parties themselves want to make amendments to the agreement. I think these sections collectively speak to both circumstances.

Let me say first of all that I think the government had some choices about how to give effect to those amendments, whether they arose out of a judicial decision or as a result of negotiations -- or perhaps both, as the case may be. The provincial government has opted for a means by which they can give their consent and enact amendments, and that is set out in section 38 of chapter 2. It is different, of course, from the procedure that the federal government needs to follow. When we were dealing with the two parliaments, as it were, it is perhaps worth hearing whatever explanation might be offered for that difference.

Hon. D. Lovick: We were advised that the federal government's traditional and longstanding practice is to ratify by means of order-in-council. But given that this is the first modern treaty in British Columbia and given, moreover, that we wanted everybody to know about the treaty and feel comfortable about it, we thought that more appropriately, then, we ought to have a more democratic mechanism. Thus we chose the means of ratifying amendments by coming through the Legislature. We think that's the right way.

M. de Jong: Let's deal with the provincial procedure, then. The first thing I just want to verify. . . . When we speak, in a document of this sort, of a resolution of the Legislature of British Columbia, are we necessarily talking about legislation -- that is, a bill? Or are we perhaps talking about a motion of the Legislature?

Hon. D. Lovick: I understand that it is a motion.

M. de Jong: I will candidly tell the minister that the last time I thought about these matters was when I looked at the Constitutional Amendment Approval Act, which also refers to the passage of a resolution. I believe that the word "resolution" is used. It was unclear at that time whether or not that legislation contemplated a -- I use the word "mere" -- motion versus a bill, which obviously carries with it more of an opportunity or a whole different set of procedures. What I'm hearing from the Minister of Aboriginal Affairs is that following the enactment of this treaty, in order to take effect -- as one of the three parties -- amendments would appear on the floor of this chamber as a motion on the order paper.

Hon. D. Lovick: That is true. However, I need to say that my answer should not be construed to mean that this would be the only way. It is conceivable that something would be perceived to be of sufficient moment and importance that it could become the subject of a bill. As well, I should point out that anything that produced consequential amendments would of necessity require legislative amendment, and therefore a bill.

M. de Jong: Not to be drawn into a debate on parliamentary procedures, but. . . . We do have the benefit, of course, of having a former Speaker involved in the debate. I know how much he dislikes engaging in these sorts of debates.

Is it at all conceivable that the Legislature would be met by a motion to give effect to an amendment, and then at some period subsequently -- as part, for example, of a miscellaneous statutes amendment bill -- be asked to deal with the consequential amendments that flow from the passage of that motion?

Hon. D. Lovick: I think that it would be procedurally legitimate. The question is whether any government would want to do it. It would obviously depend on the circumstances and the substance of the particular amendment. I guess, in all candour, I wouldn't rule out the scenario that the member presents.

M. de Jong: Perhaps more importantly, nothing in these sections -- and particularly section 38 -- would preclude the government of the day from proceeding in that manner.

Interjection.

M. de Jong: Nothing in section 38 would preclude the government of the day from proceeding in any of the various ways we've just identified.

Hon. D. Lovick: I believe that's true.

M. de Jong: The next section, 39, deals with the federal or provincial legislation that's required to give effect to an amendment. It talks about parliaments or governments doing all that is reasonable to give effect to that legislation. I just want to try and place that section into some sort of context, because one of the lawyers I had a discussion with about this section talked about the possibility of a future parliament being bound in a way that might contravene some of the traditional rules that surround how parliaments function. I take it that this speaks to a situation where this section takes effect after a government -- the provincial government -- has consented in negotiations to an amendment and that, as a function of agreeing to that amendment, it triggers section 39, which then obligates it to perform in a certain way.

Hon. D. Lovick: The member is quite correct.

M. de Jong: Again, at the risk of citing examples that may be somewhat remote, what is the position of a parliament? What is the obligation of the Legislature if, for example, a government has negotiated with the Nisga'a and the federal government, has agreed to an amendment, and there is then, for example, a change of government -- which has a change of heart?

Hon. D. Lovick: I would just draw the member's attention to what paragraph 39 commits Parliament to -- namely,

[ Page 11233 ]

M. de Jong: We've talked about the mechanism by which one of the parties gives effect to an amendment -- that is, the provincial government; the federal government has a slightly different procedure. Section 40 deals with the Nisga'a nation, and it sets out a two-thirds vote being required for an amendment to be ratified by them. The question that begs asking is. . . . It's a different threshold than that which exists for the provincial government, and one might say that that places an added burden on the Nisga'a government -- whatever form that may take -- as part of their constitution. I'd be interested to know what the thinking was. I know that the ministers aren't inclined to give us a sneak behind the negotiating door, but I'd be interested to learn what I can about what gave rise to the imposition of that two-thirds threshold, as opposed to a more traditional simple majority.

Hon. D. Lovick: The two-thirds threshold was the proposal by the Nisga'a.

M. de Jong: That's helpful. It is curious to me that ratification of the enabling document itself could occur on the basis of a 50 percent vote but that subsequent changes to it would require, on the part of one of the parties, a two-thirds vote.

Hon. D. Lovick: I think the primary difference is that the 50-percent-plus-one threshold was for everybody, whereas this vote would be for a subset -- namely, their legislature, in effect.

M. de Jong: I'm wondering: does the government have any concerns. . . ? I have some difficulty looking ahead to whatever scenario might be in place at the time an amendment is being sought, but I could certainly think of a circumstance in which the amendment relates to something that is of genuine and real interest to either the provincial government or perhaps the federal government, and they are confronted by the reality that in order for that amendment to take effect, the bar is set higher with respect to the Nisga'a than it is, for example, with respect to the forum that they have to come to, to seek ratification.

[4:00]

M. de Jong: I think the argument might be made that with an agreement that contains so much that is new and experimental -- particularly with respect to some of the self-government provisions -- it may be a provision that comes back to haunt either the provincial or the federal government, or both, and perhaps the Nisga'a government, the Nisga'a people themselves.

Let me just, by way of a more technical nature. . . . With respect to section 41, the effective date of an amendment is set out in that section. In the case of the provincial government and the provincial Legislature, what is that date? When has the provincial government fulfilled its obligation with respect to giving effect to an amendment?

Hon. D. Lovick: If I understand the member's question correctly, there are two options for when the date can be. One is the date agreed to by the parties; the second is the date that the last required consent is given -- namely, when a resolution is passed or something.

M. de Jong: Let us assume, for the purpose of my question -- I wasn't very clear on this -- that it is the provincial government that is the last party to agree or do that which is required of it under the previous sections. I guess this is what makes the distinction between a motion and a bill, for example, important. If it is a bill, I presume that royal assent marks that day by which the province has fulfilled its obligation; if it is a motion, it is something else.

Hon. D. Lovick: That's quite correct. If I might just elaborate ever so briefly. The reason for the difference is that the parties may say: "We agree that by May 15, X will happen." However, curiously enough, they may have a debate in the Legislature like this one that may go on for who knows how long. Therefore, obviously, it's only when that debate is completed that it can take effect.

M. de Jong: Section 43 of this grouping of six or seven sections dealing with amendments talks about a different set of circumstances. I will just ask the minister to focus on subsection (a)(i): "Notwithstanding paragraphs 37 to 41, whenever: (a) this Agreement provides: (i) that the Nisga'a Nation and Canada or British Columbia will negotiate and attempt to reach agreement in respect of a matter that will result in an amendment to this Agreement. . . ." I went through to try and find the sections that this subsection describes. I located three in chapter 2 that I thought fit within the context of what was being discussed here, but there may be others. For the minister's benefit, paragraphs 19, 34 and 35 of chapter 2 and chapter 16, paragraph 17, seem to refer to circumstances by which an amendment of this sort could arise.

Hon. D. Lovick: Madam Chair, we're getting into the minutiae and the truly esoteric parts here.

I am advised by legal counsel that we disagree with the member's conclusions, so let me explain. We see the paragraph we're referring to being relevant in paragraph 35 of chapter 2; also in the wildlife chapter, paragraph 26.

Perhaps at this juncture I ought to just explain what I am told the rationale for this is. There are some provisions of the final agreement that require the parties to negotiate and attempt to reach agreement on a matter and then amend the final agreement. In some cases, a failure to reach an agreement can result in a decision by an arbitrator or a court. In keeping with the principle that enforcing the decision of an arbitrator or a court is not subject to the consent of the parties, paragraph 43 permits the amendment of the final agreement without the requirements set out in paragraphs 37 to 41, where an agreement is reached or an arbitrator's decision takes effect. I hope that will clarify matters.

M. de Jong: It does, and it doesn't. Let me ask this question arising out of what the minister has said. Do I understand, therefore, that where -- and I know that we come to

[ Page 11234 ]

Hon. D. Lovick: That is correct, with the exception that if there is a consequential amendment, then we would indeed have to change the legislation.

M. de Jong: I think I understand what the minister has said. We're talking about two different things there. If I take the explanation the minister has made -- and I'm not sure I agree with it, but for the sake of this discussion, let's say that I do -- that this agreement operates in a way that where an arbitrator has made a decision requiring an amendment, it is deemed to take effect on the date of that arbitrator's decision. . . . I think I can follow that logic. I'm less certain, though, about why the effective date with respect to an amendment arising out of pure agreement between the parties via these sections would be different -- would be deemed to have been made on the day the agreement was reached, versus the day it makes its way through the various ratification processes.

Hon. D. Lovick: The answer is: not when the agreement was reached, but when the agreement takes effect or when the arbitrator's decision takes effect.

M. de Jong: I think we're talking about two different scenarios. We're talking about an amendment that is required as a result of an arbitrator's decision, and I think I understand the rationale behind the explanation given. But in those sections that we have identified as being dealt with here in chapter 2 -- and the minister has kindly provided descriptions as to what those sections are -- the possibility exists that the parties would engage in negotiations, reach an agreement about the amendment and then. . . . In all other circumstances, they would be obliged to follow through on a ratification process for those amendments; in section 43, I'm hearing the minister say, that's not necessary, and the effective date is the date they reach that negotiated agreement.

Hon. D. Lovick: I want to begin to answer the question, first of all, by telling the member of another section we think 43 is germane to, and that's in the "Fisheries" chapter, paragraph 60.

Interjection.

Hon. D. Lovick: I do that first because I want to explain that the reason for this is essentially that it's a matter, ultimately, of simply working out almost a formula in terms of allocation, say, of fish or wildlife. It's something that is already embraced in the treaty. What we're doing here is simply providing a mechanism -- in this instance, where an arbitrator will say: "All right, here's how this particular dispute, or whatever it was, was adjudicated. Here's how you solve the problem." Rather than have to go through a more elaborate process, then, it is simply said that we let the arbitration in that case kick in, because we have to amend the schedule to the agreement to put in the amounts. As you know, those are the blanks that we still have to fill in.

M. de Jong: I think it's helpful. But here's why I. . . . I'll try to articulate why I think it's significant. I didn't hear the minister or the government benches quarrel with my including some of the paragraphs -- 19, 34 and 35 -- being captured by this section. Let me try and put it in these terms. I think what the government would like us all to know is that if there are going to be changes to this agreement -- anywhere in this agreement -- British Columbia, for its part. . . . It will be an open process. It won't happen behind closed doors. It will have to come to the Legislature, like the deal is today and last week and next week.

But some of the sections of this deal that are captured by section 43 of this chapter are significant. The paragraphs we have dealt with, 19 and 34 and 35, talk about sections of this deal being struck down and having to be replaced. If that can happen without those replacement provisions coming back before this House for debate, then that's not nearly the open and transparent process that I think the government wants everyone to believe exists here.

Hon. D. Lovick: Let me clarify for the member and, I think, give him some comfort. Legal counsel, as he's probably noticed, has been looking very carefully at this. It is apparently wrong to conclude that sections 19, 34 and 35 are indeed captured by paragraph 43. Those are, understandably, ones that the member would be concerned about. I will give him the reason, if he will be patient.

Essentially, the reason is that if you look at 43(a)(ii), "that if agreement is not reached, the matter will be finally determined by arbitration under the Dispute Resolution Chapter," the operative phrase there is "finally determined"; whereas in 35(c) it says: ". . .will be determined in accordance with Stage Three of the Dispute Resolution Chapter."

[4:15]

Hon. D. Lovick: First, I want to give the categorical statement, which I think may be helpful, that any amendment that arises out of paragraph 19 would be subject to a resolution of the House.

M. de Jong: Is the minister able to make the same categorical, unequivocal statement with respect to paragraphs 34 and 35?

Hon. D. Lovick: The answer is yes.

[ Page 11235 ]

Hon. D. Lovick: I understand that I can get a list, which we can then guarantee will be comprehensive. I will be happy to share that with the member as soon as I can get it.

M. de Jong: I am trying to ensure that we proceed with some order. I intend to move on to the next grouping of sections, dealing with freedom of information and privacy. With that in mind, let me say that as I read through those particular provisions of the treaty, the first thing that comes to mind when I think about freedom of information, access to information, and privacy protection is the rights and protection that that collection of legislation we now have in this country affords individuals. As I read through these sections, it occurs to me that what is largely being discussed here is the flow of information and confidentiality as it exists between governments -- that is, in this case, Nisga'a government and the provincial government or other levels of government.

I should say at the outset that in my continuing quest to impress upon the government the validity of our argument that we are indeed speaking here about a third order of government, I couldn't help but notice the language in both 44 and 45 talking about another government and characterizing any request as if it were a request by a province. I understand that that is hardly a determinant, but I couldn't help but notice the language.

What I want to ask the Attorney General about is the process by which this treaty and these provisions operate, more from the perspective of how they operate to protect the relationship between Nisga'a citizens and Nisga'a government. I think that even very early on -- as we are early in this debate -- we have established the fact, as the ministers and the Premier have said, that Nisga'a government is entitled under the provisions of this agreement to assume a far greater role in the lives of its citizens than was previously the case -- a role that one could largely equate with that of a provincial government in terms of some of the jurisdiction they will be assuming. So the question is: having assumed that role, having assumed that responsibility and all that it implies insofar as dealings between the state -- the state, in this case, being Nisga'a government -- and the individual are concerned, what protections exist to ensure that Nisga'a citizens have those same protections in relation to their government, recognizing that that government will be in a position to be sharing information with other agencies and other governments? That is the broad question. I have some additional questions relating to how the provincial legislation will. . . .

Interjections.

The Chair: Through the Chair, members.

M. de Jong: Well, let me try to give the abbreviated version. The minister will have to wait for the movie, for the part he didn't hear.

These sections -- I'm talking about 44 to 48 -- seem to speak more to the issue of the relationship between governments: Nisga'a government and the provincial government, Nisga'a government and other agencies. In section 44 of chapter 2, it talks about designating information as if it had been obtained. . . . It "is to be deemed information received or obtained in confidence from another government." I didn't find those exact words in our provincial legislation, but I did see reference being made to information being obtained from government and the obligation that imposes upon the provincial government when dealing with that sort of information. In fact, at one point in section 16, it distinguishes aboriginal government. Maybe I'll start there. Is Nisga'a government aboriginal government within the meaning of section 16(1) of our provincial legislation?

Hon. A. Petter: Maybe it would be helpful if I gave sort of a general overview of the purpose of this section. The purpose of this section is to establish a clear relationship between the Nisga'a government and the governments of Canada and British Columbia in respect of the treatment of freedom-of-information and privacy information that is exchanged between governments. So these provisions ensure that the information is not provided, for example, to the Nisga'a government unless there are appropriate privacy protections in place; conversely, the information that is transferred to provincial and federal governments from the Nisga'a government is subject to the appropriate protections as well. In that way, this ensures that the privacy protection that is currently available to British Columbians is protected insofar as any British Columbia government records become transferable to the Nisga'a government.

M. de Jong: As I understand it, the protection available to all British Columbians in dealings with the provincial government and all of the agencies that are defined as part of the Freedom of Information Act would extend to Nisga'a citizens, as citizens of British Columbia. The question then becomes: how does the treaty operate -- or does it? -- in a way that protects the relationship between individual Nisga'a and their new government?

Hon. A. Petter: The treaty itself does not provide for freedom-of-information and privacy protection with respect to Nisga'a citizens in relation to their own government. That is deemed a matter for those citizens to determine for themselves.

However, in the constitution of the Nisga'a nation, which the member is familiar with. . . . There is a provision in that constitution which indicates that the Nisga'a government must make laws with respect to access of information held by Nisga'a institutions. Based upon that, my expectation is that the Nisga'a government will indeed be undertaking initiatives to bring about such laws. Certainly we in the province are quite prepared to assist them in doing so and would look forward to doing so. But that is a matter that is left for that government to determine in respect of its relationship with its own citizens and for the citizens to determine in respect of the decisions they make about their government.

M. de Jong: Can the minister confirm for me the mechanism or provision in the treaty by which that power flows to Nisga'a government? I think it's chapter 11(9)(o) that talks about the constitution dealing with the rights of Nisga'a citizens. How does that obligation find its way to Nisga'a government?

Hon. A. Petter: If the member has reference to paragraph 34. . . . The general ability to make laws in respect to the

[ Page 11236 ]

M. de Jong: Just to be clear, then -- and that is a fairly vague provision around which to make that argument -- there's nothing specific in the treaty that imposes an obligation on Nisga'a government specifically to include protection-of-privacy and access provisions in the constitution. They have for the moment chosen to do so. Is there anything more specific in this treaty that requires them to do so?

Hon. A. Petter: No.

M. de Jong: Can I verify, then, as well. . . ? Is Nisga'a government a public body within the meaning of our existing provincial legislation?

Hon. A. Petter: The answer is that it is not currently the case that it would fall within that definition. It will not, under the treaty.

Hon. H. Lali: Hon. Chair, I request leave to make an introduction.

Leave granted.

Hon. H. Lali: Visiting us in the galleries today I have five guests. First of all, I'd like to start with the Hon. Floyd Roland. He's the MLA for Inuvik, and he's also the newly appointed Minister of Transportation and Minister of Public Works of the Northwest Territories. Joining him are his deputy minister, Ron Williams, and his executive assistant, Mike Aumond, as well as my special assistant, Amarjot Johal, and my associate deputy minister, Claire Dansereau. My guests from the Northwest Territories are here to discuss issues related to transportation. Would the House please make all of my guests welcome.

[4:30]

Hon. A. Petter: That is correct. For the purposes of freedom-of-information and privacy laws, they do not pertain with respect to the Nisga'a government now, nor will they under this treaty.

M. de Jong: Why would that be? As I look through the definition and note all of the agencies, all of the local governments and regional governments that operate, I'm curious as to why the government wouldn't see some wisdom in extending that definition.

Hon. A. Petter: The reason is that through the course of negotiations, this was a matter, it was determined, that would be left for the Nisga'a citizenry to decide with respect to their own government, as an aspect of one of the core questions around how that government functions. It was seen as an appropriate decision as part of their self-government powers.

M. de Jong: Let me just say, then, for the record that when one goes through the treaty and sees the frequency with which the parties -- and by this I mean the province and Canada -- sought to specify those areas with which Nisga'a are obliged to deal -- in, for example, drafting their constitution -- I will say that I think this area is noteworthy by its absence. The minister might say it's moot; the constitution presumes to deal with it, and that's a good thing. I would say, however, that with a government that will be involved in all facets of the lives of the members of a small community -- and it is a small community -- having the confidence of knowing that the information that is provided to that government will be dealt with confidentially, in a manner that we've become accustomed to in British Columbia, is important. And having the confidence to know that one's access to that information is also protected is also important.

Hon. A. Petter: I have full confidence that the Nisga'a citizens who will be making the decisions around the constitution of the government will be well able to protect those interests for themselves. Indeed, as the member has indicated, under the constitution that has been put forward, there's every indication that they intend to do so. We are quite willing to assist. There are a number of models through which that could take place: incorporation of provincial or federal legislation, or assisting them to develop their own code. But I have full confidence that they are capable -- more than capable -- of addressing that particular policy objective that's articulated by the member, and doing so for themselves.

M. de Jong: I think that deals with the sections relative to this minister, and I thank him for his participation.

If I can move to the next group of sections -- 49, 50 and 51. To the Minister of Aboriginal Affairs, we just had a short discussion relating to section 43 and those sections that are unique to it and import a different mechanism by which the agreement can be altered. Section 50, it seems to me, similarly talks about a group of sections that have been identified, set apart, and an obligation has been imposed upon the government to deal with them in a certain way. I would like to. . . . I think it's important, to this extent. It sets up a category of sections and a category of issues which require a more formal negotiating process to be employed. Again, this is a bit tedious, but I'm going to offer, by chapter and paragraph, those sections which I think are captured by the section. Perhaps we can get confirmation.

In chapter 8, they are paragraphs 44 and 58; in chapter 9, paragraphs 11, 28 and 77; in chapter 10, paragraphs 1 and 15; in chapter 11, paragraphs 68, 80, 81, 85, 92 and 102; in chapter 12, paragraphs 18 and 24; in chapter 15, paragraphs 3, 7 and 14; in chapter 16, paragraph 17; and in chapter 17, paragraphs 17 and 31. Now, what might be useful is, similarly, for the minister and his staff to examine those sections and provide a list of the sections to which section 50 of this chapter applies.

Hon. D. Lovick: We would be happy to do that, Madam Chair. I would just point out that what these sections -- the "Obligation to Negotiate" sections -- refer to very specifically. . . . A good illustration would be the sections we were just discussing earlier -- namely, 33 to 35. They would be ones in which obligations to negotiate are referred to. This simply spells out what that obligation actually means.

M. de Jong: I'll just take a moment to return to a theme I visited briefly yesterday and to emphasize the fact that

[ Page 11237 ]

If we return to something the minister said as we had that earlier discussion about how government is going to organize itself to respond to these obligations. . . . Let me perhaps repeat what I said then. I think it is unrealistic to assume that it will be business as usual for the average line ministry that would be captured by, in this case, I think, upwards of 20 sections. If government hasn't thought about what is going to be required to meet these obligations, it had better, because they are real. And, although I suspect the minister disagrees with me, I will suggest that they are costly.

Hon. D. Lovick: I would simply repeat, I guess, the same point I made the other day. Two things: we believe that we have indeed thought about the implications of this, and we are prepared to address them with obvious integrity and alacrity.

M. de Jong: I don't want to belabour the point, but I do want to get on the record confirmation from the minister that no real work has been done in anticipation of this treaty taking effect, that no modelling or study or analysis by the government exists relative to the issue of cost and the reorganization of government. Or does it? Has some analysis taken place upon which the minister relies in making his assertion that if there are costs, they are minimal, nominal and nothing to get worked up about?

Hon. D. Lovick: In terms of the cost dimension, I understand that Treasury Board has given a directive to ministries that they are expected to do what needs to be done in order to comply with the provisions of the treaty. I can also say that yes, indeed, some considerable thought has been given to how we are going to accommodate the new responsibilities for line ministries.

M. de Jong: I by no means have the experience in the workings of government that the minister has. It strikes me, however, that when Treasury Board gets involved. . . . My suspicion is that it usually revolves around the issue of dollars. If that is the case, perhaps the minister could indulge us just a little bit further and provide additional information about what has sparked the interest of Treasury Board in the matter that he has just alluded to.

Hon. D. Lovick: Treasury Board does here what Treasury Board does, it seems, all the time -- namely, it says: "No, you will not spend any more money. We expect you to live within the means that have been presented in the line ministry budgets."

Interjection.

M. de Jong: Yet my colleague highlights the fact that someone at CFI and B.C. Ferry Corp didn't hear "No" early enough.

Just dealing with some of the provisions under "Conflict and Inconsistency". . . . I don't have a lot of questions; you'll hear very few, in fact. With respect to paragraph 53, can I ask the minister whether that represents an attempt to codify common-law rules that have arisen around these jurisdictional disputes that have taken place over time between the province and the federal government?

[4:45]

M. de Jong: I guess the question I didn't ask very clearly was whether this was an attempt to apply those principles and provisions to the ongoing relationship that will exist hereafter between the Nisga'a government and the federal and provincial levels of government.

Hon. D. Lovick: I'm advised that the answer is yes; this is indeed an effort to set up and set out that relationship.

M. de Jong: I think I feel obliged to ask whether the belief that a section of this sort is necessary. . . . I think it is. I think it's here for a reason, and a legitimate one. In the minister's mind, at least, is that at all indicative of the argument that he doesn't want to accept regarding the status of the government that is created by this document? This is the argument relating to the creation of this third order of government that is the subject of the provisions in section 53.

Hon. D. Lovick: I don't think so. This is, rather, just a relationship argument to clarify how the two sides relate, and this is obviously necessary if you set up a concurrent model of jurisdiction. I don't think there's anything more complex than that.

M. de Jong: I'm sorry -- I thought I heard the minister talk about concurrent levels of jurisdiction. I didn't hear the last part.

Hon. D. Lovick: The model that we talk about for self-government. . . . We usually give the term "concurrent model." That's the terminology I referred to.

M. de Jong: Concurrent in some areas, paramount in others.

Hon. D. Lovick: The question of paramountcy doesn't arise unless and until something is concurrent.

M. de Jong: I think the only other section that I had any questions arising out of relates to the very end of the chapter that we're presently on, and it's simply to confirm that all notices are personal delivery or fax, and not by any manner of electronic transfer of data.

Hon. D. Lovick: Yes, the member is quite right re his question on paragraph 65.

M. de Jong: I think that takes us to chapter 3, and all of the issues that arise therefrom relative to lands.

[ Page 11238 ]

M. de Jong: Yeah, that would be helpful. I don't know who makes that. . . .

Hon. D. Lovick: Could we simply do that by agreement? We're moving into a whole new section, and it's going to require some different people and some arrangement-changing. With the permission of the Chair, could we perhaps recess the House for ten minutes?

The Chair: Is the minister making a motion to move for a recess for five minutes?

Hon. D. Lovick: I would be happy to move that motion.

Motion approved.

The Chair: We'll recess for five minutes or so.

The House recessed from 4:49 p.m. to 5:01 p.m.

[E. Walsh in the chair.]

On the schedule, chapter 3.

M. de Jong: We're on now to chapter 3 of the treaty, dealing with Nisga'a lands and all that that implies: the various definitions, the fee simple lands, all of the lands that comprise part of this agreement. Maybe I can just launch into this discussion around this chapter by saying that there are some very specific issues that arise out of the terms of the agreement. There are some of the broader issues which have been the subject of public debate and, to some extent, the second reading debate. We have heard from people -- at least I have -- who question the amount of land; they question the manner in which it has been transferred. Some changes have taken place from the days of the agreement-in-principle, dealing with that very issue. There are a number of questions -- a number of issues, at least -- that arose when we were talking about how this treaty purports to satisfy the aspect of the claim that actually gave rise to the claim in the first place.

If I can just take a moment to deal with this issue, I don't think anyone who has watched over the last 20 and 30 years could help but be affected by the extent to which aboriginal peoples in particular and Nisga'a specifically have devoted so much of their energies to articulating the connection they feel with the land. As we embark upon this discussion, that is something, as most speakers in second reading debate pointed out, that is important. I think that's something that we should be mindful of when we probe and get to those sections and, from the opposition side, try to point out to the minister why things may or may not work the way the government believes.

[R. Kasper in the chair.]

The fact that can't and shouldn't be argued is the fact the Nisga'a call the Nass area their home, and their attachment to that area is genuine and profound. Having said that, the Nass area is also part of British Columbia. To those who have been observing these negotiations, questions have arisen about the mechanisms by which governments have presumed to satisfy that desire of the Nisga'a people to reconnect with the land in a formal and legal way. Questions have arisen about the quantity of land; questions have arisen about the value of that land. In this chapter we will have an opportunity to explore both the provisions as they appear in the final document and the rationale that the government has employed in agreeing, as one of the three parties to this negotiation, to those provisions.

All of that is important, and I think it is particularly important when we recognize that we are dealing with a unique area. That is something that has been repeated over and over and over again -- that we are dealing with an area that is sparsely populated -- and to that extent, the negotiators had an advantage. In the questions that related to third-party interests -- tenure holders of one sort or another -- the government had the luxury of dealing with manageable numbers. It is possible to list on a single sheet of paper the number of third parties holding fee simple interests in land here. That is unique and not something that is likely to arise in very many other sets of negotiations.

As a way of moving into this section, one of the first areas I want to canvass with the minister or the Attorney General is that the form. . . . What has been granted here, what these lands represent within the ambit of the law as we know it in British Columbia -- because it is different, I think, from what we were led to believe might take place via the agreement-in-principle. . . . I think there is general recognition that that change has occurred, and I think there has been positive commentary around that fact. So it might be helpful for either minister, by way of introductory remarks, to comment on that change insofar as it affects not how much but, particularly in a legal way, what it is we are dealing with when we talk about this transfer of Crown land.

Hon. D. Lovick: Just a general overview. . . . I think that's what the member is asking for, indeed, so I'm happy to provide it.

Nisga'a lands, as he knows, comprise 1,992 square kilometres of land in the lower Nass River area: 1,930 square kilometres of Crown land and 62 square kilometres of current Nisga'a Indian reserves. The Nisga'a lands do not include any existing fee simple property or land subject to agricultural leases or to woodlot licences. The province retains ownership of submerged lands in the area and also the Nisga'a Highway within Nisga'a lands. To the member's particular question: the Nisga'a will own the lands in fee simple, just like all property owners in the province. However, the Nisga'a will also own all subsurface resources and gravel. The province has agreed not to retain a right of resumption -- i.e., the ability to take back one-twentieth of the land -- or the right of expropriation, except for the roads and utility corridors required for public purposes.

Unlike Indian reserves, these lands will not be under federal authority as lands reserved for Indians -- i.e., section 91(24) lands. Just like any property owner, moreover, the Nisga'a will be able to sell or lease parcels of their land. Existing land interests -- for example, communications sites and utility rights-of-way -- will be continued by the Nisga'a. Moreover, the existing provincial park and ecological reserve adjacent to Nisga'a lands will remain under provincial ownership and jurisdiction.

Finally, the current management agreement for the park, which now provides for Nisga'a involvement in management activities, will be continued under the final agreement. I hope that's what the member was asking for.

[ Page 11239 ]

[W. Hartley in the chair.]

M. de Jong: Amidst all that, the minister referred to the fact that the Nisga'a will own the land in fee simple, like anyone else in the province of British Columbia, although he did acknowledge that some differences do exist. I think he laid out most of them, but not all of them.

I'd like to back up from there. One of the issues we have heard discussed relates to how the transfer has been effected in the first place and the language that has been employed to do that. In fact, I don't think "transfer" is utilized, and I think that's significant. I think it is significant to this extent: the treaty deems that on the effective date, the Nisga'a will own this land. There is a mechanism available in British Columbia by which Crown land can be transferred; that mechanism, as I understand it, is set out in the Land Act. But this is different from that; this is a different process. I think it's because that different process is utilized that some of those exemptions and reservations that the minister referred to. . . . That's one of the reasons they don't cover these lands. Am I correct when I say that for anyone else to acquire land from the Crown, they do so pursuant to provisions of the Land Act, particularly section 50, and that as part of section 50, the Crown reserves unto itself some of the rights that the minister has. . .the right of resumption, for example, of one-twentieth of the land; the expropriation rights; the sand and gravel rights?

So when we say that Nisga'a will own this land in fee simple, like any other British Columbians, there are two groups of significant differences. There's that group of rights that other British Columbians don't get, relating to mineral rights and. . . . We can enumerate them. I think the minister covered most of them. And there's the mechanism by which they acquire that land in the first place -- that is, the third party -- which is by transfer. Something else is being utilized here that I am not familiar with. It's not a transfer per se; it's something else. I think it would be useful for us to explore what that is and whether that is the mechanism we should look forward to the government utilizing in future negotiations.

Hon. D. Lovick: Pardon the delay, Mr. Chairman; I want to make sure I get this absolutely correct.

Two points. Number one is fee simple. This is indeed land in fee simple, and that's because fee simple refers to the nature of the ownership, not to whatever conditions might be otherwise imposed on the land. It's the nature of the ownership, and therefore they own it in fee simple. That's the first point. The second is that we didn't go to the transfer under the Land Act, and the reason for that is simply that it involves granting the land too. The argument of Nisga'a and presumably other first nations is: "Wait a minute. We own it. We never gave it away, and therefore you ought not to be granting it to us." It's symbolism, if you will, but at the end of the day, the difference between transferring the land via treaty and invoking language in the Land Act, which was perceived to be unacceptable to the Nisga'a. . . . We regarded that the conclusion. . . . At the end of the day, as I say, there was no difference between the two, so why then not accommodate what we perceived to be the Nisga'as' legitimate request?

[5:15]

But let me ask this series of questions, then. It is helpful in recognizing that this all took place at a negotiating table and that there was a symbolism attached with the employment of this language and this mechanism, but the government surely maintains the view, away from the negotiating table, that it maintains title to this land and has the authority in any other circumstance to transfer land pursuant to the provisions of Crown land. I'm wondering about the significance of this approach as it might apply to some of those mythical cases that are looming out there somewhere in the future.

Interjection.

M. de Jong: Yes. For the record, the minister asks if I am referring to future treaties and, presumably, future disputes that might arise in the event that those treaties aren't resolved at the negotiating table. Has the position of the province been prejudiced, I guess, is ultimately the question.

Hon. D. Lovick: Absolutely not. We don't see the fact that we transfer the ownership by means of treaty as in any way prejudicing our ownership of the land.

M. de Jong: I did find section 50 of the Land Act. Just to be clear, it speaks of transfers of Crown land and that when a transfer -- a disposition -- of Crown land under the act occurs, the following exceptions and reservations exist. It does talk about the one-twentieth interest for the making of roads or public works. I'll summarize. It talks about geothermal resources and minerals being reserved unto the Crown, it talks about water rights being something that are reserved to the Crown, and it talks about the right of entry for the purposes of obtaining gravel and sand and stone -- again, for purposes related to public works. Not to belabour the point, but that is what every other person in British Columbia would be confronted with when they accept a grant of Crown land from the government that is not part -- and, in certain cases, for obvious reasons, particularly with respect to minerals -- of the grant that Nisga'a have assumed with respect to core Nisga'a lands.

Hon. D. Lovick: The member is substantially correct. I might note, though, that in the agreement we have indeed dealt with the right, for example, of resumption. We've dealt with water in another chapter; we've dealt with access to gravel in other chapters. The important point, though, is that on that fee simple title we chose not to impose the conditions that are normally imposed in other land transfers. We saw that as simply essential and, indeed, integral to the treaty.

M. de Jong: I think that if we talk about what has been transferred -- again, in general terms, and it's something that I'll want to return to -- the other logical question that comes up is that if it was a function of negotiating that gave rise to the mechanism by which that land was transferred, it is unclear to many people what gave rise to the ultimate quantum. This is something that the minister has been confronted with as he has travelled around the province. And I do only want to deal with this in a general way, because I think there are some very specific questions that come along later in the chapter.

[ Page 11240 ]

Perhaps the more insightful question is: how did you get to that amount? We heard earlier today from the member for Peace River South about how even the Nisga'a position over time has moved from one amount to another. It's gone up, and it's gone down, in terms of what traditional territories are. As a function of these negotiations and leading into these negotiations, particularly the final stages, how does government decide that 1,992 square kilometres is the correct amount? How does the government, as the trustee of this Crown land, defend what seems to be a very arbitrary figure to the people for whom it holds those lands in trust?

Hon. D. Lovick: I don't think one can conclude for a moment that this is an arbitrary figure. Rather, I think it's the product of hard negotiation, positions taken by all three parties -- notably, though, British Columbia and Nisga'a. At the end of the day, we came up with what we thought was a fair and affordable and just settlement -- precisely what we committed to way back in 1991.

M. de Jong: I don't want to become bogged down in this part of the discussion now, but I'm going to press the minister a little bit further. Much of what the government focused on in terms of selling this deal related to what was portrayed to be the significant concession that it wrestled out of Nisga'a, insofar as the final settlement figure versus the original claim.

Interjection.

M. de Jong: I'll withdraw the word "wrestled," because I confess I didn't see that word in any of the literature.

The point is that the plea that went out to British Columbians was: "Look, this is worthy of support, and when you examine this agreement in detail, be mindful of the fact that the other party at the table -- the Nisga'a -- have reduced their demands significantly, to 10 percent of what they were at the outset." We have heard figures, and we will hear more later in the debate around this chapter about how that may not be the case.

I'm unclear at this point as to what extent the British Columbia government began this exercise by accepting the validity of that claim on traditional territory that gave rise to the 10 percent argument that we have heard ever since July and August of 1998. It is a much less meaningful argument and figure if. . . . It is not as meaningful if there was no basis to the original claim in the first place -- the claim around what was actually traditional territory. I want to explore the basis upon which that plea to the public of British Columbia has gone out in the weeks and months since July and August of '98.

Hon. D. Lovick: I do believe we've canvassed some of this ground before. My colleague the Attorney General said: "I remember; we talked about that yesterday" -- or something.

Let me put it this way. We entered the negotiation with the Nisga'a putting on the table a huge quantum of land. We, the provincial Crown, never said to them: "You must prove to us your legitimate claim to that huge quantum of land." Rather, we negotiated with them for an amount that was hugely smaller than what they went to the table with. They accepted it; we accepted it; Canada obviously accepted it. We think that at the end of the day, that was to everybody's benefit.

M. de Jong: Okay, that's fine, and I accept that. But how meaningful and legitimate is it, then, for government to move from that position, where it has not placed that obligation. . . ? I accept that. Government did not go to the table and say: "Before we move any further, you, Nisga'a, are going to prove every square inch or every square mile of that claim and what was traditional territory and what was not." Nisga'a weren't put to that burden of proof. We've just come through a discussion, insofar as overlaps are concerned, where other bands will be, but Nisga'a wasn't. Yet if they weren't, how do you then move from there to basing an argument around the fact that this is a worthy settlement because it represents only 10 percent of something that was unproven in the first place -- because we purposely didn't put the Nisga'a to that burden of proof?

Hon. U. Dosanjh: I think we've gone over this territory -- no pun intended. We've gone over this territory earlier today and over the last two or three days. It's very clear that the territory in the Nisga'a treaty now is about 8 percent of the territory claimed by the Nisga'a.

I have said before that we will not admit to any inherent rights whatsoever, even about land, when we are faced with litigation. When you are at the negotiating table, you look, obviously, at all of the issues, and you arrive at what you think is appropriate, given all of the considerations, legal and otherwise. I think that is the only answer that we can provide. I'm not going to discuss or comment on the merits of the claim. I don't think that's appropriate at all.

M. de Jong: Whether it's appropriate or not, the Attorney and the minister have made it abundantly clear that they don't intend to engage in that discussion, and I have to accept that -- not happily, but I do. My position on the appropriateness of the discussion is different from the Attorney General's, obviously.

[5:30]

Hon. U. Dosanjh: I don't believe that any of my colleagues or myself have used the words: "That was the best we

[ Page 11241 ]

M. de Jong: Well, I really wouldn't have expected the Attorney General to say anything different. But I want to say to him that the one thing that. . . .

We talked briefly about the mechanism by which the land was granted. What didn't change, between the time of the agreement-in-principle and the document that we are dealing with now, is the quantum, quite frankly. The comments that the select standing committee might have heard relative to that are as relevant today as they were at the time they were made, a year and a half ago. What one heard from British Columbians, and what the committee was asked and wasn't, obviously, in a position to answer -- the now Minister of Small Business, Tourism and Culture wasn't in a position to answer -- was: "How did you get to this figure, and what are the implications? What approach did you take that will have an impact on how similar negotiations are resolved in my hometown or my community?"

I think those are fair questions, hon. Chair, because I think that amongst responsible people there is a recognition that these settlements are going to comprise a combination of cash and land -- in some areas more land and in some areas more cash. I think there is an acceptance of that. But what there has not been thus far, I think, is an articulation of how that formula -- I use that word, and that might not be the right word. . . . But how that mix is going to be resolved, or what approach the government took to this particular set of negotiations to resolve that issue, recognizing that we were dealing with an area that lent itself to a land-heavy settlement. . . .

Hon. D. Lovick: I want to first of all say that I appreciate the point that the member is making and, dare I say, the frustration that he articulates on behalf of some other people.

The other side of that, however, is the nature of negotiation. You can't go into negotiation saying, "For first nation X we're going to put this much on the table, and for first nation Y across the river we're going to put this much on the table," and so forth. Instead, what we did from the beginning was go with some basic principles for negotiation. I believe Mike Harcourt was the one who actually said that at the end of the day, the total amount of land would probably be no more than 5 percent. That has subsequently been refined to say that at the end of the day, the amount of land -- the land quantum -- will be roughly proportionate to the percentage of the population of first nations in the province. But beyond that, quite frankly, I think that to answer the question is sort of like saying: "Well, I'd like to come into the room with the negotiators and find out everything they did, and then tell everybody how they're going to go about negotiating subsequent treaties." I put that on the record simply because I know that the member across the way is not unreasonable, and I suspect that he will be persuaded by that argument. We can perhaps move away from this line of questioning.

M. de Jong: Well, maybe in a moment, so let me be unreasonable for just a moment longer. There is another example of a negotiation where this also became an issue and where, I think, a slightly different approach in perhaps slightly or more radically different circumstances existed: the negotiations that took place around McLeod Lake. Unfortunately, the member for Peace River South isn't here, but my friend from Peace River North is. People look at those negotiations and the settlement that has arisen out of those negotiations; some of them agree with the settlement, and some of them don't. But the same questions relating to the quantum -- purely the quantum -- simply don't arise.

I understand that we're dealing with an adhesion agreement and that, actually, a formula does exist. Maybe what the minister and I have to accept -- I won't be happy about it -- is that, in this new era of negotiations, that simply won't take place. The ability to project ahead, with respect to settlements around the issue of land and, ultimately, dollars, is no longer possible. If that's the response, then I obviously have concerns -- but maybe that is the response.

Hon. D. Lovick: I think, quite frankly, that is the response, with just one addition. McLeod Lake is indeed an adhesion to an existing treaty, an 1890s treaty. The land quantum there is roughly 160 to 640 acres per person. It's a prairie treaty; it's certainly different from what we're contemplating in Nisga'a. The member's probably right, though, if I can crudely put the point he made: that was then and this is now. The world has significantly changed, I think.

M. de Jong: Treaty 8 was then; McLeod Lake and the adhesion are now. So maybe the minister can indicate to me why, when I am asked about the two, and why, when I am asked if it was possible to approach the question of the land quantum in that more structured way in 1998 in McLeod Lake. . . . Perhaps that made negotiations more difficult; I don't know. Maybe it made them more easy; maybe it made them easier when all parties knew the parameters around which they were negotiating. I think you can make the argument that by attempting to establish those parameters, it makes the provincial government's life -- your life -- somewhat easier. I think the minister will have a different take on that, but let me make that submission to him.

Hon. D. Lovick: The important point about adhesion is literally what the words say. When you sign an adhesion agreement, you agree to adhere to -- attach yourself to -- an existing treaty. You don't have any say about changing the terms of the treaty. In other words, the only question is: are you going to adhere to the treaty, or aren't you? That's why we can't make the comparison.

Moreover, I think it's pretty safe to say that there is no first nation in British Columbia today except McLeod Lake -- which was, as you know, left out by a kind of anomaly -- that would be looking at that kind of treaty today. I just don't think that's in the cards.

[ Page 11242 ]

G. Wilson: I'd like, if I could, to try to come back to a much more basic set of component questions here which I think are on the minds of a lot of British Columbians with respect to this treaty. This issue of the land is at the heart and soul, I think, of the treaty itself. Whatever form of self-government is about to occur, it is the basis upon which the wealth of the Nisga'a will be determined in future, because they're obviously going to be responsible for the administration of this land.

Earlier on in our debate and our discussion, I talked about the need to clarify in the minds of British Columbians exactly where title exists. I know that the member for Matsqui started down this trail and then quickly moved off it. It just seems to me that prior to our adjournment for tonight -- and I think we're getting close to that point -- we need to clarify, first of all, that those people out there who have been spinning. . . . I know there have been some pretty wild statements made by people who are opponents to this agreement that somehow what we're doing is transferring or giving or in some way acquiescing to what amounts to sovereign title on land for Nisga'a. That is so false; that is so wrong. That is just so much not what we're doing that I think we need to get that on the record today. This prospect of land ownership is not in any way comparable to sovereign ownership of land. Let's start with that point, number one, so we can completely dismiss that. I know those charges have been made by people who, frankly, I think should know better.

Hon. D. Lovick: I want to thank the member for putting that on the record in his own inimitable way, and I think his point is well-made. Indeed, I accept entirely the conclusion he draws. I note that by agreement we are apparently going to adjourn the committee. Therefore I'm sorry, but I can't elaborate. But we can certainly pick this up at the next meeting of the committee. With that, I move the committee rise, report progress and ask leave to sit again.

Motion approved.

The House resumed; the Speaker in the chair.

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

Hon. D. Lovick: Hon. Speaker, with very brief wishes to all members of the Legislature for a happy and safe weekend, I move adjournment of the House.

Hon. D. Lovick moved adjournment of the House.

Motion approved.

The House adjourned at 5:46 p.m.

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