Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

[ Page 11269 ]

Prayers.

Orders of the Day

NISGA'A FINAL AGREEMENT ACT
(continued)

On the schedule, chapter 3 (continued).

G. Plant: I want to ask a few questions that relate to the provisions that are, I suppose, 6 through 18. Some of this has been canvassed already, but the points that I want to canvass here, I think, are relatively new. Let me deal with paragraphs 9 through 14, which have been dealt with to some extent. But I think it might be useful to complete the discussion.

We talked yesterday about the fact that there are circumstances under which Nisga'a lands can get larger. But I think the point was made that there really aren't any circumstances, other than pursuant to the amending formula in the treaty, under which Nisga'a lands can get smaller.

I think it would probably be incomplete not to make the observation -- or at least the suggestion -- which arises from the way I read these clauses, that if you look at paragraphs 9 and 11, there are really only two kinds of lands that can be added to Nisga'a lands. First is lands that are within the boundaries of Nisga'a lands but currently owned by somebody else and therefore excluded from Nisga'a lands; and the second is lands that are contiguous to Nisga'a lands -- so a parcel of land which is immediately outside the boundary, but one part of the boundary of the property is actually contiguous with Nisga'a lands.

If I'm correct in that, then people who have expressed a concern -- for example, if the Nisga'a were to purchase a parcel of land in Terrace, would that then become Nisga'a lands? -- are probably wrong, because neither of those two processes that I've just summarized could apply to a parcel of land in downtown Terrace. I just want to make sure that my understanding is correct, so perhaps the minister or the Attorney could comment on what I've just said.

Hon. U. Dosanjh: Correct.

G. Plant: If the Nisga'a undertake to acquire lands in a way that makes them eligible for inclusion as additional Nisga'a lands, I'm right that the consent of the owner of the land is required in all cases before that takes place. Is that correct?

Hon. U. Dosanjh: Correct.

G. Plant: Which is to say, I suppose, in another way, that the Nisga'a nation would not have the power to expropriate a parcel of land and turn it into Nisga'a lands, unless the owner consented.

The other thing that is maybe important -- time will tell -- is paragraph 12. It essentially provides, as I understand it, that if those parcels of land are, in general terms, currently subject to any existing conditions, charges or encumbrances, they will continue to be so, even though they should become Nisga'a lands. I suppose one possibility here is that if there is a reservation of subsurface rights in the Crown grant in respect of those parcels, that reservation would continue. That may not be so. In fact, it may be that that is actually not a good example, because that would be a reservation in favour of the Crown -- right. I think the Attorney General has helped me correct myself. If the condition or proviso or charge were in favour of some other party, though, that condition or charge would continue even after the lands become Nisga'a lands under these processes. Is that correct?

Hon. U. Dosanjh: Correct.

[10:15]

But let me, as part of an attempt to understand paragraph 8 -- for my benefit, anyway -- make this proposition and see if the government agrees with it. It is open to the Nisga'a to bring some or all of Nisga'a lands into the provincial Torrens system that is under the domain of the Land Title Act. It is not required of the Nisga'a that they do that; it is optional. It is conceivable, therefore, that the Nisga'a could bring none of their lands or all of them or some portion in between into the Land Title Act system. Is that generally a correct statement of how the agreement may work?

Hon. U. Dosanjh: Absolutely correct.

G. Plant: If the Nisga'a bring some parcel of land entirely into the Land Title Act system, or the Torrens system, then I suppose you could say those lands are going to become pretty conventional British Columbia lands. We will still have the situation that they will be Nisga'a lands for the purposes of Nisga'a government jurisdiction. But they're going to look a lot more like ordinary British Columbia land, and certainly a lot more like that than the lands on an Indian reserve.

But as a general matter, that may not be so in respect of lands to which the provincial Torrens system will not apply, because they will not have been brought into the Land Title Act system entirely. I have made that statement at, I think, an excessively high level of generality. I wonder if the minister or the Attorney could respond to it by giving the government's sense of what the difference is going to be between lands that are brought into the Torrens system and lands that are kept outside it.

[ Page 11270 ]

G. Plant: If the Nisga'a make a system of land title laws and registration laws, those laws will presumably apply to all of the lands that are kept out of the provincial system. What will be the case for lands that are put into the Torrens system? Will the provincial laws around land title then apply? Or will there be some hybrid of laws?

Hon. U. Dosanjh: Generally, the Land Title Act would apply, and the provincial laws would apply. There are some minor exceptions; we can come to those.

G. Plant: So the Nisga'a have the ability to keep some of their lands outside the provincial land Torrens system. That is at least part of what paragraph 8 is dealing with in the "Lands" chapter -- that is, what kind of rules about attachment and seizure are going to apply in the case of lands kept outside the Torrens system?

I have to say there are enough negatives and back-and-forth clauses in paragraph 8 that I'm not sure I understand how it's supposed to work. It seems to me, though -- at least dealing with the first part of paragraph 8 -- that with lands that are kept outside the Torrens system, the Nisga'a nation or a Nisga'a village cannot have their. . . . Their interest in those lands cannot be subject to attachment or seizure or foreclosure, except under a mortgage, essentially, created by the Nisga'a nation. That may not be correct. If I've missed it, then I'm sure the Attorney General will explain it better.

Hon. U. Dosanjh: The hon. member sums up correctly the essence of section 8.

G. Plant: Going back, just for a moment, to paragraph 6. . . . Paragraph 6 talks about some of the things that land lawyers love to talk about: the acquisition of rights "by prescription or by adverse possession." I gather that the reason this is here is because the Land Title Act and other provincial legislation will not necessarily apply to all the Nisga'a lands, because of the distinction we've been drawing between lands that will be brought into the Torrens system and lands that will be kept outside. So it was considered prudent to express this general statement about rights by prescription. If there is some other logic behind paragraph 6, then I ask the government to help explain it.

Hon. U. Dosanjh: Essentially, paragraph 6 gives Nisga'a lands, even if they aren't in the provincial Torrens system, the same kind of protection that's in the Land Title Act.

G. Plant: We may have dealt with the subject of escheat yesterday -- paragraph 7. Conceivably, what's possible is that a parcel of Nisga'a lands could be sold in fee simple to someone who dies without leaving heirs. If the land were outside Nisga'a lands -- just ordinary land in British Columbia -- then that land may escheat to the Crown. Paragraph 7 says that if that were to ever happen on Nisga'a lands, then the Crown will transfer that land back to the Nisga'a so that it becomes Nisga'a land -- which, I suppose, is a way of preserving the proprietary interest of the Nisga'a in Nisga'a lands. Is that correct?

Hon. U. Dosanjh: Correct.

G. Plant: If Nisga'a lands forfeit to some party by virtue of a foreclosure, then subject to what Nisga'a law may say about those things, the person who acquires the fee simple title in that parcel by reason of foreclosure would have the right to sell that parcel. It would, of course, continue to remain as Nisga'a land, and the discussion that took place yesterday about the commercial context of that would hold true. Is that correct?

Hon. U. Dosanjh: The member is correct in that the Nisga'a don't have the capacity to provide for different foreclosure laws, so the regular foreclosure processes would apply.

G. Plant: So the position of the government is that the Nisga'a do not have the power to create foreclosure laws, even when exercising Nisga'a government powers under the heading of "Nisga'a Property in Nisga'a Lands," which is chapter 11, paragraphs 44 and so on?

Let me just put a little more flesh on those bones. "Nisga'a Lisims government is given the power to make laws in respect of. . .the use and management of Nisga'a Lands owned by the Nisga'a Nation. . .the possession of Nisga'a Lands. . .the disposition of an estate or interest. . . ." Those are the kinds of things that, of course, engage the ways in which land may be owned and used. Someone could conceivably construct an argument that that does give the Nisga'a government power to make laws in respect of matters like foreclosure. But I take it that the government's position is that those clauses do not go that far.

Hon. U. Dosanjh: Correct.

G. Plant: The last questions that I have before we get to mineral resources are on clauses 16, 17 and 18, which deal with designations of Nisga'a lands. There are three kinds of Nisga'a lands. There are Nisga'a public lands, Nisga'a private lands and Nisga'a village lands. I am interested in Nisga'a private lands. The description says: "Nisga'a Private Lands include: (a) lands in which Nisga'a Lisims Government creates an exclusive interest. . . ." Is that intended to encompass the situation where Nisga'a Lisims government transfers fee simple ownership of a portion of Nisga'a lands?

I know, for example, that the treaty contemplates that the Nisga'a Lisims government can create new forms of ownership, an example of which, I suppose, might be whatever the Nisga'a government does to replace the interest currently known as a certificate of possession under the Indian Act. The Nisga'a government may choose not to create fee simple interests for the purpose of providing residential property for the people who live in Nisga'a villages. That would be an obvious example of the creation of an exclusive interest. But am I right that this is also intended to describe the lands which Nisga'a government transfers in fee simple to other parties?

Hon. U. Dosanjh: Yes.

[ Page 11271 ]

Hon. C. McGregor: The provision makes it clear that it must be for safety -- commercial, cultural, or resource development use. If in fact there was, for instance, some mineral tenure granted, and there were some safety issues to restrict public access because of a concern around safety, that would fall under 18(b). In areas set aside specifically for spiritual values -- traditional spiritual and cultural areas, for instance; sometimes trees are culturally modified as a result of a traditional use -- those areas could have some restrictions of public access in order to preserve the spirituality of the site. The provisions under which the limitations can be placed are clearly listed in 18(b).

G. Plant: I take it that the way the agreement works in terms of. . .creating a distinction between lands over which there is a public right of access and lands over which there are not the designations "private lands" or "public lands." In that case, if I'm right, the minister's answer is yes, some kinds of private lands are going to be there for the purpose of limiting public access for the reasons the minister has given. Is that correct?

Hon. C. McGregor: Yes, that's correct.

M. de Jong: Just a couple of questions back on paragraphs 9 and 11, where we contemplate adding lands to Nisga'a lands. Paragraph 11 in particular refers to obtaining the agreement of Canada and British Columbia. I'm just curious: on what basis might consent be refused or withheld? It suggests that there is a requirement to obtain approval, and it's unclear to me on what basis that approval would either be granted or not granted.

[10:30]

M. de Jong: What I'm hearing is that. . . . Well, let me quickly. . . . When I read the sections, it suggests that it's almost pro forma that the Nisga'a have an opportunity -- with contiguous lands, for example -- to add those, and that approval wouldn't be withheld unreasonably. For example, we often see those words associated with these kinds of clauses. The Attorney is suggesting a different test, as it were, and I think it's legitimate to try to ascertain just what that test is.

Hon. U. Dosanjh: The test that the hon. member alludes to, with respect to the consent not being unreasonably withheld, is a much higher test in favour of the Nisga'a. I don't believe that's this government's view. That's not the test that ought to be applied. The test that ought to be applied is that it should be in the public interest of all British Columbians, including Nisga'a, for us to do that.

M. de Jong: With respect to paragraph 13, which contemplates a parcel becoming part of Nisga'a lands under either section 9 or section 11 -- to confirm that. . . . Notwithstanding that the land involved may have mineral rights withheld by the Crown, as alluded to earlier, it is pursuant to this section that the Nisga'a would acquire those mineral rights, for example. The traditional restrictions, as set out in section 50 of the Land Act, wouldn't apply because of section 13.

Hon. U. Dosanjh: Correct.

M. de Jong: Last question, then -- and I think I know the answer to it. As this land is removed from the provincial land base, as it were, there are costs associated with that with respect to lost revenues. I presume the Attorney will confirm that there is no inventory of those lands at the moment. This is all speculative in terms of dealing with what might arise in the future; therefore there's no assessment as to what. . . . This hasn't been considered or costed, by reason of the fact that it is entirely speculative as to how much land we might be talking about in the future, contiguous lands being what they are.

Hon. U. Dosanjh: Correct. Another factor that the government of the day would have to take into account is what the value of those interests might be.

D. Jarvis: I want to ask some questions on the mineral resources section in chapter 3, starting with 19 to about 30. As you're aware, Mr. Chair, the mining industry itself really would like to have some resolution of native land claims, ostensibly because of the certainty aspect that's come up over the last few years. It's not necessarily specifically in relation to the extraction of minerals, but in relation to exploration for minerals. They're concerned about what the certainty is going to be with regard to access to the lands that have come under native land claims.

As you are aware, the shrinking land base for exploration in this province has been somewhat emphasized over the last few years, more so since the present government has put out a snapshot of about 12 percent that is not used for exploration, by creating parks. Then they have created another larger area which would be considered special management zones; they were available for the industry. But this land base is shrinking gradually. The industry itself feels that we are now well in excess of 12 percent in this province. The special management zones have all been sort of moved up, through orders-in-council, to a higher-risk level; therefore they're ostensibly cut off from exploration. So when we see 50 to 60 or 70 or 80 different aboriginal treaties being created for the natives, they're concerned about what their access is going to be -- and rightly so, too. I think you're probably aware yourself that there is this concern.

There's also the question of what kind of organization will be set up, in the sense that. . . . Will each treaty have its own rules and regulations? Will they be sitting with mass confusion out there with a number of. . . ? If we have 25 or 30 treaties, do we have 25 or 30 sets of rules as to how they're going to get access, either to enter onto the land or to cross the land? Or is the government basically going to take this on and create the rules through the provincial government?

[ Page 11272 ]

For example, under section 19, I'm trying to get some clarification as to. . . . You say that the Nisga'a nation owns all mineral resources on or under Nisga'a lands. Now, I think that earlier you explained what you meant by "all," but there is one question that does come out that needs interpretation, I think: the meaning of "on or under" -- also as it falls in line with section 22 below, referring to "submerged." I wonder if you could give me an explanation or clarify what you mean by "on or under" versus "submerged," as far as mineral resources go.

Hon. C. McGregor: Well, the member's questions have many, many facets, and I'm going to try and give a start. If I miss any of the questions that he has put into his statement, I'd ask him to repeat them again.

To begin with, hon. Chair, I think it's important that we establish that while the mining industry claims that more than 12 percent of the province has been protected and is not available for mineral exploration or other industrial uses, that is absolutely incorrect and untrue. In fact, we have not yet achieved 12 percent protected areas, as the member well knows. Yesterday the Premier and I participated in an announcement, and during that announcement we indicated that we were getting close to 11 percent as protected areas. So we haven't yet achieved the 12 percent target.

Nonetheless, I must also correct the member's view of special management, because in fact, special management means it is still available for resource use as well as industrial use and many other uses, including forestry, ecotourism. . . . There might be many, many opportunities for the public to access and use those areas of the province for a variety of economic activities. They are not alienated from development. It does mean, however, that they have special features that must be managed, and in some cases, hon. member, it's things like wildlife. These are very important values to British Columbians and need to be respected. It doesn't mean that we don't have oil and gas or mineral activity continuing in special management zones. In fact, the oil and gas industry, for instance, has developed some very innovative technologies that have limited impact within a special management zone -- strategies like directional drilling which allows existing habitat to remain in its entirety, protecting the wildlife values. There is a vast area of the province, outside of the not yet 12 percent protected areas, that is available for resource activity.

I would also like to try and respond to the member's questions around access. I draw his attention to section 21, where it describes that the Nisga'a government and B.C. government "may enter into agreements in respect of the application of provincial administrative systems." It certainly is our hope to create the kind of certainty that the member describes, so that there is an opportunity not just in this treaty but in subsequent treaties to take those same administrative structures that are used by the province to administer on behalf of the Nisga'a. All of those processes are indeed possible.

I would point out to the member, as well, that there are two existing mineral claims on two category A sites that have already agreed to be administered by the province. That sets a standard where we're working with the Nisga'a government. . .to have the opportunity to work together on how we can make sure that the access, claim-staking, record and inspection, etc., provisions can be the same as they would currently be under the provincial jurisdiction.

If I have missed any of the member's questions, perhaps he could repeat them.

D. Jarvis: To the minister who is answering the questions at this point, I'm not here to get into a debate or argument as to the percentages of what you have reached. As you said, your target is 12 percent. That's the problem they're worried about. We have almost reached that 12 percent; we're at 11 percent. We've only covered, through land management, about 40 percent of this province. There's another 60 percent of the province to come under land management, and more parks coming. It was announced in the paper this morning, I think, that there would be another 11 LRMPs to come. We have, on top of that, all these native agreements that will come up before us in the next short while or the next few years, anyway.

With regards to the special management zone, there are some innovative situations with regards to extraction of oil and gas, drilling down at angles and around corners, and all the rest of it. If the minister is aware of anything at all about mining, you cannot suck up minerals through the ground through a pipe by innovative drilling, down on angles or around corners. I just thought I'd bring that to the minister's attention.

Under section 19, if she could interpret for me as to. . . . What I asked was the difference between "under" and "submerged," if she could give me some clarification on that.

Hon. C. McGregor: Paragraph 19 indicates that the Nisga'a own all the mineral resources on or underneath Nisga'a lands. I think that's fairly self-explanatory. The submerged lands remain under the jurisdiction of the province, as is indicated in section 22. So if there were mineral resources under the submerged lands, those would be under the jurisdiction of the province.

[10:45]

Hon. C. McGregor: First off, I think we have to be clear that there are no existing claims on Nisga'a lands, so section 20 is in the eventuality that there are some on Nisga'a lands. The province is still charging exploration fees on the existing claims that I made reference to before, which the province is continuing to administer. If it went into production, then section 20 would apply. But there are currently no claims under which. . . .

Interjection.

Hon. C. McGregor: Two existing. . . .

[ Page 11273 ]

The Chair: Through the Chair, members.

Hon. C. McGregor: We'll just clarify this. We're having a disagreement amongst our officials, so let's just clarify this.

The point of clarification that I may have been confusing in my remarks is that the two existing claims in category A are excluded from Nisga'a lands. So there would be no application of Nisga'a government to those claims. I hope I've been clear on that. Section 20 would apply, in the context that the Nisga'a government would be the owner of the mineral resource if it were developed, so there would need to be a relationship there.

D. Jarvis: There's an aspect here that. . . . Under section 21, the Nisga'a may enter into agreements with the province of British Columbia. The government hasn't made any decision yet with the Nisga'a nation, I guess, with regard to who is going to organize and control these agreements, and all the rest of it. When you say "may," does that mean that it's open-ended at this time and that no decision has been made at this point?

Hon. C. McGregor: No such agreement has yet been negotiated.

D. Jarvis: Agreements under section 21. . . . Is that on any agreements that deal with mineral resources? Or has it been specified as to what may or may not be handled by the provincial government?

Hon. C. McGregor: I'm not sure what the member is making reference to, but it is only exclusively around mineral resources -- which is defined in the section described as "Mineral Resources." Section 21 talks about claim-staking, as well as recording and inspection, collection of fees and levies, and similar matters related to how we administer mineral resources.

D. Jarvis: The Nisga'a government would have exclusive authority to determine, collect and administer all the fees, rents and royalties, as it says, and any other charge with respect to the mining resources that would be on Nisga'a lands. The Nisga'a government may or may not choose to enter into agreements with British Columbia; they would apply, I guess, for a provincial administration system to administer these activities as well as to handle all the claim-staking -- as it's listed down here in (a), (b) and (c) -- recording, inspecting, exploration and development of land. Has the government entered into any specific agreements or just entered into discussions as to how the Nisga'a would pay for handling these agreements?

Hon. C. McGregor: No, not at this time.

D. Jarvis: I guess we're looking down the line at future agreements through future treaties; there may be some agreement, and some may not agree to handling this. That probably leads to a problem, in the sense that. . . . When I was talking earlier, I mentioned the fact that if there's no set of common rules with regard to handling royalties or staking and all the rest of it by different treaties -- we could have as many as 50 to 100 treaties, ostensibly, throughout this province -- that's going to create more confusion and added confusion. Has there been any sort of discussion as to how they're going to get away from this potential confusion? Are there agreements? Are we going to have 50 plus 100?

Hon. U. Dosanjh: I don't see any potential for confusion here. It's pretty simple. Either the Nisga'a would administer their own issues, or they would enter into agreements with the provincial government to deal with claims. Anyone who wants to go into Nisga'a territory and mine would at some point have to contend with either our provincial regime -- if we have an agreement with the Nisga'a -- or with the Nisga'a mining regime that they might put in place. I don't see any confusion about this issue.

D. Jarvis: Mr. Chair, I can appreciate what the minister is trying to say, but you have to look at it on the other end of the line. You're a mining exploration company. Up until now you dealt with the British Columbia government -- one agency handling all the requirements of exploration and claim-staking, etc. Now there's a potential out there of maybe 50 other so-called governments inside of British Columbia, and that could lead to a lot of confusion. If you have a company, and you want to come into British Columbia to do exploration, and you look at the map and there are 50 agencies that you have to deal with, that's certainly not conducive to a company coming into British Columbia, if they have that facing them. Talk about red tape; that would be a classic situation.

Hon. U. Dosanjh: Two points. One, this is about certainty and about knowing who you need to deal with -- whether you need to deal with Nisga'a or you need to deal with the provincial rules. There would be certainty with respect to those issues. Let me remind the hon. member that we have zoning bylaws, building bylaws and different kinds of structures in different municipalities. There are builders and developers who go across the province, in several municipalities, who build in different areas, and that's the cost of doing business. I understand, but the fact is that we have to deal with these issues, and they are complex and difficult. There are challenges, and we're trying to meet these challenges in the best way possible. I don't see any potential for confusion in this at all.

D. Jarvis: Well, I'm sorry that you don't see any confusion, but there will be. It's obvious that some of the rules and regulations that this present government has set up are what's causing a lot of confusion out there. The fact is, as I said, that the land base is being shrunk so badly in this province that there is not going to be room for the exploration that the industry would like -- the second-largest industry in British Columbia, which is rapidly deteriorating. You can't manage a resource industry if you cannot get access to the land. You're excluding all these areas for the resource industry to come into. I mean, it's not like managing trees, where you can see the trees. No one knows where the resource is, under the land. So there is mass confusion out there on that. There will be mass confusion if you are an exploration company, as I said, and you try to come into this province.

Interjection.

D. Jarvis: How could it be the opposite? If you have a large 12-plus -- and that's the target, 12 percent -- of the land

[ Page 11274 ]

Hon. U. Dosanjh: Before I answer the hon. member's question, if there was one, I would ask leave to make an introduction.

Leave granted.

Hon. U. Dosanjh: I understand that either there are or there might be five grade 11 students, with their teacher Dale Sakiyama. . . . There they are in the gallery. They are from Esquimalt Secondary School. The hon. member for Esquimalt-Metchosin has asked me to make the introduction on his behalf. I would ask the House to please make them welcome.

The issue around confusion is that, obviously, we agree to disagree. We've made the case that this would lend certainty to the situation; the hon. member says that it wouldn't lend certainty. I believe that we will agree to disagree on that. Let's move on.

[11:00]

Hon. U. Dosanjh: If I remember correctly -- and I'm being advised by my staff -- this question was answered yesterday.

R. Neufeld: I'm going to go to section 19, and I'm going to read it out: "For greater certainty, in accordance with paragraph 3, on the effective date the Nisga'a Nation owns all mineral resources on or under Nisga'a Lands." As I understand it, that's part of what we're discussing here today. I listened to pretty well all the discussions yesterday, and I heard no discussion around the fact. Were there any studies done as to mineral resources on the Nisga'a lands, either mineral or hydrocarbon? I did not hear that answer. If the Attorney General has that answer in his hip pocket. . . . Obviously, if it was discussed yesterday by someone, then it should be pretty easily given today.

Hon. U. Dosanjh: If I remember correctly, there was a lengthy -- in fact, quite detailed -- discussion about valuation of mineral and other resources on these lands. Answers were provided. A commitment, I believe was made by the Premier, to provide more information and data quite soon. I understand that it's being gathered from various parts of government. I understand that this was the very question that was asked. The hon. member is asking indirectly what was asked directly yesterday about valuation of this resource. At this time, I don't have any better answer than the answers that were given yesterday about the general question.

R. Neufeld: Yesterday the question that was asked related a bit more to surface resources -- and, to a degree, mineral and hydrocarbon resources. I listened to the responses, and I didn't get a clear indication of any kind from the government that any substantial studies had been done. Yesterday, I recall the Minister of Aboriginal Affairs and the Premier stating that they would get us further information -- in fact could get it very quickly; if I remember the Premier's promise, he could have it almost immediately for us -- to indicate what studies had been done to evaluate surface and subsurface resources.

I'm asking today a very direct, not indirect, question. I think I ask fairly direct questions. What studies were done on their mineral resources -- because that's the section we're dealing with -- at subsurface -- mineral resources and hydrocarbon resources? What studies were done on Nisga'a lands to evaluate that resource in determining the province's share of the Nisga'a agreement?

Hon. U. Dosanjh: I am relying on the staff providing me information, and I am advised that no studies were done. I am also advised that the negotiators based their negotiations on the geological survey. There are no known mineral deposits on Nisga'a lands.

R. Neufeld: There are two mineral claims within the Nisga'a territory, which would indicate that there must be some mineralization on Nisga'a lands. It just doesn't fit in that little square box that is listed in the agreement. Can the minister tell me how long ago those claims were staked?

Hon. U. Dosanjh: Those claims are on category A lands, not on Nisga'a lands, and I don't know when they were done. I don't have that information.

R. Neufeld: I know they're on category A lands. They're inside the Nisga'a territory, although they are separate. The minister said to me that all the studies that were done indicated that there was no mineralization on Nisga'a land. Can the minister explain to me how he went about deciding that there was absolutely no mineralization on Nisga'a lands, when there are actually claims within them?

Hon. U. Dosanjh: I said before that there are no claims on the Nisga'a lands. There was a claim, I understand, on Nisga'a lands at some point, and it has fallen by the wayside. There are no known mineral deposits on the Nisga'a lands. The geological survey indicates that, and that was used as a basis for negotiations. That's the information I'm receiving from the staff. I believe the hon. member is talking about the category A lands, which are separate and apart from Nisga'a lands. I've answered the question to the best of the information that I have, and we should move on.

D. Jarvis: The geological survey doesn't necessarily mean that there are no minerals down there. It gives you a basic

[ Page 11275 ]

I want to ask, in section 23, if the minister could interpret for me: "British Columbia will provide written notice to the Nisga'a Nation of any proposed disposition of an estate or interest in. . . ." Can you interpret what you mean by "proposed disposition"?

Hon. C. McGregor: It simply means any decision government were to take around the disposition of the submerged lands.

D. Jarvis: Could the minister give me an example of what that might entail?

Hon. C. McGregor: Some examples might include the installation of a dock or wharf. Perhaps an aquaculture tenure might be another example of a disposition.

D. Jarvis: I'm assuming, then, that under that section, "submerged lands" is referring to areas that have water access to them. Is that what it is?

Hon. C. McGregor: The member would note that there is a definition of submerged lands in the definitions section of the treaty. It makes reference that submerged lands exist below the high-water mark.

D. Jarvis: I would like to ask the minister. . . . There's no situation, then, where submerged land could be granted fee simple, for example. That has been established already, I assume. Is that correct?

Hon. C. McGregor: Yes, you could dispose in fee simple, under the conditions of the agreement.

D. Jarvis: Under subsection (d) of 24, it says in the last sentence: ". . .would adversely affect Nisga'a Lands." Can you say what the interpretation of adverse is and who determines if it is adverse to Nisga'a lands?

Hon. C. McGregor: That provision is to ensure that we protect the interests of the upland owners, because there could be an impact on upland owners, related to submerged lands.

D. Jarvis: Who will determine that?

Hon. C. McGregor: Government would make a decision on the basis of examining the situation as it exists. In the case of Nisga'a, depending on whether it's Nisga'a public land, I don't believe that. . . . There are some tenured sites. . . . Sorry. Were a commercial recreation tenure to exist, for instance, the Nisga'a would then be the upland owners. Under the conditions here, there is a protection of their right as upland owners, which is the same provision and practice that we currently have within the ministry in regard to our practice around submerged lands.

D. Jarvis: I want to say that there's a feeling out there that the Nisga'a will naturally start recognizing that they have unfettered access to important economic potential relating to the mineral resources on their land. It will undoubtedly serve the Nisga'a to target and select mining tenures or lands that have been identified as having potential through the geological surveys. If mining potentials are suspected, the feeling is that they will naturally be targeted by the Nisga'a themselves.

It appears that this government really has no intention of ensuring or protecting the rights of tenure holders out there. Mining potential, when identified, can be taken with no compensation and with the NDP's blessing. So I would ask the question: where is the certainty, in that aspect, for the industry that's outside of the Nisga'a lands?

[11:15]

D. Jarvis: I started off by saying that there's a feeling out there in the industry that the Nisga'a will recognize that they have unfettered access to important potential mineral claims in the Nisga'a lands. Relating to mineral resources, they will realize what is in there through the geological surveys of mineral potential inside the Nisga'a lands. The question is basically on certainty by the industry outside, which feels that the Nisga'a nation will target all those mineral resources and. . . . How did I put it? I'm trying to remember what I actually told you before, because I went on for some time. If there is a mining potential suspected, they will naturally target it. Would you not assume that? It appears that government would not ensure or protect the mineral rights outside for other industry -- that this is Nisga'a territory. Therefore the potential for mineral exploration is shrunk again. What I'm saying is that you have a potential for mineral resources in that area, but they cannot be activated by the outside industry because the Nisga'a will target them as their own resource -- right? So there's no certainty there for mineral exploration on the Nisga'a land.

Hon. U. Dosanjh: I think we're now sort of revisiting the initial questions the hon. member asked about certainty. We beg to differ; however, let me just add this. We know that industry has been asking for certainty on the mining question, particularly with respect to Delgamuukw claims -- that there is an obligation to consult, and Delgamuukw would have made it very difficult to deal with these issues. This treaty creates certainty for the Nisga'a lands and category A lands and others.

The hon. member is assuming that because the Nisga'a own the mineral rights, somehow they would not open up those rights for exploration. That's an assumption that is not supportable. If the Nisga'a are looking for economic self-sufficiency and economic development. . . . I understand that the Nisga'a intend, in fact, to fully allow the exploration of those lands as they see fit, within their designs for economic self-sufficiency. But I fail to see how one can make an assumption that we as British Columbians, apart from the Nisga'a, are anxious that the mining industry be encouraged to develop in this province and that somehow the Nisga'a wouldn't be.

D. Jarvis: Under section 25, access across Nisga'a lands. . . . Again, there's a lack of certainty regarding condi-

[ Page 11276 ]

Hon. U. Dosanjh: I understand that there might be some confusion. Maybe it's my confusion; maybe it's the hon. member's confusion -- I wouldn't get into that. I think we are mixing the submerged lands with the Nisga'a lands and the rights thereon. Perhaps for greater clarity the member could ask the question again. I'll be happy to answer it.

D. Jarvis: Well, now, I have been talking about the minerals on or under the surface, not submerged lands.

Hon. U. Dosanjh: That's exactly why I asked. Now that we have clarified the situation, paragraph 25 applies to the submerged lands, not to Nisga'a lands. The provincial Crown owns the submerged lands.

D. Jarvis: Right. Then I will reiterate the question with regard to the mineral resources on or under the lands in the Nisga'a area. Will the mineral exploration code of British Columbia apply?

Hon. U. Dosanjh: On day one, when the treaty is ratified, our code would apply. They have the ability to make land use laws and the like. They may, of course, impinge on that ability. Obviously they'll have to work with each other to make their desires work. If they want to promote exploration, they would keep that in mind.

D. Jarvis: This is exactly what I was trying to get at earlier in the day when we talked about certainty. There will be confusion, because there's no guarantee at this point now whether the Nisga'a nation will take into consideration the exploration code. You just finished saying. . . .

Hon. U. Dosanjh: I think this is sort of going around in circles here. I've indicated that this would lead to greater certainty with respect to first nations' claims. Now you have a territory that has been defined; the laws would have been defined; the abilities would have been defined. Any person who wants to explore mineral resources on Nisga'a lands would go to the Nisga'a and get into a contract to try to deal with those issues.

I'm sure that Nisga'a, if they're desirous of having mineral exploration proceed on their lands, would try to sit down with those people who want to engage in that and make deals. If they have any desire to bring in their own mineral exploration code, they would let them know that. If some developer is worried, then they would get into a contract where any laws that they might develop afterwards might not apply as per the contract. There are all kinds of possibilities. We are now talking about hypotheticals, and we would never resolve all of the possible scenarios in a debate like this. I believe that this lends certainty to the situation. The hon. member believes it lends confusion. We agree to disagree. Let's move on.

D. Jarvis: How can you possibly say that there is going to be certainty here? Whether you want to move on or not, you've just finished saying that we're not going to see. . . . There's been no discussion with your government and the aboriginal bands -- the 50 or 60 of them -- that may be coming up with treaties in a short while. There is no agreement that they will take on the mineral exploration code that's presently in British Columbia. The industry has fought for years and years -- especially in the last eight years -- to get some kind of certainty to it, so that they know where they're going and where they're not, so that investment will come into the province.

The minister is smiling and laughing. I guess he's not concerned about it. But it is the second-largest industry.

The mineral industry has for years and years tried to ask to get a right to mine in this province. The government finally came up with Bill 12 last year, the right to mine. It's been over a year before they got a code in there. But none of those will apply. You've said that right now; you have said they will not apply to Nisga'a lands, so they may not apply to Sechelt lands. They may not apply to 50 or 60 treaties that will come down the road. There is no certainty there. There will be mass confusion. I would have thought that the government would have at least discussed with the aboriginal bands what they could expect with regard to mineral resources.

R. Neufeld: I want to get on to some of the issues around economic development. It was interesting to hear the Attorney General talk about the ability of the Nisga'a nation to enter into agreements with companies that would be interested in drilling for hydrocarbons or mineral resources or whatever. It was an economic opportunity for the Nisga'a nation, yet just prior to that he said that all studies that had been done by the province demonstrated that there was no mineralization of any kind on Nisga'a lands. It begs the question. . . . If you've given them the right to go out there and deal with companies or individuals to be able to explore for these minerals or hydrocarbons when the province says there are none, it's kind of tough for them to do that. That's an observation I have from some of the responses from the minister.

I want to ask a little bit about acquiring lands and adding them to Nisga'a lands. I know the minister went through all those questions yesterday, and I'm not trying to ask the same questions again. What I want to ask, for instance. . . . Let's think hypothetically. The Nisga'a government acquires a piece of land contiguous to their land now, and they find out that there is mineralization on it. They contract with someone to go in there and do that kind of work on that land. As I understand it, the resources -- the subresources and the resources above -- would belong to the Nisga'a if they'd bought another piece of land that was contiguous to theirs. Let's say there was a failure of that company, and there was a foreclosure by a financial institution. Who would own the subsurface resources and the surface resources?

Hon. U. Dosanjh: I think we went through this earlier on today. On those lands, for us to agree, any future government would have to look at the public interest, both in terms of the Nisga'a interest and the larger public interest, and determine whether or not a particular piece of land that's contiguous should be added to Nisga'a lands. That would then depend on the consent of the owner of the land, the provincial Crown and the federal Crown, and it is quite conceivable that the federal and provincial Crowns might say: "No, we do not want to give the subsurface rights." It's all within the jurisdiction of the Crown. You can attach whatever conditions you want, and if that wasn't appropriate, then it could simply say no. The subsurface rights don't automatically follow any land that's added. It would depend on the consent of both Crowns -- federal and provincial -- and the owner.

[ Page 11277 ]

[11:30]

The other thing I wanted to ask a bit about relates a little more to hydrocarbons, to natural gas or oil, if there is a possibility that those resources are on that land. As the minister says, we're not sure at the present time whether there are any of those resources or not. I know there has been lots of discussion on the fact that the Nisga'a now own all of those resources and that they will actually receive all the benefits from those resources, as an economic tool.

I want to relate that to an agreement that I don't think has been signed but is close to being signed with the McLeod Lake band in relation to mineral resources. As I understand it, in the McLeod Lake agreement -- and I think it sets a bit of a precedent -- is the fact that 50 percent of the royalties that would accrue. . . . Let me back up. First, the province retains all rights to minerals and hydrocarbons in the McLeod Lake agreement that is to be signed. But they agree to share with the McLeod Lake band 50 percent of the royalties that could be derived from those lands that the McLeod Lake band has agreed to. I would say that that would be, to me. . . . In fact, I think that's a much better way of doing it. The Fort Nelson Indian band, the Blueberry River band and the Doig River band in the northeast enjoy that. All those bands under Treaty 8, except for a few, enjoy half of the royalties. That gives the province the opportunity or the ability to collect some royalties and also to provide some economic benefit to the Indian bands so that they can get employment and all those kinds of things.

The other thing is that now, under oil and gas, there have to be proven reserves before you can get export licences to sell natural gas or oil. If, as you have in the Nisga'a agreement, you have given every bit of the natural resources under the subsurface to the band, you all of a sudden miss the opportunity to make sure that future generations have natural gas and oil for the population. It may be insignificant in this small part of the Nisga'a agreement, but if we take that and apply it across the province as a whole, it starts to get a little more alarming as to how, as a complete society, we are going to be able to control that and make sure that we have enough reserves in the province before we start exporting them and selling them to other countries or other provinces. I wonder how the minister sees how we deal with that issue in the future.

Hon. U. Dosanjh: Obviously Treaty 8 is an old treaty. It's a different model; there are different issues. The Nisga'a treaty is a modern treaty and is being dealt with in that way, and it doesn't necessarily create a model for anything else. Each claim and each first nation would have had different history and experiences and would depend on many factors.

I think it would be irresponsible for me to say that anything would serve as a model, because no one first nation is like any other. No one first nation's history or experience is like any other's in British Columbia, and no one first nation's claim is the same as any other first nation's claim in terms of its characteristics and elements. I don't think it would be very responsible for me as the Attorney General to stand here and say how I might see the development of a possible model. There might be elements of Nisga'a that are used in other treaties, as they will be. But no one is legally bound to do that, because each treaty will reflect different realities and different experiences.

R. Neufeld: Two things. I didn't get an answer to the question about proven reserves, and I hope that the minister will give me an answer to that question. The McLeod Lake treaty is an adherence to an old treaty -- Treaty 8. I'm not talking about the old treaty; I'm talking about McLeod Lake, which is today. Today, I assume, is modern-day. As you talk about Nisga'a, it's modern-day today. McLeod Lake is negotiating to adhere to Treaty 8 with some pretty substantial changes. I would assume that's a modern-day treaty. Or maybe you're telling me that you assume that your government is signing an agreement with the McLeod Lake band that's an old one. I don't quite agree with that.

I want to get back to the question about proven reserves. How do you deal with proven reserves if, in fact, you continue. . . ? I can't imagine any other band, any other negotiation in the province of British Columbia or any new negotiation of land not wanting the same thing and not getting the same thing that's in the Nisga'a agreement, which is the right to all the resources above and below the ground. How do you deal with proven reserves when you do that on a continual basis?

Hon. U. Dosanjh: As I have said in response to some other questions, the likelihood of finding metallic minerals in the Nisga'a lands is extremely low. That's what I'm told. Obviously this settlement is based on all of those factors, including that factor.

Another settlement. . . . If there are known deposits, if there are valuable resources that are situated on or under the land in question, obviously the settlement may take a different shape. No one is bound by this particular example. Nisga'a land is land that's far away from southern British Columbia. Very few people go there. Much of it has not been touched other than by forestry development. I think it's important for us to recognize that. All of those factors went into making that decision.

I am not going to say anything that would lead anyone to believe that anything could be a model for another treaty, because as the Attorney General I don't want to tie our hands.

F. Gingell: I was listening to the debate in my office and thought that I should come up. I look around the Legislature, and I don't see anyone who immediately reminds me of myself -- someone who's put my own money into oil and gas exploration and into mineral exploration. I held a free-miner's licence before I was elected. To suggest that the Geological Survey of Canada indicates the likelihood of mineralization in that area is absolute nonsense.

As the minister properly said, the area has hardly been touched. There's been very little work done there. There are some mineral claims. There's no information here that tells us how much work has been done to keep those claims in good standing. To suggest that because the Geological Survey of Canada makes some statement, it's a definitive statement on either hydrocarbon or mineral resources is just nonsense, absolute nonsense.

Imperial Oil, before they hit their major find, drilled 148 dry holes in a row. They were ready to walk away. That was

[ Page 11278 ]

R. Neufeld: I think this is an important issue. I know that the government doesn't want to deal with this issue. They continually gave us non-answers at length yesterday and this morning about what is actually there as far as mineral resources go and what could happen to future treaties when we start dealing with these issues. The member for Delta South brings up a serious issue about the fact that you don't know what's there, and today you don't know what you're giving up.

The minister shrugs it off by saying that it's a remote area of the province, and no one's been there. That's typically what I hear about Fort St. John from people who live in the lower mainland and who never venture out of the lower mainland far enough to the north to find out what it's all about. They talk about it being a remote part of the province. Well, for the minister's information, the area I come from produces all the oil and gas in British Columbia. I guess that 100 years ago, when they signed Treaty 8, people thought there was no oil and gas up there either, to any extent. They probably just shrugged it off and said: "So what? It's just a small, remote little part of the province."

What I'm talking about, too, is what happens as this is applied to other agreements across British Columbia and the effect that's going to have from hereon in on British Columbia and on British Columbia's ability to provide services to people. They historically get a huge amount of revenue from oil and gas, just oil and gas itself. The member from North Vancouver talked about the mining industry being the second-largest. Well, the oil and gas industry invests anywhere from $1.5 billion to $2 billion a year in oil and gas just in the northeast part of the province. All the royalties and all the benefits that government gets from that investment are huge.

I still want to get back to my question. I think the minister's not answering it, maybe because I'm not putting it plain enough or getting a bit confused. I want to ask about proven reserves in the oil and gas industry. Before you can get an export permit, you have to have proven reserves -- X amount of years -- of natural gas or oil to provide domestically.

[11:45]

Hon. U. Dosanjh: I don't understand the basic thrust of the question. Firstly, Nisga'a don't have the right to make export laws. They are subject to the export laws that exist or may exist from time to time in Canada, including British Columbia. Nisga'a themselves can't export anything outside of those laws. Just because you own a mineral resource, or oil and gas, it does not give you the right to bypass Canadian or British Columbia law.

R. Neufeld: I appreciate that response. Is the minister telling me, then, that the Nisga'a will be subject to the Petroleum and Natural Gas Act?

Hon. U. Dosanjh: Yes.

D. Jarvis: I only have a couple of short questions left here, but I do feel somewhat upset at the fact that the government didn't see fit to have someone here that at least understands something about mineral extraction and exploration in this province. That is typical of what this government is doing. That's why they've mishandled this province so badly, and that's why we're in such bad financial shape. It's people like that who have no comprehension as to what's going on in the province, who try to explain it and therefore end up as a minister.

In any event, Mr. Chair, I would like to ask the minister. . . . I think it's under section 26. Should a first nation decide to cancel a mining right held by a third party on settlement lands, do I assume that the issue is one between the first nation and the tenure holder?

Hon. U. Dosanjh: With the utmost respect, I will repeat that paragraph 26 applies or relates to submerged lands within Nisga'a lands. Submerged lands are owned by the provincial Crown, not by Nisga'a.

D. Jarvis: Going back to section 19, I would say, then, when we're talking about mineral rights on or under the surface, "the Nisga'a Nation owns all mineral resources on or under Nisga'a lands" -- not submerged lands.

An Hon. Member: That's right.

D. Jarvis: So what I'm going to ask you again is: if the first nations should decide to cancel a mining right held by a third party on those settlement lands, do we assume that the issue is one between the first nation and the tenure holder?

Hon. U. Dosanjh: Correct. It's between the Nisga'a and the explorer.

D. Jarvis: And to follow that up, the question of compensation will have to be addressed by the parties involved?

Hon. U. Dosanjh: Correct.

[ Page 11279 ]

Hon. C. McGregor: There are two: one is a small hobby farm; the second is our standard agricultural lease, which has clearing and cultivation provisions. That lease, which is excluded from Nisga'a lands, is contained within the ALR.

R. Neufeld: Just so I heard that right, the hobby farm is not in the ALR. The other one is in the ALR. Yesterday I understood that none of it was in the ALR. So that was a misquote, was it?

Hon. C. McGregor: I'd like to make it clear that the same thing was said yesterday as is being said today. No Nisga'a lands are within the ALR. This agricultural lease is excluded from Nisga'a lands, and it is within the ALR. The one agricultural lease is; the hobby farm is not.

R. Neufeld: Noting the time, hon. Chair, I move we rise, report progress and ask leave to sit again.

Motion approved.

The House resumed; the Speaker in the chair.

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

Hon. D. Streifel moved adjournment of the House.

Motion approved.

The House adjourned at 11:55 a.m.

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