Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

[ Page 11337 ]

The House met at 10:05 a.m.

Prayers.

Orders of the Day

NISGA'A FINAL AGREEMENT ACT
(continued)

On the schedule, chapter 6.

Hon. D. Lovick: Just to clarify for those poor people outside this Legislature who may be watching these proceedings, we are skipping. . . . By agreement with my colleagues on the other side of the House, we are standing down or putting aside chapter 5 on forestry for the moment, because of the minister's absence, and therefore going directly to chapter 6 on access. "Access," I should just point out, is a chapter that I think we who defend the treaty feel rather good about, simply because I think the negotiated settlement is one that truly protects the public interest very well indeed.

The public, as one will see by looking at chapter 6, has unimpeded access on provincial roads within Nisga'a lands. The public, moreover, has reasonable access to Nisga'a public lands for temporary non-commercial and recreational use. The public will be able to hunt and fish on Nisga'a public lands. Any person who has private property interests or other interests within Nisga'a lands will be guaranteed access. And the Nisga'a will be able to regulate access on their lands for purposes such as public safety, the prevention of nuisance or damage, the protection of sensitive habitat areas or cultural and historic sites, and the prevention of extraction of Nisga'a resources. We think it's a wonderful compromise between the Nisga'as legitimate interests and the rest of our interests. We think the access chapter is obviously very necessary but also very good and something we're proud of.

G. Plant: Well, then, let's move on to chapter 7. . . . Actually, let's not.

It does also seem to me, to respond briefly to the minister's comments, that that which the province says it has achieved in these negotiations is, I would say, the minimum necessary achievement if we are to avoid creating unreasonably impenetrable walls around large-scale core settlement lands. Here we have 2,000-odd square kilometres of core settlement lands, most of which are now provincial Crown lands. They will become Nisga'a lands. If some aspects of the spectre of a patchwork quilt of large, rural core settlement lands are to be avoided, one of the ways that will be achieved is by the province continuing to negotiate at least the level of protection for continuing public access that is found here in chapter 6.

Perhaps with that general comment, let me test some of the propositions the minister has made, by reference to the clauses in the agreement. Let me start with this question. Last summer, I think, here in this Legislature we modified the Occupiers Liability Act in respect of wilderness lands, or remote lands. The question, which I suppose does to some extent involve the relationship between chapter 6 and chapter 11, is: could the Nisga'a pass an occupiers liability act that defined Nisga'a government rights and obligations and other rights and obligations on Nisga'a public lands in a way that is different from the current occupiers liability legislation in British Columbia?

Hon. U. Dosanjh: I believe that the treaty, specifically chapter 11, makes it clear that the Occupiers Liability Act applies to Nisga'a lands. I don't see anywhere a provision that would allow Nisga'a to override the provisions of the Occupiers Liability Act.

G. Plant: It is the case, though, that Nisga'a Lisims government may make laws regulating public access to and onto Nisga'a public lands for purposes such as public safety or the prevention of nuisance or damage. Now, that's a different issue from liability, but it may not be that different an issue. Or let me put it this way: the challenge is to define the relationship between these two concepts.

The Occupiers Liability Act, of course, is primarily concerned with what happens if someone is injured on somebody else's property. Here it seems to me that Nisga'a government is given the right to make laws regulating public access in a way that would have an effect on public safety. That is, they could make laws that would restrict public access for purposes such as public safety. So there clearly is at least some relationship here. How does the government see that relationship working? If the Nisga'a government is given the power to regulate public access in the name of public safety, what does that say about issues of liability?

[10:15]

G. Plant: What I'm about to ask is a hypothetical, speculative kind of question, and it may be that there is an answer to it. If you could define the terms of access differently from those that obtain elsewhere, then the question might arise whether it's legitimate to have the same standard of liability. If there are different rules about who can use the land and for what purposes, is it fair to have the same standard of liability in respect of the use of that land? It may just be that I'm confusing the relationship between access and liability. Or it may be that I'm not. But having pushed it a little bit further, I'd like to try the Attorney General one more time on this.

Hon. U. Dosanjh: Clearly the Occupiers Liability Act and the law on that issue cannot be changed by the Nisga'a. However, the way you regulate access. . . . Obviously you have a right to regulate access, but by regulating access, you cannot impose a different burden on yourself as the Nisga'a nation.

G. Plant: The liability we're speaking of here would be the liability of Nisga'a government, because we're presumably primarily talking about Nisga'a public lands.

Hon. U. Dosanjh: Correct.

[ Page 11338 ]

Hon. U. Dosanjh: I think this relationship is then more specifically defined by section 134 of -- chapter 11, is it? -- the self-government chapter. Section 134 says:

"Subject to paragraph 1 of the Access Chapter" -- which is the paragraph that the hon. member is talking about -- "the Nisga'a Nation and each Nisga'a Village has the protections, immunities, limitations in respect of liability, remedies over, and rights provided to a municipality under the Occupiers Liability Act, and, for greater certainty, has those protections, immunities, limitations in respect of liability, remedies over, and rights, in respect of a road on Nisga'a Lands used by the public, or by industrial or resource users, if the Nisga'a Nation or the Nisga'a Village is the occupier of that road."

G. Plant: Well, I'm not sure it's fruitful to get into a debate about drafting, but section 134 is made expressly subject to paragraph 1 of the access chapter, so when I'm asking why paragraph 1 of the access chapter uses the word "similar". . . . I understand that the thrust of the minister's answer is to say that you have to read the two together. But it does seem to me, with respect to this particular issue, that we're going around a circle -- that is, if I want to know what it means to have liability "similar" as opposed to "identical," I'm taken to a section that is expressly subject to the place where the word "similar" appears. Perhaps the Attorney General could explain how we're going to get out of the circle.

Hon. U. Dosanjh: I don't believe it's a circle, but then we may have different perceptions about issues. This particular section obviously intends in no way to change the intent of paragraph 1 of chapter 6 but to define it in a very specific way. Therefore I don't believe that that creates a circle. It simply helps us. The difficulty with this kind of treaty is that you can't have all of the rights and consequences thereof in any other area all enshrined in one part of the treaty, because they happen to relate to different areas.

G. Plant: I accept the latter aspect of the minister's explanation. It would be impossible to avoid that situation. But the analogy that section 134 makes is as between the protections, immunities and limitations in respect of liability. The analogy or the connecting link is between Nisga'a nation and a municipality. It analogizes the Nisga'a nation to a municipality for purposes of occupiers' liability. But paragraph 1 in chapter 6 talks about the Nisga'a nation having liability similar to the Crown. The Crown is not a municipality, and a municipality is not the Crown.

I know that the provincial government has a history of litigation with respect to the liability it may, in some circumstances, incur in relation to the maintenance of public highways. I understand what paragraph 134 of chapter 11 is doing in that context. But the issue now is not road use but, rather, other things that may happen on Nisga'a public lands where the Nisga'a nation's liabilities are similar to those of the Crown. The question is: what does it mean to say that the Nisga'a nation has liability similar to that of the Crown, as opposed to someone writing that they are exactly the same as the Crown?

Section 134 takes us to municipalities; paragraph 1 takes us to the Crown. I'm still not clear about the relationship.

Hon. U. Dosanjh: If I remember correctly -- I don't have the Occupiers Liability Act here with me -- the Crown is not exempt from any of the provisions of the Occupiers Liability Act, nor are the Nisga'a. I think it may perhaps have been part of the negotiating difficulties, where the Nisga'a did not want to be called a municipality. I wasn't around the negotiating table, but we wanted to be sure that with respect to roads and access, they had the same liability as a municipality. So that was better defined than in section 134.

G. Plant: Let me conclude the discussion on the drafting point. I don't think that we will settle it here. There are other words that could have been used instead of "similar." The word "identical" or the word "co-extensive," I suppose, could have been used. It may be that those words mean the same thing as similar.

The only question that I could ask here is: is it the contention of the province that the Nisga'a nation will have the same liabilities in respect of Nisga'a public lands, other than roads, that the provincial Crown has in respect of Crown lands, other than roads? Or is there intended to be some difference?

Hon. U. Dosanjh: I think the distinction that should be kept in mind is that the Crown can bar people from entering Crown lands; whereas the Nisga'a have an obligation to allow access to Nisga'a public lands by the public. That may be the only difference. Other than that, I think the Occupiers Liability Act will apply.

G. Plant: So there might be a different standard of care arising because of that. If the provincial Crown can say, "Look, in order to preserve our interests here we are going to bar all access to this land, but the Nisga'a government doesn't have the same power," the Nisga'a government could argue: "Well, we shouldn't be held to the same standard of care." I assume that the government's answer is: "No, that would not be so."

Hon. U. Dosanjh: When you allow access, you have the same burden as everyone else whether you're the Nisga'a nation or someone else outside of the Nisga'a lands.

G. Plant: We're speaking about public access. For this purpose, does "the public" include all those who are Nisga'a citizens as well as all those who are non-Nisga'a citizens? Or does Nisga'a government have powers to make special rules in this context that would apply only to Nisga'a citizens?

[10:30]

G. Plant: Let me look for a moment at paragraph 2. I know that my colleague the member for Matsqui has an issue here. If his issue is different from mine, you may hear from him.

It is one thing for an agreement to say that the public has access to Nisga'a lands or even that the public has a reason-

[ Page 11339 ]

Hon. U. Dosanjh: In a case such as this, when there is a legal obligation imposed on the Nisga'a government, there is then a corresponding right vested in those to whom that obligation is owed. It is our view that that right, which is not expressly provided here but implied, can be enforced by anyone against the Nisga'a government.

The other issue that I should bring to the notice of the hon. member is that this treaty is not about non-Nisga'a rights; this treaty is about Nisga'a rights and Nisga'a obligations. There is a Nisga'a obligation to provide access; therefore there is a corresponding right vested in those who want access to be able to enforce that access.

G. Plant: There are two issues arising from the Attorney's response -- or one that arises and one that is maybe an additional one. I think the difference between the two ways of expressing the situation of public access has a potential practical significance, in that the way that's been chosen here increases the possibility of dispute. I'm not going to get into an argument about how much it increases that; I think that would not be a fruitful exercise.

But what the Attorney says, in effect, is that the agreement sets up a process that would give a non-Nisga'a citizen, or any other citizen, the right to complain to Nisga'a government that they are not being given a reasonable right of access. I think that would be diminished slightly if instead of simply saying that the Nisga'a government would do something, the right was in fact categorically expressed in the treaty. So I leave that point for the Attorney to consider. It is a point on which I invite his response, but I also want to move to the second aspect of the issue, which is that if you want to guarantee disputes about an issue like this, a surefire way to do that is to use the word "reasonable." The word "reasonable" creates open season for lawyers to argue about what is and what is not reasonable -- whether someone's restriction on public access is reasonable -- particularly when you are using the word "reasonable" to qualify the thing that is under discussion.

Here the agreement doesn't say that the Nisga'a Lisims government will allow public access; it says that it will allow "reasonable" public access. Perhaps more than the point I made at the beginning of this little sortie, that is a potential problem for all of us, not just the government, in terms of achieving certainty here. I would ask the Attorney to explain why they have opened up this additional opportunity for the parties to disagree with each other down the line on a question as important as public access.

Hon. U. Dosanjh: On the first point, obviously I would simply beg to differ. I've stated my position, and the hon. member has stated his position. This treaty is about Nisga'a rights and obligations of the Nisga'a. In some situations, Nisga'a obligations would create rights for non-Nisga'a -- that would depend on those obligations of the Nisga'a nation -- and that's the case here. Those rights can be enforced through the dispute resolution mechanism.

In terms of the access being reasonable, there is no unfettered access even to Crown lands for any British Columbian. There is only as much access as the Crown allows. If we argue that we should have unfettered access here, guaranteed access, then we may have to do the same with the Nisga'a when they want access to category A and B lands. There they have "reasonable access" -- to Crown lands or category A and B lands, over Crown land. There they would have reasonable access, as well, not guaranteed unfettered access. This is a mutual situation, where we want to make sure that we place obligations on either side that are similar. We believe that the Crown always acts honourably, and we would believe that the Nisga'a nation would act honourably in their dealings with the Crown and individuals.

G. Plant: I was actually prepared to give more to the Attorney General until the last part of the answer, because I think the Attorney General would have to acknowledge that one of the reasons why we have a 600- or 700-page document is to create borders and what people sometimes call bright lines, I guess -- to provide for the possibility that at some point the province or the federal government or the Nisga'a nation will not act honourably.

I mean, we dealt with one of those issues yesterday when we were looking at something that on the surface is apparently as innocuous as the naming of names. We talked about why this is in the treaty. Well, the Minister of Aboriginal Affairs said that one of the reasons this is in the treaty is because the Nisga'a don't trust the province to act honourably -- oh, and the Nisga'a, let me hasten to add, along with many other or all aboriginal peoples, have lots of reason for that. I think I acknowledged the strength of that perspective when we had that discussion yesterday. So I have to say that I am not at all comforted when the answer from the government to a question raised here is simply: "We'll act honourably. We expect the Nisga'a to act honourably. That's how we're going to deal with it." I don't think the Attorney meant to hang his hat on that.

Let's come back to the question, then, of reasonable versus unfettered. Let me make this additional point. I'm not suggesting that the adjective should be "unfettered" public access, and I'm not suggesting that you can't define the basis upon which there would be access. What I am suggesting is that when you use the word "reasonable," then you're inviting disputes.

Let me ask this question, though, because I confess I don't know the answer to it: as a citizen of British Columbia, does the law say that I have access to Crown land subject to the province's right to restrict it? Or does the law say that I only have reasonable public access to Crown land? What is the law that says that? That may be the answer.

Hon. U. Dosanjh: That area of the law, in terms of access to Crown land, is rather complex. But the overriding principle is that the Crown can say no to any access whatsoever.

Interjection.

The Chair: Through the Chair, please, members.

[ Page 11340 ]

G. Plant: Well, the Nisga'a can say no if they think it's unreasonable. That's the point of the adjective: to have an argument about the basis on which the Nisga'a will be able to say no.

Hon. U. Dosanjh: The distinction that I was hoping I would make, and I'll remake it, is that the Crown can say no even if you're asking for reasonable access; the Nisga'a cannot. The Nisga'a have to provide reasonable access. It says that there's an obligation imposed. I think the points are clear. The hon. member differs, but we should move on.

G. Plant: I'm not quite ready to move on. My understanding is that the Crown could probably say no unreasonably; the Crown could probably say no arbitrarily. They may have to do so in the form of a bill or a law or a regulation. The point I was trying to make earlier is that the concept of reasonableness doesn't actually enter into the question of public access to Crown lands. That was an assertion I made, with the qualifier that I wasn't certain whether it was a correct assertion or not, and I invited the government to correct me if I was wrong.

But I don't think the point fundamentally turns on what is starting to look like an esoteric discussion. I think the point is really this: in this context, to use the term "reasonable," even if the government's policy objectives are understood and accepted, is to elevate uncertainty, because it raises the potential for debate about whether a particular decision by Nisga'a government is or is not reasonable, as opposed to defining with clarity and certainty when Nisga'a government will or will not allow public access -- or will or will not be allowed to. Any time you put that word "reasonable" in there, someone is eventually going to have an argument about whether what Nisga'a government has done is reasonable.

It's not, I think, a point on which the agreement stands or falls. It is, however, a point that deserves to be made in the context of this discussion, recognizing that one of the themes here is the extent to which this agreement does actually achieve greater certainty than now exists. That's where I see paragraph 2 raising some questions. Those are the questions I have in respect to paragraph 2.

[10:45]

Hon. U. Dosanjh: The hon. member is correct. This is a situation where one would have to go to court.

M. de Jong: The reason I came to that conclusion -- around about the same time that I think the Attorney General did. . . . The dispute resolution mechanism is only available, by and large, to government, to parties to the agreement. Is that correct?

Hon. U. Dosanjh: Correct.

M. de Jong: So am I correct in assuming, therefore, that neither the government nor the terms of the treaty contemplate any role for the provincial government in enforcing the right of access that the Attorney earlier indicated this agreement created?

Hon. U. Dosanjh: If this was a serious problem and people came to the government of British Columbia and said, "We are unreasonably being denied access to Nisga'a public lands," the government itself could then go to the dispute resolution mechanism to sort the matter out.

M. de Jong: Okay, let's pursue that just a little bit, because I think we talked earlier about. . . . Part of this exercise is anticipating how these scenarios might unfold, where the agreement contemplates them existing. In a circumstance like that, presumably the complainant -- if that's the correct term -- has either been denied entry or is responding to the adoption by Nisga'a government of some bylaw or provision that they take issue with. Who in government would that complainant come to and seek to involve, to invoke the dispute resolution mechanism?

Hon. U. Dosanjh: The individual could come to any MLA -- opposition or government -- to the Ministry of Aboriginal Affairs or to whatever other ministries might be in place at that time. Let me say this: I don't think that every instance of a person being denied access should lead to the government having the dispute resolution mechanism kick in. But it could, depending on whether or not, once the government studies the matter, the government believes that Nisga'a are being unreasonable.

You know, these are hypotheticals. There is no question whatsoever that there is an obligation on the Nisga'a to be reasonable. If they're not reasonable, the government of the day would obviously take action.

M. de Jong: Fair enough, but there's nothing hypothetical about the costs that would accrue to an individual to pursue the matter if he or she thought that the Nisga'a were being unreasonable. So the circumstances under which that individual or group of individuals could rely upon the government to conduct the challenge for them is, I think, relevant to explore. As one of 75, I don't take a lot of comfort from an assurance or an indication from the Attorney that they should contact their MLA. I'm not sure that that is going to result in government taking up the cause.

[ Page 11341 ]

Hon. U. Dosanjh: In matters such as that, the Ministry of Aboriginal Affairs of the day would be the lead ministry. Of course, there would be legal advice from the Attorney General's ministry. That's the usual routine.

In terms of the cost and issues such as those, let me say this. We have municipalities and we have the government of British Columbia being sued every day by individuals who disagree with the conduct of these governments. It is expensive; there's no question about that. But you cannot create a system whereby there would be no legal actions. I mean, in one's dictatorial moments, one might think that that might be appropriate, but that's absolutely impossible and inappropriate.

M. de Jong: Well, I'm not advocating the creation of that Attorney General utopia that he, in his quiet moments, must contemplate.

What I am interested in. . . . The absence of the reference to the dispute resolution mechanism jumped out at me here, for reasons that the Attorney General has, I think, rightly identified. People are on their own on this one. This is the first treaty, and this is the first time that all of these provisions regarding access to what was formerly Crown land are going to be considered. And it is going to give rise to some dispute. We can wish that weren't so, but it is going to happen. These matters are going to be litigated, and individuals who are going to be involved would like to know on what terms the government is going to incur the costs of developing that definition that is applicable to the term "reasonable."

What I'm hearing the Attorney General. . . . No, I'll withdraw that, in fairness to the Attorney General; he's not saying that people are going to be on their own in all cases. But I'd like him to be a little bit clearer about the circumstances under which government will involve itself and which agency of government will be responsible for doing that work and making that decision.

Hon. U. Dosanjh: I must not -- and cannot -- bind future governments, but let me say this. If there was a persistent pattern of denial of access by the Nisga'a that came to the attention of the government, and the government considered the matter, and it appeared to the government that denials were unreasonably made, at that point any government would feel obliged to enter into the arena and deal with the dispute mechanism and take that matter there.

M. de Jong: As we were having the discussion around section 2, it occurred to me that the language that's employed in section 4, as it relates to the contrast between Nisga'a citizens and the less-defined rights of non-Nisga'a. . . . Section 4 talks about the right of Nisga'a citizens to hunt and fish on Nisga'a lands. I recognize that the Attorney General said that this treaty is about defining Nisga'a rights. I think it's about a little more than that too. I think it's about defining the relationship that exists between Nisga'a government and the rest of British Columbians. So I'm not sure it's entirely accurate to restrict the definition of this agreement to being strictly about Nisga'a rights. I think people have a different notion of what's at stake here and what's being considered here.

Is it fair for me to suggest that all of the answers that the Attorney General provided over the course of the last 45 minutes relative to the word "reasonable," as it applied in section 2. . . ? Would he make the same argument and apply the same definitions -- to the extent that we developed a definition of section 4, on public access; "reasonable opportunities" are the words there -- with respect to hunting and fishing rights on Nisga'a public lands?

Hon. U. Dosanjh: Yes. Obviously the reasonableness has to be construed in the context of the matter that's being considered. The answer is yes.

G. Plant: Well, reading paragraph 4. . . . The subject is "Public Access for Hunting and Fishing on Nisga'a Public Lands." It says: ". . .only Nisga'a citizens have the right to hunt and fish on Nisga'a Lands"; and "Nisga'a Lisims Government will provide reasonable opportunities for the public to hunt and fish on Nisga'a Public Lands." I think lawyers might see that as the distinction between a right and a privilege. That may be overstating the distinction or overstating the situation, but Nisga'a citizens will have a right to hunt and fish on Nisga'a lands -- fair enough. It seems to me that the public will not have that right; rather, the Nisga'a government will have an obligation to provide reasonable opportunities to hunt and fish.

That also seems to have to be read in the context of paragraphs 2 and 3. Paragraph 2 makes it clear that the general right of public access -- if it's correct to call that a right -- does not include "harvesting or extracting resources unless authorized by Nisga'a Lisims government or as set out in this Chapter." Paragraph 3 gives Nisga'a government the power to regulate public access for such purposes as preventing harvesting or extracting of resources.

So it seems to me that the scheme as a whole -- I've left out parts of it, and I'm sure we can get to those -- is that the non-Nisga'a citizens have something akin to a privilege to hunt and fish on Nisga'a public lands. From time to time, Nisga'a government may in fact prevent hunting and fishing opportunities for the public. But if the Nisga'a government overdoes it, they're going to open themselves up to an argument that. . . . If the Nisga'a government is overly restrictive, then someone is going to argue that they are not complying with their obligation under paragraph 4 to provide reasonable opportunities. That's how I see these clauses working, and I invite the Attorney to explain how he sees them working.

Hon. U. Dosanjh: I beg to differ on the construction placed on these rights by the hon. member, particularly for non-Nisga'a. I don't believe that it's a privilege; it's a right. There is an obligation imposed on the Nisga'a nation to provide access and to provide opportunities. Therefore that means there is a right to expect that to occur. If it doesn't occur for a prolonged period of time and there is a pattern, government will, of course, take Nisga'a to the dispute resolution mechanism to deal with those issues.

[11:00]

[ Page 11342 ]

Leaving the characterization issue to one side -- how you would characterize that right that the public has -- is it not the case that the Nisga'a government will in fact have the power to deny the public the opportunity to hunt and fish from time to time, as they may see it necessary and in their interests to do so in particular cases?

Hon. U. Dosanjh: One would really have to read paragraph 2 and paragraph 4 of this chapter and then go to paragraph 32 of the self-government chapter. The hon. member is suggesting that under paragraph 3(d), Nisga'a government may restrict harvesting and extracting of resources. If the Nisga'a government does that, in terms of regulating public access. . . . Obviously the pith and substance has to be the question of access, as well as the question of any harm that might come to the resources.

For instance, I can theoretically see a possibility that if there are no resources for Nisga'a and non-Nisga'a alike, Nisga'a government has the power to make regulations and laws with respect to protecting those resources. Those are their resources. At some point they may say that for the next year or two years, they will not allow anyone to harvest or extract resources from a particular place. We do that all the time; the federal government just did that recently. So I think that's a reasonable interpretation, but it has to be qualified. It's not simply a bald power that the Nisga'a have to act unreasonably and say: "We will use this to keep you out."

G. Plant: I don't think I was suggesting that it was an unrestricted power; I was more interested in making sure that I was right in concluding that there was such a power.

Let's deal with paragraph 3(d), if we may, in the context of a different resource. I can see 3(d) working in the context of pine mushrooms. There's a growing industry up there in the northwest, and one hears stories about the woods being trampled by people looking for what can be a very valuable resource. Presumably, Nisga'a government could make laws that would prevent people from coming onto Nisga'a lands for the purposes of harvesting those mushrooms, I think, much as the province could make laws in particular places to restrict public access to Crown lands for the same reason. Is that correct, so far as it goes?

Hon. U. Dosanjh: Yes -- and let me just make it clear for others who are listening or watching that that power to prevent harvesting and extracting of resources doesn't apply to fish or wildlife.

G. Plant: That's where we're going. I wanted to, first of all, understand the basic mechanism in the context of a resource other than fish and wildlife.

Let's now move to fish and wildlife, where the regime is different. Fish and wildlife are caught by paragraph 4, which imposes an obligation on Nisga'a government to provide a reasonable opportunity for the public to hunt and fish on Nisga'a public lands. Let me begin by asking this question: is Nisga'a Lisims government under that same obligation -- that is, the obligation to provide reasonable opportunities -- in respect of pine mushrooms?

Hon. U. Dosanjh: No.

G. Plant: All right. Now we've identified the distinction, to some extent, between, for example, mushrooms and berries -- you know, the bark of certain trees. There's a host of examples that would not be caught by paragraph 4. Trying to understand paragraph 4 -- and it's really paragraphs 4, 5, 6 and 7. . . . The issue is public access, now, for hunting and fishing purposes. The qualifier, limit or restriction, if you will, on Nisga'a government powers here is that there is an obligation to provide reasonable opportunities for the public to hunt and fish on Nisga'a public lands.

Just to understand the scope of that, let me ask this as a theoretical question: that is, it would be theoretically open to Nisga'a Lisims government, from time to time and for purposes that we can discuss in a moment, to say there will be no hunting and fishing on Nisga'a public lands. That -- no hunting and fishing by non-Nisga'a citizens -- is something that is open to Nisga'a government to do, as long as it complies with the general obligation in paragraph 4 to provide reasonable opportunities.

Hon. U. Dosanjh: The simple answer to the hon. member would be that Nisga'a would not have the authority to say no to hunting and fishing opportunities for non-Nisga'a. But if one looks at paragraphs 5, 6 and 7, paragraph 6, I believe, deals with the annual management plan. If you look at all of those paragraphs together, the minister -- who is obviously a minister of the Crown -- may approve the lack or absence of hunting and fishing for a particular period during that plan. That has to be approved by the minister, at the end of the day. Nisga'a themselves would not have the authority to deny those opportunities on their own.

G. Plant: For the sake of clarity -- that is, for the sake of those four people who are watching the debate -- it occurred to me that we should make it clear that we're not talking about the Nass wildlife area here. We are talking about Nisga'a lands and, as my colleague reminded me a few minutes ago, lands which the Nisga'a own fee simple. The question, then, that is suggested by what the Attorney has just said is: who makes the annual management plan for the harvesting of wildlife and fish resources on Nisga'a public lands?

Hon. U. Dosanjh: That might be better addressed in the wildlife chapter. Let me just say that Nisga'a make the plan, and they submit it to the minister. The minister approves it or rejects it.

G. Plant: Is the annual management plan, which is the subject of paragraph 6 in the access chapter, the same annual management plan that is talked about in the wildlife chapter?

Hon. U. Dosanjh: Yes.

G. Plant: I'm now struggling to understand the difference between Nisga'a public lands and the Nass wildlife

[ Page 11343 ]

Hon. U. Dosanjh: Let me see if I can encapsulate this in a couple of sentences. Paragraph 4 says that reasonable opportunities will be provided, so if someone is seeking unreasonable opportunities, that may be denied. That's one instance, and that then becomes the subject of argument. If there's a pattern, of course, and there's a continuing denial, the government may become involved. The other event where this obligation on the Nisga'a government is nullified temporarily for the period of the plan is when the minister approves that there don't have to be opportunities for a certain period. Those are the two possibilities.

G. Plant: To pick up the second part of this, the minister could close down all elk hunting for a year for conservation purposes, and the government's point is that that closure would apply throughout the management area as a whole, throughout the Nass wildlife area and, indeed, also on Nisga'a public lands, if that is the extent of the minister's decision. Is that correct?

[11:15]

G. Plant: As the Attorney General was talking about the difference between reasonable and unreasonable opportunities to hunt, I was trying to think of an example: perhaps an individual who's not a Nisga'a citizen who in some way, I suppose, seeks to abuse the opportunity to hunt -- I'm not sure how; or maybe it's that the individual in question is not hunting safely or something. I think I can understand that. But it does seem to me that within the limits and parameters of what the minister has been saying, at some point the question of whether the public will in fact have the right to hunt and fish on Nisga'a lands is at the call of the Nisga'a government. I'm not saying that that's an earth-shattering conclusion; it just seems to me to be the way it works. I think that probably, if we were able to establish that, we could move on.

Hon. U. Dosanjh: Nisga'a lands are the lands of the Nisga'a nation -- or will be after this treaty is ratified. Yes, there is an overriding obligation on the Nisga'a, imposed in paragraph 4, to provide reasonable opportunities for the public -- and that includes Nisga'a and non-Nisga'a -- to hunt and fish. If the opportunities being sought are unreasonable, the Nisga'a would say no. In that sense, they do have the right to say no. However, if the person or persons seeking the right or the opportunity to hunt and fish believe that the denial is unreasonable, then there is a dispute. One goes to the court, or one comes to the government. If there is a pattern of this kind of conduct, and government believes that Nisga'a are inappropriately and illegitimately denying people reasonable opportunities, government will kick into action and deal with that issue through the dispute resolution mechanism.

G. Plant: Taking all of what the minister has said and going up to the point where there is that dispute, let's come now to another distinction that is suggested in paragraph 4. In the context of that dispute, if it is a Nisga'a person who has been hunting and fishing, the Nisga'a person gets to say that he or she is a Nisga'a citizen and therefore has the right to hunt and fish on Nisga'a lands. What does the non-Nisga'a say? It seems to me that there is a distinction contemplated in paragraph 4.

Hon. U. Dosanjh: The Nisga'a nation has decided that they are going to provide that absolute right in this paragraph and reaffirm the right of the Nisga'a people to hunt and fish. They have also said that they have an obligation to provide reasonable opportunity. So the non-Nisga'a person would go to court or come to government and say: "I have the right to expect a reasonable opportunity to hunt and fish, and I'm being denied that."

G. Plant: Continuing to look at that distinction, again I recognize the starting point that the minister takes -- which, to put it another way, is: this is Nisga'a land, and they own it in fee simple. They are making, I suppose you could say, concessions in the context of the question of the public's -- and by that I mean the non-Nisga'a public's -- right of access for hunting and fishing purposes. The question that then occurs to me is: would rules that set a different harvest quota for Nisga'a and non-Nisga'a be considered reasonable in the context of this obligation to provide reasonable opportunities? That is, would it be open to Nisga'a government to say that Nisga'a would be entitled to harvest more resources on Nisga'a lands than non-Nisga'a persons?

Hon. U. Dosanjh: The Nisga'a do not establish harvest levels. It is the minister who approves the harvest levels, at the end of the day. The Nisga'a can distribute whatever they may have been given within the plan amongst the Nisga'a citizens, but they will not have a say, at the end of the day. The minister has the final say about the harvest levels.

G. Plant: Well, as my colleague said while listening to the answer: "That's why it's a good question." What if the minister sets different harvest levels, and the way they work out is that there is in fact a different quota between Nisga'a and non-Nisga'a? Does that then become the. . . ? Here's the point. I mean, we're not having the argument that we could have in the context of the wildlife chapter; we are looking at it in the context of paragraph 4 and the issue of access. Would that then become a way in which this question of reasonable opportunities for public hunting and fishing might arise?

Hon. U. Dosanjh: This is about access; this is not about allocation. This particular paragraph is about access, not about allocation. This is about opportunities to go and hunt and fish, not about allocation; that's in the wildlife and fish area, and we can talk about that.

G. Plant: Well, I have to say that the first time I read these clauses, I thought they were creating a very interesting dichotomy. They were suggesting that the Nisga'a would provide reasonable opportunities for the public to hunt and fish but not to actually catch any fish or to take any wildlife, because it's only an access right. But, in fact, paragraph 4 and these

[ Page 11344 ]

Hon. U. Dosanjh: Obviously paragraph 4 doesn't exist in a vacuum. It exists in the treaty and has to be read in conjunction with paragraphs 5, 6 and 7 and other parts of the treaty. This right and this obligation to provide reasonable opportunities for the public to hunt and fish are then defined by other provisions in the treaty. This is not about allocation; this is about bare access to do that.

In terms of all of the other issues around allocation, I'm not as knowledgable as my colleague and the Minister of Fisheries might be, so I would make a mistake if I went into and discussed those issues.

G. Plant: Of course, allocation. . . . I mean, one of the things that non-hunters like me have to always bear in mind is the fact that even if I had the opportunity to go and hunt ten deer, I could probably spend a year in the woods and not get any. But that actually leads to the more serious question.

One of the ways in which wildlife are managed for conservation purposes is by creating seasons. Seasons create the opportunity to hunt. Again in the context of the provisions we have before us, could the Nisga'a say: "Well, you know, we'll have a longer season for Nisga'a hunting than we will for non-Nisga'a hunting, because we don't want to provide an unreasonable opportunity for the non-Nisga'a public to hunt and fish"?

Hon. U. Dosanjh: The answer is no, because at the end of the day the minister approves it. If the minister approves that plan, theoretically yes. But then you have recourse with respect to the minister. There's something called elections, debates and those kinds of things.

G. Plant: Then the Nisga'a have made a promise that no reasonable person would make; that is, they have undertaken an obligation in paragraph 4 to do something over which they have no control, because all of the important decisions -- in the Attorney General's explanation -- are made by the minister. That is, how much hunting will happen is a decision made by the minister. Levels of hunting, hunting seasons and types of species will all be decided by the minister. Yet Nisga'a government has this obligation to provide reasonable opportunities. I don't see how the two relate -- yet. I thought that the way they related was that in terms of hunting and fishing on Nisga'a public lands, it was the Nisga'as' call. I suspect the minister has something to say.

Hon. U. Dosanjh: I think we're missing the context here. This is a chapter dealing with access. That is why how much you can fish or how much you can hunt is defined elsewhere. This is a paragraph that defines and establishes the right of access to do those things to the extent. . . . To what extent? That would be defined, of course, in the chapters to come. That's why, in fact, I said that this is about access; it is about access to hunt and fish. But how much, where and when are defined elsewhere.

G. Plant: Let's take the hypothetical example, for a moment, of me owning a parcel of land in fee simple. The Nisga'a own their lands in fee simple. The minister apparently makes all the decisions about seasons, allocation, conservation and the number of animals that can be hunted. Those decisions are made in respect to large areas. I think they used to be called wildlife management units; they may still be called something like that.

I think the minister is saying is that if I as the owner of a parcel of fee simple land want to open my door to let some hunting take place in my back yard, it is going to take place according to the rules and with the levels of allocation that the minister sets. But it's my land, and I get to decide whether to open or close the door to my back yard. I think that is the distinction that the minister is drawing.

Here the Nisga'a have said, "We will provide reasonable opportunities," meaning that within the limits of reasonableness, they will open the door to their back yard to allow people other than non-Nisga'a to hunt and fish. Does that analogy make sense?

Hon. U. Dosanjh: The answer is yes, but it also applies to the Nisga'a people, not just non-Nisga'a.

G. Plant: Right. I understand, except that the Nisga'a can argue -- which non-Nisga'a cannot argue -- that they have a right to hunt and fish "in my back yard."

[11:30]

G. Plant: At the risk of torturing the metaphor, the point is that it's Nisga'a government that gets to decide whether to open or close the door, subject to the "reasonable opportunities" restriction in paragraph 4.

Hon. U. Dosanjh: Yes, the Nisga'a, in their wisdom, determine what is reasonable at that point. But if someone believes that the opportunity that's being afforded is unreasonable, that person has the opportunity to contest that. So the analogy that the hon. member is drawing. . . . Yes, they have the right to open or shut the door, but it's subject to the test of reasonableness.

G. Plant: That brings us back to the place where we began, which is that everything we said earlier about the possibility for increasing or not increasing disputes by using a test of reasonableness applies here in paragraph 4, just as it does to paragraph 2.

Let me ask this about paragraph 7. Nisga'a government, for the purpose of monitoring and regulating public access for hunting and fishing, can require persons other than Nisga'a citizens to obtain a permit or licence at something described as a reasonable fee. In simple terms, that means that Nisga'a government gets to say to the people who are non-Nisga'a, who want to get in the back yard, that it will cost them some money to do that. They can set that fee according to the parameters described in paragraph 7, but they cannot charge a fee to Nisga'a citizens.

Hon. U. Dosanjh: With respect to the Nisga'a, they may charge fees. That's not something that's discussed here. What paragraph 7 says is that there would be the opportunity for Nisga'a, for the purposes of monitoring and regulating, to ask for permits and licences to be established. But it says "those

[ Page 11345 ]

G. Plant: Is there anything in the agreement that would prevent Nisga'a government from charging two different sets of fees, one a fee for Nisga'a citizens and another for non-Nisga'a citizens?

Hon. D. Lovick: The Charter of Rights and Freedoms applies, and that might prevent it. That would have to be determined by somebody else. But on the face of it, no.

G. Plant: I just want the record to show that I have passed on the opportunity to debate with a minister of the Crown the issue of this particular government's perspective on the extent to which the Charter protects property rights. We can have that discussion some other time.

M. de Jong: I will pursue the issue to this extent, hon. Chair. If the test is reasonableness, I think that in the brief discussion that has taken place around section 7 and the discussion that took place earlier around section 4, the crux of the matter is: is it reasonable, in the government's mind, to expect that there might be, as between Nisga'a and non-Nisga'a citizens on Nisga'a lands, preferential treatment given to Nisga'a? By that I mean a licensing fee that is less for Nisga'a people or perhaps doesn't exist for Nisga'a people.

It gets back to the issue that was briefly canvassed about access. I can think of a very compelling argument that would say: "These are Nisga'a lands, and we are going to extend access, for the purpose of hunting or fishing, by four weeks to members of the Nisga'a nation." If this comes back to government in terms of ultimately determining whether that is reasonable, then it is fair to ask the broader question now on whether the government considers different rules, as it were, reasonable in that context.

Hon. D. Lovick: I think we're in danger of confusing two things. The plan, in this instance, is paramount -- if I might use that term. The reasonableness test isn't what you invoke as applied to the plan. The management plan that is overlaying the area is one thing, and the questions about reasonableness are something quite separate and distinct from the plan.

Regarding the other part -- the larger question in terms of different treatment for different people -- I will just remind the member that the Nisga'a own this land. Obviously, then, for their own people, they may well say: "Well, why should we charge ourselves? But for you -- other people whom we invite or allow to come in to use our land -- we will have a fee." I think that's a reasonable conclusion and a reasonable thing that they might want to do.

M. de Jong: But that will perhaps one day be an issue. What I think we can establish today, now, and what I think the minister has established, is that in the government's mind those differing tariffs -- in the context that we're discussing now -- would be deemed reasonable insofar as this is Nisga'a land, and they will. . . . To the extent that these rules show a preference for Nisga'a people. . . . This government doesn't believe that's unreasonable.

Hon. D. Lovick: We see the concept of a differential rate as reasonable. The other question, in terms of how much the fee is, is to be adjudicated, obviously depending on circumstance.

M. de Jong: As I read section 7, the other thing that occurs to me -- and let's just deal with non-Nisga'a people now -- is that other words or other phraseology might have been used, rather than "reasonable rates," are "rates comparable elsewhere in the province in similar circumstances." That would go some distance to remove whatever doubt actually exists and whatever doubt my colleague and I have created during the course of this debate as to where those rates might be set.

Hon. D. Lovick: I think the member raises a valuable point, because that may well be one of the tests invoke if it comes to government, in terms of: "Is it reasonable, or is it not, to say that your fee is four times as high as anywhere else?" Therefore that might be considered to be unreasonable.

M. de Jong: Those are the questions that I had, and that I think my colleague had, with respect to sections 4 to 7. I think we can move along to that broad category, the notice provisions.

With respect to section 8, I am also not a hunter, but I know that this is always a source of some aggravation for those who are, in terms of ascertaining, in the broad provincial sense, what areas are open, what streams are open, what regulations are in effect. Those people will be anxious to know what is contemplated -- by the government, at least -- to the extent that section 8 involves government in those notice requirements. What is contemplated by government to satisfy those terms?

Hon. D. Lovick: I would assume that the same kind of procedure and process that the Ministry of Environment, Lands and Parks now uses for other lands -- in terms of notices about hunting openings, species availability, and all of that -- would be used here.

M. de Jong: That's helpful. Some of this relates to just verifying which arm of government is going to assume responsibility for this, for reasons we'll get to in a little bit. I think this document places a pretty heavy obligation on people who would seek access to Nisga'a public lands -- non-Nisga'a in particular -- to ensure that they are familiar with whatever regulations might be in effect. They will, in effect, find themselves in violation of a law if they run afoul of Nisga'a regulations or a wildlife management plan, in the same way they would if they ran afoul of regulations that the provincial government puts into effect.

So the minister is saying that following enactment of this legislation -- and once Nisga'a central government assumes responsibility and begins to do those things that regulatory bodies do -- within the provincial government, people should look to the Ministry of Environment, Lands and Parks. That agency will be the guarantor that you have all of the information you require to proceed safely onto Nisga'a lands. Is that the case?

Hon. D. Lovick: Generally, I would say that the answer is yes. I say "generally" simply because I can imagine -- let me put it that way -- that after establishing a number of different

[ Page 11346 ]

M. de Jong: Along the lines of what my colleague just said, I will seize the opportunity to acknowledge that here the minister recognizes that this treaty -- particularly in conjunction with the ones that follow -- is going to create a need for reorganization, at least to the extent that he has described with respect to these access provisions. There is going to need to be a place that people can go to, to verify that they are familiar with the laws, as it were, that they are required to abide by when they proceed through various parts of the province. As these treaties are settled, that could become fairly complicated in certain locations, in terms of harvest quotas -- we're talking about wildlife now. I think that when the minister speculates about the possible need for creating the kind of agency that he has described. . . . I think just the brief discussion we've had this morning confirms that that is not simply idle speculation; I think that's very much a certainty.

Hon. D. Lovick: I wouldn't disagree with the member at all.

M. de Jong: Last question on this point. I presume that government planning hasn't proceeded far enough to contemplate the issue of costs that might be involved, that we are still early in the process for that discussion to have taken place.

[11:45]

M. de Jong: On section 9. . . . There are certain words that appear throughout this agreement. We spent a fair bit of time talking about defined rights and undefined rights; we spent some time talking about tests associated with reasonableness. Another word that we spent a fair bit of time around was "consult." That is a word that appears within the text of section 9.

I'm going to suggest to the minister, though, that within the meaning of this section, to use that word is somewhat misleading and that what is really meant here is that Nisga'a government will notify the governments of Canada and British Columbia. When you take the chapter as a whole and consider the powers that are afforded to Nisga'a government, what's really intended here is to make sure that the two levels of government are aware of the laws, bylaws and regulations that are passed. That's fair enough. I think that imposing that obligation on Nisga'a government is worthwhile, and I think they would agree that there are sound reasons for doing so. But it is a notification provision, as opposed to a consultative provision.

Hon. D. Lovick: In this instance the member is wrong. It isn't simply a matter of notification. It is consultation, and indeed that's a defined term.

M. de Jong: If we recognize the powers that Nisga'a government acquires and will exercise pursuant to the terms of this treaty, and if we recognize that this provision is designed to ensure that the other levels. . . .

Maybe that's the question. Isn't the essence of this section to ensure that where Nisga'a government is exercising the powers granted to it under this agreement, the other two levels of government are made aware of that fact, that they are in a position. . . ? The minister described the process by which the provincial government might then provide that information to the public. The government can only do that if the Nisga'a have taken the time to ensure that the provincial government is advised of the action they've taken.

If I'm missing something in describing the purpose of the section, then maybe the minister will tell me. I'm unclear of how that defined term "consult," and all that it implies, would operate within a section that is really designed to ensure notification.

Hon. D. Lovick: I'm just going to refer my colleague across the way to the definitions section of the bill in chapter 1. He will see that there's a rather extended definition for "consult" and "consultation." Perhaps I can quote some of this. It means: ". . .provision to a party of: (a) notice of a matter to be decided, in sufficient detail to permit the party to prepare its views on the matter. . . ." Obviously, if we're talking about providing notification to the other side to prepare its views on the matter, that's with a view to doing something, perhaps, about what they're being notified about. Then it says:

". . . b. in consultations between the Parties to this Agreement, if requested by a Party, sufficient information in respect of the matter to permit the Party to prepare its views on the matter,

"c. a reasonable period of time to permit the party to prepare its views on the matter,

"d. an opportunity for the party to present its views on the matter, and

"e. a full and fair consideration of any views on the matter so presented by the party."

M. de Jong: I think that for the moment I'll try to speculate on how these provisions might operate within the bounds of this chapter on access. I am impressed by the possibility that this imposes. . . . The minister would have us believe that this imposed a heavy burden on the Nisga'a government: invoking the definition of that word "consult," they will have to be particularly well organized and devote some resources to ensure that they comply with the obligations they assume under this section.

Hon. D. Lovick: Yes, to the extent that they do want to change the system whereby they will affect access -- or conceivably affect access.

M. de Jong: Just quickly, on the receiving end -- and we're talking about access -- which arm of the provincial government would be involved in the discussions that might take place?

[ Page 11347 ]

M. de Jong: I just want to drop down. . . . I don't know if any other members have questions prior to section 12.

In section 12, the obligation is imposed on the Nisga'a government to take reasonable steps to notify the public. The point is made that changes can't be set aside -- we're talking now about locations and boundaries of the private lands that can be expanded, and I should say that on the record -- simply by virtue of the fact that it was deemed at some future date that there hadn't been sufficient notice. What does that say about the individual who finds himself or herself in violation -- I suppose trespass would be the obvious one -- and finds that they have committed a trespass on expanded private lands where there has not been sufficient notice? Is there a saving provision contained somewhere herein for that individual?

Hon. D. Lovick: I think the question goes to the validity of Nisga'a law, in effect, and whether an individual could challenge that law. That invites me to speculate, and I'm rather reluctant to do so.

M. de Jong: I'm just wondering whether an individual who found himself or herself charged with a trespass or in violation of some private lands that used to be public lands and now are expanded private lands. . . . The defence ultimately is: "I didn't know; I thought they were still public lands." Section 12 talks about notice and refers to what is sufficient and what is not sufficient -- more particularly, the fact that the expansion of the private lands couldn't be set aside because there was insufficient notice. But what about the person who finds himself or herself trespassing on those expanded private lands? Is there some saving provision in here that protects them where there has not been sufficient notice -- where, for example, the Ministry of Environment, Lands and Parks didn't receive proper notice and therefore couldn't pass it along to people that might be interested in going onto these lands?

Hon. U. Dosanjh: Paragraph 12 imposes an obligation on the Nisga'a to notify the public with respect to any changes, and then it also imposes a further obligation that any submissions made with respect to any changes would be considered.

I can say two things. One, if someone argues with the changes and believes that his or her views weren't appropriately considered, that may be the subject of an action or a dispute. With respect to the point the hon. member raises and the question the hon. member asks, one may argue -- and I'm not talking now about the merits of this argument -- that if reasonable steps have not been taken to notify the public, one's trespass should therefore have a valid defence because one wasn't notified and one was ignorant -- although I know that ignorance of the law is no defence.

G. Plant: In that context I wanted to just ask a question about paragraph 14. Paragraph 14 says that the Nisga'a final agreement "does not affect public rights of access on navigable waters within Nisga'a Lands." Does the provincial Crown have a position with respect to the navigability of the Nass River, and if so, what is that position?

Hon. U. Dosanjh: The answer to that essentially is common law, but we can come back to this question after the break.

I move that the committee rise, report progress and ask for leave to sit again. Before I conclude on that motion, I wonder if the hon. members could confirm that we are, after this chapter, going to chapter 8.

An Hon. Member: Yes.

Motion approved.

[12:00]

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

Hon. D. Lovick moved adjournment of the debate.

Motion approved.

The House adjourned at 12:01 p.m.

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