1998/99 Legislative Session: 3rd Session, 36th Parliament
HANSARD
(Hansard)
Afternoon
Volume 13, Number 16
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The House met at 2:02 p.m.
The Speaker: Hon. members, we'll begin with introductions. I'm going to take a prerogative that doesn't happen very often, to introduce without much embellishment some very special guests that we have with us on the floor and in the gallery. They are several hon. members of the federal House of Commons, representing the Reform Party of Canada: Mr. Jim Abbott, MP for Kootenay-Columbia, and Mrs. Jeannette Abbott in the gallery; Mr. Cliff Breitkreuz, MP for Yellowhead; Mr. Reed Elley, MP for Nanaimo-Cowichan; Mr. Peter Goldring, MP for Edmonton East, and Mrs. Lorraine Goldring -- in the gallery I gather; Mr. Gurmant Grewal, MP for Surrey Central, and Mrs. Nina Grewal; Mr. Gary Lunn, MP for Saanich-Gulf Islands; Mr. Inky Mark, MP for Dauphin-Swan River; Ms. Val Meredith, MP for South Surrey-White Rock-Langley; Mr. Deepak Obhrai, MP for Calgary East; and someone we all know, Mr. John Reynolds, MP for West Vancouver-Sunshine Coast. Would you all please make them welcome.
G. Farrell-Collins: On behalf of the official opposition, I just want to welcome the members from Ottawa. The weather's a lot nicer, as you all know. Certainly those of you from the lower mainland know that, but to those from Edmonton and Calgary: welcome to the wonderful -- not sunny, but warm -- west coast.
L. Stephens: Today in the precincts we have visiting from Langley about 50 visitors: grade 7 students, their parents and their teacher Ms. Lotz, from Langley Meadows Community School. Of course, they're here to find out how the parliamentary process works and to study government. Would all members make them welcome.
I'd also like to welcome Val Meredith, MP for South Surrey-White Rock-Langley. We share part of the Langley riding and work very well together on different issues, so I want to give a special welcome to Val. Thanks for being here.
B. McKinnon: My colleague from Parksville-Qualicum is unable to be here today, so on her behalf it gives me great pleasure to introduce two constituents of hers to the House: Rebecca and her mother Enid Sangster-Kelly are visiting us today from Parksville. When 14-year-old Rebecca heard that Kim Campbell was Prime Minister of Canada, she decided then and there that politics was her future and that one day she would also become Prime Minister of Canada. I would like to wish her every success and bid the House to make them feel welcome.
J. Smallwood: This must be politicians' day in the west, because I also have an introduction to make. We have with us today Mark Koenker, who is the MLA for Saskatoon-Sutherland. He is accompanied by his wife Connie. I'd like the House to make them welcome.
E. Conroy: It's a great pleasure for me today to introduce in the gallery my mother-in-law Ingaborg Thor-Larsen, my sister-in-law Lis Thor-Larsen and my other sister-in-law Susanne Marsh. Would the House please make them welcome.
G. Wilson: We have in the gallery today some Texada Island school students from grades 6 through 10. They're here with their teacher Mr. Ken Barton and parent Kim Critchley. It's a rare occasion that visitors from Texada Island can come to this Legislative Assembly and see both their Member of Parliament, Mr. Reynolds, and their MLA in the same precinct. Could the House please make them welcome.
E. Gillespie: I'd like to ask the House to join me in welcoming five guests from the Comox Valley today, people who are here from the Comox Valley Child Development Association to meet with the Minister for Children and Families: Leslie Baird, the chair of the board; and Pam Crowe, the secretary of the board, accompanied by Heather McFetridge, Susan Macdonald and Shelly Coates. Please help me make them welcome.
The Speaker: The Chair has one further introduction to make. In the gallery today is my niece Frances Wilbur and her soon-to-be-partner and fiancé John Smith. They're on their way back to Myrtle, Ontario, from New Zealand, where they've been for the last year. Would the House please them welcome.
TRIBUTE TO GEORGE GARRETT
Hon. J. MacPhail: I rise to make a ministerial statement that I hope is to be one that has great support amongst all of us. Today I rise to pay tribute to a remarkable British Columbian. George Garrett, one of the most respected journalist in Canada, has set the bar pretty high for journalists not only in Canada but certainly here in British Columbia. Tomorrow, after 43 years of scooping the competition, he'll sign off from the radio station CKNW in Vancouver for the last time. It gives me a bit of sadness to know that he will be gone.He leaves a tremendous legacy. Over the years, he has actually earned a reputation not just for being first -- although clearly he was that most of the time -- but also for upholding the very highest journalistic standards. He always invoked fairness, accuracy, integrity, dignity and dedication, and I think most of all, George's record will show that he was compassionate. These are words that even his competitors will probably use to describe him, because frankly, George is and will continue to be one of the best there is.
He's the kind of reporter that helped other reporters. He was the kind of reporter who always asked the person he was interviewing how he or she was doing personally -- and then, of course, skewered him or her right after that. But he always asked and could always remember the names of your family -- and the ages, as a matter of fact, as well.
[2:15]
He was the kind of reporter that held a story out of concern for people's feelings if they were to be affected, and he never, ever let his own feelings get in the way of the facts. He's the kind of reporter that could cover the Los Angeles riots. He could suffer a very serious beating and still make his deadline. That's because George has an absolute commitment to his craft.From his earliest days in radio, which started in 1956, George set a standard that we can all be proud of. I have no hesitation in saying that he has my admiration and my respect -- and, I'll bet, that of each and every person in this chamber.
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So, George, if you're listening -- if you're there talking to Bill Good, or if you're breaking some story -- thank you for absolutely everything that you've contributed to our province over the years. As you start your next career, please accept our best wishes, on behalf of everyone in this chamber and all British Columbians.G. Farrell-Collins: I too want to pass on congratulations from this side of the House to George Garrett on his retirement. I've had both the pleasure and the displeasure of dealing with George Garrett over the years. The pleasure, of course, is when it's my message that's getting out; the displeasure is when it's not. We just want to wish him the best in his retirement. He's certainly made a name for himself in this province and amongst politicians and journalists alike. He's well respected.
We all had a pretty serious scare during the election campaign, when he was injured in a serious car accident. We were all very thrilled to see him back on the job -- and some of that's tongue-in-cheek.
All I can say is that I know how happy the government is that he's retiring, and I know how happy we are that he's retiring before the next election. But I think the person who's going to be happiest of all that he's retiring is the Vancouver police chief.
TAYLOR GAS PLANT EXPLOSION
Hon. D. Miller: Again, just a very brief statement. Since I did inform the House yesterday of the Solex situation, I thought it appropriate to make a very brief statement, to give an update.I am rising to inform the House of the current situation in the town of Taylor, where there was a fire at the Solex gas liquids extraction plant, which led to the evacuation of the town. The fire in the plant is now out, and residents of Taylor were allowed to return home last evening. Highway 97 was also reopened at the same time.
Fortunately, there were no fatalities, but some 15 gas plant workers and firefighters were injured in the explosion and the resulting fire. I'm advised that two workers remain in serious condition, with burns. Most of the other injuries were caused by smoke inhalation. Our thoughts and hopes for speedy recoveries go out to the injured workers and their families.
The fire commissioner's office for the region has initiated a formal investigation into the incident. I would like to commend the many firefighters, RCMP, municipal officials and other emergency workers who responded to the fire and who helped evacuate the residents of Taylor in a safe and orderly manner. I'm also pleased to inform the House that the local emergency plan was in place and worked extremely well. This is an example to all communities to ensure that they are prepared for these kinds of situations. I think the people of Taylor and all of the people I've talked about really deserve a round from all of us here for what they've experienced and the very cool, efficient manner in which they've dealt with it. [Applause.]
J. Weisgerber: I request leave to respond to the statement.
Leave granted.
J. Weisgerber: Taylor is technically part of my constituency -- at least, South Taylor is. This issue is very close to people in the Peace River country. We're delighted, obviously, that the damage and the injuries were no greater than they were.
What I want to remind British Columbians, Canadians and others, I suppose, is that while natural gas is obviously a dangerous substance, the track record and the safety record of natural gas on this continent have been exceptionally good. The fact that there could be an explosion of that size in Taylor -- a place that is a very central processing location -- and the injuries and the damage are limited to the extent that they have been, I believe, speaks very well of the safety system, the engineering and the overall safe manner in which natural gas can be and is handled here in the province and across the continent. I think it's important to remind folks that while the substance is explosive, it is safely handled and doesn't represent a threat to people who use it and people who work with it.
JOB GROWTH IN TOURISM
Hon. I. Waddell: I too would like to add my congratulations to George and to welcome the Members of Parliament that are here. It feels like old home week for me.Recently I had the pleasure of standing here to announce that tourism job growth in the province has grown at a rate of 39 percent over the past ten years, well ahead of the provincial average of 30 percent. It employs 113,000 people directly and 16,000 businesses. In 1997 it was an $8.3 billion industry in the province, clearly a leading light in the province's economy and a pillar of our government's economic plan.
It is now my pleasure to announce that Tourism British Columbia's chair, Jean Anderson, and I today released the corporation's forecast for 1999 and the preliminary figures for 1998. The 1998 figures show an $8.7 billion industry in British Columbia. The projections for 1999 are $9 billion; that's good news.
Visits from the United States are forecast to grow by 5 percent, on top of our record-breaking performance last year, when we welcomed 3.2 million overnight American visitors to B.C. That doesn't include December's numbers, which are going to be up as a result of our Leonardo da Vinci exhibit here in Victoria. So the Americans have discovered that their dollar goes a lot further in B.C. And you can't beat the outstanding vacation opportunities here. We have integrated tourism with our cultural facilities here in a big way. We expect continuing U.S. visitation.
Interjection.
The Speaker: Members, members.
Hon. I. Waddell: While we struggle with some downturn from Asian tourism, in that regard I'm pleased to hear today that Tourism B.C. has said that it will continue to focus its overseas marketing efforts on working with the travel trade in the Asia-Pacific region to try to maintain our market share and ensure we don't lose ground to the competition.
Furthermore, Tourism B.C. released today a new publication called "Tourism Indicators," which will help the industry stay on top of the latest performance data from this dynamic
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industry. This is something new; it reflects day-to-day matters that are happening in the tourism industry. It can be sent around to operators, who will become flexible; they can move to take advantage of the new opportunities. It shows, for example, that accommodation room revenues were up 3.2 percent as of September last year. Commercial restaurant receipts were up 5.2 percent as of November. The total number of information centres around the provinceInterjections.
The Speaker: Members, the minister has been recognized.
Hon. I. Waddell: This is good news, and I want the members to hear it.
In the B.C. Rockies, information centre visits are up 17.8 percent; northern B.C., up 14.1 percent; the Cariboo, up 11.2 percent; the islands, up 14.5 percent. All other regions showed strong growth according to this indicator.
I wish to conclude by thanking Tourism B.C. for doing the job that we set it up to do. As a marketing corporation, it launched new programs in aboriginal tourism and in Chinatown tourism. It streamlined its operations, and it continues to work closely with our industry partners throughout the province to market Super, Natural British Columbia. We are working together. We are working in the face of stiff competition, and we're doing very well.
Interjections.
Hon. I. Waddell: The Minister of Finance likes this good news.
Interjections.
The Speaker: Order, members. Members, we'll proceed when there is quiet in the chamber.
In response, I recognize the hon. member for Okanagan-Penticton.
R. Thorpe: It's such good news to hear that so many British Columbians are coming back to visit their families that remain here. It's so good.
It also goes to show what happens when government gets out of the way and lets the private sector run business, because the sectors that this government is involved in are all going down. The private sector is going up -- job creation.
You know, hon. Speaker, I talk to the industry every day. I had a little bit of notice that we may be having yet another record-breaking ministerial statement, so I talked to some industry members today. They said: "You know, this government doesn't get it." Industry still faces the big three: overtaxation, 41.3 percent higher than their counterparts in Alberta; overregulation -- Al and Nancy Greene taking nine years to get a ski-hill operation in place, and J licences in the booming Okanagan wine industry taking this government four years to deal with; and uncompetitive employment and labour laws. What we need is fewer ministerial statements from this government and more action now.
COMPOSITION OF CFI BOARD
C. Clark: The B.C. Ferries board used to include three independent members who knew something about shipbuilding and the shipping industry in British Columbia, including people like Lucille Johnstone, a woman who spent four decades in the shipping industry -- until they told the government that they knew the fast ferry project was taking on water, and then they were fired. They were fired by this minister. But then, after firing them, the minister decided that he would replace them with the likes of Ray Whitehead, the former president of the NDP; Paul Gill of Kimber Cabs Ltd., the former president of the Premier's riding association; and Jack Munro, a man who admits publicly that he knows zero about shipbuilding.
The minister then went on to say yesterday
The Speaker: And your question is
[2:30]
C. Clark:
The Speaker: And the question, member, is
C. Clark: Will the minister stand in the House today and confirm that indeed it wasn't he who made that decision, that he gave the newspapers the correct information on Wednesday and that it was Frank Rhodes who put those NDP hacks on the board?
Hon. D. Miller: Hon. Speaker, I guess Mr. Munro and the member opposite have at least one thing in common.
Some Hon. Members: What is it?
The Speaker: Members
Hon. D. Miller: Do they really want me to spell it out?
Secondly, hon. Speaker, I can confirm that
Interjections.
The Speaker: Order!
Hon. D. Miller:
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The Speaker: First supplementary, the member for Port Moody-Burnaby Mountain.
C. Clark: Lucille Johnstone, one of the most experienced figures in the shipping industry in British Columbia, was the chairperson of the CFI board. She was replaced by Jack Munro, well-known NDP hack and yes-man, as the chairman of the CFI board. The minister would lead us to believe that it was Frank Rhodes who made this decision -- Frank Rhodes, a man who has a long record in the B.C. civil service, a man who served five different Premiers, a man who has a long record as a distinguished, unbiased mandarin in the B.C. government. He would have us believe that Frank Rhodes decided that Lucille Johnstone, with 40 years of experience, wasn't qualified to do the job and that instead, Paul Gill -- a man much more famous for phoning cabinet ministers and trying to get taxi licences for his friends, much more famous for that
The Speaker: Member, could you come to your question, please?
C. Clark:
Can the minister explain to us today if he believes that somehow Paul Gill, Jack Munro and Ray Whitehead were more qualified to build ships in British Columbia than people like Lucille Johnstone?
Hon. D. Miller: Catamaran Ferries International, as the member has obviously learned from her colleague sitting beside her, was a board that was set up as a subsidiary board to the B.C. Ferry Corporation. The B.C. Ferry Corporation board of directors had absolute authority, with respect to the naming of the original directors of the CFI board and totally with respect to any changes that subsequently took place. Those were not the decisions of government; they were not decisions that I participated in. They were entirely the decisions and the responsibility of the board of directors of the B.C. Ferry Corporation.
The Speaker: Second supplementary, the member for Port Moody-Burnaby Mountain.
C. Clark: Hon. Speaker, forgive me if I have difficulty believing that somehow all these independent people -- people with decades of experience in the B.C. government, people with decades of experience of being unbiased and non-partisan -- would arrive at the name of Paul Gill as the most qualified person to oversee a brand-new technology in shipbuilding in British Columbia. Forgive me if I look for another explanation than that. The only thing we know about Paul Gill is that at least when he makes a phone call, ministers will take the call. That's the only thing that would qualify Paul Gill.
Why doesn't the minister tell the truth today? What really happened with that board is that the three independent members knew what was going on at B.C. Ferries, they knew that the project was hitting the rocks, and they had the temerity to tell their political masters. And they got canned and replaced by people that the NDP knew it could trust, that the NDP knew would keep their mouths shut about what was going on and that the NDP knew would cover up for the Premier.
Hon. D. Miller: Well, it certainly was a mouthful, hon. Speaker. But again I want to reassure the House that the answer I gave to the previous question is absolutely accurate, it's absolutely honest, and whether the member chooses to believe it or not, it is exactly the truth.
FAST FERRY PROGRAM COST OVERRUNS
D. Symons: We know that these independent members of the Catamaran Ferries board were raising alarm bells about the Premier's fast ferry project before being sacked and replaced by NDP hacks. Yet the minister continues to insist that he was blissfully ignorant that anything was going wrong. If the minister is so sure of his ignorance, will he agree to immediately release the uncensored memos, reports and board minutes for the months that these three independent directors sat on the Catamaran Ferries International board?Interjections.
The Speaker: Members
Hon. D. Miller: I indicated that the decision to make the change -- both the decision to appoint individuals initially to the board of CFI and the subsequent decision to change those directors -- was entirely the prerogative of the B.C. Ferry Corporation board of directors. Mr. Rhodes was in a key position with respect to B.C. Ferries and participated in that. The government had no hand, no control -- nothing with respect to those kinds of changes.
I'm pleased to note that the member opposite, by the way, seemed to support the decision that government took with respect to fast ferries. As he said in 1996, and I quote from Hansard: "More frequent service with smaller vessels can alleviate traffic congestion at the terminals and the communities near the terminals. That's one of the reasons that the government has suggested for going the fast ferry route. The government appears to have recognized this problem and is now moving to fast ferries." So I appreciate the member's support.
The Speaker: First supplementary, member for Richmond Centre.
D. Symons: I guess if you use selective reading, you can find anything there. But it would be nice to read the rest of the comments in that.
But we'll do this also. On March 12 of '97, the B.C. Ferries board met. At that meeting a report from the corporation's capital program committee was given. At that meeting the minister responsible for B.C. Ferries was present. So I am asking again: will the minister responsible for B.C. Ferries agree to immediately produce all the reports and board minutes, so that British Columbians can make up their own minds about who is responsible for this fiasco? He did not answer that question, my first question.
Hon. D. Miller: I attended -- I'm not quite sure how many -- maybe two or three board meetings in
Interjections.
The Speaker: Members, come to order. The minister has the floor to answer the question.
Hon. D. Miller: I did attend two or possibly three board meetings -- I can check that -- at the request of the board. My
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attendance was limited to arriving at a certain time in the board meeting, having a general chat with the board members and then leaving.Interjections.
The Speaker: Members, members. The minister is still answering the question.
Hon. D. Miller: At no time did I participate in the business of the board.
Finally, I did issue a caution yesterday, and I'll repeat it. While I understand the eagerness to jump to conclusions and judgments, my answer to the member is this: all of the information that is pertinent to this issue will be made available when we have concluded our investigation, when Mr. Halkett has concluded his work. I am taking the position that I am not going to rush to judgment until all of that evidence, all of that documentation, is available for everyone to see. Then I'm sure we will probably have some further debates.
J. Weisgerber: I have a question that I would like to have asked the Premier, but I'll direct it to the Deputy Premier. In 1988, as a relatively new member of this House, I sat there with the former Minister of Highways while the current Premier and the members for Esquimalt-Port Renfrew, Nanaimo and North Coast -- the so-called pit bulls -- attacked him regarding the Coquihalla overruns.
I'll quote from Hansard. The current Premier said at that time: "It is my contention that the overruns were systematically hidden from public view, not because of incompetence
Hon. D. Miller: If the member wishes to allege that there is a cover-up -- and it appears to me that he has just done so -- it is entirely his right to do that. My responses for the past two weeks have been, I think, absolutely consistent, and they are consistent today.
With respect to the knowledge I had as the minister, there's a very clear set of circumstances where you can draw your own conclusions. There will be a report issued on this subject. We do not have a definite date for that work to be completed, but obviously we want to do it as quickly as possible. I am prepared to see what that report contains and whether or not the member wants to make those allegations once he has seen the report as well.
The Speaker: First supplementary, member for Peace River South.
J. Weisgerber: By March of 1988 -- and Mr. Reynolds will recall it very well -- the MacKay commission of inquiry had already completed a full, independent public inquiry into the Coquihalla overruns and had tabled its report in this House. Even though Alex Fraser was terminally ill and unable to speak except through a device in his throat, the pit bulls over there continued their attack. Will the so-called pit bulls today have the same courage that the former government had and call a public inquiry into the affairs of the fast ferry and the fast ferry cover-ups that are being alleged by members on this side of the House?
Hon. D. Miller: Someone said recently that politics in B.C. is a blood sport. They said it for particular reasons, but I happen to think that there is some truth to that.
I also want to remind the member -- not that we can go back too far in terms of these issues -- that people had
But I want to remind the member and all members of this House that Mr. Fraser, I think, had the respect of all members. Hon. Speaker
Interjections.
The Speaker: Members
Hon. D. Miller:
The Speaker: The bell ends question period.
[2:45]
I'm requesting leave of the House to move a motion without notice.
Leave granted.
Motion approved.
I also have the honour to present the reports of business done in pursuance of the Pension (Teachers) Act and the Pension (Municipal) Act during the fiscal year ended December 31, 1997.
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to provide the members with a list of existing water licensees and the fees they paid, as well as the amount of water they utilize, and I'm tabling those documents here today.
NISGA'A FINAL AGREEMENT ACT
(continued)
On the schedule, chapter 6 (continued).
G. Plant: Once again I'd be interested in knowing what position the province takes, if any, with respect to whether the Nass River is navigable water, at least as it passes through Nisga'a lands.
Hon. U. Dosanjh: The province takes the position that those waters are navigable waters.
M. de Jong: With respect to paragraph 17, and I'm not sure anyone on the government side of the House is going to be able to answer this, but I did offer to someone outside of this assembly that I would ask the question. Is the province aware of any former military sites or installations on any of the Nisga'a lands?
Hon. U. Dosanjh: There are none that we're aware of.
M. de Jong: Insofar as the discussions that took place between the province and the federal government, were there any specific, pending access issues relating to national defence matters that would arise in the foreseeable future?
Hon. U. Dosanjh: I understand that no matters were ever raised, and therefore there are none pending.
G. Plant: I have paragraph 20 before me. Paragraph 20 is the first in a series of paragraphs dealing with the subject of Nisga'a access to other lands. I know that this paragraph deals with a number of different possible situations. I want to ask about only one of them, and that is, activities by agents, employees or contractors of Nisga'a government off or outside of Nisga'a lands to enforce laws and to carry out the terms of this agreement. I take it that this would encompass the activities of agents, employees or contractors of the Nisga'a nation or Nisga'a government carrying out enforcement or other activities in relation to laws made by Nisga'a government. In the course of those duties it is conceivable that they may have occasion to perform duties not only outside Nisga'a lands but, I suppose, outside the Nass Valley altogether. We can perhaps explore some examples of that when we get to chapter 11 and look at the various things that Nisga'a government will have the power to do. As a precursor to that discussion, have I characterized paragraph 20 correctly, at least as far as I've done so?
Hon. U. Dosanjh: Yes.
M. de Jong: I'm moving to section 23 at this point. Before I ask my question, let me preface it with these quick remarks. I have approached this issue on the basis that this treaty provides for that exchange of those rights and a codification of those rights, but I have always accepted the notion that Nisga'a, for all other reasons, are Canadian citizens and citizens of the province of British Columbia. So maybe, in my attempt to oversimplify this section, I'm missing a significant point. But it seems to me that what this is saying, essentially, is that Nisga'a citizens will have the same rights of access to Crown land that other British Columbians would have, subject to the same restrictions that other British Columbians would have. If that's what it's saying, then I'm curious as to why it was necessary to say that. It seems to me that that is something that, for all other purposes in the treaty, goes without saying.
Hon. U. Dosanjh: I think that one could, perhaps, argue the hon. member's point, but not completely legitimately, because this really does need to be said, from the point of view of the Nisga'a. This says to the Nisga'a: "If you have rights outside of Nisga'a lands, you would have access to enjoy those rights, so that any future government doesn't do indirectly what you couldn't do directly" -- that is, deprive them of the rights that we've agreed to by denying access.
M. de Jong: Okay. But what am I missing if I turn that slightly on its head and say: even if you don't have special rights associated with that Crown land, surely you still have the same right of access that other British Columbians would have?
Hon. U. Dosanjh: I think that if one dissociated the hon. member's statement from the exercise of the rights set out in the agreement by the Nisga'a, the hon. member's statement would be absolutely correct. If one looks at paragraph 23, it talks about the exercise of the rights of Nisga'a as set out in the agreement, and access for those purposes. Therefore it guarantees that access on these terms. Otherwise, as Canadians they have access, like any other Canadians would have. But this is access for the exercise of those rights that are set out in this agreement.
M. de Jong: Maybe the best way to abbreviate this discussion is to invite the Attorney General to move us from the general to the more specific. Is there an example that would help me wrap my mind around the need for what seems to be added protection for those rights of the Nisga'a?
Hon. U. Dosanjh: If, for instance -- and this is what comes to mind; the lawyers here have pointed this out to me
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G. Plant: That answer gives me further reason to ask a question that I was already planning on asking. It's one thing to speak about access, in terms of saying: "Well, we won't do anything to obstruct your access." But here the province has essentially made a commitment to Nisga'a citizens. The province's commitment is that Nisga'a citizens will have reasonable access to and onto Crown lands. My concern is that Nisga'a citizens may pour a little more content into that obligation than the Crown thinks exists -- that is, reasonable access may involve an assertion by someone that a road needs to be constructed. Maybe a road needs to be constructed all the way from New Aiyansh up to someplace where there is a fee simple site that currently has no road access. Without that road, the Nisga'a citizen may argue: "Well, I may have theoretical access, but I don't have any real or meaningful access; in fact, you the province have made a commitment to me that I'll have reasonable access."
[3:00]
The issue does in fact partly spring out of the questions that my colleague was asking. Someone is going to say: "Well, hang on a second. This must mean more than the simple observation that Nisga'a citizens have the same kind of access as other Canadian citizens have, because that wouldn't need to be in the agreement. That would speak for itself." Nisga'a citizens as Canadian citizens, as British Columbia citizens, already have that access, so this paragraph must be about something more than that ordinary access. Indeed, it's a promise by the province to give Nisga'a citizens reasonable access to and onto Crown lands. In reading this, I am concerned that someone coming along later may argue that this is not simply something passive, this is not simply saying that government won't really do anything to create further obstacles to access. But this may impose a positive obligation on the province to do something to facilitate access that it is not already giving. That's my concern.Hon. U. Dosanjh: I think that's a construction that perhaps the hon. member is arguing could be placed on this; we disagree. We don't believe that this imposes any more of a positive obligation on the government than it imposed on the Nisga'a in the previous sections, when we said that they would allow reasonable access.
G. Plant: The larger context of this undertaking is the context of aboriginal treaty rights generally. From my own limited experience in that area, I can tell you that people are trying all the time to create a larger meaning out of something that appears to have originally been written in fairly restrictive terms. The right to hunt, which has been recognized, has been argued to include within it the right to clean air and water; without clean air and water and without an untrampled forest, the right to hunt is meaningless.
In this particular case, it seems to me that the paragraph otherwise states the obvious -- that is, it states that which would not need to be said, because Nisga'a citizens should have those rights in any event. Why is it that the province has even opened up this argument, which I think the Attorney General concedes is at least a possible argument?
Hon. U. Dosanjh: I think the hon. member is stretching my position a bit. All I said was that the hon. member could construct an argument; I didn't say it's a valid argument. I simply said that we disagree.
M. de Jong: Paragraph 27. Just to confirm that insofar as this chapter on access is concerned, it is paragraphs 25 and 26 under which formal dispute resolution procedures may be invoked. In any other instance, if there is an issue relating to access, the onus falls to the individual -- the complainant, that is -- either to pursue the matter himself or herself or to somehow obtain the approval of government to do it on their behalf. Is that correct?
Hon. U. Dosanjh: Correct.
M. de Jong: That takes us, I think, to chapter 8 and the fisheries provisions of the agreement. With that, I'll ask my colleague from Abbotsford to present some questions.
On the schedule, chapter 8.
J. van Dongen: I want to open up with maybe a few general comments. First of all, in studying chapter 8, the fisheries chapter in this agreement which is being presented to the Legislature through Bill 51, I struggled with it in terms of the detail and the complexity. I want first of all to acknowledge, I think, the obvious ability of four members of this House -- two members on the government side and two members on the opposition side -- for their ability and their facility in dealing with complex legal agreements and very detailed concepts, and their ability to organize these things in a sensible fashion. I don't know that I share that facility.
I come from a somewhat different perspective, and one that is relevant to mention -- that is, as a farmer, as members of the House know. As a person who has been in various types of business, I think I come more from the perspective of someone having to live with and work with agreements such as this. I think that's very important to mention, because it's in the long-term impact of people working with this agreement that the real results will be felt. All the sort of legal arguments and maybe somewhat academic arguments
I'm looking at the perspective of possibly a Nisga'a fisherman, or from the perspective of a non-Nisga'a fisherman who's impacted by this agreement, or even from the perspective of a civil servant either in the federal or the provincial government, whose responsibility it will be to help implement the agreement. I think that very often in government we talk about simplifying red tape, about minimizing regulation, about reducing the impact of government on our citizens. But I think it's critical that these things happen at the front end of a process and at the front end of legislation, that it's built into the process of developing these agreements and developing legislation, and not something that's tagged on afterwards or an initiative five years from now to figure out how we can simplify the Nisga'a agreement. I want to start out by mentioning that.
Secondly, I think one of the very major concerns that we have on this side of the House is the element in this agreement that relates to a special aboriginal commercial fishery. We see
[ Page 11356 ]
the differentiation of an aboriginal fishery -- a Nisga'a commercial fishery -- and a non-native commercial fishery as an issue. Certainly some of the questions that I have will relate to that inequity and, I think, potential conflict.I also want to mention the extreme complexity of the agreement and the impact of that on the ongoing management of this agreement and how it fits into the overall management of the fishery. I think we all know that the overall management of the fishery is already extremely complex when you relate it to all the different species: some possible priority of certain species; the provincial government, the federal government, and that sort of thing. I'm concerned and we're concerned about the impact on management.
Fourthly, the ongoing management costs of this agreement -- the implementation costs and the maintenance costs, some of the ongoing consultations, some of the one-time consultations and agreements that are parts of this chapter and that have not been resolved. That's another great concern to us. I think that it's important to weigh all of these costs against the actual total benefit of the fishery to the individuals involved and the citizens of Canada.
I also want to mention, by way of introduction, our concern about the arrangement set up in this agreement that involves the communal ownership of the fishing rights -- in other words, the Nisga'a government owning the fishing rights as opposed to individuals having those rights. That's a concern to us. I think this is an area where sometimes the interests and views of native leaders may be somewhat different from the views of the rank and file. We have a concern, certainly, from this side of the House, that any new agreement, any new law, attempt to incorporate individual initiative, individual ownership and individual enterprise.
Hon. Chair, I hope this is acceptable to you and the minister. Following up on the issue of the complexity of the agreement, I want to start out by asking the minister what was in the negotiating mandate, or in the direction given to our negotiators, with respect to trying to establish a simpler agreement rather than a more complex one.
Hon. D. Lovick: I thank the member for his questions.
The mandate that the provincial negotiators took to the table vis-à-vis fisheries -- knowing full well that it's largely federally driven, for obvious reasons -- was, essentially, that the management regime ought to be open, transparent and, above all, effective, and, perhaps most importantly, that the minister would retain primary responsibility for it. In other words, we weren't giving away that responsibility; ultimately that would still rest with the Minister of Fisheries.
J. van Dongen: I certainly understand the concern about the Minister of Fisheries retaining authority. We'll talk about that a little bit when we get to the appropriate section.
But I'm still interested in whether or not there was any discussion at the outset between the government and its negotiators about the style and form of the agreement. I'm interested in knowing whether the whole issue of aiming for a simple agreement rather than a complicated one was ever discussed.
[3:15]
Hon. D. Lovick: I think the short answer to the question is that there is probably no way to find a nice, simple management model for something like fish. The complexity of the subject is such that it necessitates this kind of incredibly detailed and, as you say, dense text of material.
If you're talking about mixed stocks, for example, and about one management regime that's supposedly taking care of all those -- but you have five or six different species all mixed together, and you're talking about allocations and all of that
J. van Dongen: I agree with the minister that the whole fishing sector is complex for a variety of reasons, and mixed stocks are one aspect of that. Another aspect is the number of different stakeholders that have some interest in those fish, which are a common-property resource. That's why I submit to the minister that it's even more critical that we in government, in attempting to negotiate an agreement with the Nisga'a -- or with any other native band, for that matter -- target at the outset an arrangement that is as simple as possible. One way to do that is to follow the management regime, the industry structures and the industry policies that we have in the non-native fishery.
My concern is that when you look at this overall agreement and proposal, we haven't done that. We start out with a very complex industry, a very complex sector, and then in the Nass Valley we overlay on that a whole different set of rules for Nisga'a fishermen and another whole set of rules for non-native fishermen. I think that's one of the big difficulties I have with this agreement.
As I pointed out in my second reading comments, we've set up a system of inequality here. We've set up an agreement that passes into law discrimination between a native fisherman and a non-native fisherman, and we do so at great cost. So we have the inequity, and we have the ongoing cost of maintaining a complex agreement in what is already a very complex industry.
It's my view that as a businessperson, if you hire a lawyer to put together a deal or to draft an agreement for you, or even to draft a letter for you to deal with a particular legal issue
Hon. D. Lovick: I thank the member for his question and concerns, because I know the sincerity of them. Let me make three different points, if I may, that might provide some clarification.
First of all, though, I would make very clear that government's intention is obviously not to make matters more com-
[ Page 11357 ]
plicated. Rather, it's to say: "We're dealing with a complex situation. How can we solve that problem to the best of our ability, rather than exacerbate the problem?" I want to make that very clear, to begin with. Second, though, is to, as I say, make three particular points.The first one is that the Fisheries Act, to all intents and purposes, still obtains. What we're talking about in this treaty is allocation -- namely, numbers of fish, where they are to be caught and Nisga'a entitlements. It's not changing, if you will, the way fishing activity is carried on, as I say, for the most part.
Secondly, what this agreement is designed to do is provide certainty where there are now simply undefined rights that aboriginal people have. I think the certainty that is expressed and articulated in the treaty will probably, at the end of the day, be perceived to be a blessing or a boon by the commercial fishing industry. They'll say: "At least we understand the rules, and we know how it's going to operate." I think that's the case there.
Third, I don't think we should for a moment assume that because of this treaty, there will be this entire new problem we haven't had to deal with before. The reality is that Nisga'a are already fishing there for food, ceremonial and social purposes. They're taking something like 58,000 pieces out of the Nass on an annual basis. Again, we have models we know about and have some experience with. Certainly, for the Nisga'a fishery, working with others is not a brand-new experience; it's, rather, an experiential thing. As a result, I don't think there will be nearly the kinds of problems and difficulties that the member is perhaps suggesting.
J. van Dongen: In response to the minister, I would say that the goals of certainty and continued operation under the federal Fisheries Act could be achieved in another manner that made it simpler. But we will probably get into this discussion as we get into other sections and see the examples of it.
I wanted, then, to maybe start on section 1. Maybe we should look at the first segment there -- sections 1 to 6, if that would be agreeable. I may sort of bounce around in that area. I want to ask the minister, first of all, about the term "Nisga'a fish entitlement." I know that there's a definition of that in the definitions section. I wonder if the minister could just clarify it for me. If we look at the definition, it says: " 'Nisga'a fish entitlement' means the right to harvest fish or aquatic plants under this Agreement, but does not include the right to harvest fish under the Harvest Agreement referred to in the Fisheries Chapter, or under federal or provincial laws of general application."
When I look at the whole chapter, it seems to me that the Nisga'a have access to fish in about five different ways under the agreement. I'm looking at the 17 percent of total allowable catch under the agreement itself and the 9 percent under the harvest agreement; then there's an opportunity for the Nisga'a to participate in fishing of surplus Nass salmon; there's an opportunity for them to participate on the basis of their proportion of enhancement expenditures; and then there's their participation in the regular commercial fishery. There's $11.5 million to buy boats and licences.
If we look at the definition of fish entitlements, could the minister tell us, first of all: is that a particular legal term that relates to the Nisga'as' aboriginal rights under section 35? Or is it simply used in its normal sense here? Part of my question is: does the Nisga'a fish entitlement include the participation in surplus and -- the fish that result from enhancement?
Hon. D. Lovick: The answer to the member's question, essentially, is that Nisga'a fish entitlement effectively means treaty rights. To follow up on his particular points regarding harvest, surplus, enhancement and the commercial fishery -- the four points he made -- none of those is a treaty right. The entitlement is rather just what is referred to in this section.
J. van Dongen: So the entitlement would include the fish for domestic purposes plus the 17 percent in this agreement -- those two items, then.
Hon. D. Lovick: This is stuff I want to be very precise about, so I'm being very careful. The treaty rights refer to the 17 percent, as referred to, as well as to the fishing for domestic purposes. Those are the treaty rights. The others are not considered to be treaty rights.
J. van Dongen: While we're on that
Hon. D. Lovick: Under the harvest agreement, the catch can be used for whatever purposes they so wish, either for commercial or for domestic purposes.
J. van Dongen: If I look at the wording of section 1, it says: "Nisga'a citizens have the right to harvest fish
Hon. D. Lovick: It is the Nisga'a nation that has the right, but it is the citizens within that nation who exercise the right.
J. van Dongen: To follow up on that, the Nisga'a government could delegate that right to an individual fisherman. But is it also possible that the Nisga'a government could, on its own account, hire someone to go out and catch the fish?
Hon. D. Lovick: The member is quite correct.
J. van Dongen: Under section 1(b) it says: "Nisga'a citizens have the right to harvest fish
Hon. D. Lovick: Concerned with a resource like the fishery, there's obviously the possibility of disease reaching epidemic proportions. Our science might tell us, for example, that there is a problem, and therefore we should halt the harvest. That residual power rests with government to prevent the harvesting in the event that there is a perceived threat to public health or public safety.
[ Page 11358 ]
[3:30]
Hon. U. Dosanjh: May I ask leave to make an introduction?Leave granted.
Hon. U. Dosanjh: I see in the gallery a very dear friend of mine who's a philosopher, teacher and former president of the B.C. Civil Liberties Association, John Dixon. I would ask the House to make him welcome.
J. van Dongen: I want to now turn to sections 4 and 5 in this part of the agreement. Section 4 reads, "Nisga'a fish entitlements are held by the Nisga'a Nation," and section 5 reads: "The Nisga'a Nation may not dispose of Nisga'a fish entitlements." Given the strong views of a lot of the public about the way the ownership of the Nisga'a fish entitlements is contemplated in this agreement -- certainly that was evident in the report of the standing committee -- I'm wondering why the province would agree to section 5.
Hon. D. Lovick: This is a treaty right of the Nisga'a nation. This is not something that one sells to the highest bidder, like Canada Packers or B.C. Packers or something.
J. van Dongen: Again, this is probably more of an issue for my legal colleagues. But is the minister saying that this treaty right -- the entitlement to that -- could never or cannot accrue to an individual Nisga'a citizen? Is that actually the way it is?
Hon. D. Lovick: That's correct.
J. van Dongen: Well, I'm going to have to canvass that issue with my lawyer friends, because I think that's a great disappointment of this agreement -- the fact that this section prevents Nisga'a government from ever in the future transferring those entitlements to individual citizens. I find it somewhat hard to believe. It's a great disappointment if that's the case -- that this can never happen. The minister is saying that the parties to this agreement were basically legally obligated to include that in this agreement. If that's what he's saying, I find that very surprising.
Hon. D. Lovick: I'm a bit surprised that the member is surprised, simply because that right -- the aboriginal right, that treaty right -- is not saleable or transferable to anybody save and except the federal Crown. That's the law of the land and has been the law of the land for a very long time. That, of course, is the principle that's also enunciated in Delgamuukw very clearly. No first nation, I suspect, would ever want to set itself up to be in a position to say, "We're about to sell our birthright, a constitutionally protected right, to the Japanese," or something like that. It has symbolic importance as well as particular and very specific importance, it seems to me -- nothing new.
J. van Dongen: It seems to me that that historic right is established and locked in by this agreement. If at some point in the future the Nisga'a government considers it in the best interests of Nisga'a citizens to transfer those fishing rights to Nisga'a citizens, it seems to me that that would be an unfortunate circumstance -- if that isn't possible under the law now. I think it's more unfortunate that that's reaffirmed in this agreement.
Hon. D. Lovick: I detect some miscommunication here. My apologies if I'm part of that; I must be part of it, I guess, if we're communicating.
The point I want to make is that aboriginal right, by definition, is a collective right. It's not vested in individuals; it's vested in the first nation. That's the law, and it has been for a very long time. What the Nisga'a can do, of course, in this agreement is allocate that right to different members within their nation who will be fisherpeople. It's not a matter of saying that individuals are not going to be able to have their particular boat or their particular activity in terms of a Nisga'a fishery; it merely means that the ultimate right and ownership belongs to the Nisga'a nation rather than to those individuals. That's the point.
J. van Dongen: I appreciate the minister's latest attempt. That makes it a little bit clearer.
In turn, the Nisga'a nation retains the ownership, but it can in fact delegate or issue those rights to any number of Nisga'a citizens or possibly non-Nisga'as. Or they could fish those rights on their own account. But they could also delegate them to non-Nisga'as.
Hon. D. Lovick: I think the member is correct. I will just refer him to paragraph 6 in this chapter, which I think spells that out.
J. van Dongen: So the mechanism by which the Nisga'a government issues those rights is really up to them. Would they have the authority to establish a system of licensing or whatever other means they might choose to issue those rights to any one of, say, three possible groups?
Hon. D. Lovick: That's correct.
J. van Dongen: I want to turn now to section 7. This is under the heading "Licences, Fees, Charges and Royalties." We've already covered the one question I had here. What I'd like to ask the minister with respect to this section
Hon. D. Lovick: There is a fisheries management plan required, and there will be monitoring and reporting provisions within that plan.
J. van Dongen: And it will be up to the Nisga'a government to implement the monitoring plan. Will it be subject to audit by, say, the Canadian government?
Hon. D. Lovick: That's true.
J. van Dongen: Now, the agreement makes reference to an incidental harvest. In the definitions section, there's a definition for incidental harvest. It says: "
[ Page 11359 ]
means the catching and keeping of a species of Nass Area fish, other than in a directed harvest." I wonder if the minister could just clarify for me what might be included as an incidental harvest. In other words, would fishing for domestic purposes be considered an incidental harvest? And are there any other categories in this agreement that would be considered an incidental harvest, as opposed to a directed harvest?
Hon. D. Lovick: An incidental harvest means that if you are fishing for, let's say, sockeye, and when you bring in your catch, you also get some chinook or some steelhead, which wasn't your targeted fish
J. van Dongen: So the minister is classifying an incidental harvest as what's commonly known as bycatch.
If we turn to the second part of section 7, it reads: "This paragraph does not restrict Canada's ability to require licences for the use and possession of firearms under federal laws on the same basis as applies to other aboriginal people of Canada." I was taken aback by that clause in this section. I wonder if the minister could explain the inclusion of that clause in this section.
Hon. D. Lovick: I thank the member for his question, because the answer I've been given is one that I certainly didn't know. So I'd be happy to share that with him.
Apparently fish are also defined in law as marine mammals, and sometimes the way marine mammals are killed is with firearms -- I guess seals and walrus and so forth. Similarly, sometimes when you catch a large halibut or something, apparently it's dangerous to try and club it to death. Therefore you use a revolver, or a gun of some kind, to shoot the thing. That, apparently, is the reason why it's in here.
J. van Dongen: So this section is simply intended to protect the federal government's right to apply federal laws -- maybe not the same way across the country, but equal to other aboriginal people. That's the intent of this section. I thank the minister for that answer.
I want to turn to section 9, on trade and barter. "Subject to Nisga'a laws, Nisga'a citizens have the right to trade or barter among themselves or with other aboriginal people any fish and aquatic plants harvested in Nisga'a fisheries." I wonder if the minister could comment on that from this perspective: how can the sale of fish, as well as the required fees and licences, be monitored and enforced in light of the provision in section 9 -- in other words, fees and licences that might apply on fish that are commercially sold? There are some other provisions in this agreement, which we'll come to, that speak to that. But how can they be monitored in a scenario where the Nisga'a can trade with other native bands, and then possibly that fish ends up in a commercial market by a circuitous route?
Hon. D. Lovick: I understand that the fish that would fall under this classification would also be addressed in the management plan, and the management plan must indeed specify where all the fish are going, in effect.
[3:45]
J. van Dongen: In response to the minister's answer, certainly the management plan could specify where those fish can or should go. My question is more related to the actual transactions -- how they can be monitored as they actually happen and how we can be assured that if
Hon. D. Lovick: I'm not sure I can quote the precise section the member refers to, but I can quote him one that I think will answer his question -- namely, section 74. The obligation of Nisga'a Lisims government is to make laws to require: "
Interjection.
Hon. D. Lovick: And to report -- I'm sorry, I should have said "to report."
J. van Dongen: We can probably talk about that more when we get to section 74, but it certainly gives the minister some idea of my concern about the actual implementation of section 74. My concern there is how the fees and licences that are required under section 8 can be tracked through and attached to those fish, as they're supposed to be, under the agreement.
I'm going to move forward to section 21. That is the part of this agreement that deals with the harvest agreement, the subsidiary agreement. I wonder if the minister could describe the rationale for the harvest agreement. Why have a harvest agreement? One sample question that I would put to the minister is: what is the rationale for having a special harvest agreement, as opposed to simply expanding or increasing the opportunities for the Nisga'a to fish as part of the regular commercial sector of the industry? That would be one question that I have for the minister on the rationale for a harvest agreement.
Hon. D. Lovick: I thank the member for the question. The short, short answer is that we decided that we did not want to put a huge quantum of allocation of fish as a treaty right, as a section 35 right. We had some discussion and some negotiation to agree upon what quantum was appropriate. The conclusion -- the compromise, essentially -- was to say: "We will give more than the 17 percent allocated, but we will do it outside the treaty." As I say, that was the primary reason: simply that we did not -- on the advice of our own fisheries people -- want to take that large an amount and give it that constitutional protection. That is, in essence, what it's about.
We agreed to the sale of the salmon -- and this, I think, is also germane to the member's question and concern -- on
[ Page 11360 ]
various conditions. I think it's important to note those, so let me, if I might, just list them. First, the additional allocation of sockeye and pink salmon, above all -- and this is the point that I already made -- would not be included in the treaty. Second, the treaty would include proper monitoring, reporting and enforcement provisions. In other words, we weren't saying: "You have that aboriginal right protected in the constitution, and we no longer have any interest in it. Rather, we still want the assurance that there is a monitoring and reporting provision." Third, sale would be subject to the federal and provincial laws of general application, so we didn't have to worry about some kind of inferior product or something like that interfering with the operation of the normal market. Fourth, there would be no sale when there are no commercial or recreational fisheries for that particular species. In other words, the harvest agreement kicks in only when there is in fact a commercial fishery in that area, plus the entitlements.The conclusion that I think one can fairly draw from that is simply that the Nisga'a decided to buy into -- accept -- our basic fisheries management approach and conservation strategy. I think it was, in a word, generous of them to do so. The special harvest agreement was the compromise, and I hope I've given the member an explanation of the rationale.
J. van Dongen: I found the first part of the minister's answer very interesting. From this perspective, he indicated that the quantum of fish which could be involved and is contemplated in this agreement was a treaty right or aboriginal right. He indicted that that was subject to negotiation or could be negotiated or was subject to some form of discretion. I just find it an interesting confirmation that the amount of fish involved could be negotiated. I think it suggests that people who feel that that number isn't appropriate -- the 17 percent -- certainly have at least an opportunity for that argument. There's a legitimate opportunity for argument there as to what really is the equivalent of the treaty right. I'm wondering if the minister could comment and expand on that a little bit, because to me that is a very interesting admission.
Hon. D. Lovick: The short answer is that the agreement is the treaty right.
J. van Dongen: I'm going to accept the minister's argument, but I think it confirms for me that it's not something cast in stone by law -- that the actual amount of fish is something that has been negotiated, that it's subject to many different views, that there was not some quantity or percentage of fish established in law and that the Nisga'a could say: "Well, in law we're entitled to that number of fish."
Hon. D. Lovick: I just want to make it clear that the allocation was negotiated and the percentage figure is attached, but there is also a cap placed on that. It isn't, in short, an absolute percentage. There is a cap in terms of how many fish can be harvested that way.
J. van Dongen: I want to pursue this question just a little bit further, then, from the other side of the equation. Why, in drafting and making this agreement, would the negotiators differentiate between the harvest agreement and the fish under that aspect of this agreement and the regular commercial fishery? I ask that because in some of the literature that the province put out that I think relates to this
We know that the commercial fleet is in the process of being reduced in any event, and I think there's recognition that any fishing capacity or fishing entitlement that's given to the Nisga'a has to come out of the total equation somewhere. I'm wondering if the minister did set out why the amount of fish in the Nisga'a final agreement versus the harvest agreement
Hon. D. Lovick: The answer to the question is essentially the unique situation of the Nisga'a on the Nass River. That sounds a little hokey, but let me explain what is meant by that.
The configuration of the Nass River is such that there is a narrowing of a channel there where a harvest can occur using some very old, traditional methods, like the
Hon. D. Streifel: The fish wheel.
Hon. D. Lovick: The fish wheel. It's a wonderful technology that, as I say, is very old but is a lot more environmentally friendly and fish-friendly than any current technology. What it does is enable us to harvest fish without destroying that so-called bycatch -- without destroying other species in the process. The Nisga'a are uniquely positioned, then, to do a selective fishery and get their entitlement, get their allocation, and to satisfy what we negotiated as a treaty right and effectively set up a model that is monitorable, reportable and manageable in a way that the other fishery, quite frankly, isn't. So in the unique circumstance of the Nisga'a, this seemed to be the absolutely appropriate way to go and, I think, is therefore defensible.
J. van Dongen: In response to the minister, I would say that that's the general direction that the minister and, I think, all of us in government are expecting the commercial fishery to go. We're looking for more and more selective methods of fishing across the board, so that the targeted species are the only fish caught and any other fish can be released. Granted, maybe the Nisga'a are in a unique position to fish selectively, but that doesn't seem to me to justify, again, two sets of regimes and setting up a special separate agreement called a harvest agreement. Why bother with that extra bureaucracy? Why not incorporate it as part of the regular commercial fishery?
Hon. D. Lovick: I think the important point to make is that the harvest agreement is not a section 35 constitutionally protected right. The harvest agreement theoretically could be amended; it could be terminated, depending on circumstances. It's one that we think was appropriate to satisfy what we perceived and regarded as legitimate concerns -- requests from the Nisga'a -- and one that we and the federal government thought was appropriate in terms of a total fish entitlement for the Nisga'a people. At the end of the day, that was
[ Page 11361 ]
the agreement we thought was appropriate. We think, moreover, that we found the right solution -- as I say, not to take more than that 17 percent and give it that constitutional enshrinement, if you will, as a treaty entitlement.
[4:00]
J. van Dongen: Well, I understand the minister's argument that the fish under the harvest agreement are not a treaty right. But neither are the fish that the Nisga'a could catch in the regular commercial fishery with the boats and licences that they buy with the $11.5 million. Again, I don't see anything that justifies the differentiation. I don't accept the argument that it's not a treaty right, a section 35 right. I just don't see what justifies this differentiation; I just don't see it.
M. de Jong: We haven't come to the point where we're looking specifically at schedule A and some of the numbers. But I just want to
But let's just for one moment deal with the treaty entitlement. My understanding was that that was not
Hon. D. Lovick: No, the member is not mistaken in that analysis. I would just point out that the 17 percent figure is the average over a considerable period of time; that's why it was used.
M. de Jong: When we are talking about the treaty entitlement, as we will during the course of the debate around this chapter, we are talking about a perpetual entitlement versus something that is the subject of future negotiations.
Hon. D. Lovick: Correct.
[H. Giesbrecht in the chair.]
M. de Jong: Lastly, to distinguish the treaty entitlement to fish, we are talking about a priority fishery that takes priority over all other fisheries -- subject only to conservation issues perhaps, and that is something that I suspect we will deal with later.
Hon. D. Lovick: The member is correct but, I have to add, within the context of him recognizing what paragraph 2 says under "Nisga'a Fish Entitlements." Perhaps I should read that into the record for clarification's sake: "Notwithstanding that Nisga'a fish entitlements are treaty rights, a Nisga'a fish allocation that is set out as a percentage of the total allowable catch has the same priority in fisheries management decisions as the remainder of the total allowable catch of that species harvested in recreational and commercial fisheries."
M. de Jong: Maybe the best way for the minister to describe the significance of those words is to contrast what that priority under the treaty entitlement means versus the priority, if there is one, that exists under the harvest agreement.
Hon. D. Lovick: The harvest agreement has the same priority as commercial harvesting.
J. van Dongen: If we could turn to section 22 in the Nisga'a Final Agreement
Hon. D. Lovick: The model is apparently like a tree farm licence -- namely, if they wish to meet the terms and conditions, then they can continue to have the benefit of that resource.
J. van Dongen: Is it, then, up to the Nisga'a to give notice sometime between year 15 and year 25 to the federal and provincial governments that they want to renew this agreement? In other words, do they have to give notice to the two other parties that they want to renew the harvest agreement?
Hon. D. Lovick: I understand that at year 15 they are obliged to give notice -- and to give notice if they don't wish to renew; otherwise, it is indeed renewed.
J. van Dongen: Maybe I wasn't listening very well, but I'm not really clear. Does giving notice trigger a possible renegotiation of the agreement? Is it considered that the agreement will stay the same if the Nisga'a nation gives notice that they want to renew it as it is?
Hon. D. Lovick: On giving notice, what happens is that the parties attempt to reach agreement if there are any changes they wish to make to the harvest agreement. The default position is that the existing agreement remains in place unless and until they do that.
J. van Dongen: I appreciate the minister's answer. What he's saying is that the existing agreement would continue in perpetuity, in effect, because these are rolling 25-year terms, unless the Nisga'a nation feels that they want to negotiate something different, and then they can exercise their option.
Hon. D. Lovick: That's partly correct. We may want to change the nature of the agreement, too -- or Canada.
J. van Dongen: When I read this section in terms of the minister's answer when he said that Canada could give notice to negotiate
Hon. D. Lovick: I'm sorry. Let me clarify. I don't mean that Canada would give notice. I mean that if notice is given, then the other parties besides the Nisga'a may well want to try to change the terms of the agreement. In other words, it's not only the Nisga'a who might want to change the terms of the agreement. Canada may want to; B.C. may want to.
J. van Dongen: I think I understand what the minister is saying, but it does rely on the Nisga'a wanting to renegotiate.
[ Page 11362 ]
The federal government's ability to renegotiate relies on the Nisga'a decision to do so. It's an opportunity, if you will, that only the Nisga'a can exercise. If the minister could clarify thatA further question. My understanding of this section is that the Nisga'a would always have, as a minimum, the existing agreement and that the only incentive or motivation for them to exercise their right to negotiate would be either to expand the quantity of fish included under this agreement or to modify some of the conditions under which they hold these fish entitlements.
Hon. D. Lovick: The member is quite right, from the Nisga'as' perspective. But I would draw his attention to section 22(d), where he'll see that the other players, if you will, have some discretion as well. The harvest agreement will "include a dispute resolution process and a requirement for fair compensation if the Harvest Agreement is breached by terminating or reducing the Nisga'a fish allocations pursuant to subparagraph (a)." Demonstrably, then, the federal government, let's say, could decide it wants to do something about reducing the allocation. In other words, it doesn't go forever without any possibility of amendment. Thus the need for a dispute resolution mechanism.
J. van Dongen: Certainly I want to ask about section 22(d). The minister's answer leads us into that. What he's saying, then, is that if the government
Hon. D. Lovick: The member is correct.
J. van Dongen: Further to that question, the use of the term "breach
Hon. D. Lovick: That is not correct.
J. van Dongen: Is the minister saying that it's not possible to envision a scenario where the federal government, by oversight, could be guilty of a situation where the Nisga'a don't get the fish they're entitled to? Is the minister saying that's not a possible scenario?
Hon. D. Lovick: That is not contemplated under paragraph 22(d). I think that's where the member was raising the question.
J. van Dongen: Just to clarify for myself, then, paragraph 22(d) only relates to the renewal option of the agreement or the continuing possible amendment in the agreement. I guess the reason I have difficulty is simply the choice of the word "breach" in that section. That's what's creating some difficulty for me. But is the minister saying that this section only relates to a decision by the federal government to negotiate different terms -- and one that may in fact be a unilateral decision by the federal government? If the minister is saying that, then I'll accept that answer.
I just want to ask the minister a couple of questions on section 24. This is really a legal question. I'm sure the minister has answered it a number of times already, but I'm interested in the use of the words "not intended." It says: "The Harvest Agreement is not intended to be a treaty or land claims agreement, and it is not intended to recognize or reaffirm aboriginal or treaty rights, within the meaning of sections 25 or 35 of the Constitution Act, 1982." With the use of the words "not intended," is it possible that someone like the Nisga'a could go to court and argue that even though it wasn't intended, it is in fact a treaty right?
[4:15]
Hon. D. Lovick: As part of the agreement, the three parties have agreed that they will not do the kind of thing that the member refers to.J. van Dongen: Is it not possible that someone -- let's say an individual Nisga'a -- who's impacted by this agreement could decide to challenge that section and argue that for legal reasons, or possibly for fairness and equity reasons, all of the fish contemplated in the harvest agreement should be considered a treaty right? Is it not possible that one member of the Nisga'a nation could challenge that in court?
Hon. D. Lovick: An individual can make any argument they want before a court.
J. van Dongen: So the minister agrees that anybody could challenge section 24, and it's certainly possible that it could happen. What would be the implications, from the minister's perspective, of such a finding by the court?
Hon. D. Lovick: I've been saying in as strong terms as I possibly can that we believe absolutely that no court would ever make that finding.
M. de Jong: Let me ask in a different way what I think my colleague might be driving at. It relates to the practicality of the section. Earlier on the minister was providing a description or an explanation of how the renewal provisions would work. I'm not sure that he convinced me that what is created under the harvest agreement isn't a perpetual entitlement. Before I go to the next part of that question, I'll ask: if it is a perpetual entitlement, what's the difference?
Hon. D. Lovick: I wouldn't for a moment say that the harvest agreement isn't a perpetual right; I think it is. The important point is that it's not a section 35 treaty right.
M. de Jong: All right. If we accept for the moment that the importance of whether or not something is a treaty right largely revolves around one's unrestricted access to the
[ Page 11363 ]
resource in this case -- guaranteed accessHon. D. Lovick: I'm reluctant to say that it is guaranteed. Rather, the analogy that I'm offered is that it's more like a contract. The example I gave earlier was that it's like a tree farm licence.
M. de Jong: But if a contract is perpetual and sets a minimum entitlement in perpetuity, I guess the question that flows from that is: is there a difference? Is there, for all intents and purposes, any difference? Doesn't that equate with a perpetual guarantee?
Hon. D. Lovick: I don't want to be accused of quibbling, but I think the only difference I'm drawing, essentially, is that there is a difference between a contract and a section 35 constitutionally protected right, which is enunciated in the treaty. That's the distinction I'm drawing.
M. de Jong: I think I recall either the minister or the Attorney referring to the treaty itself as a form of contract, but I can't recall where or when. So perhaps that distinction eludes me. I think I'll let my colleague continue.
J. van Dongen: I just want, then, to turn to section 26. Section 26 reads: "Fisheries under the Harvest Agreement have the same priority as commercial and recreational fisheries in fisheries management decisions made by the Minister."
Now, one thing that I think distinguishes this fishery from the regular commercial fishery or sports fishery is section 23 of the harvest agreement, saying that there's compensation if the Nisga'a harvest is reduced or terminated or if there's an agreement to reduce it or a decision by the federal government to reduce it. Now, if this is a non-treaty fish entitlement or fish allocation -- I think the minister certainly agrees that it is -- and it's the same priority as commercial, in this scenario, if that fishing entitlement is reduced, the Nisga'a receive compensation. Yet the equivalent non-native fishermen in the commercial sector will not necessarily receive compensation for loss of entitlement to fish. I'd like to ask the minister if this is considered fair and equal treatment in a situation where both parties are dealing with non-treaty fish entitlements.
Hon. D. Lovick: Let me emphasize very clearly that there is no connection, no linkage, between what is enunciated in 22(d) -- the termination or the breach of -- and what's happening in 26. Rather, 26 is simply talking about the health of the fishery and decisions that will be made by the ministry accordingly.
J. van Dongen: I concede to the minister that I was probably incorrect in linking those two sections. But again, my comment with respect to section 22, where we talk about compensation if there's a reduction in the fishery
Hon. D. Lovick: That's correct.
J. van Dongen: I think that that stands as another example of the kind of discriminatory aspects of this agreement that bother commercial fishermen in a big way. It isn't just that there's a permanent, constitutionalized native commercial fishery established in this agreement and a precedent set for other agreements. It's also a section like this where, under this harvest agreement, the Nisga'a non-treaty fishery is entitled to compensation and a regular commercial fisherman is not, necessarily, treated the same way.
I want to turn to section 30. "The minister may permit Nisga'a Lisims Government to harvest some or all of the surplus Nass salmon on reaching agreement with Nisga'a Lisims Government in respect of
Hon. D. Lovick: Two points: number one, again, to emphasize that this is not a treaty right; and second, the minister has that discretion now.
J. van Dongen: Well, I have great difficulty with an agreement that reaffirms a discretionary authority. I admit that the minister probably has that authority, but why would the government, claiming to uphold principles of equity, condone an agreement that says: "We're going to set aside this amount of treaty fish; we're going to set aside this amount of fish under the harvest agreement, which has some special terms and conditions; and then we're going to look at a sharing of surplus, but we're going to reaffirm the minister's authority to allocate all of that surplus to the Nisga'a if he so chooses"? Why would we support that kind of potential scenario?
Hon. D. Lovick: The difficulty I have here -- as I'm sure the member is familiar -- is that there is indeed a challenge to the treaty from the Fisheries Survival Coalition. My understanding is that that is precisely the kind of case that they are articulating. I am therefore loath to respond, simply because I may prejudice the case. Believe me, I have an opinion, but as I say, I don't think I ought to engage in that debate here.
J. van Dongen: I should say to the minister that I wasn't aware of what's in the court case. It's interesting that commercial fishermen are challenging that section, if that's what they're challenging.
If we could turn to section 33. "If, in any year, there are no directed harvests in Canadian commercial or recreational fisheries
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agreement, share of surplus or fish due to the Nisga'a for enhancement because of enhancement activity. Is that all contemplated in this section?Hon. D. Lovick: Yes.
J. van Dongen: Does this section contemplate a scenario where Nisga'a would be allowed to take fish under a directed harvest -- in other words, to catch the fish but then not be able to sell them? Does this section allow that scenario to unfold?
[4:30]
Hon. D. Lovick: Yes.J. van Dongen: In such a situation, then, where the Nisga'a are permitted to fish but because others could not fish, they're not permitted to sell, what does the minister expect would happen to those fish? In other words, where would they go?
Hon. D. Lovick: I am advised that we ought to remember that this particular provision occurs only in the low-run years, so the fish would be relatively few in number and therefore they would be eaten -- i.e., used for domestic purposes.
J. van Dongen: But even in a low-run year, could we be assured that they're all used for domestic purposes? It seems to me that it would be a relatively very small volume of fish that is actually used by the Nisga'a themselves. The way I understand this agreement and the rights of the Nisga'a under it, it seems to me that they would still be able to catch some fish, which they would normally sell. It seems to me that they would have some fish in their possession that they would not necessary use themselves.
Hon. D. Lovick: They are not allowed to sell the fish, but if they had a surplus to their own needs, then they could trade and barter those fish.
J. van Dongen: I agree with the minister. In my simplistic reading of the agreement, that would certainly be an option they would have. That points to the concern I raised earlier, which relates to both section 9, the trade and barter section, and section 74. How can we be assured that those fish, once they're traded to another aboriginal band, do not find their way into the general commercial market for fish?
Hon. D. Lovick: That's a matter of monitoring and enforcement, and I'm not sure that one can say much more than that.
J. van Dongen: But does the minister agree that it's a legitimate concern that needs to be addressed, in terms of the policies and the processes that will give rise to implementation of this agreement? Does the minister agree that it's a legitimate concern?
Hon. D. Lovick: I think we're in danger of overstating the concern, simply because the treaty does indeed provide for monitoring and enforcement. I don't think there's any evidence to suggest that we're going to suddenly see a great black market in fish or something in the Nass Valley. I just don't think there's a case there.
J. van Dongen: I asked the question because it's a question that's being asked today by many commercial fishermen in the case of other aboriginal fisheries. The Fraser River is a good example where the delegation of authority by DFO to the native bands themselves, to monitor and regulate, has been proven to be legitimately open to question. I would hope that the minister would ensure that in the implementation of this agreement, those concerns are addressed in a manner that can be defended to other commercial fishermen. I say this as much for the protection of the Nisga'a as for the protection of the views and interests of other commercial fishermen.
I think that any policy or system of implementation in this agreement that does not have the necessary credibility will only foster ongoing conflict, ongoing questioning and ongoing tension between commercial fishermen and Nisga'a fishermen. I hope the minister will bear that in mind in terms of his influence on the implementation process.
Hon. D. Lovick: I appreciate the member sharing those concerns. I would just make this point: I am absolutely convinced that the Nisga'a are as mindful of that vulnerability and that perception as anybody and therefore will be assiduous in ensuring that that kind of thing doesn't unfold.
J. van Dongen: Section 35 talks about the portion of Canadian fish -- chinook, coho and chum salmon -- that can be identified as resulting from Nisga'a enhancement initiatives. It suggests that the Nisga'a entitlement would be in proportion to the amount of money that they put into those enhancements. I'd like to ask the minister again: how can that portion be identified? How, in a practical sense, can that portion of the return to Canadian waters be identified as attributable to Nisga'a enhancement activities?
Hon. D. Lovick: A couple of points. First of all, there are means to identify enhanced fish. If one does a project of some kind with a view to enhancement, there will frequently be identifiers -- tags and so forth. I've seen that done with coho, for instance.
If, as well, the Nisga'a are allowed to fish for those fish that are apparently a result of their enhancement activities, they can only do so on the basis of their allocation in terms of percentages. Anything beyond that can occur only if there is a declared surplus.
J. van Dongen: I'm not sure I follow the minister's answer completely, and I'm not sure I'm going to bother trying. But I appreciate the answer.
My difficulty is that in some types of enhancement activities, it may be possible to identify the fish by tagging or whatever. There may be certain types of enhancement activities of a general nature where it's not possible to identify the fish. Again, my concern is that when you have a clause like this, in theory it should be fine. But in practical reality, is it going to be another source of conflict and debate and discussion, where we will have native and non-native fishermen whose interests are different under this section
Hon. D. Lovick: I disagree with the member. I don't think that this is likely to worsen relationships at all. Nisga'a
[ Page 11365 ]
are sophisticated people, and if they agree to language that says, "We will benefit from enhancement activities that we are part of," they know that the only fish they will be able to get are those that are identifiable as enhanced as a result of their activities. Obviously they have said: "If we can't do that, that's okay, because we will get our percentage of the total allocation in any event, if it's enhanced." Also, they have said again and again -- and I think we all ought to praise them for it -- that their commitment is, above all, to conservation and to making the fishery healthy, vibrant and sustainable. I think this is a perfect illustration of that commitment -- that they have not written into the language that there must be some absolute, ironclad guarantee that they will get their percentage of any fish that might conceivably be linked to their enhancement activity.So I disagree entirely with the member; I think his conclusion is wrong. I think my conclusion, frankly, flows more logically from the case.
M. de Jong: Dealing with these three or four sections, 34 through 37, let me ask a couple of questions that deal with a slightly different issue and what I perceive might be something of an inconsistency -- though not one that occurred inadvertently; I think it is by design. Section 36 deals with surplus salmon. That's a defined term, and we know what that is. If the minister is right, there won't be any problem identifying them, and if my colleague is right, there may some problem. Let's not deal with that for the moment.
What it says is that beyond the allocation set out in this agreement, the Nisga'a will have a right to a share of those surplus salmon consistent with their contribution to the cost of their being created -- that's the best way I can think of to say it -- within the context of how this has all been dealt with. I think I understand that.
Paragraph 35 talks about a different group of fish, and that is fish that are created as a result of enhancement projects, and the manner in which those enhancement projects are approved, as set out in section 34. But there is a percentage laid out there for chinook, coho and chum salmon, and what that tells me is that those are, again, guaranteed entitlements, irrespective of what financial contribution Nisga'a have made to the enhancement project in the first place. Sections 35 and 36, from that perspective, in terms of cost contribution, operate very, very differently.
Hon. D. Lovick: Sections 35 and 36, first of all, are the same fish. I think we need to make that clear. But in 35, I would draw the member's attention to the fact that we are talking about salmon "that can be identified as resulting from approved Nisga'a enhancement initiatives in the Nass Area" being excluded -- approved enhancement activities.
M. de Jong: Let me back up, then. Section 34 talks about enhancement initiatives. Section 35 talks about Nisga'a entitlement to those fish and sets it out in detail; it sets out the percentage of those fish that they are entitled to. Then section 36 incorporates the defined term "surplus salmon." The distinction I'm drawing is that in section 36, that entitlement is based on financial contribution; in section 35 it isn't. So, conceivably, the fish we're talking about in section 35
[4:45]
Hon. D. Lovick: I'm smiling, Mr. Chairman, because the last comment that my colleague, our fish expert, said was: "It's as simple as that." Believe me, it isn't as simple as that.It has to do with the fact of the proportion -- okay? In section 35, the proportions are the same as those spelled out in the treaty entitlements and in the harvest agreement. Those proportions are the same. I'm going to skip ahead to 36. What occurs is that after all the fish have gone through -- with the appropriate escapement and everything -- those that survive, those that are truly surplus, then, the Nisga'a have a claim to, based on their financial contribution. Before that, the numbers are in keeping entirely with the harvesting agreement and the allocation agreement. I hope that's clear.
M. de Jong: Okay, I think I understand the rationale for the assignment of the numbers, of the percentages; that I follow. What I'm not clear on
Hon. D. Lovick: I have an example that I think may help. The Nisga'a will, for example, invest 50 percent of their enhancement dollars into coho, say, because coho is obviously a more endangered species, let's say. According to the allocation, however, they only get 8 percent of the coho. Therefore there is a disproportionate investment on their part for the return they get. Their argument, then, is: "When those fish are surplus, then we ought to be able to get more of other species, as well -- more commensurate with our actual investment." Our conclusion was that it was a fair agreement.
J. van Dongen: The minister, in the last response, talked about coho. It may be an opportune time for me to ask the question: in terms of possible impact of the federal minister's latest allocation framework for Pacific salmon, when he talks about giving priority for chinook and coho to the recreational sector
Hon. D. Lovick: My understanding is that the policy deals with the question of allocating fish only after section 35 rights have indeed been dealt with, and therefore it will have no impact or effect on this treaty and the allocations as spelled out in the treaty.
J. van Dongen: I thank the minister for that answer.
Section 37 reads: "Notwithstanding paragraphs 13, 16, 35 and 36, the Minister and the Nisga'a Lisims Government may
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negotiate agreements in respect of the Nisga'a harvestsHon. D. Lovick: I didn't hear the question. Could you please repeat it?
J. van Dongen: The question was with respect to section 37, which reads that notwithstanding paragraphs 13, 16, 35 and 36, the minister and the Nisga'a government may negotiate agreements in respect of Nisga'a harvests of fish that result from Nisga'a enhancement initiatives. I've paraphrased the section a little bit. But it says that despite these other four sections, the minister and the Nisga'a people can negotiate some different arrangement, in terms of the fish that result from their enhancement activities. I'm asking the minister why this section is in this agreement.
Hon. D. Lovick: This simply contemplates negotiating an agreement whereby we wouldn't do enhancement activity.
J. van Dongen: So in other words, a possible scenario is that if the Nisga'a were contemplating some kind of an enhancement activity, they could make an agreement with the federal minister ahead of time on sockeye, or any other species, and with the provincial minister ahead of time on steelhead. They could make a prior agreement on the amount of fish that they could receive as a result of that enhancement activity. Is that one possible scenario that could be contemplated under this section?
Hon. U. Dosanjh: Yes. But the thing to understand in this is that this is permissive. This allows the agreement to take place; it's not mandatory at all. Nothing is contemplated, in the sense that it's bound to happen. It may happen; it may not happen.
J. van Dongen: Thank you to the Attorney General for that answer. I do understand that, and I hope that the four previous sections are intended to set out a principle that will be honoured in section 37, if that option were exercised. I think it's another example of non-native fishermen, who would not be participating in those discussions, not necessarily having any place in the negotiation. I hope that they will be given sufficient assurance that this section will not be used as a way to divert strictly to Nisga'a fishermen fish that might rightfully apply to all fishermen. I think that commercial fishermen want that assurance: that there not be some abuse, if you will -- that may be a strong word for this situation -- of that section. I ask the Attorney General simply to reaffirm that the principle would follow some attempt to maintain proper proportions between enhancement activities and the amount of fish allocated.
Hon. U. Dosanjh: That would be the intent: proper proportions.
J. van Dongen: If we could just turn our attention now to the section headed "Steelhead," I just want to ask a question with respect to section 39. It says: "The Parties, or any of them, may conduct studies to determine the status, conservation requirements, and
We're talking about conservation here; we're talking about the studies and the scientific work that would form the underpinnings of decisions with respect to conservation of steelhead. What bothers me about this section is the lack of clarity of authority as to whose responsibility it is to do the studies and whatever research is necessary and then to establish what the appropriate escapement level is from a conservation perspective. That's what bothers me about this section -- the lack of clarity of authority.
Hon. U. Dosanjh: This particular section is very clear. What it says is that any of the parties may conduct studies, as indicated. But at the end of the day, the jurisdiction to establish the catch is with the provincial minister.
J. van Dongen: Is there any section within this agreement, then, that reaffirms the provincial authority and responsibility to establish the escapement level -- in other words, the conservation level -- for steelhead?
Hon. U. Dosanjh: For that purpose, one would have to go to the definition of "Minister," and that would clarify that it's the provincial minister who deals with these issues, at the end of the day.
J. van Dongen: If I could just skip ahead to pursue this discussion a little bit further
My initial understanding of that section was that it involved negotiation of the escapement levels, but I see that I was mistaken in that. The escapement levels are really established under section 42. Section 42 does confirm that "the Minister will establish an annual escapement goal for summer-run or winter-run Nass steelhead stocks." I think that's the section I was looking for, hon. Chair and minister -- something to reaffirm that despite the fact that under section 39 the option exists for either of the parties to do studies, it's actually the minister that establishes the escapement levels. I think it's important that that authority be supported by this agreement. So I think that answers my question.
My colleague here has a few questions.
[5:00]
D. Jarvis: Going back up to 42 thereHon. U. Dosanjh: The answer is yes. Conservation is always first.
D. Jarvis: Is there anything in here that I've missed that specifically says that -- that the conservation aspect comes first?
Hon. U. Dosanjh: I understand that it's paragraph 1 of the fisheries chapter that affirms this principle.
J. van Dongen: If we could turn to it, section 43 says: "Any sale of Nass steelhead harvested under this Agreement
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will be in accordance with federal and provincial laws of general application, and any Nisga'a law in respect of sale of fish." I want to take the opportunity to address an issue here that I think, as I recall, shows up in a couple of different places in this agreement. It's here under the steelhead section, but I think the principle applies in other areas, where the intent and the wording of the agreement is that the laws of general application for sale and transport and a whole lot of other things apply.But then there is a provision that authorizes the Nisga'a to make law in respect specifically of the sale of fish. I wonder if the minister could explain why that specific provision is in there. Why is there that exception or that opportunity for the Nisga'a to make law in respect of sale of fish? I think there are other sections in this agreement which show that, you know, there may well be a conflict between the law of general application on the sale of fish and the law that the Nisga'a may pass.
Hon. U. Dosanjh: The hon. member should refer to paragraphs 72 and 73 of the fisheries chapter, this particular chapter. Those two paragraphs confirm that in the event of an inconsistency or a conflict between the provincial and Nisga'a laws, provincial laws will prevail.
J. van Dongen: I thank the minister for pointing out the section, but again I ask the question. I mean, I understand the principle that the Nisga'a law will prevail on sale. But why, on the issue of sale, was this specific provision included? What kind of law could the Nisga'a conceivably pass with respect to the sale of fish that could override the general law governing sale of fish? Like, why is that option in here? Why is it so critical in here?
Hon. U. Dosanjh: I'm sorry -- Nisga'a law with respect to the sale will not override provincial law. If it's in conflict, the provincial law shall prevail. That's what paramountcy means in this particular case.
In that context, if they want to regulate a sale that jibes well with the provincial legislation and doesn't conflict with it or isn't inconsistent with it, so be it. It's their resource within their own territory.
J. van Dongen: We may be skipping ahead, but we might as well stay on the issue while we're on it. Section 71 under the general heading of "Fisheries Management" says: "In the event of an inconsistency or conflict between a Nisga'a law made under paragraphs 69 or 70 and a federal or provincial law, the Nisga'a law will prevail to the extent of the inconsistency
Hon. U. Dosanjh: The hon. member is talking about sale and laws in respect to sale. The very specific section that deals with it is paragraph 72. It says: "Nisga'a Lisims Government may make laws in respect of sale, in accordance with this Agreement, of fish or aquatic plants that are harvested under this Agreement or the Harvest Agreement."
Paragraph 73 then goes on to say: "In the event of a conflict between a law made under paragraph 72 and a federal or provincial law of general application, the federal or provincial law will prevail to the extent of the conflict." So the intention is that if the Nisga'a are making a law that doesn't conflict with us but further promotes the purposes of our legislation and what they're trying to do, there should be no problem. If it conflicts with our law or is inconsistent with it, then it doesn't have any force.
J. van Dongen: I thank the minister for pointing that out. It's interesting that in some cases where the Nisga'a make a law that may be in some conflict
If we could turn to section 55, under the heading "Non-salmon Species and Aquatic Plants," the last sentence in that section is something that I simply do not understand. I'm going to ask the minister to have his fish expert explain it. The Nisga'a fish allocation of each non-salmon species or aquatic plants will be 125 percent of the basic Nisga'a entitlement to that species. I wonder if the minister could explain that for us.
Hon. U. Dosanjh: If I understand correctly, I'm being advised by the experts here that this means that once we go out and do a study and determine what the catch is, we then add 25 percent for population growth for all time to come. So there is that protection built into this formula.
J. van Dongen: So this section comes into play as a basis for negotiating the Nisga'a allocation on some of these non-salmon species. Is that what the Attorney General is saying?
Hon. U. Dosanjh: Perhaps the hon. member could repeat the question -- my apologies.
J. van Dongen: Sometimes I wonder if we should even bother attempting to understand some of these sections, because they're probably
What I understood the Attorney General to say is that if we take the catch in an average year and bump it up by 25 percent -- in other words, 125 percent of an average catch
Hon. U. Dosanjh: In fact, this section is to establish the Nisga'a allocation for non-salmon species.
J. van Dongen: I'm still not clear, then, of the steps that are contemplated, in this agreement, to negotiate the Nisga'a allocation. Could the minister set out what the various steps are to actually arrive at some kind of a base figure for the Nisga'a part of that fishery?
Hon. U. Dosanjh: As I said before, the studies are done, and the catch is established. We add 25 percent to it, and that becomes the allocation. If there is no agreement reached on an allocation, the Nisga'a will receive 25 percent more of these species than they do now.
J. van Dongen: Well, wonder of wonders -- I did understand the minister's last answer, so that's helpful. At least we can say we accomplished it.
Section 58 reads: "As soon as practicable after the effective date, the Nisga'a Nation and Canada or British Columbia,
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for non-salmon speciesHon. U. Dosanjh: There are, of course, paragraphs that deal with the issues around management. But if I'm correct in my interpretation, this section simply and only determines what their treaty rights are to the non-salmon species. This particular section doesn't say how they should be managed.
J. van Dongen: Is the Attorney General saying that any allocation of any of these species listed here -- or possibly other species under this general section of non-salmon species and aquatic plants
[5:15]
Hon. U. Dosanjh: Yes.G. Plant: Is it possible, over time, that these agreements could be renegotiated and the entitlements changed, in which case schedule E would be a constantly evolving and changing part of the agreement?
Hon. U. Dosanjh: The hon. member knows that that's a very general question. If the parties are desirous, at some point, of changing the agreement in any way, shape or form, all three parties can then enter into an understanding and change this at any time.
G. Plant: My question went a little bit beyond, I suppose, the general question of the power to amend. I was looking more at what the parties actually contemplate in respect of these particular entitlements. That is, is it contemplated or expected that they will be negotiated and an agreement reached which, at the time the agreement is reached, is expected to be final, permanent and enduring, or is it contemplated that in fact these agreements may be time-limited and therefore will be reopened?
Hon. U. Dosanjh: The former.
G. Plant: So that when the time comes to complete schedule E
Hon. U. Dosanjh: Correct.
G. Plant: I apologize if this question has already been asked, but are negotiations already underway with respect to the entitlements identified in paragraph 58?
Hon. U. Dosanjh: Negotiations are not underway.
G. Plant: Let me again apologize, in the event that this question has already been asked. The question occurs to me here of whether any inquiry was made on the part of the province with respect to the existence of an aboriginal right to harvest the various species identified in points (a) through (e) of paragraph 58. Or was the approach to this taken by the province more along the lines of, "Well, if the Nisga'a want an entitlement to these species, then we're prepared to sit down and negotiate agreements and put those agreements in the treaty," recognizing, by the way, that one of the overall limits here, of course, is set out in paragraph 52? These, I believe, are domestic purpose agreements.
[W. Hartley in the chair.]
Hon. U. Dosanjh: This is reminiscent of the earlier debate around the general provisions. The answer is the same. The parties looked at different positions, and all of the issues were considered. It was agreed that this is what is appropriate and agreed to amongst the three parties.
G. Plant: I recognize that we pursued the issue in a general way earlier in the debate, but I did want to come back to it here. I don't want to be unfairly disingenuous about this. I recognize that what we see here is the product of a negotiation. I also recognize that each of the parties to the negotiation may have started the negotiation with a different position than that which is represented by the final agreement. I also acknowledge, although I'm not sure I agree with, the province's position as expressed generally throughout this debate: that it doesn't want to replay here the videotape of the negotiations, if you will. I think the Minister of Aboriginal Affairs has, from time to time, said that he thinks that someone may want to write their memoirs and put those issues in their memoirs. They won't be my memoirs; I wasn't there.
But I do think the people of British Columbia do have some right to know, at a minimum, what the position is -- the mandate, if you will -- that the government takes into negotiations on an issue like this. In particular, going into these negotiations, does the province even care about whether or not the aboriginal claimant could in fact make out an aboriginal rights claim to each of the groups of species identified in the five subparagraphs of paragraph 58?
This is an attempt to understand what happened in the context of the Nisga'a negotiation so that we get a bit of a sense of where the province wants to go, or is going to go, in other negotiations. With that context, I guess you could say I'm trying to open the door just a little bit further than it's been opened before. So far our attempts to open the door into these questions have been pretty unsuccessful, but I think the issue is important enough to warrant another attempt.
Hon. U. Dosanjh: I said earlier in the debate, some days ago, that this goes to the very heart of treaty-making. Treaty-making is about each of the parties wanting to give up the least amount to the others. At the end of the day, you arrive at a compromise that may be satisfactory to all of the parties. One engages in treaty-making so that one doesn't have to go through a court-like process of proving and determining what may be, in its pure essence, an aboriginal right or not. That's why the province adopted the treaty-negotiating approach,
[ Page 11369 ]
and that's why we are reluctant to classify any of these rights as aboriginal rights that may have existed prior to the current time.
What we have said is that we have agreed that
G. Plant: You understand that the problem with that approach, hon. Chair -- I'm sure you will understand this, having heard that explanation -- is it doesn't give anybody any guidance as to the basis upon which the negotiations will commence. If the position of the province is, "We don't care whether or not you have any ability to even begin to assert a meritorious aboriginal right in respect of the issue which is currently on the table," then the whole treaty negotiation becomes something like a horse-trading exercise -- an exercise in pure, unprincipled pragmatism. I suspect that's not so. I mean, I suspect that the province
So far, the position of the government is to be entirely uncommunicative on the issue of what principles are at stake here. I suspect that in part it's because of the inadequacy of the questions that I and others are asking, because it seems to me profoundly and fundamentally wrong that we, the public of British Columbia, cannot even have a glimpse into the window of principle that motivates the province's position at the negotiating table.
For example
Let me add one more element to this. I'm actually not at all certain that negotiating a treaty is the same as negotiating a contract to build a bridge or the same as negotiating an international trade agreement. I don't automatically think that just because we're talking about an agreement and talking about a negotiation, we are therefore talking about processes that are inherently without prejudice and involve horse-trading. But I don't get much beyond that. I don't get from the government, in the context of this debate, much beyond: "Well, they asked for this. We went and negotiated. We gave them something else, and that's the end of it." Surely it's more than that.
Hon. U. Dosanjh: I think that I have made our position very clear. We want to be able to negotiate treaties with other first nations. The Sechelt process was under a different mechanism. It was much more open, and this process was started a long time ago, before the province ever became a party, and was negotiated under different circumstances. But I think the principles are the same.
The principle, as I have said as the province's Attorney General, is that I would not want to admit any aboriginal or inherent rights. So you go with a clean slate and look at what's being offered. You then study all of those issues in the context of our history and the circumstances of the first nation that you're dealing with. You satisfy yourself that what you are accepting or offering is appropriate.
Now, if one wants to go beyond that about specific issues and say, "What were the principles? What were you prepared to do? What was the list that came to you?" I wasn't there. Secondly, I think it would be extremely inappropriate for any one of the ministers of the Crown, and particularly the Attorney General, to say, when we are faced with litigation, that we looked at these rights and said that A, B, C, D, E, X, Y and Z were inherent aboriginal rights.
The hon. member has tried in the past
[5:30]
G. Plant: I don't quarrel with the province taking a position that it doesn't admit to what the minister calls inherent rights. That is, the province does not wish to bind itself to an admission, for example, that the Nisga'a have an aboriginal right to harvest halibut, which is the subject matter of paragraph 58(b). What I'm entirely unclear about, though, is whether that question is at all relevant to the province. Nothing that the province has said permits me to conclude that those issues are relevant -- that the province even cares about it -- except this. In the last answer, the minister said something that I think was new to the debate. He said something about "We satisfy ourselves," having regard to issues like the history and the location and so on.Interjection.
G. Plant: If he did, I didn't hear it. The minister says that he had said it before, and perhaps he did. The gist of his answer was something to this effect: "We satisfy ourselves that what is being provided for in the treaty is appropriate." Let's forget the question of whether or not that's a new statement. What is the basis upon which the province satisfies itself that what's in the treaty is appropriate? That's the issue that won't be answered here.
I sense that the minister wants an opportunity to explain, in great detail, what it is the province does.
Hon. U. Dosanjh: With that question and that approach, the hon. member is seeking from the Attorney General an answer that the Attorney General has refused to give directly, and the hon. member is now seeking that answer on a specific issue indirectly. If I were to discuss any of these provisions and say what the discussions were, whether or not somebody
[ Page 11370 ]
said it was an aboriginal right and whether or not we conceded that, then I would be answering indirectly what I have steadfastly refused to answer directly.
G. Plant: I don't agree with what the Attorney General has said, but I want to disagree in a way that is still constructive. I'm taking as a given, for the purpose of this discussion -- although not generally
But it seems to me that the Attorney General would not transgress the line that he does not want to cross if he were to say that the government -- without passing final judgment on these issues of the existence of aboriginal rights to harvest these species on the part of the Nisga'a -- actually considered those questions to be relevant in the course of negotiations. I don't even think we really have that admission, because every time we come close to that admission the Attorney General says: "I don't want to make any admissions, because I don't want to get caught in the trap of having to acknowledge the legitimacy of any claim to any particular aboriginal right by any aboriginal group in British Columbia."
What I can't see yet is why the Attorney General can't at least say: "These questions are relevant to the negotiators." If they're not even relevant to the negotiators, then I think something follows from that in terms of the public's ability to assess the outcome. The public says: "Well, it's $190 million. Why is it $190 million and not $5 billion?" I'm not asking the latter question -- we'll come to that one -- but the more general question.
Hon. U. Dosanjh: I think it's quite clear from my answers over the last many days that I have not commented on the relevance of the kind of issue that the hon. member is raising. If I did comment on that, I would be crossing the line that I have established for myself in view of some of the legal challenges and some of the challenges in terms of having to negotiate treaties with other first nations.
G. Plant: I think, then, that the province's position with respect to this treaty -- and I suspect it will be the same with others -- is nothing more or less than this: "Trust us. We did the best we could, and this is the outcome. You have to assume it's fair." Is it something more than that?
Hon. U. Dosanjh: With the utmost respect, I disagree with my hon. colleague opposite. What we have is a document before us. One does not have to go to the origins of the negotiations 25 years ago to judge whether or not, on its own merit, this is a good, acceptable, satisfactory, fair and just treaty. That's what we're debating.
Interjection.
The Chair: Through the Chair, please, member.
Hon. U. Dosanjh: Anyway, I think it's somewhat
I think it's inappropriate for the hon. member to pose the question about trust in the way he did, because that's not the issue. The issue is that we are here
G. Plant: I'll put to one side the trust issue. I understand the Attorney General's sensitivity to that. On what possible basis are we to assess the fairness of this agreement?
Hon. U. Dosanjh: Without commenting on what's inherent and what's accepted or not accepted, we know that the first nations were here when the Europeans arrived. We know they had a society -- a multilingual, multicultural society -- in British Columbia. Everyone is aware of that history. It's in the context of that history and experience that we judge on its own merits the adequacy of this treaty and the fairness of this treaty.
G. Plant: I suspect that the Attorney General and I disagree on something that's pretty fundamental. I don't mean to be disrespectful. I think this is a real disagreement about something that's relatively important. I don't even begin to get the tools to assess the fairness of this agreement from the kinds of things that the Attorney General has just said. Let me give, by the way, one really logical way of testing the acceptability of this agreement, which I'm sure the Attorney would have listed had he thought of it.
One measure of whether or not this agreement works is the answer to the question: have the Nisga'a accepted it? The Nisga'a will accept this as the basis upon which they wish to translate and modify their undefined aboriginal rights and title. As they want to turn all of that uncertainty into this, then the government could say: "Look, this is the best we could do," or "This is what the Nisga'a will accept." Maybe in that context, understanding the history that the Attorney General refers to is relevant.
But I have to look at this through the eyes of British Columbians who ask questions like: why is it $190 million and not $500 million? Why are there five species here in paragraph 58 and not two, not one or not 20? It seems to me that understanding that aboriginal people have been here for a long, long time, that aboriginal people have undefined rights and title, and that the courts have told us to negotiate
I'm not sure how we get past the point, but it does seem to me that it's an important point. If it is good enough for the government to say, "We have achieved agreement; leave it at that," or, as maybe the Attorney General was saying, "We have achieved agreement; now look at it and judge it for yourself," that's the point at which I get off the train and look and say: "But how are we to know?"
Nothing in my general understanding of the aboriginal history in British Columbia -- and maybe I'll indulge myself in thinking I know a little bit about that history -- helps me get at the question of whether or not this is a fair agreement. It
[ Page 11371 ]
doesn't help me understand why there are five groups of non-salmon species and aquatic plants listed in paragraph 58. All we're really told is that they're there -- that's it. I've reached the point where I have once again lost confidence that we are going to bridge the gap.My fear -- and it's not a matter of trust -- is that there is something fundamentally wrong on the other side of the wall in terms of this dialogue. There's actually -- and I don't mean to be disrespectful -- something unprincipled about the province's approach. I don't want to think that that's the way it happened, but at the moment I can't get behind the minister's answers to get my hands around anything that makes sense to me beyond: "Just look at it; there it is."
Hon. U. Dosanjh: The hon. member's question implies that the only way he will feel that we're principled is if we abdicate our responsibility and essentially concede many of the claims that are being asserted across this province by many of the first nations, in a debate on a document that's the result of 25 years of negotiations. When we went into negotiations, one assumes, the negotiators on behalf of all three parties fought hard to make sure that we gave the least. At the end of the day a satisfactory arrangement was made and an agreement was reached, and it's before us.
The difficulty I have with the hon. member's question is that one must not equate lack of principles with some of the compulsions that are placed on the Attorney General or the ministers of the Crown in terms of dealing with the challenges before the courts as well as challenges in terms of trying to arrive at negotiated treaties. We say -- it's our position, very clearly -- that we admit of no inherent rights in this province. I've said that very clearly.
With that, by agreement, I move the committee rise, report progress and ask leave to sit again.
Motion approved.
[5:45]
The House resumed; the Speaker in the chair.The committee, having reported progress, was granted leave to sit again.
Hon. D. Lovick: With that, I wish all members of the Legislature a happy and healthy weekend, and I move the House do now adjourn.
Hon. D. Lovick moved adjournment of the House.
Motion approved.
The House adjourned at 5:46 p.m.
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