Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

[ Page 11435 ]

The House met at 10:05 a.m.

Prayers.

Orders of the Day

NISGA'A FINAL AGREEMENT ACT
(continued)

On the schedule, chapter 8 (continued).

J. van Dongen: I propose that we move forward to the group of sections dealing with management structure. I'd like to start with section 79, which establishes the joint fisheries management committee. The section says that that committee will have six members, two of each appointed by the Nisga'a nation, Canada and British Columbia.

My first question to the minister is: will these appointments be staff people rather than political appointments?

Hon. G. Wilson: The answer to that is yes. They'll be staff people, one from MELP and one from Fisheries.

J. van Dongen: Can the minister confirm that the people participating in the committee on behalf of Canada would be Department of Fisheries and Oceans staff and that the people participating in the committee on behalf of the Nisga'a nation would also be staff working for the government, as opposed to some form of political appointee?

Hon. G. Wilson: I can't speak on behalf of Canada or the Nisga'a nation, but that's the intention.

J. van Dongen: The committee, as I understand it, would have a coordination role, would have an advisory role and would also have the responsibility and the authority to implement the work of the committee within its respective jurisdictions. Would that be a reasonable summary of the work of that committee and the responsibility of the people on it?

[1010]

J. van Dongen: I think that sort of points to the difficulty that I have. If I can use one example, hon. Chair. . . . If we look at 77, it talks about responsibilities assigned to the committee under the agreement. And 77(b) talks about "arranging for collection and exchange of data required to carry out the provisions of this Chapter." That strikes me as the committee having what I would describe as an implementation role as well as an advisory role. I wonder if the minister could comment on that as simply a specific example.

Hon. G. Wilson: I think it talks about collecting and exchanging data; it doesn't talk about implementation. It's simply to collect and to exchange information. There's nothing there that says anything about implementation.

J. van Dongen: In exploring the role of the committee further, then, I understood the minister to say that the role of the committee is strictly advisory. For example, if we go to section 78, then, when we're talking about in-season adjustments, there is a role there for the minister to give notice to the management committee on in-season adjustments to the annual fishing plan. There is also a role for the Nisga'a government to give notice to the committee on any proposed decisions with respect to methods, timing and location of Nisga'a harvests.

What I understand the minister is saying is that the committee's role is advisory and that the actual implementation of, say, the intent of the fishing plans and the management of the fishery would be done by. . . . Would that be done by staff of DFO, staff of the Nisga'a government and regular staff of the government of British Columbia? I think that's what I'm trying to establish -- that the actual day-to-day management of the fishery will be done by staff of these respective governments and that the committee itself will not have staff. Maybe we could ask the minister to comment on that.

Hon. G. Wilson: There is no anticipation of staff, but I don't want to have the member misled here. The Nisga'a will have a role in the management of their allocation, certainly. But in the final analysis, it will be the federal minister, with respect to all species except steelhead, which will be provincial. So it lies with the minister.

J. van Dongen: That certainly helps clarify for me how the various agencies involved will work together. I think it's important to have that distinction of who's actually delivering, who's actually implementing and who's actually executing the plans. I would characterize the role of the committee, as I understand the minister now, to be an advisory one, with possibly some coordination of the activity on the ground. Certainly it would be my understanding that the Nisga'a nation would also have a staff component, as would the other two governments that in various capacities are involved in the day-to-day delivery on the plan itself.

[1015]

J. van Dongen: To follow through on that, then, there wouldn't be a major cost of operating the joint management committee. Any costs that are incurred would be carried by the respective governments, in terms of the participation of their representatives.

Hon. G. Wilson: I think that's a fair analysis.

J. van Dongen: I want to just turn now to sections 81 and 82, in that same area under "Management Structure." These two sections deal basically with situations where there's difficulty for the parties in reaching agreement in the process of the joint management committee. I guess my concern here is: what is the obligation of the minister to consider the various

[ Page 11436 ]

Hon. G. Wilson: I think that if the member looks to section 91, he'll see that section 91 speaks to the minister's role with respect to an impasse, which is referred to in section 82.

J. van Dongen: What would be the responsibility or the position of the Nisga'a government in terms of considering recommendations of the joint management committee with respect to their involvement in management? Would they have the status, if you will, within the framework of this agreement to do something different than what is recommended by the joint management committee?

Hon. G. Wilson: I'm not quite sure where the member is headed with these questions. If the member's referring to harvesting, that's covered in the agreement. The Nisga'a will be committed under the harvesting plan.

The joint management committee is intended to try to bring three parties together in the interest of proper management of the resource. It's in all three parties' interest to make sure that the very best management strategies are put in place, in order to have that resource expand and for opportunities to exist beyond what the limits are today. These are not competing interests as much as interests that are coming together to work in the best interests of establishing long-term stocks on the Nass. It's not an adversarial situation here. In fact, it will be quite the contrary, I would think.

J. van Dongen: I guess I was just seeking to confirm from the minister that the ultimate decision, where there is a dispute in an area of federal jurisdiction, would lie with the federal minister; and if it's in an area of provincial jurisdiction, it would lie with the provincial minister -- as opposed to the possibility that in the case where there is a dispute. . . . I agree with the minister that the intent of this process is a cooperative one, and for the most part, I'm sure that will happen. But in the event there is a dispute, is there any scenario or any aspect of the management of the fishery where the Nisga'a government could say, "Well, we're going to go ahead and do it this way," as opposed to doing what the federal or provincial minister would like to see happen?

[1020]

J. van Dongen: Hon. Chair, my colleague from Matsqui has a few questions now on the sections between 77 and 82.

M. de Jong: In dealing with the sections, I want to ask the minister. . . . Particularly when I look at section 79 and consider how this is going to work practically, it seems to me that what's really created here is two committees, insofar as there is a committee that will deal with functions with respect to fisheries that are governed by British Columbia and a group of people that will meet when we are dealing with the federal fishery. Do I understand that section correctly? Then the question that would follow from that is: under what circumstances would the committee meet in its entirety?

Hon. G. Wilson: The member is not correct. There are not two committees; there is one committee. Keep in mind that the mixed-stock fisheries include steelhead. Steelhead are provincial. There can only be one committee as a result of mixed-stock fishing, which is the nature of the stocks in the Nass.

M. de Jong: How should I understand section 79, which assigns responsibility within that single committee, where it says that members representing the Nisga'a nation and Canada have jurisdiction over one aspect of this and representatives representing Nisga'a and the province are assigned responsibility over another aspect of this? How do they work together, if that's what the minister is saying happens?

Hon. G. Wilson: I think that the treaty is fairly specific with respect to the stocks and management of those stocks. There are fish -- steelhead is one -- where there is a provincial jurisdiction and others which are federal in jurisdiction. If there is a dispute or an issue that revolves around a federally managed fish, then the province will be in attendance, but the dispute would be resolved between the federal government and Nisga'a. Similarly, if there is one that affects fish that are provincial in jurisdiction, then the province, with Nisga'a, will seek to find ways to resolve that issue. That does not mean that this will be done in the absence of the federal government.

The notion here is for there to be a committee that comes together to try to work as best as possible to find resolution without conflict, and that's the intention here. As I said before, it's not designed to be adversarial and certainly is not designed to try and divide rigidly on lines of jurisdiction.

M. de Jong: I understand that component of it. In fact, far from being adversarial and being preoccupied with the notion of dispute resolution, I thought that the intention here was to engage in a planning process that would preclude those disputes from arising. If that is the case, and using the minister's example dealing with steelhead, I read section 79 to suggest that this being a provincial matter, that planning component would naturally take place in the absence of the federal representatives -- that they wouldn't have a role and that their assignment of responsibility pursuant to section 79 precludes the need for them to participate. Maybe I'm misreading the section, but it does make that distinction.

[1025]

[ Page 11437 ]

M. de Jong: That's helpful, and it suggests to me, then, that the minister and the government contemplate the joint fisheries management committee functioning in a way that requires all three parties to be present at all times whenever discussions are taking place, notwithstanding the fact that the only representatives who might have a decision-making jurisdiction would be representatives from two of the three groups that comprise the committee. Is that a correct statement?

Hon. G. Wilson: Two points. Firstly, it's not a decision-making committee; it provides a recommendation. Secondly, obviously there may be times when one party is unable to attend, but within reason, that is the expectation and the intention.

M. de Jong: I'll deal with this now, because it seems to fit in with what we are talking about, although it might be more appropriate for section 83. In developing these recommendations, what role, if any, do this committee and, more particularly, the Nisga'a have in involving themselves in international negotiations -- recognizing that fish habitat and fish know no boundaries? How, pursuant to these provisions in section 83, does this committee operate with respect to international negotiating teams?

Hon. G. Wilson: I think that's really better debated when we get to sections 115 and 116, which deal specifically with the international component. That's not intended to be covered under what we're dealing with here.

M. de Jong: We can do that then.

There was a question asked earlier about budgets, about cost, and I wonder if I could just flesh that out a little bit more. Is the minister telling the committee today that, from the provincial perspective, giving effect to this particular committee will involve the hiring of no bureaucrats and no additional staff?

Hon. G. Wilson: It's my understanding that this will be staffed by existing personnel. There are no new personnel anticipated.

M. de Jong: What ability, if any, in exercising the mandate that is conferred upon it by sections 77 through 82, does this committee have to impose or assume additional financial obligations on the part of any of the parties? Obviously we're most concerned with the provincial purse. In exercising its planning function, for example, I can understand a desire on the part of these six representatives to gather information and data. Presumably much of that data exists, but they may be in a position where they feel that they require additional data. What jurisdiction do they have, as a committee, to incur those liabilities and therefore pass them on to their respective parties?

[1030]

M. de Jong: So it's not possible, therefore, for the representatives of the province, let us say, to come back to the ministry and say: "In order to exercise our planning function and provide the recommendations, we are seeking an input of X number of dollars to undertake study Y."

Hon. G. Wilson: My experience in government is that I would be surprised if they didn't come forward with some recommendations on what they might like to do. But they have no authority to obligate or to impose. Any undertakings would be undertakings federally or provincially funded through existing services.

M. de Jong: There won't be a budget for this committee. Is that what the minister is saying? I won't, five years from now, see in the Fisheries ministry estimates a line that says $50,000 to the joint fisheries management committee.

Hon. G. Wilson: I would never want to say definitely what some future government might or might not do, but certainly that is not the intention. There is a fiscal framework, largely federal in moneys, which is well set out in this agreement. There is no intention for this to become a line within the existing budgets.

M. de Jong: The last question that I have for the minister on this particular section is a more general one. It refers to a concern that I have heard, and I think the minister has heard it as well. I'm not sure that there's much he can say in response, beyond giving his assurance or explaining what the intention is. But the concern is the potential for duplication, the potential that what will be created here is a body that wants to do the best work it can, that wants to provide recommendations on the basis of sound information, yet is operating in the Nass Valley and doing work that probably -- in this case, if there is to be duplication -- is more likely to occur at the federal level. But that is a concern that people have at a time when government resources are scarce. I think that it's worth at least getting on the record what the government's response to that concern is.

Hon. G. Wilson: I heard the concern, and I share the concern. Because there has been very little done with respect to management on the Nass, it's intended that rather than duplicate this, in fact we'll help to broaden a general management strategy that will reduce duplication, and we'll start to integrate fisheries management so that we have a more effective way of rebuilding stocks and establishing a viable industry. I think the intention is to run counter to the concern and, rather than duplicate, in fact find a way to integrate management and remove those problems that the member refers to.

[1035]

J. van Dongen: I'd now like to move to section 83. Section 83 of the agreement involves agreement between the parties that fisheries management may involve the consideration of issues on a regional or watershed basis. And it sets out a requirement for Canada and British Columbia to consult with the Nisga'a nation, if they propose setting up any other advisory bodies.

As I understand it, the select standing committee of this Legislature that reviewed the agreement-in-principle did advise that their view was that the management of a commercial fishery would be better accomplished on a watershed

[ Page 11438 ]

Hon. G. Wilson: The answer to that question is yes. This is a change to the AIP, and it accommodates what the select standing committee was proposing.

J. van Dongen: So in order to clarify what the minister has just said. . . . He's saying that they added this provision, this section 83, as a result of the comments of the select standing committee.

Hon. G. Wilson: Yes, in part, the select standing committee; in part, the industry and third-party advisory comments. . . . This section was added.

J. van Dongen: I think it needs to be affirmed that it didn't change the fundamental agreement establishing the current management regime that's in this final agreement. It provided a provision that allowed governments to consider other options, but the basic agreement remains in place.

While we're on the select standing committee, there was another recommendation that they had made. There is a need for more independent and public reporting on the state of the fish and fish habitat, with government and stakeholders, including aboriginal people, working together. Could the minister point out where in this agreement the responsibility lies for public reporting and accounting for the overall management of the fishery?

Hon. G. Wilson: The annual fishing plan is a public document. It will be open for public review, and people are certainly able to review it. My understanding is that the recommendation from the select standing committee talked about it on a coastwide basis. I think that there is a general agreement that we need to move further in that direction on a coastwide basis, not necessarily specific to this treaty. I think the member should take comfort that the select standing committee's issues have been addressed. That's a good thing.

J. van Dongen: So in terms of the reporting of the season's results at the end of the season, is the minister saying that there would not be a separate accounting through, say, the Department of Fisheries and Oceans for the results of the fishery in the Nass Valley?

Hon. G. Wilson: There will be. Under schedule B in the appendix, if you look at the overages and underages in the reporting, there is a. . . . The issue that the member is concerned about is taken care of there.

J. van Dongen: I'd now like to move to the group of sections under "Nisga'a Annual Fishing Plans"; this is sections 84 to 88. Section 84 says: "Nisga'a annual fishing plans are plans for the harvest, and if applicable the sale, of fish and aquatic plants under this Agreement and the Harvest Agreement." Under (e), it makes reference to "the terms and conditions for the sale of fish or aquatic plants."

[1040]

Hon. G. Wilson: The answer is yes.

J. van Dongen: Now I'd like to turn to section 88(b): "The Joint Fisheries Management Committee, on a timely basis, will. . .make any appropriate adjustments that are necessary to integrate the Nisga'a annual fishing plans with other fisheries conservation and harvesting plans. . . ." I'm wondering what is meant by "other fisheries conservation and harvesting plans."

Hon. G. Wilson: Well, it's meant that other fisheries on the Nass -- or Skeena stocks if they happen to be mixed -- other fisheries that are taking place within that region. . . .

J. van Dongen: I guess that in part reflects the concern that I've had about other interests possibly not being represented at the table in terms of this process and about the whole complexity that's been added to the management of the fishery in that area by the amount of detail, first of all, and the establishment of separate commercial fisheries under this agreement -- another separate commercial fishery under the harvest agreement and the existing commercial fishery. That's my concern.

It seems to me, too, that when you look at this section. . . . I suppose that in practice it will probably work out. But there's a lot of process, I think, contemplated here. For example, if you look at section 86, the Nisga'a Lisims government will propose their annual fishing plans. They will go to the joint management committee, who will possibly make adjustments and discuss it and send it to the federal minister. The minister will take a look at it; he may make some changes. He will refer it back to the joint management committee for either further discussion or implementation. I simply want to register the concern about the potential amount of process, moving back and forth, under the whole annual fishing plan section.

Hon. G. Wilson: The member opposite continually refers to this as being immensely complex. That's perhaps because the member opposite isn't too familiar with the way fisheries plans are developed or how areas are managed. There is absolutely nothing complex about this; there's nothing that's particularly inconsistent with the way fishery plans are developed. It really isn't that complex, and it's really not that different. It's pretty consistent with the way fishery plans are developed. They're designed largely to put a conservation measure in place and to make sure that there is some kind of reasonable allocation for harvest, to be able to make sure that we have an opportunity to build stocks and increase opportunity for people who are in the industry. It is really about that complex. I don't know where the member opposite thinks this is complex.

[1045]

I think it's important that we don't get caught up in the rhetoric of people outside this process who are trying to

[ Page 11439 ]

J. van Dongen: I can assure the minister that I do try to separate rhetoric from the facts. I think that's an important requirement in this process, and I can assure him that I've tried to do that.

An example, again, of my concern is when we go to section 92, which was the next section that I was going to address. This deals with federal and provincial laws of general application. The section reads:

"92. In order to:

"a. avoid duplication of requirements between a Nisga'a annual fishing plan and federal and provincial laws of general application; and

"b. otherwise facilitate the management of Nisga'a fisheries

"if there is an inconsistency between a Nisga'a annual fishing plan and a federal or provincial law of general application, the Nisga'a annual fishing plan prevails to the extent of the inconsistency."

Hon. G. Wilson: Let me offer this to the member. The purpose of this section is to avoid the double regulation of Nisga'a fisheries. It's to actually get away from exactly what the member is saying he is concerned about. It's to take care of that. The Nisga'a annual fishing plan is approved by the minister; so in the final approval it's on the minister. The minister may, if you look at section 90(a), "approve, or vary and approve, the Nisga'a annual fishing plans recommended by the Joint Fisheries Management Committee. . . ."

What this is simply saying is that you're not going to have an approved plan that is then going to be challenged on the laws of general application -- because some other interest may deem that somehow their interests are concerned -- and therefore provide double regulation on the fishery. It streamlines the process, it gives an advisory body authority to provide advice and scientific evidence with respect to what the fishery should be, and it establishes a plan that is formalized by the federal minister, where applicable, or the provincial minister, in the case of steelhead.

That's it. There's nothing more complicated than that. It just says that after that plan is approved by the minister, you can't have a second set of laws that come in to try to be contradictory or somehow regulate its authority. It's just not that complex.

J. van Dongen: I thank the minister for his answer. If we look, then, at section 90(a), it requires the minister, after he's considered the recommendations, to either approve or vary or whatever, and then it requires the minister to provide written reasons for varying the Nisga'a annual fishing plans. What was the purpose of including the provision of having the minister provide written reasons? It seems to me that the minister makes lots of decisions today for which he does not necessarily provide written reasons. Is this intended to provide some opportunity for appeal of the minister's decision, or further discussion?

[1050]

M. de Jong: Maybe the issue that my colleague has raised can be better resolved by asking this question: when do we have a Nisga'a fishing plan? That would answer, pursuant to the provisions in this treaty, what is subject to challenge. It is a defined term. And it's unclear to me whether we have a Nisga'a fishing plan when Nisga'a Lisims government submits its Nisga'a fishing plan or whether that defined term isn't properly applied until the minister has signed off. I think it's very much unclear, from the provisions we're dealing with, as to when we actually have a Nisga'a fishing plan.

Hon. G. Wilson: Well, in the definition it says that the plan is there when approved as per the regulation or requirement of the fisheries chapter, which means when the minister has signed the plan.

M. de Jong: All right. Well, that's helpful. The term is also used with respect to section 86 of the provisions we're dealing with. Can I ask, if that is the case. . . ? The minister alluded to one of the issues that I think is central here, and that is the whole notion of challenges from third parties and how these provisions operate to take account of those challenges. Is it the minister's view, therefore, that by virtue of section 92, the only kind of challenge that could go forward, following the establishment of a Nisga'a fishing plan that the minister has signed off on, would be a challenge that said that the plan is inconsistent with the treaty allocation? Is that a challenge that could go forward?

Hon. G. Wilson: Well, I'm not sure I understand the question. The whole purpose of establishing a fishery plan is to make sure that there is proper accommodation, with respect to both the entitlement that is provided for in the treaty as well as the conservation issue, and to make sure that there is a proper and consistent management strategy. My assumption is -- and it's only an assumption, because it's a federal matter if it's on federal fisheries -- that the minister won't sign off that plan until the minister is confident that this has been accomplished. So I'm really not sure what else the member is after here.

M. de Jong: Well, the minister explains section 92 in a way that I think I understand, by saying that by the time we

[ Page 11440 ]

[1055]

Hon. G. Wilson: I think that what the member's concerns are. . . . I don't think the member should be as concerned as he might want to be, for several reasons. First of all, with respect to the plan, the minister will assign the plan. The allocations are set out. The formula by which the minister will assign that plan is set out in this treaty.

Schedule B in the appendix talks about the underages and overages on each year. If there is a concern that somehow the catch is greater than in, or somehow violates the text of, this agreement, there are provisions for the minister with respect to the establishment of that plan, to take into account what those concerns may be. I would think that this is a sound management system, because it does provide a formula for checks and balances. It also provides the minister some direct guidelines with respect to the assignment of the annual allowable catch.

I don't think that there are anywhere near as many potential conflicts in this management structure as exist under the current, more arbitrary decision taken on the balance of the fishery in British Columbia by a federal minister, who is able to pretty much do as he wants.

G. Plant: The question that I have has to do with the role of harvest agreements in all of this. I've been listening to a debate that describes a management process. The process is articulated in the provisions that have been the subject of discussion for the past little while. Perhaps as a starting point, to make sure that I'm not missing something that would render what I'm going to do unnecessary, am I right that this planning and management process is all intended to be part of the treaty -- that is, it's intended to enjoy section 35 protection? Is that a fair summary?

Hon. U. Dosanjh: With respect to the process that's enshrined in the treaty, the answer is yes.

G. Plant: To move from that level of generality to something slightly more specific, for example, paragraph 84 talks about annual fishing plans. Then there are provisions about what those plans are to include. Then there are provisions about ministerial decision-making power and the role of the joint fisheries management committee and so on. I understand it, then -- to understand sort of the legal mechanism here -- that this is essentially a constitutionalized process for administering and managing the implementation of Nisga'a fish entitlements, which among other things specifically means that from the moment of implementation forward, for as long as the treaty shall last, until it's amended, every year there will be this thing called the Nisga'a annual fishing plan. It's something more than mere policy; it's more than ordinary legislation. This process is intended to be caught or to be under the umbrella of section 35 in the constitution. Is that still correct?

Hon. U. Dosanjh: Yes.

G. Plant: In that context, then, I want to understand a little bit about the role of the harvest agreements, because there are some Nisga'a fish entitlements that are expressly intended to be treaty entitlements. They are expressly intended to enjoy the protection of section 35 of the Constitution Act. And then there is another set of entitlements which would be under the umbrella, I guess, of a thing called the harvest agreement, which is expressly not part of the Nisga'a final agreement and which is not intended to be a treaty or a land claims agreement or to recognize or affirm aboriginal treaty rights.

[1100]

Hon. U. Dosanjh: Correct.

G. Plant: In that context, I have to say that the interrelationship between the two sets of entitlements in terms of the way the document sets out the processes, including the annual fishing plans, raises for me a concern that the entitlements of the harvest agreement won't be effective. . . . Well, first of all, the whole idea of a harvest agreement, let alone the specific entitlements in a particular harvest agreement, will, essentially, be constitutionally protected; that is, ultimately the things which are intended to be part of the harvest agreement and are therefore intended to be outside section 35 may get there through the back door. Now, we're not going to have a legal debate here, but I want to make sure that I understand the provincial government's position on that issue.

Let's examine for a moment that problem in the context of paragraph 90. The minister, on a timely basis, has a constitutional obligation to approve or vary and approve a Nisga'a annual fishing plan, but that approved annual fishing plan and the approval or rejection of other recommendations has to be consistent with this agreement and the harvest agreement. That's exactly how paragraph 90 works. So it occurs to me, when you look at section 90, that the minister is going to be subject to a perpetual constitutional fetter on his powers in relation to the harvest agreement, and it seems to me that that's exactly the objective which the chapter is intending to avoid.

So I put that proposition to the minister and invite him to explain to me how it is that the reference to the harvest agreement in paragraph 90 -- this is just one example -- doesn't bring in all this constitutional stuff.

Hon. U. Dosanjh: I disagree with the interpretation placed upon it by the hon. member.

G. Plant: So it's the view of the government that notwithstanding the fact that the harvest agreement is inseparably

[ Page 11441 ]

Hon. U. Dosanjh: I've already expressed the view of the government on this issue. This matter is also perhaps the subject of a court action through the Fisheries Survival Coalition, and directly or indirectly some of these issues may be canvassed.

I see the member expressing disappointment at my answer, but the fact is that there are many issues that may be before the courts. I have expressed an opinion on behalf of the government, and that's the government's opinion. Your opinion differs from that, and I'm respectful of that. I believe that clarifies the matter.

[1105]

I sit and I listen to the debate that goes on. It does occasionally cross my mind that we are, in this context, again talking about the constitution. We're talking about a management structure that really doesn't yet exist -- although it may, in broad outline, be similar to management processes around the fishery that currently exist. We're going to put them in a constitution where essentially, among other things, we're ensuring that so long as there is this agreement, there will be an annual fishing plan, and there will be Nisga'a fisheries operational guidelines. We are putting in place a management structure around the fishery which will survive our determination, as a federal or a provincial government, that this whole approach to management is wrong. It may look like the right approach today, but it's sure process-heavy.

That's really just sort of a digression from the main point, which is that in this particular case, the process does seem to interweave these two sets of fisheries entitlements. I understand the objective of the government in keeping those two processes separate, but surely the Attorney General can do more, in terms of addressing that issue, than simply say: "Well, I disagree and that's it." What is wrong with . . . ? How is the answer to the question that I've asked so clear? What is it about the language? What is it about the way that this works that allows the minister to state with confidence that the harvest agreement -- the whole notion of a separate regime for fisheries outside the treaty -- isn't going to get wrapped up in everything else, particularly given the provisions of paragraph 90?

Hon. U. Dosanjh: I think we've had this debate in general terms all the way through, with respect to whether or not we are constitutionalizing something or other, and I beg to differ with the hon. member with respect to this. I don't believe that treaties are part of the constitution of the country. The definition of the constitution of the country doesn't mention treaties at all. There are treaty rights that are referred to in the constitution. We've had scholars' opinions, which we've made public, that have indicated that this treaty does not amend the constitution of the country. That's a debate that we've had, and I don't want to have that debate over and over again on particular clauses. We differ from the hon. member. I've expressed the limitation that is placed upon the answers or the details that I can give. Other than to simply say that we disagree with the member's interpretation. . . . This matter is before the courts, directly or indirectly, and I will leave my answer at that.

[1110]

Hon. G. Wilson: Only as are prescribed under the regular duties of a conservation officer of the province.

M. de Jong: Again, some of this relates to speculation about what might come to pass. But if, for example, the fishing plan called for stepped-up enforcement in the Nass area, presumably that would be a cost above and beyond what government has presently budgeted for. Or am I missing the point about the recommendations or the details that could be included in the plan and how the parties might share the cost associated with implementing those details? I'm thinking specifically of monitoring, enforcement and stock assessment.

Hon. G. Wilson: I suppose one could contemplate that there may be proposals for, you know, enhancement of enforcement or conservation or whatever. I mean, a number of new initiatives could be proposed in the future, and I'm certainly not clairvoyant enough to be able to see what they all are. But it's not intended to incur those costs. . . . If those costs are to be incurred, it will only be after a decision taken by the appropriate minister.

M. de Jong: So in dealing with the provincial component of this, then, additional costs could only accrue to the provincial Crown if the Nisga'a annual fishing plan was signed off by the provincial minister and there was a deliberate decision on the part of the Crown, in right of the province of B.C., to assume those costs. Is that what I'm hearing from the minister?

Hon. G. Wilson: As a general practice, I think that's true.

M. de Jong: I don't want to belabour the point, but one of the jobs we have as part of this debate is to try and ascertain how some of those hidden costs -- if they are hidden now --

[ Page 11442 ]

My final stab at this, then. It's possible that the Nisga'a annual fishing plan, as it is developed through these processes, will have a cost component. Would it include, as part of the plan, an allocation of how those costs are going to be shared?

Hon. G. Wilson: Right now the cost is zero. If it's tenfold of today's costs, it still would be zero, so I don't think you have to worry too much about that.

I suppose what the member is proposing could happen. The plan could spell out some kind of new arrangement. I think where the people of British Columbia and certainly the government -- whatever future government may be in place -- can take comfort is that nothing in this language obligates the Crown without the approval of the appropriate minister; any decision to incur those costs will be the decision of the minister of the day.

[1115]

My question to the minister is: is this opportunity, set out in this agreement, any different than the opportunity that would be available to any other, say, industry group within the fishing sector to make similar arrangements with the various governments? It seems to me that that possibility exists. There are some situations where it's currently happening. Is this section intended to implement anything different than that?

Hon. G. Wilson: I'm not quite sure what the member is driving at. There are, with respect to sable and halibut, some provisions where delegation occurs now. I don't think that it's generally intended that this would be a different approach. I hope that's helpful.

J. van Dongen: I guess I was just seeking to confirm that this right would exist, even today, for the Nisga'a nation or any native band to negotiate something with the federal government in terms of an enforcement -- being involved in enforcement themselves as opposed to doing it through the Department of Fisheries and Oceans.

Hon. G. Wilson: It is a permissive clause, not a right. So to that extent, the member is correct.

J. van Dongen: The reason I raise it is because there are concerns about some of the arrangements that have been made about the outcomes and results. I'm wondering if the minister can confirm: if such arrangements are made, who is ultimately responsible for the ultimate results of the enforcement processes?

Hon. G. Wilson: I think that would depend on the arrangement that's made. Ultimately, obviously the authority and rule of law rests with the Crown.

J. van Dongen: So whether it's the federal minister or the provincial minister delegating enforcement authority to, say, one of the other agencies involved, the authority of that particular minister and his responsibility would still be intact. What I'm asking is. . . . He could not delegate away his ultimate responsibility for the enforcement of the laws, with respect to the management and harvest of fish.

Hon. G. Wilson: That's correct.

J. van Dongen: With respect to section 95, my question to the minister is: is this section intended to cross authorities such as is now the case between the federal Department of Fisheries and Oceans conservation officers and the Ministry of Environment conservation officers? Currently, as I understand it -- and I don't know the mechanism by which this is accomplished -- provincial conservation officers have authority to act under the federal Fisheries Act, and as I understand it, the Department of Fisheries and Oceans conservation officers have the authority to enforce provincial statutes. I'd just like to ask the minister: is this section 95 intended to extend the arrangement, either in whole or in part, to involve conservation officers that may work for the Nisga'a government?

[1120]

J. van Dongen: I guess part of my question also is: is it possible that Nisga'a conservation officers or conservation officers working for the Nisga'a government could be delegated the authority by the provincial minister to enforce provincial laws or could be delegated the authority by the federal minister to enforce federal laws?

Hon. G. Wilson: That's what section 93 is about. If they're delegated and/or made conservation officers, then the answer to your question would be yes.

J. van Dongen: I wanted to raise this and confirm it, because certainly in my experience in observing the enforcement of various statutes -- particularly the federal Fisheries Act, based on our experience with our current arrangement -- it becomes very, very difficult, in my view, to track accountability and responsibility. I would be really concerned about the amount of confusion that can be created by such arrangements.

I hope the minister takes this seriously, because the whole shared responsibility between the federal agency and the provincial agency as it currently exists, in my experience, has been the source of great difficulty for people who are on the receiving end of enforcement measures taken by these various agencies. Very often there are conservation officers working for the provincial government and people working for the federal government involved in the same issue, and it becomes awfully difficult, in terms of the actual implementation. I wonder if the minister could comment on that.

Hon. G. Wilson: I note the member's concern, and I share some aspects of concern around that question, to the extent of this treaty. Up until now, there has been limited conservation enforcement in the Nass. So this, in fact, provides a positive. . . . It tends to move toward correcting

[ Page 11443 ]

J. van Dongen: Certainly the section gives flexibility, and it's probably positive from that point of view. But I hope, in acting on the section, that responsibilities are clearly and specifically delegated so that we don't put ourselves in the situation where we potentially have three different conservation officers from three different agencies involved in one situation.

I heard recently that within the provincial Ministry of Environment there is a review being done on whether or not they should be involved in enforcement, and there may be some various reasons for that. But if we can clean up this area, at least in how we delegate and who we delegate to within a certain area, I think there's an opportunity to improve on the current situation. The flexibility is there. It's just important that it is used in the right way and that we don't have a situation where we've got three people involved in one issue.

Hon. G. Wilson: The member makes a very valid point, and I'm sure that the member has some good ideas on that. I'd be anxious to work with him on it, to make sure that some of the concerns that he expresses are dealt with. I think that this language is permissive, and I think it will provide the flexibility that the member alludes to. But any ideas that the member has with respect to how this might work better would be anxiously heard here.

[1125]

Hon. G. Wilson: I'd like to get back to the member on that. It's possible, but I don't want to give you a definitive answer without being absolutely correct. So I'll have staff check, and I'll make sure that you get that information.

M. de Jong: Just to state the obvious, I've characterized them as section 93 agreements -- agreements of the sort that are contemplated by section 93 -- and would be particularly interested to know the delegative aspects of it. And can I just ask this as well. The section contemplates delegation from the Nisga'a to the province but also delegation from the province to the Nisga'a. Am I correct in that respect?

Hon. G. Wilson: Yes, you're correct.

J. van Dongen: If we could move now to section 96. Section 96 deals with the establishment of the Lisims Fisheries Conservation Trust. Section 96 says that this trust will be registered as a charity for the purposes of the Income Tax Act. This strikes me as somewhat unique, and I wonder if the minister could explain the rationale for establishing the trust as a charity under the Income Tax Act.

Hon. U. Dosanjh: This is obviously an arrangement between the federal government and the Nisga'a. British Columbia is not a party to this particular arrangement. And the rationale would be better given by the federal government with respect to the trust.

J. van Dongen: Well, given the fact that the trust is being set up as a charity, I'm wondering why British Columbia is not involved as a partner. I mean, I agree with the Attorney General that the way the agreement reads, it's simply between Canada and the Nisga'a. But why is British Columbia not involved in that? It seems to me that if individuals within Canada and within British Columbia make a charitable donation to the trust, that charitable donation has the effect of impacting tax revenue to British Columbia, if my understanding of charitable donations under the tax law is correct. So I'm wondering why B.C. is not involved.

Hon. U. Dosanjh: Well, if one used that logic, there'd be lots of organizations that we would have the veto on as to whether or not they should have charitable status under the Income Tax Act. That's a federal responsibility, and the federal government decides those issues. That's why British Columbia isn't a party to this. The federal government decides who has charity status under the Income Tax Act.

J. van Dongen: But the trust that's being set up does have significant involvement and responsibilities, authorities, in the whole management of the fisheries on the Nass River. You know, if you look at section 99, it talks about the objects of the trust: to promote conservation and protection of Nass area fish species. That, I would presume, would include steelhead, which is a provincial responsibility. It talks about facilitating sustainable management and promoting and supporting Nisga'a participation in the stewardship of the Nass area fisheries.

[1130]

Hon. U. Dosanjh: I don't know whether this is the first trust of its kind. I'm sure there are other trusts across the country that have charitable status. Section 110 very clearly indicates that the operation of this conservation trust will not affect the responsibilities of Canada under federal legislation or the obligations of Canada or the Nisga'a under this agreement. That's the point I want to make. Whatever activities this trust engages in, which are good activities, the ultimate result and the activities have to be consistent with this agreement. We applaud this; we're happy about this. We're not unhappy. We're just not party to it.

J. van Dongen: But wouldn't it be better if British Columbia had been involved? It seems to me that the kind of activities that. . . . I can see that we're not involved. But does the minister not agree that it might have been preferable? Through the whole agreement, I think, we have a fair effort being made to have a consultative process that involves the

[ Page 11444 ]

Hon. G. Wilson: The member opposite makes an interesting point. The way that this trust is established, the federal government put in $10 million, and the Nisga'a put in $3 million. Perhaps the member can tell us: how much money did he anticipate that the province would put into this trust if we were to participate? Maybe he has a figure in mind.

J. van Dongen: Well, certainly if British Columbia was involved, they'd have to participate in the establishment of the trust. I submit that British Columbia is participating anyway, because anytime that there's a charitable donation made to the trust in the future, British Columbia will continue to pay into it and not have any involvement in the work of the trust.

Maybe I could ask this question, then. I know that the provincial fisheries renewal program has attempted to allocate funds on a watershed basis. Would the province and Fisheries Renewal channel any funds going into the Nass Valley through this trust, in terms of getting the dollars to the ground?

Hon. G. Wilson: I think the answer is no. It would be unlikely that we would do that through the trust.

[1135]

Hon. U. Dosanjh: From the advice I'm receiving here from the officials, I don't see anything that prevents that from happening.

G. Plant: Starting from the point that there's lots of room for improvement in how the Nass River fishery and other coastal fisheries in British Columbia are managed and that conservation efforts that work are to be applauded rather than criticized, the question that occurs to me is whether, in effect, the Lisims Fisheries Conservation Trust can become the vehicle through which Nisga'a self-government, in respect of their fisheries powers, will essentially be funded, so that it becomes a sort of separate, free-standing component, if you will, of Nisga'a government. The Nisga'a government has the power to make certain laws in relation to fisheries. Of course, when we get to chapter 11 and to the fiscal financing arrangements, we'll look at the relationship between Nisga'a government powers and the financing obligations of government in respect of the exercise of those powers. It seems that the agreement has carved out this special trust but that the terms under which it's given life here essentially allow the trust to be the vehicle through which the Nisga'a will fund their exercise of self-government, including conservation, hopefully, of the fisheries. Now, is that an over-reading of the agreement, or is that a fairly correct statement?

Hon. G. Wilson: It's Canada and the Nisga'a together, and the trust is responsible to the trustees. I'm not sure where the member is going with this.

G. Plant: It may simply have been the inelegance of my expression of the question. The trust does things. There are trustees, and clearly the Nisga'a are contributing financially, as is Canada. I am looking at what the trust has the power to do. It occurs to me that it could be said that the trust has the power, essentially, to fund the administration and implementation of Nisga'a self-government in respect of the fisheries. Whether the trust chooses to do that will, presumably, be a matter for the trustees, and that's going to happen in the fullness of time. But I'm interested in examining the capacity and powers of the trust and in testing their limits. It occurs to me that the trust could become the vehicle for, as I said earlier, the financing and administration of Nisga'a self-government in respect of the fisheries. An example would be hiring Nisga'a fisheries conservation officers, which was the example that we started with a few moments ago. I've tried to clarify the question or to deal with what the minister raised as a confusion, I guess, a minute ago, and I'm wondering if I've done that -- whether my characterization nonetheless stands as correct or wrong.

[1140]

G. Plant: If I may make certain that there isn't any unnecessary potential for confusion arising out of what the Attorney General has just said, I wouldn't, for example, presume that. . . . I didn't intend to suggest that the trust would make the laws in relation to a fishery. It's the administration or enforcement or implementation that was the subject of my interest.

Having said that, is the Attorney General's answer the same? Clearly the trust is not going to be making the laws; the Nisga'a government is going to make laws. But when the Nisga'a government makes laws, there may be officials required to enforce those laws. There may be officials required to do the assessment work, which is clearly contemplated in paragraph 101 -- that kind of stuff. It just seems to me that it's not an unreasonable stretch to say that ultimately this trust could well become the vehicle through which, essentially, self-government in respect of the fishery for the Nisga'a is administered. But that may not be a fair statement.

Hon. U. Dosanjh: Hon. Chair, the hon. member and I are on the same songsheet here but using different words. I think that it could become a major instrument for the objectives that are set out for it -- for the accomplishment of those objectives. Obviously, the Nisga'a government could rely on it, of its own

[ Page 11445 ]

J. van Dongen: I just have one further question on the issue of the trust, particularly with respect to section 99. It talks about the objects of the trust being involved in conservation and sustainable management. Section (c) in particular makes reference to the phrase "for the benefit of all Canadians." When I look at the objects of the trust and the participation by the Nisga'a in the trust, I wonder if the minister could confirm whether or not the activity of the trust could qualify as an enhancement activity which would create additional fish for the Nisga'a to acquire under the section that deals with that, section 34. Section 34 says that if the Nisga'a are involved in enhancement activities that create additional salmon, they would have an opportunity to negotiate with the minister for a share of those salmon, to the extent of their involvement. I'm wondering how the trust and the activities of the trust would be considered in light of section 34.

[1145]

J. van Dongen: When I look at it, I think that it's going to be a fairly difficult thing to determine -- you know, to make the distinction between what is considered Nisga'a enhancement activity and what is not. But we'll leave that to the minister.

If we go to sections 111 and 112, this is the provision dealing with Nisga'a participation in the general commercial fishery. I think there's a lot of things that can be said about that, and some of them have been said already. I think that the harvest agreement is in effect a commercial fishery, but it would have been better included under this section. On section 112, I was going to ask the minister, on the issue of the provision of information to assist the Nisga'a in acquiring fishing licences, boats, etc., set out in that section: is that not information that is generally available to all commercial fishermen?

Hon. G. Wilson: Yes.

J. van Dongen: I just have a couple of questions with respect to the harvest agreement, if we could. . . .

I think the member for Richmond-Steveston has a few questions.

G. Plant: I thank my colleague.

I just want to understand the relationship between paragraph 111 and paragraph 113. We're talking about funding being provided to the Nisga'a' nation for certain purposes. The way it's expressed in paragraph 111 is interesting. It talks about enabling the Nisga'a nation "to increase its capacity, in the form of commercial licences, or vessels and commercial licences, to participate in the general commercial fishery in British Columbia." I don't understand why that wasn't put more clearly -- that is, to say: ". . .to enable the Nisga'a nation to purchase or acquire commercial licences or vessels." I understand, looking at paragraph 113, that $3 million of this money could be used "for other fisheries related activities," whatever that may mean. But, really, of the $11.5 million, other than the $3 million that could be used for other fisheries-related activities -- if there are indeed on the face of the Earth fisheries-related activities other than the many that we've talked about over the past little while. . . . The point of the $8 million which is left over is to allow the Nisga'a nation to acquire commercial licences, or vessels and commercial licences. That's what it's about, isn't it?

Hon. G. Wilson: I guess, for three parts to the question, three answers. It provides an economic opportunity for Nisga'a outside of their normal salmon fishery -- halibut and so on. Secondly, I don't know if the member has ever taken time to go up to the Nass, but he would know if he had been there that there is a fish wheel technology that's very much developed and very active on the Nass River -- very productive. And thirdly, it provides an economic opportunity for new fisheries technologies as they evolve, which will benefit not only the Nisga'a but all coastal British Columbians who are attempting to find a better way to manage the fishery.

[1150]

Hon. G. Wilson: Section 113 speaks to the fish-wheel technology, and section 111 talks about an economic opportunity for the purchase of vessels and licences. That's the clarification.

J. van Dongen: I wonder if the member for Matsqui had any questions on the international arrangements.

M. de Jong: Dealing with sections 115 and 116 -- particularly 115, which contemplates that consultative process taking place. . . . Is that occurring now? If it is, in what particular format?

Hon. G. Wilson: I wonder if the member might repeat the question. We were consulting on this.

M. de Jong: The section contemplates consultation -- admittedly, between Canada and the Nisga'a nation -- with respect to formulating international positions. I know that British Columbia has a role at that particular table. Is that consultation involving the Nisga'a nation taking place presently? If so, how?

[ Page 11446 ]

M. de Jong: I wonder if, as we consider the implications of treaties that. . . . We spent a lot of time earlier in the debate talking about the obligation to consult and how that will impact on the ability of government to respond to situations and take positions on matters that are the subject of international negotiations. I would like to get a better understanding of how Canada. . . . I acknowledge that this is a federal matter, and let me preface my remarks. . . . We are quick to be, and in the past have properly been, very critical of how the federal government represents the province's interests. I think the Nisga'a have been skeptical at times about how Canada has represented Nisga'a interests insofar as these negotiations are concerned. How should I, as a result of this section, feel more confident that that will improve in the future? Or should I be?

Hon. G. Wilson: I share the concern of the member opposite about trying to sort out how Canada comes up with its numbers from time to time. What this does is provide a legal obligation now for Canada to consult with the Nisga'a with respect to Nass stocks. That in itself, I think, provides some opportunity to make sure that the numbers and allocations that are in any final treaty that would be signed internationally would accurately reflect anticipated stock returns. As the member opposite may know, there has been considerable speculation that in the past, the numbers that Canada has used have not been particularly favourable to our fishery here.

[1155]

Hon. G. Wilson: Well, it's a treaty obligation that Canada has. I wouldn't use the term "fetter" as much as. . .it provides an opportunity.

M. de Jong: I think we're back to where we were with the Attorney General, and I'm not sure that much is going to be accomplished by pursuing that.

I note the hour and move that the committee rise, report progress and seek leave to sit again.

Motion approved.

The House resumed; W. Hartley in the chair.

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

Hon. D. Streifel moved adjournment of the House.

Motion approved.

The House adjourned at 11:59 a.m.

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