1998/99 Legislative Session: 3rd Session, 36th Parliament
HANSARD
(Hansard)
Morning
Volume 13, Number 25
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The House met at 10:04 a.m.
Prayers.
B. Barisoff: I rise today to introduce 27 grades 9 to 11 students from Kings Langley School in England. They're visiting Southern Okanagan Secondary School in my riding, and they're accompanied by their teachers: Mr. Hall, Ms. Arnold and David Norman. Could the House please make them welcome.
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NISGA'A FINAL AGREEMENT ACT
(continued)
On the schedule, chapter 5 (continued).
G. Abbott: I think paragraph 55 was the last paragraph we were discussing when we left. I've certainly completed my questions on that, and I think my colleagues have as well. I think paragraph 56 is straightforward, and so I want to move on to the section dealing with "Forest Fires and Forest Health."
I'll begin by providing a summary of my reading of, in essence, what the paragraphs between 57 and, I guess, 60 have to say. The minister can confirm, for brevity, whether that is the case or whether there are some wrinkles with respect to that that the House should be aware of.
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Paragraph 57 talks about the transition period and expresses the notion that British Columbia is responsible for fire control and suppression during that period, but under section 58, Canada will pay the costs of that suppression should it occur on Nisga'a lands. After the transition period British Columbia remains responsible for the control and suppression of forest fires, but again, after the transition period the Nisga'a will pay the costs of that control and suppression, as laid out in section 61. Is that a fair summary of what occurs with respect to forest fires, or are there additional wrinkles which we ought to be aware of?Hon. D. Zirnhelt: There is one correction, and that is that Canada will remain responsible for paying for former reserve lands. British Columbia will be responsible for paying for and firefighting on what were formerly provincial Crown lands. The reason it's there is because we wanted access for British Columbians to Nisga'a lands, and as a result, we're prepared to pay the cost of firefighting associated with that.
G. Abbott: Just to follow up on that point, then, the issue of access is important to the provincial Crown. Therefore they are prepared to carry the cost of control and suppression of forest fires during the transition period. That's clear from section 57. Has the province or the ministry estimated the cost of that function during the transition period? Obviously, as we know so well from our experience with forest fires in 1998, the costs of forest fires can vary widely -- or wildly; both, I suppose -- from year to year. Has the province made an estimate, based on the experience of the past ten years on those lands, as to what the cost for the transition period would be to the provincial Crown?
Hon. D. Zirnhelt: We know that the average cost of direct fires, by history, has been $5,700 on Nisga'a lands. Then there's a preparedness cost of $22,000 as well. So the sum here is
G. Abbott: I presume that the difference between those two figures -- that is, the figure for the transition period and the figure for the post-transition period -- is based on an estimate of those obligations that reside with the Nisga'a nation, as set out in paragraph 61. Is that correct?
Hon. D. Zirnhelt: The answer is yes, and it is the difference
G. Abbott: Have the estimated annual costs for both the transition period and the post-transition period been included in the estimate of costs of this agreement, which has been put forward as part of this agreement?
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Hon. D. Zirnhelt: The answer is no. These are administrative costs that are budgeted for in the provincial budget already and are a function that we will be carrying on -- as we will on other minor administrative matters, like code-related activities that we take. The reason we say that is because they will be our licensees, for the most part, operating on Nisga'a lands. The lion's share of the operations will be, in effect, provincial licensees during this period.G. Abbott: The estimated cost is something just over $1.25 million for the transition period for this function of fire control and suppression on Nisga'a lands. Is that correct?
Hon. D. Zirnhelt: That's the estimated average, yes.
G. Abbott: The estimated cost for the post-transition period -- which, I assume, is going to take us into perpetuity with the ratification of this agreement -- is an estimated annual cost of $154,000. Is that correct?
Hon. D. Zirnhelt: That's correct. The province believes that it's most efficient for us to maintain a responsibility, in our own self-interest -- to keep fire from spreading onto adjacent Crown lands, for example.
G. Abbott: The issue of what portion of the cost incurred by British Columbia in controlling or suppressing forest fires
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I guess we get an interpretation of what's appropriate in section 61, and we have, in fact, four points in section 61 that lay it out. I want to go through them briefly. "After the transition period, the Nisga'a Nation will pay the costs incurred by British Columbia in controlling and suppressing forest fires on Nisga'a Public Lands if the forest fire: (a) originates on Nisga'a Public Lands and is caused by an act of God or an industrial user authorized by the Nisga'a Nation."
The first question I have here is: would a cutting approval that had been approved by the forestry transition committee, which of course has a representative of both the Nisga'a nation and the Ministry of Forests on it
Hon. D. Zirnhelt: Section 61 deals with the post-transition period, and there is no joint approval at that point.
G. Abbott: Is it safe to assume, then
Hon. D. Zirnhelt: No. Any industrial activity will have to be approved by the Nisga'a after that period.
G. Abbott: The Nisga'a clearly are going to be carrying the cost should the fire originate with an extraction or other industrial process associated with the extraction of timber resources. I think the notion of fires caused by an act of God would be straightforward enough, as well, although at times that can almost be a grey area as well.
Point (b), the
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G. Plant: Let me just see if there is something not encompassed by section 61(a). It seems to me that trespassers would be outside the scope of section 61(a). That is, a fire caused by a known individual -- perhaps a form of arson, if you will -- on Nisga'a public lands arguably would fall outside the definition of fire caused by an act of God and would certainly not be a fire caused by an industrial user authorized by the Nisga'a nation. In those circumstances, I take it that the Nisga'a nation would not be liable to reimburse the province for the costs of suppressing and controlling the fire. Is that right?Hon. D. Zirnhelt: Yes, British Columbia is responsible. We would deal with it in the way we deal with any other cause of a fire that can be prosecuted.
G. Plant: One of those ways might include a criminal investigation into the cause of the fire. This is not the time to have a thorough revisiting of access rights or anything related to that, but I take it that for that purpose -- for the purpose of perhaps conducting such a criminal investigation -- law enforcement officials of the province, perhaps in conjunction with Nisga'a law enforcement officials, would have access to Nisga'a public lands for the purpose of investigating the cause of the fire. Is that right?
Hon. D. Zirnhelt: Yes.
G. Abbott: On subsection (b), then, if on Crown land there is a lightning strike -- which I presume is the cause of most, if not all, act-of-God fires -- are we talking about Crown land that is contained within or outside the area?
Hon. D. Zirnhelt: The only Crown land inside would be the woodlot, so it would apply there. But the Crown land is that land outside Nisga'a land.
And just for the record, to make it clear, we're talking here about responsibilities on Nisga'a public lands, not on the reserve lands or village lands. Like everything we're doing, this
G. Abbott: So again -- and I hope I'm not being too obtuse here -- there is a lightning strike on Crown land adjacent to Nisga'a public lands. The province of British Columbia goes in and suppresses the fire. As I understand it, after the transition period the Nisga'a nation will pay the cost of that. Is that correct? Or would they pay the cost only for that portion that is on Nisga'a public lands?
Hon. D. Zirnhelt: Yes, the latter part is correct.
G. Abbott: Subsection (c) is: "
Hon. D. Zirnhelt: Yes, you're correct. But we're talking about other private land, not Nisga'a private land.
G. Abbott: So again, if the fire is initiated by an act of God -- that is, a lightning strike -- on private land, the Nisga'a will pay for that portion of the fire suppression effort that is on Nisga'a public land. I think that's clear enough.
And subsection (d) is: "
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Hon. D. Zirnhelt: Which areas? If a fire is set deliberately on which areas? Are we talking about village lands and private lands?G. Abbott: Let's start with village lands and private lands.
Hon. D. Zirnhelt: The Nisga'a are responsible, and if they want to collect against the person, they will initiate action to do so.
G. Abbott: The only other place where we have a reference to forest fires is again in appendix H on page 394 of the schedule of appendices. Section 77 reads: "British Columbia will pay the Nisga'a Nation any amount recovered from a holder of a licence for having negligently caused or contrib
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uted to a forest fire on Nisga'a Lands during the transition period." Does that mesh comfortably with the responsibilities of British Columbia under section 57?Hon. D. Zirnhelt: The answer is yes. You have to look at sections 77 and 78 together.
G. Abbott: Perhaps we should do that, then. Section 78 reads: "The amount referred to in section 77 will be net of any reasonable costs incurred by British Columbia in controlling or suppressing a forest fire on Nisga'a Lands." So we're talking there of a net of the value of timber lost. Is that correct?
Hon. D. Zirnhelt: We would collect from our licensee the cost of fighting the fire and the damage to the timber. We would subtract the amount that it cost us to fight the fire and submit the rest as a net amount to the Nisga'a as payment for damages to the timber.
G. Plant: Provisions 57 through 61 create kind of an interlocking regime, if you will, of responsibilities and obligations in respect of forest fire control and suppression on Nisga'a lands. It strikes me that the obligations that the two parties have agreed to assume, on their own behalf and to each other, are going to work efficiently only if there are agreements and arrangements in place in respect of those matters.
Would I be correct in assuming that those kinds of discussions -- and, hopefully, agreements -- would be part of what's encompassed by paragraph 12 of chapter 5, which we looked at earlier? I would be looking for an assurance from the minister that it would be the intention of the province to pursue those discussions, so that those arrangements are in place as soon as these obligations crystallize. Is that right?
Hon. D. Zirnhelt: Absolutely.
G. Plant: I wanted to see if I could identify a theme or concept underlying paragraph 61. In effect, it seems to me that the Nisga'a nation is undertaking, in broad terms, a risk and an obligation.
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There are certain circumstances -- they're identified in paragraph 61 -- in which a fire may arise outside Nisga'a public lands, but the eventuality is that it will spread onto Nisga'a public lands. In those listed eventualities, the Nisga'a have said to the province: "You fight the fire -- you put it out -- on Nisga'a public lands, and we will pay for the proportionate share of the cost that relates to the control and suppression of the fire on Nisga'a public lands." Is that the policy objective, if you will, of paragraph 61?Hon. D. Zirnhelt: The answer is yes, noting that the fire originates on Crown land -- paragraph 61(b).
G. Plant: I may have misunderstood the last part of the minister's answer. Or it may be that I understood it, and it's not quite right. My reading of paragraph 61 is that the fire in question could originate in any of the four locations identified in subparagraphs (a) through (d) of paragraph 61. Then what happens, hypothetically, is the scenario where the fire, having originated there
Hon. D. Zirnhelt: The answer is yes.
G. Plant: With respect to the Nisga'a nation's responsibility for the control and suppression of forest fires on Nisga'a village and private lands, does the province have any financial responsibility with respect to supporting the operations of the Nisga'a government in undertaking those obligations? Or is that a matter for the resources of the Nisga'a government?
Hon. D. Zirnhelt: The province has no responsibility.
G. Abbott: Just to finish off, a last question here. Again, to use the example of a fire originating on Crown land adjacent to Nisga'a lands and not caused by an act of God
Hon. D. Zirnhelt: If it's caused by a person off Nisga'a land -- i.e., on Crown land -- and spreads onto Nisga'a land, then we're responsible for actions and costs.
G. Abbott: Would that be regardless of the citizenship of the individual responsible for the action? If it originates on Crown land, the responsibility for dealing with the perpetrator or the causer of the accident rests with the Crown in every case.
Hon. D. Zirnhelt: Yes. That's to protect the provincial public interest.
G. Abbott: We can move on to the "Forest Health" sections. I don't think I have any questions with respect to section 62, although we may bounce around a bit here. I'll start on section 63: "If a forest health problem on Nisga'a Lands threatens forest resources on adjacent Crown land: (a) British Columbia may notify the Nisga'a Nation of the nature, extent and location of the forest health problem; (b) if the Nisga'a Nation receives notice under subparagraph (a), it will, within a reasonable time, take all reasonable measures to mitigate the forest health problem
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The first question I have -- particularly given that subsection (c) makes reference to the ability of British Columbia to enter onto Nisga'a lands and carry out reasonable measures consistent with Nisga'a laws, etc., to mitigate the problemHon. D. Zirnhelt: The answer is yes. The access provisions give us the right to do that.
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G. Abbott: So the identification of forest health problems in section 63 -- in fact, I guess in this entire forest health section -- may be the product of analysis or surveillance by the Ministry of Forests, or it may be the product of the Nisga'a forestry people identifying a forest health problem. In either case, could identification occur that way?Hon. D. Zirnhelt: It could be ministry personnel, or licensees that are using access corridors might notice a problem. It could be by aerial surveillance; it could be by many ways.
G. Abbott: Could the minister advise whether there exists an agreement or a protocol with the Nisga'a nation which sets out an understanding or the parameters of what constitutes a forest health problem? Obviously, we have seen some vigorous debate in the past decade in this province about what does and does not constitute a forest health problem. What some would see as a forest health problem others might see as one of the elements in the far-reaching, benevolent design of Mother Nature. I'm sure the minister's all too familiar with some of those debates. Is there a protocol or an agreement which recognizes what constitutes a forest health issue or problem?
Hon. D. Zirnhelt: Section 12 would be the mechanism whereby we would come to an understanding with them about what constitutes a forest health problem.
G. Abbott: Section 12 reads: "The Parties may negotiate arrangements to achieve coordination and administrative efficiencies in respect of matters such as
Hon. D. Zirnhelt: Nothing has been done to date. October might be optimistic as an implementation date, but there's certainly time to do it. The default is that if there's no understanding, then we will use provincial policy in terms of defining forest health problems and act accordingly.
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G. Abbott: I'm completely, and perhaps blessedly, ignorant of what forest health problems face the Nass Valley. But never letting ignorance stand in my way of attempting to pose a question on the matter
Hon. D. Zirnhelt: I don't think there's a lot of mountain pine in that area. South of there or north or west -- pardon me
G. Abbott: Thank you for that clarification. Subparagraph (b) says: "
Hon. D. Zirnhelt: Reasonable steps would be what we would do for the British Columbia government in terms of dealing with it. It might be harvesting it if it had already been killed -- harvesting it to provide reforestation. In order to do that, they might want to harvest it and provide some reforestation activities after the harvesting of the salvage. But it would be highly specific to the site and highly specific to the species. I don't think I know anything more about loopers, except that they come in waves and may be repeated year after year. So a strategy has to take into account the nature of the infestation.
G. Abbott: My question is based on the possibility that, for example, the Nisga'a may take a view with respect to a given forest health problem that reflects the view of the Ministry of Environment, Lands and Parks when it comes to dealing with forest health issues within park boundaries -- that is, that one uses only so-called natural controls, like baiting and burning and that sort of thing. If the Nisga'a were to take a similar view -- a view, let's say, that was very much like the view of the Ministry of Environment, Lands and Parks when it came to forest health problems within parks -- what would the position of British Columbia be if confronted with that situation?
Hon. D. Zirnhelt: I would imagine that the province would look at all the options. Our interest is in making sure that it doesn't spread to the surrounding Crown lands. But the Nisga'a, I have to remind you, have an interest in preserving the trees as well. It will be looked at when we look at own-source revenue capacity. If it's all wasted, we'll be making the argument that it might have been salvaged with a different strategy and, therefore, economic benefits reaped.
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G. Abbott: I appreciate the answer of the minister. It would seem to me that in addition to the suggestion the minister has made, the province might take into account in negotiating the next fiscal package that resources had not been used as effectively as they could, because of forest health management. Additionally, it raises the questions of whether, in an instance like that, there would be reference to the dispute resolution mechanism which is contained in appendix H.
Hon. D. Zirnhelt: If there is dispute over reasonableness, it would go to arbitration. But don't forget that we also have the next section, which suggests that British Columbia can take actions.
G. Abbott: The minister once again anticipates my next question, which is useful. In paragraph (c), it explicitly states that British Columbia may enter onto Nisga'a lands to carry out reasonable measures consistent with Nisga'a laws to mitigate forest health problems. We've already talked about the phrase "may enter onto," and it sounds to me like the minister
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is certainly satisfied that the authority to enter onto exists. The phrase is here in this context not only, I presume, for certainty but also to make explicit the opportunity of British Columbia to enter onto Nisga'a lands to carry out the mitigation measures for forest health. Is that correct?Hon. D. Zirnhelt: Yes.
G. Abbott: Subparagraph (d) talks about how British Columbia will use, to the extent that they are available and qualified, Nisga'a citizens to carry out measures under subparagraph (c). Is there any relationship between this subparagraph or this obligation and what we had discussed earlier about Nisga'a contractors? Or is this simply a disconnected offer to do something?
Hon. D. Zirnhelt: No. They are disconnected.
G. Abbott: Subparagraph (e) reads: "
Hon. D. Zirnhelt: Yes, if there's disagreement.
G. Abbott: I just have a couple of questions on paragraph 64. Again, to refresh my own memory if no one else's, I'll read it: "If British Columbia becomes aware of forest health problems on Crown land that threaten forest resources on Nisga'a Lands, British Columbia will: (a) within a reasonable time, take all reasonable measures to mitigate the identified forest health problem." So it would seem to me that paragraph 64(a) reflects or mirrors very closely the provisions in paragraph 63, subparagraph (b). Is that the minister's interpretation as well?
Hon. D. Zirnhelt: The sections are designed to be reciprocal.
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G. Abbott: Paragraph 64(b) reads -- and again we're talking about after British Columbia becomes aware of a forest health problem on Crown land that threatens forest resources on Nisga'a lands: "Hon. D. Zirnhelt: Well, the previous paragraph was reciprocal; this one isn't. Let me try to explain. We can enter onto their lands; they can't enter onto ours. Therefore we compensate for damage to their land when we're negligent.
G. Plant: Paragraph 62 imposes on the Nisga'a nation a responsibility for forest health on Nisga'a lands in certain specific circumstances. When do those obligations take hold -- on the effective date or at some later period?
Hon. D. Zirnhelt: On the effective date.
G. Plant: In practical terms, the way they'll work out during the transition period is in line, I suppose, with the general thrust of the discussion that has occurred up till now in the attempt to understand the transition period; that is, people who acquire licences under paragraph 27 after the effective date, or perhaps paragraphs 28 or 29
Hon. D. Zirnhelt: It's generally right, but it is British Columbia's licensees, whether they're Nisga'a or non-Nisga'a -- whoever the licensees are.
G. Plant: And that's because it's British Columbia that grants the licences during the transition period. Is that right?
Hon. D. Zirnhelt: That is correct.
G. Plant: I apologize for the confusion that the language of my earlier question may have caused. That wasn't intended.
I suppose the Forests minister and the Forests critic may not need to ask this question of each other or answer it, but I'm not the Forests minister nor the Forests critic, and the term isn't defined. So what does the Minister of Forests think is meant by the term "forest health"?
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Hon. D. Zirnhelt: We just had a little chat here as to what's meant. Generally, it's disease or insect infestations that threaten to go beyond the endemic nature to an epidemic nature. We might treat the endemic problem if it looks like it's threatening to become epidemic.G. Plant: To pick up one example, one sick tree on Nisga'a lands that is dying, for reasons that do not give anyone cause to suspect that the problem will spread to the tree next door, may not constitute a forest health problem within the meaning of this chapter. Is that right?
Hon. D. Zirnhelt: That's correct.
G. Plant: We talked in our discussion of chapter 5 about forest standards and forest practices. Of course, forest standards and forest practices are in some way directed at ensuring that the forest in the broadest possible sense is healthy -- in the broadest possible sense. That is why paragraph 8 actu-
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ally does talk about things like biodiversity, soil conservation and forest health. Rather than attempting to explain the interrelationship between these concepts, I'll ask the minister to do that -- that is, to give me the assurance that we're not going to have an argument at some point down the line that the Nisga'a, for example, have chosen larger cutblock sizes than is consistent with someone's idea about forest health and therefore there is a forest health problem. Arguably, that scenario would really constitute an argument about forest standards issues. If the example makes any sense, I'd be grateful for the minister's explanation of how he sees the two things relating to each other.
Hon. D. Zirnhelt: They may well do things slightly differently. But as long as, taken as a whole and looked at collectively -- all those items under section 8, as referenced under 9
G. Plant: If the province forms the view that therefore Nisga'a forest practices do create a risk for forest health, I assume that the intent of the agreement is that that issue would be dealt with as a forest standards issue rather than as a forest health issue. It would be dealt with as an issue in the context of paragraphs 5, 6, 7, 8 and so on, rather than paragraphs 62, 63 and 64. Is that correct?
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Hon. D. Zirnhelt: The answer is yes.G. Plant: Do Nisga'a obligations and responsibilities for forest health extend to and include non-timber forest resources?
Hon. D. Zirnhelt: Well, under section 11, the Nisga'a can make laws with respect to non-timber forest resources. So they can make laws about those resources. Our concern would be looking at the benchmark, which is the provincial law, so that we have compatibility. This section 11 refers to standards that might relate to private land for the non-timber resources. But on the timber resources, it would be the public land standards taken as a whole.
G. Plant: I want to ask the minister to examine the issue I'm raising again in the context of paragraphs 62 and 63. Paragraph 62 makes the Nisga'a nation responsible for forest health on Nisga'a lands. Paragraph 63 creates a regime of consequences in the eventuality that a forest health problem on Nisga'a lands might threaten forest resources. Now, I understand that forest resources include both timber and non-timber forest resources. This may be a situation where I'm missing a particular clause somewhere that deals with it, in which case I'm sure the minister will help me find it.
But it does seem to me that hypothetically one could imagine a forest health problem on Nisga'a lands which threatens non-timber forest resources. I will come to the question of what the province's policy objectives are here, if you will. But the first question is: is my construction of the general ambit of the obligation here correct -- that is to say that it extends beyond timber resources to include non-timber forest resources?
Hon. D. Zirnhelt: Well, the policy objective would be to have the biodiversity objectives and the others, to protect the full range of forest resources that are necessary for forest health. So to the extent that the management of one of the non-timber forest resources threatened the timber, and to the extent that we were protecting that timber by the code, we would then apply policy objectives in the code and extend that to the various management regimes that they have.
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G. Plant: At the risk of oversimplifying the minister's approach -- correct me if I am doing that -- the minister is seeing these provisions through the window of something that happens out there in the biosphere that affects timber resources. Let's take an example, though, of a situation where some blight or plague begins to affect the pine mushroom in the Nass Valley. Blights and plagues are no respecters of boundaries. So, conceivably, that kind of a thing could move back and forth across the borders of Nisga'a lands and adjacent Crown lands in the same way that a beetle infestation could. I want to see what the minister's sense is of the application of these provisions to that scenario -- recognizing that a pine mushroom is an example of a forest resource that just happens to be a non-timber forest resource.Hon. D. Zirnhelt: The agreement says that they're responsible for all forest resources on Nisga'a lands. So, yes, they are responsible for managing pine mushrooms, for example.
G. Plant: If a forest health problem on Nisga'a land threatened a non-timber resource -- like the pine mushroom -- on adjacent Crown land, then, conceivably, the province would be looking at paragraph 63 and the various steps of the process that are explained there?
Hon. D. Zirnhelt: The answer is yes.
G. Plant: Is the province of British Columbia currently aware of any forest health problems on Nisga'a lands?
Hon. D. Zirnhelt: We're not aware of forest health problems, either for timber or non-timber resources, on Nisga'a land.
G. Plant: So the rights, obligations and responsibilities that are set out here in paragraphs 62, 63 and 64 are set out to encompass the possibility that a forest health problem may arise in the future. There is -- again, from the province's perspective -- no knowledge of any current forest health problem on Nisga'a lands?
Hon. D. Zirnhelt: We're not aware of any non-timber problems, and there are no significant timber problems.
G. Plant: Is that the difference between one sick tree and a few hectares of sick trees, or does the term "significant" have any meaning in this context? Let me put it this way: would it be correct to describe Nisga'a lands, generally speaking, as healthy from the perspective of this chapter? That is, are they as healthy as any other similar stand or area of similar forests in northwestern British Columbia? Or has the province already put them somewhere out there in the "at risk" category?
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Hon. D. Zirnhelt: Generally speaking, they're healthy.
G. Plant: That is, they are as healthy as comparable stands of forest in northwestern British Columbia.
Hon. D. Zirnhelt: Yes.
G. Plant: That allows us to avoid investigating the question of how sick the forests of northwestern British Columbia are generally. At least, we know that the forests on Nisga'a lands are pretty much the same as the forest lands adjacent to them.
But I would ask this question: is the province aware of any forest health problems on Crown lands which are close enough or adjacent to Nisga'a lands that there is a significant risk to Nisga'a lands in respect of those forest health issues?
Hon. D. Zirnhelt: There are only some minor problems outside -- we talked about that before -- but nothing significant.
G. Plant: Nothing that, to date, has required any intervention to deal with. Would that be correct?
Hon. D. Zirnhelt: Not that we're aware of.
G. Plant: There's already been a discussion about how paragraph 63(c) works. It includes the idea that in certain circumstances, British Columbia may be in a situation where it has the right to go onto Nisga'a lands to mitigate a forest health problem. One of the ways that some forest health problems are mitigated -- I think this has already been discussed -- is that you may end up harvesting a stand of trees in order to get rid of a problem.
But oftentimes, as I understand it, the objective may well be to get in there and harvest those trees when they still have some economic value. I take it that if that were to occur, the Nisga'a, as owners of the trees, would be entitled to whatever the economic value is in respect of the resource -- the trees that had been cut. Or would that somehow belong to the province?
Hon. D. Zirnhelt: Yes.
G. Abbott: Before we leave the section on forest health, just a couple of final notes to make sure we have a clear understanding here about what is going to occur. Based on earlier responses, I'm understanding that there is currently no protocol on forest health between the province and the Nisga'a nation, but that one is likely to be discussed and presumably concluded at some point after ratification, presumably before the effective date for the agreement.
Further, I understand from the responses I've heard that the government does intend to continue a monitoring and assessment process on these lands, to ensure that if they see emerging forest health problems, they will be dealt with effectively under the provisions of section 63 particularly -- but presumably, the others as well.
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Further, I understand that the province takes the position that if there is a departure either from an agreed-to protocol or from the generally accepted standards of forest health management which the government expects in British Columbia -- if the government sees a departure from that -- the government will assess that and will use that as part of their negotiations with respect to the provincial position on future fiscal agreements with the Nisga'a nation. Hopefully, this will never occur. But should a forest health problem emerge that suggests to the province that salvage harvesting should be undertaken and it is not, the province would monitor that, would look at the value of the resource lost and would use that as part of the development of their position with respect to a future fiscal agreement. I've said quite a number of things there. Perhaps the minister can comment on them and, where his understanding of the situation is at variance with mine, outline that.Hon. D. Zirnhelt: Your comments were general, and I've said generally that they are correct. What more can I say?
G. Abbott: Generally, hon. Chair, I don't think there's anything more that needs to be said. We are generally in agreement, it appears. So we're happy to proceed on to the timber-processing section.
Paragraph 65, under "Timber Processing," notes that provincial laws in respect of manufacture in British Columbia of timber harvested from Crown land apply to timber harvested from Nisga'a lands. The first point here is: is there a distinction
Hon. D. Zirnhelt: Yes.
G. Abbott: Is there a distinction between Nisga'a lands as set out in this agreement and, I guess, what would be termed as former reserve lands?
Hon. D. Zirnhelt: No, except during the transition period. That's referenced in 68.
G. Abbott: So the position of the government is that regardless of whether it is Nisga'a lands, Nisga'a private fee simple lands or former Nisga'a reserve lands, ten years from now and 100 years from now the Nisga'a will, should they wish to export some portion of timber from any of those categories of lands, be subject to the same rules, regulations and laws as anyone else in British Columbia. Is that right? If it is not right, what are the wrinkles in this that we are looking at?
Hon. D. Zirnhelt: The answer is yes, but I would refer the member to section 67.
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G. Abbott: For my benefit and for other interested observers of this debate, it may be useful early on in our discussion of this timber-processing section for the minister to lay out for me what differences there are -- and I understand there are some subtle differences -- in the provincial laws and regulations between the export of logs from Crown lands as opposed to the export of logs from private lands. I understand that there are some very basic similarities in the export from those two categories of lands but that there are also some subtle yet important differences in the regulations and processes associated with those categories of land. I think an explanation of that would be useful at this point.[ Page 11696 ]
Hon. D. Zirnhelt: On land and timber granted before 1906, the federal export laws apply, but there's the same treatment of lands that have been granted after 1906. Private land will be treated the same as provincial Crown land. So if the land is granted after 1906, it gets the same treatment as provincial Crown land with respect to our export laws.
G. Abbott: I appreciate that explanation. So, for example, some of the lands associated with the Esquimalt and Nanaimo Railway
Hon. D. Zirnhelt: Yes, that's correct.
[E. Conroy in the chair.]
G. Abbott: I need to ask this question. Given the distinction -- and again, it's probably one of those fine details
Hon. D. Zirnhelt: Nisga'a lands don't become Nisga'a lands until the implementation date, which is after 1906. The treaty says that they will be treated like provincial Crown lands.
G. Abbott: The minister may not wish to advise whether this was an issue during the discussions and negotiations, but I gather that this is not an issue with the Nisga'a people -- that they do not seek any sort of a distinction with respect to processes around log exports.
Hon. D. Zirnhelt: No. But the Nisga'a did want the right to export during the transition period as per federal law. It's a transition provision, as far as they're concerned, on what is now reserve land. So no, it's not an issue with them. They didn't appear to want to export logs.
[1125]
G. Abbott: Under section 66, the Nisga'a may apply to British Columbia to export timber harvested from Nisga'a lands. And paragraph 67: "During the transition period, British Columbia will approve an application referred to in paragraph 66 if the application is in accordance with provincial laws and policies." If an application is in accordance with provincial laws and policies, why would it be necessary to set it out in these paragraphs?Hon. D. Zirnhelt: The Nisga'a wanted this for the record, so that it was clear.
G. Abbott: Basically, one way of reading this is simply that this is confirmation that British Columbia's laws and processes around the export of logs will apply to the Nisga'a in the same way that they apply to every other British Columbian, or every other licensee, who might seek the opportunity to export logs.
Hon. D. Zirnhelt: Yes.
G. Abbott: Section 66 reads: "The Nisga'a Nation may apply
Hon. D. Zirnhelt: Yes, they have to apply.
G. Abbott: Does the forestry transition committee have any authority in respect of these issues that are contained in this section?
Hon. D. Zirnhelt: No.
G. Abbott: I'm sure I'm reading too much here, but section 67 says: "During the transition period, British Columbia will approve an application referred to in paragraph 66
Hon. D. Zirnhelt: During the transition period, an approval would have to be given if they met the criteria. It removes the discretion available to still say no, even if someone meets the criteria. But after the transition period, there is still discretion. The discretion comes back into the laws, as it is now with any other applicant for log exports under provincial laws.
G. Abbott: What laws, then, will apply in the post-transition period?
Hon. D. Zirnhelt: Which laws? The easy answer is: the provincial laws, as noted in paragraph 65, or under paragraph 13 -- the laws of the "General Provisions" section. In this case, it would be the Forest Act.
[1130]
G. Abbott: The understanding -- clearly of both the government of British Columbia and the Nisga'a -- is that paragraph 6, which provides the Nisga'a Lisims government with the authority to "make laws in respect of the management of timber resources on Nisga'a Lands, that will take effect on the effective date," has no application with respect to this timber processing section.Hon. D. Zirnhelt: That's correct.
G. Abbott: Where do we find the confirmation of that in the document?
Hon. D. Zirnhelt: The management of timber resources doesn't extend to exports. So paragraph 65 says that provincial laws in respect of manufacture apply to timber harvested from Nisga'a lands.
G. Abbott: I think this is the reason why, at least initially, I have some concern about paragraphs 66 and 67. Again, for whatever reason -- and I guess it was a matter of surety to the
[ Page 11697 ]
Nisga'a -- we have said that during the transition period, British Columbia will approve an application referred to in paragraph 66 if the application is in accordance with provincial laws and policies. As we've discussed, if an application -- whether from Nisga'a or otherwise -- is in accordance with provincial laws and policies, it's likely to be approved.
It seems to me that this section invites questions about the post-transition period and what British Columbia will do during that period. I would like to see some
Hon. D. Zirnhelt: Well, we disagree, because paragraph 65 does provide that certainty.
G. Abbott: I guess we're possibly going to agree to disagree here, because it seems to me that in one way of reading it, at least -- by adding paragraph 67, which points specifically to the transition period, and British Columbia will approve applications during that point in time -- it invites questions, again, about the post-transition period. It really seems to me that if we, on the one hand, are going to provide that certainty by nailing down the transition period, it would have been useful to nail down the post-transition period, as well -- because, again, section 65 applies to both the transition and post-transition periods. Therefore, you know, I still see the omission of a reference to the post-transition as one that could invite problems. Perhaps the minister disagrees, but I'll allow him this opportunity to comment again.
Hon. G. Wilson: Maybe I can try to offer an explanation that will give the member opposite some comfort. Section 65 reads: "Provincial laws in respect of manufacture in British Columbia of timber harvested from Crown land apply to timber harvested from Nisga'a Lands." That's pretty clear. I don't think there's any dispute there that provincial laws apply to Nisga'a lands.
[1135]
Section 67, which the member opposite has some concern with, says: "During the transition period" -- so it now identifies a period of time -- "British Columbia will approve" -- it doesn't say it may approve; it says it will approve -- "an application referred to in paragraph 66" -- which talks about the Nisga'a having the opportunity to apply to export timber harvested from Nisga'a lands.Now, if we go back to section 65, provincial law right now -- as I'm sure the member opposite, as the Forests critic, is aware -- provides the minister some discretion. However, section 67 says that during the transition period, because British Columbia will approve an application during that period, that discretion is removed. But after that period, discretion is as per British Columbia law. So there's no ambiguity as to when provincial law does apply or doesn't apply. All it does is simply define the minister's authority during a particular period of time.
G. Plant: I follow the minister's explanation. I don't see the need to argue the point, but let me suggest the possibility of a distinction between manufacture and export. In that respect, if that suggestion had merit to it, then paragraph 65 doesn't help us much in dealing with the issue of export. What we're left with in dealing with the issue of export are 66, 67 and, I guess, 68. I follow the minister's explanation with respect to 67, in terms of what he is saying about the way in which it essentially removes discretion from the minister in respect of applications to export timber during the transition period. I have no quarrel with that explanation.
The issue that has been pursued here is what happens after the transition period. Let me just make this comment about that. These clauses are pretty explicit about when provincial laws apply and when they don't apply, and how they apply. Sometimes, when you have a regime of pretty explicit laws, a very general provision around the application of provincial laws is less helpful. The person trying to figure it out has to ask whether it was intended to apply in the specific instance that we have before us.
As I say, I don't think there would be much profit in having that debate or trying to figure out whether or not we agree with each other on the issue. But I do want, for the sake of clarity, to make sure that I understand that the province's position is that provincial laws in respect of the export of timber will apply to timber harvested from Nisga'a lands after the transition period.
Hon. G. Wilson: The answer is yes.
G. Plant: Sometimes there's a distinction made between what are called provincial laws of general application and perhaps other provincial laws which could be very specific. I assume that the law that now exists that regulates timber export is a law of general application -- that it applies to all British Columbians who want to export timber, subject to whatever particular exceptions may exist. I don't know what it says, for example, to distinguish between private land holders and Crown licensees.
One person looking at this regime might pose the question: would it be open to the province after the transition period to enact a special set of laws regulating the export of timber from Nisga'a lands? Those would still be provincial laws; they'd just be very special and specific provincial laws. I suspect that the position of the province is that that's not what's intended here. What's intended here is that there will continue to be some sort of general regime in respect of log exports. Whatever it may say from time to time, whatever policy principle it may espouse from time to time -- which may include a ban on the export of logs at some point
[1140]
Hon. G. Wilson: The member expressed it very well. That is the intention.
[W. Hartley in the chair.]
G. Abbott: We might as well deal with paragraphs 70 and 71 in tandem here. Paragraph 70 is: "The Nisga'a Nation" -- etc. -- "will not establish a primary timber processing facility for 10 years after the effective date." Paragraph 71 goes on to outline some possible exceptions to that rule. Is there, in this agreement, a stated distinction between a primary timber processing facility and what's termed a value-added timber processing facility in paragraph 71?
Hon. D. Zirnhelt: The easiest way to explain this is that primary production is a facility that takes a log and breaks it
[ Page 11698 ]
into lumber. Value-added production involves taking lumber and making other products out of it -- such as doors, windows, mouldings or whatever.G. Abbott: Would, for example, a plywood mill be deemed, from the provincial perspective, to be a value-added facility?
Hon. D. Zirnhelt: Plywood mills are considered primary. They take logs and break them down, if it involves making veneer.
G. Abbott: Does OSB and MDF and some of that stuff
Hon. D. Zirnhelt: If it uses logs as an input, it's considered primary.
G. Abbott: So basically the distinction here is that the Nisga'a will not be permitted to put in any facility which starts off the log breakdown process. What is contemplated here is that when we use the term "value-added processing facility," it will be a facility that brings in cants or lumber and does something additional to them before sale. Is that correct?
Hon. D. Zirnhelt: No, they couldn't bring in cants. The intent here is not to create competition for the existing primary breakdown facilities in the region.
G. Abbott: So there is a clear understanding, whether stated or unstated in this agreement, that the Nisga'a will not be setting up any facility which would provide a fibre-source competition with an existing mill -- whether it's Skeena Cellulose or West Fraser or whoever else may be operating in that area.
Hon. D. Zirnhelt: Yes -- so as not to produce competition for existing primary breakdown facilities. I just have to remind you that there is an exception with respect to their own domestic consumption. They can set up a small primary mill for that purpose.
G. Abbott: Again, how does that
[1145]
The public purposes section in paragraph 71Hon. D. Zirnhelt: This clause is not linked to the Nisga'a portion of their own cut. There's no linkage.
G. Abbott: But for clarity, are the Nisga'a free to direct that 10,000 to 40,000 cubic metres in whatever direction they see fit?
Hon. D. Zirnhelt: Section 24 would apply to those volumes, and it states that the timber harvested under paragraphs 20 and 21(a) has to be reasonably available to local mills. So they have to put them on the local market.
G. Abbott: That does clarify that point. Thank you.
Paragraph 71(c) reads that paragraph 70 does not preclude the Nisga'a nation from "entering into any partnership or joint venture with the owner of an existing timber processing facility." The first question there is: does the agreement envision that this would be a licensee currently operating on what are going to become, on the effective date, Nisga'a lands?
Hon. D. Zirnhelt: It would be any licensee.
G. Abbott: The point, though, is that the prohibition around a primary timber processing facility remains in effect, despite this opportunity to enter into a partnership or joint venture with an existing company. Let's use the hypothetical example again of Skeena. If Skeena and the Nisga'a decided that it would be appropriate to put in a primary breakdown facility on Nisga'a lands, would that then allow them the opportunity to do that? Would 71(c) allow them to do that?
Hon. D. Zirnhelt: No. The operative word here is an "existing" timber-processing facility. I'll use simpler language. They can't build one, but they can buy into an existing one.
G. Abbott: It's perhaps a relatively minor point, but perhaps it's important to those who may ultimately end up competing for the first ten years with a value-added timber-processing operation and later with a primary timber-processing facility.
Would those facilities -- and let's use a value-added plant for starters -- be exempt from the provisions for GST and PST -- the PST particularly -- around machinery and equipment and so on? Would that facility be exempt from PST and GST?
Hon. G. Wilson: I think that's covered in the tax chapter, and over lunch we will pull it up and give the member a more accurate answer.
Noting the hour, I would move the committee rise, report progress and ask leave to sit again.
[1150]
Motion approved.The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
[ Page 11699 ]
The Chair is making this statement well in advance of today's oral question period so that both sides of the House will have ample notice of the Chair's view on this matter.I have examined the statement made by the Speaker of this House on May 5, 1998, and feel it appropriate at this time to remind hon. members what was said at that time, and I quote, in part, as follows:
"The rules applicable to oral question period are not complicated, and perhaps the best summary is outlined in our standing order 47A(b): 'Questions and answers shall be brief and precise, and stated without argument or opinion.' Any objective analysis of the current questions and answers leads to the conclusion that the quoted guidelines have been judiciously ignored by both sides of the House."A slightly expanded guideline for questions and answers contained within the same decision is as follows:
"The question must be brief. A preamble need not exceed one carefully drawn sentence. A long preamble on a long question takes an unfair share of time and provokes the same sort of reply. A supplementary question should need no preamble. An answer should be confined to the points contained in the question, with such explanation only as renders the answer intelligible, though a certain latitude is permitted to ministers of the Crown."There is an increasing tendency to turn oral question period into a vehicle for personal attack by both sides of the House, which the Chair finds unacceptable. Having said that, it is generally the tone of the question which sets the stage for the answer. If it appears to the Chair that the phrasing of the question or answer offends the well-established rules for oral question period, the Chair will intervene, without explanation, and request the member to rephrase the question or answer. If any member wishes an explanation for the Chair's intervention, he or she may pursue the matter privately with the Speaker. Neither question period time nor House time, generally, will be used for any such explanations.
I wish to make further observations.
During the course of question period, several members on both sides of the House are offering gratuitous advice from their seats relating to the conduct of question period. Their interjections vary between a call for "order," a call for "question" and a call for "time." Such interventions show a lack of respect for the Chair and add nothing to the conduct of question period. If members have a legitimate point of order they wish to raise, they may be aware that, on the conclusion of question period, they are entitled to rise on a point of order and state the matter, but it is unacceptable for these interjections to continue in their present form. I request hon. members who are engaging in such interjections to desist.
The usual parliamentary practice is to avoid singling out members of the House unless their behaviour is deemed to be inappropriate and a reprimand is felt to be necessary. In this particular instance, however, as the conduct of question period is currently under examination, I would commend to all hon. members the phrasing and delivery of questions used by the hon. member for Peace River South. It seems to the Chair that those questions are relatively concise, non-personal and conform with the best traditions of parliamentary practice. It is perhaps no accident that the answers the hon. member receives are full, courteous and lacking in personal invective.
Thank you, members.
Hon. D. Streifel: Thank you, hon. Speaker, for your guidance.
I move this House do now adjourn.
Motion approved.
The House adjourned at 11:55 a.m.
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