Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

[ Page 11751 ]

The House met at 10:07 a.m.

Prayers.

Orders of the Day

NISGA'A FINAL AGREEMENT ACT
(continued)

[1010]

M. Coell: When we left off yesterday, we were dealing with chapter 9, and we left off, I think, with some positive comments on that chapter. I wish I were in the same position on chapter 10. I find. . . . What I'd like to do is outline some of my concerns for the minister with regard to this chapter in an overview and have him respond if he wishes.

I guess, firstly, it seems like a chapter -- three pages long -- on a very important issue: environmental assessment. It's very much like "until we meet again"; it's an agreement to agree to meet again and to discuss possible ways to conclude environmental assessments. That's unfortunate. It appears to be a hurried chapter. Many of the chapters in this treaty obviously weren't hurried, but to me, this one doesn't seem to have finished with conclusions on what process will be used to do environmental assessments. I look just at the first bullet: "At the request of any Party, the Parties will negotiate and attempt to reach agreements. . . . " As you go through the short three pages, that theme recurs -- that whenever a situation arises that will need an environmental assessment, there isn't a process already in place that would be used. There'll be negotiations to develop that process.

Initially, that's a disappointment to me, and I think that it could be improved upon. If the minister wishes to make comment on my perception of the three-page "Environmental Assessment and Protection" chapter, I'd welcome that.

Hon. G. Wilson: I think that quite the opposite to what the member suggests in terms of this being hurried, the whole idea of environmental assessment and protection is something that both federal and provincial governments have paid a great deal of attention to and that those laws are well established and are in place. The Nisga'a will be bringing in laws that essentially will be compatible to or harmonized with the existing legislation, federally and provincially.

[1015]

So that's what this is all about. And I would have thought that given that we are trying to attract economic investment and trying to attract economic development, the member opposite would have celebrated the fact that it is only three pages long, rather than a huge chapter putting in all kinds of red tape that would have made it very difficult for people to invest.

M. Coell: I think that central to my overview is the fact that we have in Canada a Canadian environmental assessment process and we have in British Columbia an extensive process, and they are triggered by projects and potential changes to the environment. I don't see those two processes in this document, other than an attempt to re-create a third process that will be the Nisga'as'. If I'm wrong, the minister can correct me, but I don't see a guarantee in here that the Nisga'a process will be as strong as the Canadian and British Columbia environmental assessment process. Maybe we can deal with that issue before I go any further.

Hon. G. Wilson: Well, that's what paragraph 3 is intended to do. Maybe, just for the record, we could. . . . It says: "Nisga'a Lisims Government may make laws in respect of the environmental assessment of projects on Nisga'a Lands. In the event of a conflict between a Nisga'a law under this paragraph and a federal or provincial law of general application, the federal or provincial law will prevail to the extent of the conflict." So it builds in protection with respect to the laws that are being provided.

Now, if the member opposite is suggesting that the federal and provincial laws for environmental protection or environmental assessment are not adequate, I think that's a different debate. But the whole intention here is to make sure that should the Nisga'a implement laws or regulations for projects on Nisga'a land, they will be compatible with, and therefore harmonized into, the process that people already have to go through federally and provincially.

M. Coell: The problem I have is. . . . If that is the case -- and I'm not convinced it is in here -- why are we not just making the Nisga'a environmental assessment process the same as any other part of British Columbia, in which triggers would produce the use of the Canadian assessment process or the British Columbia assessment process? I see the potential for problems with those two not being able to be used by the other partners. Once this treaty is signed, if the Canadian government or the British Columbia government thinks that its process should be used, they don't have the ability to impose it as they do on projects like SkyTrain or a number of other major projects in British Columbia. If the minister could comment on that or clarify it for me, I'd be interested.

Hon. G. Wilson: The Nisga'a may well want to just adhere provincial law to Nisga'a land, if that's their choice. What section 3 says is that the Nisga'a nation may, if they choose, make laws with respect to environmental assessment for projects on Nisga'a land. They don't have to do that. They may decide that they'll simply use federal or provincial standards.

[ Page 11752 ]

[1020]

M. Coell: I think what I'll do is offer an example. I think it's highly likely that at some point a milling operation could be developed on Nisga'a lands, which may have disposal of liquid into the river. I want to be assured that an environmental assessment process would be in place to look at a project of that magnitude. I think that we may see a number of projects -- hopefully we'll see a number of projects -- that would be generating jobs. But what I'm looking at here is: whose assessment process would assess a mill that would discharge into the river?

Hon. G. Wilson: The example that the member gives is a good one. It's an interesting one, because if a mill discharges into a river, it would require the federal government, with respect to fisheries. . . . So they will make sure that their rules apply. If it meets our threshold provincially with respect to environmental assessment, the province will want to make sure that our requirements are adhered to. And given that it's on Nisga'a land, it will require the Nisga'a to have an approval, which is why under section 4 we describe how, given that all three parties will have interests involved, it will provide for an opportunity to have this done in an expedited and proper way.

M. Coell: With regard to 4, let me take it a step further. I'm presuming that all three levels want a safe and protected environment here; I'm not assuming that anyone doesn't want that. What I'm looking for is. . . . In the example that I gave the minister, there would be a potential for the Canadian government to actually carry out an assessment of that project, the provincial government to carry out an assessment of that project and the Nisga'a, under their own laws of environmental assessment, to carry out an independent assessment. Is that correct?

Hon. G. Wilson: Well, what paragraph 4 suggests is that if the Nisga'a laws satisfy the federal and provincial rules -- if it is harmonized and therefore they are compatible with federal and provincial regulation -- then the Nisga'a may very well make sure that environmental assessment happens under their rules. If, on the other hand, because of fishery concerns the federal government isn't satisfied with that, then the federal government has the opportunity to apply. Similarly, with British Columbia, if British Columbia believes its regulations aren't adhered to, then it will apply.

What we're intending to do in this section is, firstly, harmonize those rules to the extent that in the harmonization of those rules, we eliminate duplication where possible so that we don't put an additional cost on the person who is seeking to develop; and secondly, try to streamline the process so that for economic investments that are time sensitive, we don't put an undue burden of time against the process itself -- which is why I think that the whole concept of harmonization is an important one.

I think one of the things we've learned in our jurisdiction, in the provincial jurisdiction, is that while environmental assessment is often essential in order to have adequate protection for the environment, we also have to be sensitive to the fact that the more complicated it becomes and the more time-consuming it becomes, the more expensive and therefore possibly prohibitive it becomes to people who wish to invest. That's the balance that's intended, and the harmonization process is spelled out in sections 1 through 4.

[1025]

Hon. G. Wilson: If the parties -- that is, the federal and provincial governments -- agree that the Nisga'a environmental assessment meets their objectives, meets their requirements, then it could proceed through that process. But in the event that they don't agree. . . . And I think that's what the last line in 4 says: "In the absence of an agreement, the Parties may carry out concurrent environmental assessments." So in order for the Nisga'a to have the final say, there would have to be agreement from Canada and from the province that they may have the final say. There has to be satisfaction that the process entered into meets the objectives of both the federal and provincial governments.

M. Coell: I understand what the minister is saying: that in the absence of agreement, the parties may carry out concurrent environmental assessments. That doesn't tell me that those assessments become part of the Nisga'a assessment or have more weight than the Nisga'a assessment. If they disagree. . . . If there are three assessments done and there is disagreement, whose assessment governs the go-ahead for that project?

Hon. G. Wilson: I think I can give the member some comfort. Let's take the Nisga'a out of the equation for the moment. Right now, if there is a federal interest and a provincial interest, both the federal government and the province have to agree on an environmental assessment process that meets their requirements. If they don't agree, then the project doesn't proceed. If the province says, "No, I'm sorry; you may have met the federal requirements, but you don't meet the provincial requirements," the project doesn't proceed.

If you put the Nisga'a into that same equation, precisely the same conditions apply. It may meet the Nisga'a and the

[ Page 11753 ]

Now, in the example the member gave of a sawmill that discharges into the river, if that discharge can't be mitigated and if it exceeds the federal requirement with respect to fisheries concerns, then it won't go ahead. I think the member can be comfortable with that assurance.

M. Coell: I appreciate that clarification. I think that the wording in this chapter doesn't reflect that. I think it gives the illusion that the federal and provincial assessment processes are going to have input, but there will be one final say.

What I'm hearing the minister say is that there are three approvals on any environmental assessment that will need to be made in order to have a project. And using the example I gave -- the mill with the discharge into the river -- that project would need three okays: federal, provincial and Nisga'a.

[1030]

But I think the member should also take comfort, if there's a concern, that. . . . I'm not quite sure where the concern is. If the concern is that a project which is not environmentally suitable can, essentially, be moved through by one of the three parties, I think you can take comfort in section 3 that's there. It says that the federal and provincial laws will prevail to the extent of a conflict between those rules. So the standards that are in place now, federally and provincially, will apply. The Nisga'a may choose to put in laws of their own for projects on Nisga'a land, but they must be consistent with the laws of the province and of the federal government.

M. Coell: Does that -- and I suspect it does -- give the Nisga'a the opportunity of making higher standards than British Columbia and Canada, but not lower standards?

Hon. G. Wilson: I'm advised that the province has generally taken the position that if there's an imposition of a higher standard with respect to activities on Nisga'a land, that would not be deemed as a conflict. If the standards were lower, that would deemed as a conflict for projects on Nisga'a land.

G. Plant: I'd like to pursue that point for a moment or two. One of the threshold questions for an environmental assessment process is the range of human activity to which the process will apply. Obviously in the case of the federal and provincial governments, questions arise as to the limits of constitutional jurisdiction with respect to the two levels of government. I guess, as a general matter, each level of government reserves the right to make its environmental assessment processes apply within the full range of its constitutional authority.

Paragraph 3 has a mechanism for resolving conflicts. The minister has just given a statement about provincial policy in respect of one kind of conflict. I want to give another example. It may be that the answer to the question will be the same. It may be that, hypothetically, a particular type of project comes along that is not caught by either federal or provincial environmental assessment requirements. It's outside the scope of projects that are caught by federal and provincial assessment requirements, but it's within the scope of Nisga'a environmental assessment requirements.

The project proponent in that case might argue: "Well, I wouldn't have to be subject to an environmental assessment under either federal or provincial law; I do under Nisga'a law. Therefore there is a conflict. According to paragraph 3, in the event of such a conflict, federal-provincial law prevails. Therefore I'm not subject to an environmental assessment requirement."

I'm going to invite the minister to respond to that. I recognize that I haven't given the minister an example of a project that might exist and yet somehow be outside the scope of either federal or provincial environmental assessment requirements. It may be that in practical terms that's the answer to the question. But I'm still interested in how the minister sees paragraph 3 working in that context.

[1035]

G. Plant: In the eyes of the proponent, there is a conflict, I suppose. But I guess the conflict, the minister says, is not a conflict; it's an operational conflict rather than a legal conflict. There's no conflict within the meaning of paragraph 3 because, the argument goes, there's no conflict between Nisga'a law on the one hand and federal-provincial law on the other. I think I understand the logic of that, and if I've re-expressed it incorrectly, I'm sure the minister will correct me.

But I guess I want to ask again whether that isn't really, in any event, a conflict, because Nisga'a law is saying that the scope of Nisga'a law is as broad as X, and federal-provincial law doesn't cover that. So there's at least a question. Maybe it isn't a conflict. Is the minister comfortable with the statement that that scenario doesn't produce the kind of conflict that we are imagining?

Hon. G. Wilson: I think the distinction that we need to make is that if it falls within the purview of federal and provincial law and the Nisga'a law would be less rigorous, that would be a conflict. But if, in the example that the member cites, the federal and provincial laws do not apply -- only Nisga'a laws apply -- then there is no conflict, because the provincial and federal laws are not in any way challenged by what they're intending to do. Now, the proponent might see that to be a conflict, in which case the proponent may not wish to invest there. It's up to the Nisga'a to decide whether or not putting in those kinds of standards -- which would be different than those of the federal and provincial government -- is in their interests. But it's on their land, so it's up to them.

M. Coell: Moving to 5 and 6, there seems to be, I think, an honest attempt here of sharing information. It says "timely

[ Page 11754 ]

Hon. G. Wilson: Well, 5 and 6. . . . It would be consistent with normal practice or standard practice in the province. There is a requirement now provincially for there to be timely notice provided, relevant information provided. The province, I think, is under obligation now with respect to consultation. All of that has to be done in a timely manner. Now, there is no defined timetable, and I think that that's necessary, because each project may require a certain set of information, and it may vary as to how readily available it is, how much documentation is needed, how long it may take to provide it. But I think that what is intended here is that these sections will not be used in a manner that would unduly delay information and, therefore, decisions.

G. Plant: I think the minister has said that the obligations in terms of disclosure, notification, consultation and so on that are provided for in paragraphs 5 and 6 are not different from the practices that are currently followed in respect of environmental assessment by the province. I want to put that statement more generally and see if that's correct.

Interjection.

[1040]

Hon. G. Wilson: Yes, that's correct. Sections 5 and 6 are reciprocal -- Nisga'a to Canada and British Columbia, British Columbia and Canada to Nisga'a -- given that 5 refers to projects that adversely affect Nisga'a land, whereas 6 deals with them off Nisga'a land and affecting Nisga'a.

G. Plant: In reading these two clauses, there are a number of conditions that arise at different points, where if the condition is met, another obligation then arises. In each case, paragraphs 5 and 6 both begin with a condition -- that is, if a proposed project is going to have a certain effect, then certain things follow. I note that in general terms, the obligations in paragraphs 5 and 6 arise if a proposed project, either on or off Nisga'a lands, may reasonably be expected to have adverse environmental effects. That is, the requirement to trigger the obligations is the reasonable expectation of adverse environmental effects.

I pause to point out that as with all these things, there is obviously the potential that along the way, people may argue about whether or not a particular project will have adverse environmental effects. Indeed, those kinds of arguments happen now in environmental law generally. In each case, though, in subparagraph (c) the additional opportunity to participate is triggered only if those adverse environmental effects become "significant" -- that is the adjective used in each of those clauses. I assume that the word "significant" is there deliberately. That is, it is the intention of these two clauses that the additional opportunity to participate in the assessment arises not just if there is a reasonable expectation of an adverse environmental effect but, rather, if the adverse effect is significant. Am I reading the general thrust of these provisions correctly? If not, I invite the minister to correct me.

Hon. G. Wilson: Yes, the member is reading that correctly.

G. Plant: At the risk of oversimplification, the parties have agreed with each other that if there is a relatively low threshold test about adverse effects met, then they'll ensure amongst each other that everybody knows about it, gets information about it and is consulted about the effects. But if you rise to the higher level of perhaps a significant effect, then the parties have agreed that the affected parties will in fact have an opportunity to participate in the assessment related to those effects. So there's that distinction being drawn.

[1045]

M. Coell: I wonder if we could move to section 7 at this point. I want to look at the reasons for either Canada or British Columbia establishing a board or a panel -- they mention a tribunal -- to make recommendations on environmental effects. This would be on or off Nisga'a lands. I'm just wondering whether the minister could give me an example of how the government sees its role in establishing this panel. If you could give me an example of a project that would trigger the need for a panel, it might help me understand a little clearer.

Hon. G. Wilson: Well, this is to bring the treaty into compliance with the Environmental Assessment Act, which may require for major projects -- as I'm sure the member is aware -- such a review panel, a technical review committee and so on. So what this does is essentially bring this into compliance -- or harmonize this treaty -- with the existing Environmental Assessment Act.

M. Coell: Does this supersede the Nisga'a's ability to carry out an environmental assessment? It says: "If Canada or British Columbia. . . ." It doesn't say: "Canada, British Columbia and Nisga'a. . . ." This is just something that is triggered by the two levels of government. The clarification that I am really looking for is what the role of this panel would be in respect of the Nisga'a laws, because it doesn't mention them in it.

Hon. G. Wilson: Well, the member is correct that it says: "If Canada or British Columbia establishes a board, panel or. . . ." It refers to federal and provincial law. What triggers this panel is our own statutes, the provincial statutes, or federal statutes, not Nisga'a law.

M. Coell: So if the Nisga'a wished, they could develop an assessment law that would also have the ability to trigger a panel that Canada and British Columbia would participate in. I think they do. The answer may be yes, but. . . .

[ Page 11755 ]

M. Coell: I know that the minister can't speak for the Canadian government, but he can speak for this government. If the Nisga'a do undertake to do that -- which I suspect they will want to do -- would British Columbia automatically participate?

Hon. G. Wilson: Yes, we would. Paragraph 5 gives us that opportunity.

M. Coell: I am comfortable moving to 8. If there are any other members of caucus. . . . I have one member who wishes to. . . .

G. Plant: Well, just to make the point that if the Nisga'a establish boards, panels or tribunals in respect of the environmental effects of a project on Nisga'a lands, British Columbia or Canada would only have the opportunity to participate in those assessment processes if there might be significant environmental effects off Nisga'a lands. I don't think that British Columbia or Canada have an entitlement to participate in environmental assessments conducted by Nisga'a bodies under Nisga'a laws in respect of projects on Nisga'a lands. If I'm wrong, the minister will correct me.

[1050]

G. Plant: I think that part of my objective was simply to observe that the relatively pure reciprocity that exists between paragraphs 5 and 6 doesn't apply to the same extent with respect to paragraph 7. I believe that the minister's comments are consistent with that statement.

Hon. G. Wilson: Yes, that is true.

M. Coell: As I said, I am comfortable with moving to 8 and looking at 8(a) through (j) all at the same point. Again, I'd make the comment that, being three pages long. . . . Not that it is not worthy of discussion, but all of (a) through (j) are common sense, I think, with regard to government carrying out its business. I can't see anything in there that I would disagree with. I can't see anything there that most British Columbians wouldn't say government should be carrying out with regard to environmental assessments. They seem in line.

In 8(c) -- "ensure that all information relevant to the assessment of the project is available to the public, other than information that is required to be kept confidential under applicable law" -- I'm just wondering what would be confidential in an environmental assessment. For the most part, if you were dealing with a business, you might keep their business records or their projected earnings confidential. But what in the environmental assessment process would be confidential?

Hon. G. Wilson: I think what's intended there is. . . . It may be specific legal advice to the company or to the individual. There may be some individual information. There may be financing information which, if there's a competitive situation occurring in the marketplace, there may be some protection on. That's generally what is intended.

But this does speak to the concern that the member correctly raised last sitting, that we are very much interested in making sure that this is a public process. I think what this will do is ensure that the project, this review process, is as available for public scrutiny as possible.

M. Coell: I think the minister's comments help to clarify that for the future. We need to stress that it is all environmental information that would be public. I think there is a perception -- and I won't go into other projects -- that government has kept information back and released it on their own time or released it in a fashion that isn't readily readable. While we're embarking on a new process with three levels of environmental assessment, we want to make sure that the information is out there for the public to see -- and not just the greater public. I'm thinking of the people in the Nass Valley who will be affected and could be affected by environmental assessments or environmental projects that could cause damage -- so that they and British Columbia and Canada are not kept out of the loop. So I appreciate the minister's clarification on that.

I have a couple of other questions, but I believe that the member for Richmond-Steveston also has a question with regard to (c).

[1055]

So I suppose, at the risk of oversimplifying, you could say this means that the government of British Columbia could not dilute environmental assessment legislation below the level of the requirements that are contemplated in (a) through (j) and then say to the Nisga'a: "Well, we don't have to do these things anymore, because our applicable laws apply." The Nisga'a will then say: "No, altogether apart from your applicable laws, in fact, you've made a treaty promise to us that (a) through (j) will always happen." Is that a correct statement of how the thing is intended to work?

Hon. G. Wilson: Yes, that's precisely how it's intended to work.

M. Coell: If we go to (f), the commitment is to assess the effects of a project on the existing or future economic, social

[ Page 11756 ]

Hon. G. Wilson: The effects are consistent with the definition that exists in the Environmental Assessment Act within provincial legislation. I can recall, in my tenure on the other side of the House, raising a similar issue when we actually debated that particular bill. That's what it is, and that's why it's there. It has the same definition and meaning as it does in the Environmental Assessment Act provincially.

M. Coell: I'm not so much concerned with the definition as I am concerned with whose responsibility it is to carry out the studies and whose responsibility it is to pay for the studies.

Hon. G. Wilson: Under our legislation, the proponent pays. I guess it's conceivable that that could change if other legislation comes in, but at the moment it's the proponent who pays the cost.

M. Coell: I'll give two examples as to why I think that's important. One, it may be a Nisga'a corporation. Let's use the example of a mill -- a Nisga'a corporation. Or it could be a private mill leased on Nisga'a lands. If it's a Nisga'a corporation, would the Nisga'a corporation have to absorb the costs of these studies, or would it be the provincial government?

Hon. G. Wilson: Under the existing law, it would be the Nisga'a corporation. Unless something was put in place to change that, it would remain that way.

[1100]

If we can move to "Environmental Protection," I have a couple of concerns with regard to 11. It says: "Except as otherwise set out in this Agreement, Nisga'a Lisims Government may make laws in respect of environmental protection on Nisga'a Lands, including discharges into streams. . . ." That's one of the comments and the reason that I used the example of a mill discharging into a stream. "In the event of a conflict between Nisga'a law under this paragraph and a federal or provincial law, the federal or provincial law will prevail to the extent of the conflict."

We did talk about Nisga'a law being able to be a higher level of environmental assessment -- or less than. I think we've established the fact that Nisga'a law will only be able to be a higher degree of environmental enforcement, not a lower degree of environmental enforcement. With regard to item 11, can the minister assure me that that is the case, as I've read it into the record?

Hon. G. Wilson: Yes, that is correct. The standards can only be higher for projects on Nisga'a lands.

G. Plant: I'm not clear about the basis on which the minister can say that. I know that we traversed some of the same ground earlier, but a conflict is a conflict, I would've thought. If the standards are different, then there is a conflict. It doesn't matter whether the Nisga'a law is tougher or not as tough. In either case, someone is going to be on the receiving end of presumably a nasty communication from some official saying: "You've just broken the law." And they're going to look around and say. . . . Maybe in this hypothetical case they're going to get a letter from the Nisga'a government that says: "You've just broken our rules -- our laws -- with respect to the discharge into streams." That person's going to say: "Well, hang on. I may be in breach of your laws, but I'm in compliance with federal laws." Well, first of all, this person will say that's a conflict. And this paragraph says that the federal or provincial law prevails to the extent of the conflict.

I understand what the minister just said, but what the minister just said isn't what paragraph 11 says. I think the two are actually different. If it was the intention of the governments to expressly provide for the possibility that the Nisga'a could have higher standards and that such standards themselves would, if enacted, prevail over existing federal and provincial legislation, then I would have thought that it could have been said clearly.

I have to digress for a moment to say -- I always say this -- that I'm mindful of the fact that in the general provisions chapter, there may be a clause I've forgotten about that says that. But assuming that this isn't the case, perhaps the minister could try again and explain to me how the concern that I'm raising is somehow answered here.

Hon. G. Wilson: Well, I am not a lawyer, although I am seated next to two lawyers, who tell me that there is a bunch of case law which suggests that if you're in compliance with a higher standard, it's not a conflict with a law that may be a lower standard. The example is that the Criminal Code may require a six-month suspension for an impaired driver, but the Motor Vehicle Act may in fact impose a one-year suspension. If you are in compliance with the one-year, you're not in conflict with the six-months.

I would also refer the member to section 52 of the general provisions, which talks about conflict and inconsistencies. There it suggests, I think, that in this agreement there is a conflict between laws if compliance with one law would be a breach of the other law.

[1105]

G. Plant: Well, while I'm reading paragraph 52, let me make this comment in relation to the first part of the minister's answer. It may come as a surprise to the minister, but it's actually not my intention to have a legal debate. I don't think this is the forum to do that. When I raise these questions, I know that oftentimes they are pretty close textual questions, but I do so concerned that there may be a substantive issue. I do so for the purpose of getting from the minister a sense of the province's position in relation to the issue. That is, what the minister has just done is helpful. We're not going to be able to prevent -- either by this debate or, frankly, in this document -- people from perhaps raising the argument that what is or is not a conflict falls within the scope of the rules that the minister has talked about -- or not. But I think that, for the purposes of this debate, the government has said in effect that if the Nisga'a impose tougher environmental requirements, providing that they're acting within the scope of the jurisdiction that they have as conferred by this treaty, then the province's view is that those are the standards that should apply.

[ Page 11757 ]

M. Coell: Moving to 12, I have a number of questions with regard to this issue. It's the section dealing with natural disaster or environmental emergency. I can think of a number of cases that could happen, one being an oil tanker spilling into the river on its way to the Nass Valley. You could have -- as we're dealing with in Public Accounts now -- an earthquake in that area. In both instances, the Nisga'a may not be able to deal with that themselves. They would need assistance from provincial bodies. Does item 12 give the province the ability, in an emergency, to move in and react to natural disasters with or without Nisga'a consent?

Hon. G. Wilson: Yes, that's precisely what it does.

M. Coell: I would be interested -- if the minister can comment on it, and he may not be able to -- in the Nisga'a participation in the provincial emergency program and whether the program takes into consideration what resources Nisga'a have at present to deal with earthquakes and natural disasters.

Hon. G. Wilson: When we get to section 122 of "Nisga'a Government," there is a whole section that deals with emergency preparedness -- 122 through to 125. It spells out what the duties, obligations and local authority would be under both federal and provincial legislation with respect to emergency preparedness. So it's anticipated; it is covered under the governance section.

M. Coell: So the reason for 12, then, has more to do with natural disasters or environmental emergencies -- just giving access. The governance issue is dealt with elsewhere.

If I can move to 16, regarding agreements entered into under paragraph 15, ". . .in accordance with the technical and administrative capacity. . .to carry out the functions in accordance with relevant provincial standards," what I'm interested in here is the enforcement of item 16. How is that carried out? Is it carried out with existing provincial staff? Or is there a joint process that would involve the Nisga'a in decisions involving both 15 and 16?

[1110]

M. Coell: I thank the minister for that clarification. My last comment on this chapter is with regard to 18. I think I find it positive: "No Party shall relax its environmental standards in the Nass Area for the purpose of providing an encouragement to the establishment, acquisition, expansion, or retention of an investment."

I suspect that the city of Terrace takes comfort in this, in that neither the province or the Nisga'a nation is able to relax standards to encourage development of a mill, which would not be able to be placed in Terrace, in the Nass Valley -- that it's a level playing field. I think that's an important statement to emphasize -- that this is supposedly a level playing field -- for environmental reasons. I think there is a whole host of economic opportunities that will present themselves in the future, but at the baseline of environmental standards, I think that this needs to be in every treaty. In the Nass Valley and the northern part of the province it is a large treaty area, but when you get down to the southern part of the province, I think this becomes even more important. So I stress that as something which needs to be emphasized, whether in this section or in other sections.

I have no further comments, but the member for Richmond-Steveston does.

G. Plant: I think that what my colleague has just said is important, but I don't want to overread paragraph 18. Having just told the minister mere moments ago that I didn't want to be a lawyer when I'm on my feet, I'm probably about to commit that sin.

In most parts of this treaty, when there is an intention to impose an obligation on somebody, the verb is "will." In paragraph 18 of this chapter the verb is "should." I don't want to invite a discussion about what the courts have said, over time, about the difference between those words. I think they are, on their plain reading, potentially different, and it suggests to me the possibility that the commitment made in paragraph 18 is intended to have less force than some of the other obligations. Again, I suppose the question of policy and position is: what is the government's position with respect to the obligation, as expressed here in paragraph 18?

Hon. G. Wilson: I suppose that one could read it that way. That certainly is not the intent. I think if you. . . .

Section 19, right after it, says: "This Agreement does not preclude a Party, within the scope of its jurisdiction, from establishing environmental standards that take into account the specific environmental conditions of a region, location, or type of project." I think that what 18 recognizes is that there may be variations on standards to accommodate those kinds of regional or environmental issues, but they should not be put in place to simply try to enhance an economic opportunity. I think that is really the case in point, and it speaks to the point that the member for Saanich North and the Islands made.

I think it's one of the benefits of treaties, frankly, because currently, as it exists now, the jurisdiction on reserve lands is exclusively federal. There are, as the member correctly points out, a number of cases where projects have proceeded on land adjacent to municipalities, where there is absolutely no provincial application of a standard or regulation. The intention here is to make sure that we get away from that and go to a level playing field. I think that our policy, notwithstanding the use of the word "should," would suggest. . . . It's generally intended that those standards be consistent and that they not be used to try and somehow undermine the overall integrity of the environmental process.

[1115]

[ Page 11758 ]

Hon. G. Wilson: I think the short answer is yes. I think we would anticipate that to be an issue that would take us to dispute resolution. Even though the use of the word "should" is a softer word, clearly the province's position is that if it was deemed to be clearly evident that that was what was occurring, the answer is yes, we would see that as a violation.

G. Plant: I want to make a more general comment about this chapter, I suppose, by way of concluding my contribution to the debate about it.

From time to time during the course of our scrutiny in this House and elsewhere of what this treaty is about, it has been suggested that a reasonable analogy is the analogy that says that the Nisga'a are about to become the owners of approximately 2,000 square kilometres of the Nass Valley, that those will become their lands, and that for the purpose of considering how we should look at those lands in the overall context of the laws of British Columbia, it's fair to look at them as though they were private lands. We certainly have heard that analogy in the context of discussion around chapter 5 in the forest resources provisions. The argument is that the Nisga'a own the land and the Nisga'a own the trees, and they should be able to do with them what they want.

I think there's an argument that that analogy breaks down here -- by here I mean chapter 10 -- because private land owners in British Columbia can't do what they want with their land in relation to environmental issues. They are subject to the laws of the province and the laws of Canada in respect to environmental assessment.

One way of resolving the issue of an environmental assessment on Nisga'a lands would have been to ensure that the status quo as it applies elsewhere in British Columbia would apply on Nisga'a lands -- that if a project proposed for Nisga'a lands were to engage the requirements of the provincial environmental assessment legislation, then that legislation would apply. Concurrently, or alternatively, if a project on Nisga'a lands would have an effect on federal interests, then federal environmental assessment requirements would apply.

[1120]

Now, I understand and appreciate that the negotiators of this chapter have worked hard to achieve what the minister has talked about as harmonization and concurrence, and I acknowledge that there are provisions in this chapter that are intended to encourage that and to therefore avoid the problem that always arises whenever we have a multiplication of processes. But nonetheless, the question that I think arises is whether there should be that third process at all, whether it is in the public interest of British Columbians that there be a third process -- a Nisga'a process, Nisga'a laws -- around environmental assessment as it affects Nisga'a lands.

Again, the overarching issue I'm just touching on here for a moment is this point about the private lands analogy. Let me say this. I can see from the Nisga'a perspective, for a moment, a desire or a wish to have a regime somewhat similar to paragraph 10, possibly because of the same kind of concerns that are actually addressed in paragraph 18. That is, the Nisga'a, who are about to become owners of and responsible for a fairly large piece of real estate, would have a legitimate interest in ensuring that the province or the federal government could not dilute environmental legislation in such a way that in effect they could drive development on Nisga'a lands through the back door -- in a way that would lead to outcomes that would be environmentally deleterious to Nisga'a lands.

So I can see a Nisga'a interest here; what I can't see is the province's interest, other than perhaps in respect of acknowledging that this is a compromise. These things are negotiated, and the province has considered that it's reasonable to achieve this outcome as part of the negotiating process in a treaty. If that's the provincial interest, then so be it. But I don't see any other one. Frankly, I think that in the long term there is a risk here that we are going to have a multiplicity of processes as we negotiate more and more treaties. This chapter may actually be good from the Nisga'a perspective; it may be good for the Nisga'a. But it will, in the long term, not be good for the province and the provincial interests.

In this particular respect, the private lands analogy, I think, reaches its end. If it were to apply to Nisga'a lands, then there would not be, in my view, the need for a third set of laws with all of these processes that are talked about to achieve harmony and concurrence among them. That is a general comment, and I invite the minister's response.

Hon. G. Wilson: I guess the member opposite and the government may agree to disagree on whether or not this constitutes a third order or a third set of laws. There's nothing in this chapter that obligates the Nisga'a to set up their own process. They may very well adopt the provincial process, if they deem the provincial process to be one that's effective. So there's nothing that's obligatory.

All it says is that if they choose -- and when we get to the governance section, we'll see what their authorities are in this area -- to do that, their laws cannot be less than the standards set federally and provincially. So it builds a guarantee that whatever laws they put into place are going to be consistent with those of the province and the federal government.

I would argue that this is in fact of benefit to the public at large, because this requires that there be adequate notice of potential adverse environmental effects. And where that notice is given to the province, it allows the province to either participate in a process that is established within the Nisga'a framework or, if we don't deem that to be sufficient to meet our concerns, to set up a parallel process -- or to allow our process, not to set it up, because our process is already there. But it's to allow our process to prevail.

I disagree that it establishes a third order of anything or a third set of rules. There's nothing here that is obligatory on the Nisga'a. They may very well, when they see the consistency

[ Page 11759 ]

[1125]

In making my comments, I was less concerned with what you might call the theoretical origins of lawmaking authority than I was with the simple practical fact that there may be a third set of rules -- a new set of rules. I'm not being disingenuous in ignoring the fact that within the Nass Valley now there are Indian reserves and that what happens, in terms of environmental regulation on Indian reserves, is a subject upon which articulate, informed people could express the view that environmental protection is currently inadequate. This, hopefully, will be an improvement on that.

It may not lead to the outcome which is the best of all outcomes. It was in that context that I thought it was important to make the observation that if in fact. . . . Well, we could get to the same point, in a way, by simply ensuring that the provincial and federal laws now apply on Nisga'a lands, without the additional requirement for a third set of laws or rules. That, again -- to repeat -- is not to discount the Nisga'as' interest in ensuring that they have some control. I am looking at this point now from the provincial interest.

As with all these things, what's happening is that a structure is being created. We will have to see how the structure works or doesn't work. I tend to approach these things from the perspective that we already have enough structures and that in fact in British Columbia, as a very general proposition, we have so many structures that prosperity, growth and fulfilment are being choked on structures. So I guess I have to say that when I see more structures being created, I am going to be a skeptic rather than an enthusiast at the outset. Time will tell whether there is cause for that skepticism. But I think it's a useful discussion.

M. Coell: I would thank the minister and his staff for their clarifications on chapter 10 and also chapter 9. I think that concludes our comments on both those chapters.

[1130]

D. Symons: Hon. Chair, I guess this is the chapter where the rubber hits the road.

I'm wondering, just in order to get a little feeling for this particular chapter, if the minister might give the House an idea of the number of kilometres of roads which currently exist within what will become the Nisga'a lands -- that are there now -- and also maybe a bit of an idea of which ones will remain, then, in the purview of the provincial government -- to be their responsibility once this agreement is finally signed.

Hon. G. Wilson: I think that, if I understood, the member's question was on the number of kilometres of provincial road. Is it?

We are looking at, I think, roughly 100 kilometres of the Nisga'a Highway and about 93 kilometres of provincial road.

D. Symons: So we are close to 200 kilometres, then of either the Nisga'a Highway -- roughly 50-50 here -- or another portion that is going to be provincial secondary roads. I'm wondering, then, if the minister might also give me an idea of these provincial roads, be it the Nisga'a Highway or the other.

When you get to sections 47 and 51 later on, I gather that the province will retain responsibility for the operation and maintenance of those highways. Will they also retain all the liabilities for any eventuality that may happen along those highways?

Hon. G. Wilson: That is correct, but I just want to make sure that the member opposite has the right figures, because I think I misspoke. The amount of provincial road and secondary road is 193 kilometres. There are also 100 kilometres of Nisga'a Highway, but that is not included in Nisga'a lands. That's taken out of the Nisga'a lands, and not all of that is constructed.

D. Symons: I wonder if the minister might give me an idea. . . . For the Nisga'a Highway, what portions of that highway already exist, either as roads to be upgraded to highway. . . ? And what needs to be done to complete the obligation in respect of the Nisga'a Highway and this agreement?

Hon. G. Wilson: There are 47 kilometres existing and roughly 30 kilometres to be built.

D. Symons: If you go to section 2 of chapter 7, it speaks of "After the effective date, the Nisga'a Nation or a Nisga'a Village, on request by British Columbia, will grant. . .rights of way. . . ." It says "will grant," so I assume that this means that the province makes the decision, except for the conditions on that which are listed as following. Is it correct that the province will initiate that? And is it as of today, then? It says "after the effective date." Does that mean the date of the passage of this legislation, or does that mean the date of the signing of the agreement, which was done? I'm curious at what point the province will end up making these requests for highway rights-of-way.

[1135]

M. de Jong: Hon. Chair, just going back to section 1 for a moment, the last time we dealt with deeming provisions and figures related to the forestry sector. . . . I'm just curious: was a survey done to come up with the 800-hectare figure? And why was it necessary to make what appears to be an estimate?

Hon. G. Wilson: I'm advised that the hydro right-of-way is surveyed and that a portion of the road is surveyed. The balance is not surveyed, but the standards are well established with respect to width and distances known, so the estimate is pretty accurate.

[ Page 11760 ]

Hon. G. Wilson: The province has negotiated up to 2,800 hectares, and 800 is the baseline. If there is some subtracted from that, then we would subtract from the 800. If you add to it, you add to the 800. The 800 is a baseline figure.

M. de Jong: Just to state the obvious, then, there is room for 2,000 hectares of expansion. If any of the existing areas are decommissioned -- if that's the appropriate word to use -- that will be deducted from the 800-hectare figure that appears in paragraph 1.

Hon. G. Wilson: Yes, that's correct.

D. Symons: Just going on to section 2 and a combination of what I'll call the preamble and 2(a), it talks about these purposes: ". . .any grant must be on reasonable terms including the location of the requested right of way, its width considering the intended use, its effect on neighbouring lands and payment of fair compensation." Does that mean that when we are going to then approach the Nisga'a nation to request land for public purposes, we will be purchasing that land?

Hon. G. Wilson: Yes, just like anybody else. If you expropriate land for the use of public right-of-way, you compensate.

D. Symons: I gather, though, that we're talking primarily here about existing roads in the Nisga'a area. These would not be new roads but existing roads that the province has built over the years. Would that be correct? And now we're going to purchase those roads?

Hon. G. Wilson: No, that's not correct. The existing roads are up to the 800 hectares, so that anything beyond that would require expropriation and fair compensation.

D. Symons: Thank you. I was misreading that, obviously, and I appreciate that clarification.

[1140]

Hon. G. Wilson: It's not the land, it's the right-of-way that is exclusive and perpetual.

D. Symons: Perpetual to the point where it's no longer needed, and then it reverts back. Thank you.

Section 6 refers to the Nisga'a laws applying to secondary provincial road rights-of-way, public utility rights-of-way, etc. I'm curious as to what it will mean on a road then, as far as Nisga'a laws apply. Can they set speed limits and various fines and so forth and apply a law, different than what might be used in the rest of the province, relating to the lands that we have rights of way on but where, obviously, their law applies?

Hon. G. Wilson: My advice is that highway standards -- construction standards, how we build them and the laws that apply to them, such as speed limits and so on -- are provincial law. However, there may be an opportunity on rights-of-way or things like mushroom-picking or other kinds of activities that may be specific to the Nisga'a where the Nisga'a may in fact have a variation on provincial law. But the standards and laws applying to the road are provincial.

M. de Jong: Insofar as acquiring additional public rights-of-way in the mechanism set out in chapter 2, I just want to query the minister. Is that a function that would generally flow via the Ministry of Transportation and Highways? The determination of whether a public need or public purpose was required to be met -- is that how the process would operate from the perspective of the provincial government? Who makes the determination about the need to acquire additional public rights-of-way?

Hon. G. Wilson: Generally speaking, the province would determine it. But specifically, if the right-of-way is needed for road, it would be the Ministry of Transportation and Highways. If it was needed for a gas pipeline or an electrical transmission line, it would be the appropriate Crown corporation. But generally speaking, I think the member's question could be answered by saying "the province."

M. de Jong: But I think the answer lies in what the minister referred to -- that it is a departmental decision based on whether it is a right-of-way. A road would naturally fall within the relevant ministry. I guess the point is that what's not contemplated here is a separate agency of the Ministry of Aboriginal Affairs dedicated solely to the purpose of determining whether a public need exists.

Hon. G. Wilson: No, I think that the Ministry of Aboriginal Affairs has enough to do without doing that.

D. Symons: I'd like to go back for a moment to the answer I was given regarding the Nisga'a laws applying. I found that maybe your example of mushroom-picking -- I assume, on the highway right-of-way. . . . I'm quite sure that the Nisga'a wouldn't feel required to pass a law -- nor anywhere else in the province -- for somebody to perform that activity. So I'm wondering if you might be able to give me a little better description of an instance where Nisga'a law would apply to a secondary provincial road. I don't think mushroom-picking cuts it, really.

[1145]

But with respect to the laws that apply, when we get to the Nisga'a government section, there is. . . . I think the mem-

[ Page 11761 ]

D. Symons: In the examples that the minister is giving, I just have some problems with this saying Nisga'a laws, because it doesn't really sound like those activities would require a law -- but maybe so. We'll see how that will play out in time, I suppose. In the event that they do pass a law, then -- and this is a provincial right-of-way, given to the province -- I'm wondering who might enforce these laws on those provincial rights-of-way.

Hon. G. Wilson: Well, if it's a Nisga'a law, then the Nisga'a will enforce their law.

R. Neufeld: Just a brief follow-up to the question from the member for Richmond Centre: will the Motor Vehicle Act apply on the secondary roads in total? Where I'm trying to go is this: will the Nisga'a be able to authorize the use of skidoos, which are quite a useful form of transportation in the north, or the four-wheelers, as they call the all-terrain vehicles, on Nisga'a highways with this type of exception?

Hon. G. Wilson: The answer to the first part of the question is yes; the provincial laws will apply. The answer to the second part of your question is therefore no; they would not be able to on B.C. public roads.

M. de Jong: I think we're on section 6. I think the minister made an accurate comment when he described the fact that, with a road, some of that is for road purposes, transportation purposes, and then there is the road shoulder, where other activities might take place.

The question is about taxation rights and to what extent this agreement operates in a way that would allow for Nisga'a taxation powers to operate with respect to activities that might take place on these provincial rights-of-way.

Hon. G. Wilson: Well, they don't have any taxation rights on public rights-of-way.

M. de Jong: Is the minister then saying -- and I can ask him to look ahead to agreements that might be concluded between the provincial government and the Nisga'a nation -- that no circumstance would arise where activities occur. . . ? Maybe when I talk about taxation rights, I can broaden that to include the levying of fees for the erection of signage -- that kind of thing that, in the provincial sphere, the Ministry of Transportation and Highways takes care of on all other provincial roadways.

[1150]

Hon. G. Wilson: Well, on provincial secondary roads, if the Nisga'a chose to charge a fee for putting up a sign for Joe's Bed and Breakfast or whatever it might be, they can do that. But they cannot charge a fee for the erection of signs related to the highways or to any kind of highway access. In other words, they can't levy fees against those signs that would normally fall within the purview of provincial law and provincial right-of-way.

M. de Jong: So if there is a right to levy those sorts of fees, it's restricted to commercial signage. Have I understood the minister correctly?

Hon. G. Wilson: The difficulty we're having is that it's very hypothetical. We're trying to make sure that we have concrete examples, in case the member has some over there that they might come back with.

The Nisga'a will be able to impose fees for activities on the right-of-way, provided that they do not in any way impair the public access through that public right-of-way, and I think that's fair to say. So the Nisga'a do have an opportunity, if they choose -- and it's purely hypothetical -- to charge fees on that right-of-way. But they can't do anything that would impair or in any way impede public access through that right-of-way.

Nothing the hour, hon. Chair, I would move that the committee rise, report progress and seek leave to sit again.

Motion approved.

The House resumed; the Speaker in the chair.

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

Hon. D. Streifel moved adjournment of the House.

Motion approved.

The House adjourned at 11:54 a.m.

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