Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

[ Page 11821 ]

The House met at 10:05 a.m.

Prayers.

L. Stephens: In the House this morning, visiting the Legislature, are two constituents from Langley. They are both realtors that were here yesterday to talk to all of us -- Deanna Horn and Gary Prince. Would the House please make them welcome.

Orders of the Day

NISGA'A FINAL AGREEMENT ACT
(continued)

On the schedule, chapter 11 (continued).

[1010]

Hon. U. Dosanjh: I think section 16 sets out the authority to provide procedures for appeal or review of their administrative decisions, but it does not limit the scope of the judicial review, because 17 reaffirms that right.

G. Plant: Section 16 could be, at the very minimum, an enabling provision to ensure that there are internal appeal procedures. I understand that at least part of section 17 is the requirement that all of those internal appeal mechanisms be exhausted before judicial review comes into play. That is the moment at which the question arises of whether or not recourse to judicial review can be limited. So the question is. . . .

Let me put the context just a bit more fully. There are a variety of statutes on the books of British Columbia which attempt to curtail judicial review in a variety of different ways. The Workers Compensation Act takes what some regard as a pretty restrictive view -- or, putting it the other way around, it gives as much jurisdiction, finally, as you possibly could to the board itself. Other acts, like the Human Rights Act, take a quite different approach. Is there any guidance here in the treaty that constrains Nisga'a government in making laws within its areas of competence -- that constrains Nisga'a government in respect of precluding or defining or limiting judicial review -- other than what we see in paragraphs 16 and 17?

Hon. U. Dosanjh: There is nothing other than 16 and 17 in the treaty dealing with this issue. I think that it's obviously good to remember that principles of natural justice and fairness are the principles that the courts can apply at the end of the day when they're reviewing even the procedures that may be put in place by the Nisga'a.

G. Plant: To pick up that last point, paragraph 17 expressly states that the Supreme Court of British Columbia has jurisdiction in respect of those matters. I take it that it's the view of the government that the Supreme Court of British Columbia would be applying the general law of administrative review, or the general principles of administrative law, in respect of such matters -- subject to whatever particular instances may arise in places in the treaty where the courts are directed to have regard, perhaps, to Nisga'a customs or something. But subject to that, is it the general principles of administrative law that apply or not?

Hon. U. Dosanjh: Correct.

[1015]

Hon. U. Dosanjh: The Ministry of Attorney General doesn't view section 96 to be a problem in this context. The reason this was crafted thus was to ensure that it's not the Federal Court that deals with the issues; it's the Supreme Court of British Columbia.

M. de Jong: I think this is an interesting and important point when we consider that what we're dealing with is a government -- in this case, a Nisga'a government. The question that I think arises, out of the generally sensible proposition that recourse through the courts can only occur after one has exhausted the internal appeal procedure, and the question that comes to my mind, as it would with respect to any government, is: what assurance does an individual have that government -- in this case, Nisga'a government -- won't erect such a convoluted or lengthy internal appeal procedure that ultimate recourse through the courts would be frustrated, if for no other reason than the cost involved in exhausting that internal appeal process?

Hon. U. Dosanjh: No more assurance than could be the case with respect to any other government. We assume that at the end of the day the government will serve its people. Principles of natural justice and fairness will be applied by the courts, at the end of the day.

M. de Jong: I suppose the observation could be made that this is a provision. . . . First of all, I accept what the

[ Page 11822 ]

Hon. U. Dosanjh: Section 16, if one looks at it carefully, imposes an obligation to provide "appropriate" procedures. I think that word would have a significant meaning. As well, I would commend to the hon. member sections 20 and 21, with respect to non-Nisga'a who may be "ordinarily resident within Nisga'a Lands" and who may participate in Nisga'a public institutions -- and 21 following.

M. de Jong: We'll get to 19 through 23 momentarily. I wonder if, with respect to paragraph 18, we might examine it for a moment. We're all familiar with the old adage about ignorance of the law being no excuse. I think these provisions are in part the notice requirements -- well, actually that's probably not the most accurate term.

[1020]

Hon. U. Dosanjh: I think that that issue is addressed by the constitution of the Nisga'a nation. More specifically, section 34 of the constitution talks about proclamation of legislation and registration of laws.

M. de Jong: Maybe I can be more specific with my question. Would it be possible for an individual to run afoul of a Nisga'a statute or a Nisga'a bylaw in the event that that bylaw wasn't on file with the public registry?

Hon. U. Dosanjh: This would be, perhaps, my uneducated view or guess: the law becomes the law once it's proclaimed. Practically, in terms of the mechanics, it may take 24 hours or two hours from that moment to have it registered in the register of laws. I think that the law would not be invalid just because it's taken 24 or 48 hours for that to happen. Therefore, if somebody runs afoul of a bylaw or a law, obviously that's the case.

M. de Jong: I just want to explore that a little bit, because we do have the present provisions as set out in the Nisga'a constitution that set out a procedure. Section 34(4) of that constitution says: "A copy of a Nisga'a law deposited at the public registry of Nisga'a laws is conclusive evidence of the provisions of that law." I think I understand that part of it.

But we're dealing here, in fairness, with the creation of a whole new body of law in a whole bunch of different areas -- that might affect individuals, that might affect corporations, that might be regulatory in nature. Individuals, corporations, agencies need to have some assurance that they can go to a place -- and I think a registry makes sense -- and say: "All right. These are the laws that are on the books; these are the regulations; these are the provisions that I or my organization must comply with" -- in the same way, I suppose, that we rely upon the data on file at the land title office.

[1025]

Hon. U. Dosanjh: I would refer the hon. member to paragraph 34(3). It says that the Nisga'a must make a law under which a public registry of Nisga'a laws will be maintained. So not only the treaty places an obligation for them to do that; their own constitution places on them an obligation to do that -- legally establish a register of laws.

With respect to paragraph 4 of this particular section, obviously this is actually very simple, basic law. It essentially states that once it's deposited, it is conclusive evidence of the provisions of that law. That does not necessarily mean that it is the only conclusive evidence. Who knows what a court may decide? A court may decide that in the ten hours it may have taken for them to do everything and then have it registered, during that period it may still be conclusive evidence of that law.

M. de Jong: Just to be clear to the Attorney General, I'm not as concerned about that lag in time of ten hours or 12 hours or even a day between the passage and enactment of a provision and its filing at the public registry. I'm more concerned about a circumstance where a particular ordinance just isn't registered; it just doesn't happen. We're talking about the creation of a whole new body of law. I think the question that many people have is that they want to know with certainty that they aren't going to run afoul of ordinances that don't exist or aren't on file at the public registry and, if they aren't on file, that they won't find themselves convicted of violations of those particular ordinances.

Hon. U. Dosanjh: The treaty ensures that they do that. Their own constitution ensures that they take appropriate steps to have it in the registry of laws. If the government of the day of the Nisga'a people doesn't do so, obviously the courts are there to redress that balance for the Nisga'a people. There is the treaty that takes care of any issues we may have with respect to those issues.

I think it's important that we not keep looking into the future and assuming either that the Nisga'a government is going to fail to do the right thing for Nisga'a people or that somehow citizens are going to be mistreated on a wholesale basis. I think we must grant the Nisga'a government, the Nisga'a people, the benefit of the doubt -- that they have the competence to do what they have been struggling to be able to do for decades. I don't mean to show impatience when I repeat this assertion.

If one wants to take that line of argument, we could actually do that with each and every subparagraph of this treaty, all the way through. We'd be here for maybe the next

[ Page 11823 ]

[1030]

Hon. U. Dosanjh: That will obviously depend on the law and depend on the decision of the court that it is before. The court will have the option to strike down the law completely and ask the Nisga'a government to redraft it or redo some things. Those are issues that are in the abstract. It will depend on the what the circumstances are and what the issue is.

C. Hansen: I want to raise a couple of issues in the context of sections 16 through 22, if I can have that latitude. This is sort of in the middle of that.

In here we're talking about appropriate procedures for appeal or review of administrative decisions, we're talking about the obligation of the Nisga'a government to consult with individuals who are not necessarily Nisga'a citizens, we're talking about the ability of non-Nisga'a citizens to participate in Nisga'a institutions, and we're talking about the opportunity for non-Nisga'a individuals to make representations to the Nisga'a government.

I wanted to raise the issue of what's happening on the Musqueam reserve today. I respect the fact that this debate is not about what's happening on Musqueam, and I don't want to go down that road, but I do want to raise it as an example of a process of consultation that is now in place, of a process of appeal that is there. I know that since the member for Powell River-Sunshine Coast because Minister of Aboriginal Affairs, there hasn't been an opportunity for him to be on the record in terms of that particular situation, so I didn't want to let this opportunity pass without asking the minister with regard to that.

In doing so, I want to be clear that I don't do this in any kind of confrontational way. I believe that there are some solutions that can be found. There is an example that can be set that directly relates to how this particular treaty will unfold for the Nisga'a people, and my goal in raising this is that we can come up with a cooperative solution that we can all stand beside, on all sides of this House, in order to see that fairness is seen to be done with regard to Musqueam leaseholders.

If I can put this question to the Minister of Aboriginal Affairs. . . . In the context of the appeal procedure that is in the Nisga'a agreement and the process for consultation and participation, if the Nisga'a government was to choose to put in place an appeal and review process similar to the one that the Musqueam reserve has today with regard to their leaseholders, and if they were to put in place a process of participation and an opportunity to make representation similar to the one that is now in place on the Musqueam reserve, would they in fact be fulfilling the obligations under the treaty that we have before us today?

Hon. G. Wilson: We were just trying to find any relevance of the member's question to this particular section, and we find that there is none. What took place with respect to the Musqueam band and leaseholders has no relation to what we're talking about here. We're talking about public institutions -- school boards, hospital boards -- and it has no relation whatsoever.

There are solutions for the Musqueam. I think that it's a difficult situation. It's largely in the purview of the federal government, which is frustrating from our point of view. I think there are ways in which provincial residents obviously look to the provincial government for assistance, and we're unable to provide much because of the fact that it's a federal issue.

[1035]

C. Hansen: I agree with the minister. This is a federal issue, and it is an issue for the federal government to resolve. In terms of my own approach to this on behalf of my constituents, I've been careful not to try to create any impression that it is a provincial issue or that the provincial government is in any way culpable in the dilemma that's facing the leaseholders today.

I guess my point in raising it in this context today is not to get into the debate over what's right, what's wrong and what fairness is on the Musqueam reserve. It's more to look at it from the context of process. This is a public institution, in terms of the band council, that has made decisions that directly affect leaseholders. The Musqueam band will tell you today that they have an appeal process, they will tell you that they have a process of consultation, and they will tell you that they have a process of participation for non-band members.

My question is directly related to this agreement and to the Nisga'a government. That question is: if the Nisga'a government were to put in place a process of review, an appeal process, a process of consultation and a process of participation under these sections that we have in front of us today -- 16 through to 22 -- if they were to put in place procedures that mirrored the procedures that are currently being followed by the Musqueam reserve, would the Nisga'a be living up to their obligations under this treaty -- if they were to put in place an appeal process and a review process similar to the one that's now in place on the Musqueam reserve?

Hon. U. Dosanjh: Firstly, I think it must be understood that what happened on Musqueam land could happen anywhere in British Columbia on any piece of land owned in fee simple by anyone. It's a private contract with clauses that have been agreed to. There is a serious disagreement. I would not express an opinion on it, because I'm the Attorney General and the matter is before the courts. But one can always think about whether what has occurred is just or not, and I appreciate the hon. member's view.

I think that what we're dealing with here is for the Nisga'a to establish certain review or appeal procedures. The

[ Page 11824 ]

C. Hansen: I think the Attorney General may be looking at it from the context of the annual lease issue for the lease that the Musqueam Park residents are paying specifically on the value of the raw land that they lease from the reserve. They own the improvements; they own the houses that are situated on that land. So that's one issue. Again, I think there was an appeal procedure there, a process of consultation, that was supposed to have been in place long before it got into the courts. Of course, it's a very, very expensive process that they're in now, which could have been dealt with early on with an effective appeal process and an effective consultative process.

The other issue, which I think the Attorney General may not be looking at in the context of his reply, is taxation. That doesn't just affect the Musqueam Park residents; it affects the Salish Park residents as well. So the issue is not just as the Attorney General conveyed it.

Again, I appreciate the fact that we can't get into that discussion in a substantive way today, and I think the minister's comments about doing it at estimates. . . . It's obviously the right forum to do that.

The question is quite specific. It is: if the Nisga'a were to put in place review processes, appeal processes and consultative processes similar to the ones now in place on the Musqueam reserve, would they be fulfilling their obligations under the Nisga'a treaty that is before us today?

[1040]

The Nisga'a would have to live up to their obligations under the treaty. Their citizens will force them to do so, their constitution will force them to do so, and the general expectation that a government must fulfil legal obligations would make them do so. There are very stringent requirements for them to do so. I can't give you any better answer than that, because there is none. We all live under the rule of law, and we expect governments to do the appropriate thing.

C. Hansen: But the language that we have in the treaty is very subjective language, when you talk about appropriate procedures.

I'll put this question to either the minister or the Attorney General, and that is: who gets to determine what is appropriate? My read of this is that it is up to the Nisga'a government to determine what is appropriate procedure. Really, there's no outside input into that, other than what they may come up with. This is very subjective language. Can the minister assure us that there is some framework in which appropriateness would be determined?

Hon. U. Dosanjh: If I may refer the hon. member to section 5 of the bill itself -- not the treaty; the bill is different from the treaty -- it says that all persons must comply with the law, with the treaty, and everyone can rely on the provisions of the treaty. That would be a way of forcing the Nisga'a government -- by its own citizens, through the courts and the like -- to do the right thing, if they didn't do the right thing through the democratic process. So while the word "appropriate" may have many meanings, the courts have defined these things over time. I am quite certain that the appropriate things would be done. If they aren't done, there are remedies available to individual Nisga'a citizens and others, and there are remedies available to the governments.

G. Plant: Just a question or two that relate to the questions that have been asked. We are obviously going to have to deal with the taxation issue when we get to it, but paragraph 16 is a guarantee that there will be appropriate procedures in place "for the appeal or review of administrative decisions of" -- and it's a defined term -- "Nisga'a Public Institutions." I have been reading that with the idea in mind that Nisga'a government, exercising the taxation powers that it is going to have under this agreement, could establish processes in respect of the levying of tax that would include appeal and review mechanisms; and if there were an agency, board or tribunal established by Nisga'a government with that subject matter in mind, then that agency, board or tribunal would become a Nisga'a public institution. Is that correct?

Hon. U. Dosanjh: Yes, if they set up something similar to the Assessment Appeal Board, that would become a Nisga'a public institution.

[1045]

Let me go on and ask this additional question now. There is a developing body of jurisprudence around whether or not the way in which particular institutions have been created under existing self-government powers, under the Indian Act and so on, to deal with taxation issues -- whether those bodies meet basic standards of fairness and impartiality. . . . I don't want to get into the debate about what the principles or the details are.

But those are different challenges than a challenge made by an individual who says, "Well, the member of a particular board or tribunal is biased," or there's an apprehension of bias because of a particular situation that exists with respect to the member of a board. Or the affected person says: "I wasn't treated fairly. Or there was a violation of the rules of natural justice in the process followed." Those are all typical administrative-law-type challenges.

But there's this additional kind of challenge where someone says: "The whole structure itself is flawed in some way, because it ensures or entrenches a form of unfairness." Would that kind of challenge be available to persons who had those concerns about Nisga'a public institutions?

[ Page 11825 ]

G. Plant: That extends not only to the way in which they operate but to the way in which they're set up and the rules for their composition. Is that correct?

Hon. U. Dosanjh: I think that when you are a governing body, you make decisions to appoint certain people and set out mechanisms for certain institutions. I'm assuming that they would do that through Nisga'a Lisims government. They would be debated and discussed. Then appointments to those boards or institutions would be made by Nisga'a government, like any other government making appointments to boards or commissions under its jurisdiction. Then those appointments and those appointees would have to live up to the letter and spirit of the law. I think the answer to the hon. member's question is yes.

G. Abbott: I have a couple of questions around paragraph 18, "Register of Laws," in relation to paragraph 34 of the Nisga'a constitution. I guess the chapter is "Nisga'a Lisims Government." Paragraph 34 sets out the role of the president in relation to the proclamation of legislation and the registration of law. It notes in 34(2): "The president must sign all legislation that has been passed in accordance with subsections 1(a) and (b)."

[1050]

The question really, I guess, anticipates the possibility at some future point -- perish the thought -- of the Nisga'a Lisims government taking on something of the partisan character of the assemblies that we have in provinces. That certainly is a possibility.

It's clear enough from the designation of roles that the chairperson presides at the meetings of the Nisga'a Lisims executive. It's clear enough that the secretary-treasurer presides at meetings of the Nisga'a finance committee. But I don't see -- and maybe it's a given -- where it's clear who presides at meetings of the Nisga'a Lisims assembly. Am I to presume that the president presides? Can he have the ability, as a Speaker would in that event, to break a tie, which may well occur in the assembly? Is that the way this is going to operate? Perhaps some clarification of that would be useful.

Hon. U. Dosanjh: If the hon. member looks at section 31(5) of chapter 5 of the constitution, it refers to the Nisga'a assembly or council: ". . .may make rules and orders concerning the carrying out of its business and the business of its committees, including the time and duration of sittings and meetings." If it's not clear elsewhere, they may decide how they're going to do this.

M. de Jong: I wonder if we can deal with, collectively, sections 19 to 23, which are under the heading "Relations with Individuals Who Are Not Nisga'a Citizens." Let me just say at this point that when we had the initial discussion about voting rights and how that arose within the context of the Nisga'a constitution -- and when that public debate was taking place -- these, I think, are the sections that proponents of the treaty relied upon to say: "Ah, yes, there is a difference in how political rights are dealt with here." But the saving feature is the right to be consulted, the right to have one's opinion considered as a non-Nisga'a as those rights are set out in these sections.

Just for the purposes of the record, the Nisga'a constitution, the document we've referred to during the course of this debate, talks about election rights and says, at paragraph 12(1): "Subject to residency and other requirements set out in Nisga'a law, every Nisga'a citizen who is at least 18 years of age is eligible to vote in Nisga'a elections and to hold office in Nisga'a government." Those are all defined terms under the treaty, and as we know, the authority for determining who is a Nisga'a citizen falls exclusively to the Nisga'a themselves.

[T. Stevenson in the chair.]

The second point I would like to make. . . . The Attorney General has made this observation a couple of times during the course of this debate when we have raised questions, and his response has begun with the observation: "You seem to question or to be suspicious of Nisga'a government, of what will motivate them." Well, I want to say that with respect to the question of consultation, with respect to government's willingness and abilities to abide by the obligations to consult that are imposed upon them by statute, by treaty or by any other provision, I'm always suspicious of any government.

[1055]

The provincial government has all sorts of obligations to consult, and the courts are often ruling on whether or not the province has fulfilled that obligation. But in this case, the obligation that is being imposed on Nisga'a government is being placed there as a substitute for the rights that individuals would otherwise traditionally have. The question that emerges from that, I think, is: what safeguards exist to ensure that this government -- and I say candidly, again, that I'm suspicious of all governments -- will abide by that obligation where so many other governments in the past have been found to fall short -- recognizing what I've said about the import associated with this obligation to consult as a substitute for more traditional fundamental political rights?

Hon. U. Dosanjh: There's no question that there is a very wide divergence of views between the opposition and us on some of these issues. I would not go into the debate that we had earlier -- that we've been having for some months -- other than to say that the term "consultation" is defined in the general provisions, and we've gone over those general provisions. It's a pretty onerous obligation, as defined in the general provisions, when we use the terms consult or consultation.

It is also appropriate to point out that paragraph 5 of Bill 51 says: "The Nisga'a Final Agreement is binding on, and can

[ Page 11826 ]

I think it's pretty clear that the government is satisfied that that is not necessarily the amount of protection or rights or others that many people would say are enough, but I think this treaty is about the rights and obligations of the Nisga'a people on Nisga'a lands to manage their lands and to deal with their culture, their language and their institutions. The significant thing to note here is that if you are ordinarily a non-Nisga'a person resident within Nisga'a lands, you have the opportunity to influence the Nisga'a public institutions or participate in them or even be appointed to Nisga'a public institutions.

[1100]

Now, the question may be as simple as this. The Attorney General in his last answer, which was careful and thorough, pointed out the specific aspects of the agreement which deal with the relations between Nisga'a government institutions and non-Nisga'a citizens -- that is, persons or individuals who are not Nisga'a citizens. I think the question that the government needs to answer is this: is that enough democracy for those individuals who are not Nisga'a citizens who will be affected by Nisga'a decision-making power?

Let me say this. First of all, at least in this respect I acknowledge that the agreement is primarily about the Nisga'a government, which will have the power to make and enforce laws, as against Nisga'a citizens and Nisga'a government's accountability to those citizens as established by the government structure that we've been talking about. But we have to be clear about this: the agreement does not stop there. If the agreement stopped there, then the debate or the discussion that has happened out there in the public might not have taken place. The agreement does go further.

The agreement does, in some situations -- and we can deal with the details of those situations over time -- indisputably confer upon Nisga'a government the power to make decisions which will directly and significantly affect non-Nisga'a citizens. The agreement actually gives Nisga'a government the power to legislate in respect of matters that will affect non-Nisga'a citizens. Yet there is no reciprocity, if you will, in terms of the voting rights -- which, as my colleague has pointed out, are certainly the traditional measure of basic democratic accountability. Non-Nisga'a citizens won't get to vote for the government that will be making decisions that directly and significantly affect them.

Now, they will have available to them the things that the Attorney General referred to: an obligation of consultation, the means of participation identified in paragraph 21 and in some circumstances, for example, the possibility of even being elected to Nisga'a public institutions. The question again is: is that enough democracy for the non-Nisga'a citizens who will be affected by this treaty? Is that the government's view?

[1105]

Hon. U. Dosanjh: I would let my initial answer stand. In addition to that, I have said many times before and I will repeat that this is a treaty about Nisga'a matters. This has been negotiated over several years of discussions between Canada and Nisga'a, then British Columbia, Canada and Nisga'a. I think it's appropriate that we recognize that it's the nature of what we're talking about. In that context, we believe that appropriate provisions have been made with respect to the non-Nisga'a residents. We can always differ on whether we should have done more or less, but it is the government's view, it is the view of the Crown in right of the province, the Crown in right of Canada and the Nisga'a people. . . . It's not just the government of British Columbia. People of Canada, through the government of Canada, have said, by negotiating this treaty, that these are appropriate provisions and safeguards to be put in place for the non-Nisga'a in the context of issues dealing with Nisga'a lands and citizens.

M. de Jong: A couple of things. I would like us to have this discussion absent of any histrionics. And I think it's worth having the discussion -- for the first time, really, as my colleague said -- with respect to the specific provisions of the bill. I don't want to spend all morning on it, but I think it is worth trying to probe and provoke a little bit of reaction from the government. It is, in our and my view, a significant political departure in Canada that we would be establishing a political and geographical jurisdiction within which one's right to fully participate in the political process depends on one's ancestry. That's the decision that has been taken here.

What I have not heard in the course of the public debate. . . . I have heard many of the responses that the Attorney General has said about this being a function of negotiations. I must say to the Attorney General that when I hear him say that the people of Canada have endorsed this approach, I'm more skeptical. I don't think I share that view as expressed by the Attorney General. I'm not sure what he relies upon in making the statement that the people of Canada have specifically endorsed the notion that one's ability to fully participate in the political exercise would be limited by virtue of one's ancestry. Maybe I should let the Attorney General respond to that. When he says that the people of Canada have endorsed this specifically, I'm curious to know on what basis he makes that statement.

G. Plant: Through their governments.

M. de Jong: My colleague says, "Through their governments," but I didn't hear the Attorney General say that.

Interjection.

M. de Jong: The Attorney General is saying, I think, that they have done that through their governments. I suppose an argument could be made -- and we have made it -- that something as important and significant as that is something that a government should require and have a specific mandate for. Maybe the question that I will put to the Attorney General

[ Page 11827 ]

[1110]

It's important that we recognize that it was done in broad daylight. The agreement was in front of the people of British Columbia; they knew it had been signed. In fact, there was a celebration held to sign the agreement. I think we need to recognize that since we've had these arguments before, we need to move on so that we can discuss the provisions of the treaty.

G. Plant: I have this anticipation that the accuracy of the Attorney General's construction of the effect of certain remarks of one of my colleagues is probably going to be the subject of debate. I always find those discussions interesting, because they're rendered unnecessary if the people who start the discussion actually bother to read what it was that was actually said.

I seek leave to make an introduction.

Leave granted.

G. Plant: I am delighted to have the opportunity to welcome two people to the precincts who are here for the purpose of having a discussion with members of the government and also, I hope, with me. I have lost the little piece of paper that was given to me. I knew I was going to have a discussion with some folks from the Affiliation of Multicultural Societies and Service Agencies of British Columbia, an organization that I know is well known to the Attorney General, who is the Minister Responsible for Multiculturalism. I have also discovered that in fact it's Vera Radyo and Tissa Fernando that I'm going to have that discussion with. They're in the gallery, and I hope that all members will make them welcome.

W. Hartley: I also ask leave to make an introduction.

Leave granted.

W. Hartley: In the precincts today we have a group from Modesto, California -- some six students and five adults. They're here to learn about comparative government and local history. They're here with their teacher, Ms. Bowman, from the Brethren Heritage School. Please make them welcome.

M. de Jong: Maybe I can say this in partial response to what the Attorney General has had to say. I keep hearing that we have had this debate. Except, I think, for a debate between the leaders of the various parties and a couple of occasions when the present minister's predecessor and I had an opportunity to discuss this matter publicly, I don't know what the Attorney General is referring to. He says that the public debate. . . . Fair enough. But I'm going to take a few more moments to deal with this issue.

[1115]

One of the things we've heard from members on the government side at various times during the course of this debate is that this is a unique document. When the opposition has said that this is a template -- to use the Premier's word -- we have heard the response from the government side: "Ah, but not so. This is a custom-made document designed to fit the unique circumstances of the Nass Valley."

Interjection.

M. de Jong: The Attorney General says: "Absolutely." If that is the case -- if we accept for the moment what the Attorney General says in that respect -- perhaps he can explain the negative impact that would have resulted from ensuring that non-Nisga'a enjoyed the right to fully participate in the political process in the Nass Valley, in the area where they reside. I've not heard a response to that. I've heard, in fairness, from government members and the minister's predecessor an explanation of how that kind of model would be problematic in other areas of the province.

I don't think the government can have it both ways when it says that this is a document that's tailor-made to the circumstances in the Nass Valley. I've not heard an explanation of how an alternative that allows for full political participation by non-Nisga'a would somehow place in jeopardy those objectives that are being sought by virtue of the broader self-government provisions of this agreement. I'd be interested to hear that explanation.

Hon. U. Dosanjh: I think I have said many times -- and I'll repeat it again -- that this treaty is about the Nisga'a. It's about Nisga'a lands, more appropriately, and Nisga'a lands are owned by the Nisga'a collectively. Therefore, keeping in mind that that was the agreement -- that Nisga'a lands were to be owned by the Nisga'a collectively as part of the arrangement. . . . Taking that into account, the negotiations obviously proceeded to the stage where we're now at the point of passing this treaty into the law of the land. I think that's what must be kept in mind in judging this treaty. It was felt by the government of Canada, the government of British Columbia and the Nisga'a leadership that this was the appropriate thing to do -- appropriate provisions to be put in place -- with respect to the Nisga'a and non-Nisga'a.

[ Page 11828 ]

[W. Hartley in the chair.]

M. de Jong: I think, in fairness, the Attorney General will recognize that I have not approached this aspect of the debate from the perspective of even challenging the ability of governments to do this, although that is an issue before the courts. We have purposely not raised that as an issue here.

[1120]

But we also have in this country a history of individual political rights, individual political freedoms, and I suppose the challenge was -- if one accepts that the government was going to adopt and embrace this notion of collectivity of ownership -- to somehow find a way to meld the two. The Attorney General is going to say: "Well, we think we've done that." What I am going to suggest to the Attorney General is that the government, by embracing these provisions and signing off on them, has embraced the notion of collectivity of ownership and has abandoned that other principle, which is the notion of individual political rights. I must confess that as the public debate took place, I was surprised and somewhat dismayed at the ease -- and maybe that's where my frustration emanates from -- with which the government suggested that that can be done as if it's not a big deal, as if it's not a major departure from our political traditions, our democratic traditions in this country.

I think the Attorney General has laid out his belief in this as a reasonable compromise. And, yes, we differ. But what I have not heard, through the public debate or through this discussion, is a recognition on the part of any single minister -- the present minister, his predecessor, the Attorney General -- that this represents a significant departure for Canada and for British Columbia. If nothing else, maybe that's what I'm seeking: an admission of that fact, an admission that it does represent a significant departure. I'll let the Attorney General respond to that.

Hon. U. Dosanjh: Hon. Chair, there is an arrangement in place with respect to Sechelt that's somewhat similar and has worked for about 11 years -- worked quite well.

With respect to the issue of collective rights or individual rights, if we pursue that logically, at some point we may be into what's before the courts. I think it's appropriate for me to say that this is about the Nisga'a issue. It was agreed that the Nisga'a would own Nisga'a land collectively; hence that predetermined, in many ways, the route that negotiations took and dealt with Nisga'a collective rights and other rights and obligations in many of the pages of the treaty. I think it's important that we have that in mind if we ever have a full debate on individual or collective rights. I disagree with the hon. member's assertion, and I'm simply giving you. . .as to what colours the government's view.

[1125]

Hon. U. Dosanjh: I come back to the assertion that I've made many times. This is a treaty that we negotiated on behalf of the government of British Columbia, the government of Canada and the Nisga'a. One can judge it in more than one way. Obviously that's a judgment that we're entitled to make. But it's appropriate that we recognize that and also recognize that in addition to the land issue, there are language issues, cultural issues and many issues that went into making this treaty the way it's crafted.

M. de Jong: I don't think I disagree with anything the Attorney General said there. But what I'm asking -- I mean, one of the things we get criticized for -- is: where is the alternative? Maybe the alternative that I'm suggesting and hinting at is, in the Attorney General's mind, something that simply can't coexist within a treaty based on a collective ownership model. If that's the case, I think it's fair to ask the Attorney General that. If that's the position of the government, then that represents a response to the alternative that we are suggesting. I think it's legitimate for us to seek that response from the Attorney General.

Hon. U. Dosanjh: One could have more than one alternative; one could have many variations on this treaty. I think it's inappropriate for an Attorney General to keep saying: "Hypothetical A, hypothetical B, C and D. What's your response?" I think that's simply not a useful exercise. I've given the appropriate answers as exhaustively as I can, constrained as I am because of the fact that there is a lawsuit before the courts on these very issues.

G. Abbott: The most important thing, I think, that constitutions do and that, to some extent, treaties or laws may do is set out or define the political rights that are to be enjoyed by the citizens within the jurisdiction that the constitution or laws apply to. Ideally, as well, the constitution and the laws set out the checks and balances that are going to exist within government to ensure that the power of government is not abused.

We discussed yesterday when we were talking about paragraph 14 how the Nisga'a Lisims government was to be structured. Certainly we noted that 14(c) takes account of and guarantees the political rights of Nisga'a citizens who, for whatever reason, have chosen to remove themselves from Nisga'a lands and take up residence in Vancouver or the other jurisdictions.

The one area, though, in 14(c), as I noted yesterday, that doesn't take account of all the rights and interests of citizens -- and I'm using the term "citizen" broadly here -- located in

[ Page 11829 ]

[1130]

I'll pose that question: why, on the one hand, is it acceptable for public institutions but not, on the other hand, acceptable for Nisga'a Lisims government?

Hon. U. Dosanjh: With respect to the issue raised regarding 14(c), I believe that issue is directly and squarely before the courts in the Brinson case. I will not comment on it.

With respect to the general matter, the current practice on Nisga'a boards -- the health board and school board -- is that there are people who are non-Nisga'a appointed to those boards. This has simply transported that kind of structure into the treaty before us.

G. Abbott: The position of the government, then, is that the guarantee -- well, it's not even a guarantee -- or the indication of participation of non-Nisga'as in those public institutions is a matter of convenience or a matter of it having occurred in the past and therefore it's acceptable for the future. That portion of this treaty is not based around any notion that because people's rights or interests may be affected by the decisions of that organization, their participation is therefore not only permitted but indeed welcomed. So this is a matter of convenience, not a matter of democratically guaranteeing their rights because their interests may be affected.

Hon. U. Dosanjh: Hon. Chair, I disagree with the thrust of the hon. member's remarks. The simple answer is that this is what was negotiated and agreeable to the three parties that were at the table representing different interests.

G. Abbott: With the greatest of respect, I don't think that's an acceptable answer. Answering the question, which I think is fundamental to this agreement, with the assertion that it was negotiated means nothing. Any number of things may have been negotiated. There have been countless treaties negotiated over time that may or may not have been, in the long view of history, the right thing to do.

I'll pose the question again: is what's at work with respect to 20 and 21 just a matter of recognizing existing rights based on existing practice, rather than the notion that because interests and rights may be affected, they should therefore have an opportunity for participation?

Hon. U. Dosanjh: As I said earlier in this debate today, those were the appropriate provisions to be had in this treaty.

[1135]

I do want to ask this, though. Again, I think I know the answer, but I do want to ask the question. If, in their wisdom and experience, the Nisga'a Lisims government or the assembly of the Nisga'a Lisims government decided that the best way to deal with the rights and opportunities of non-Nisga'a citizens resident within the Nass Valley was to provide at least one representative on the Nisga'a Lisims government for non-Nisga'a residents, would that require a referendum as set out in the constitution? Or would the Lisims assembly have the opportunity to do that without the benefit of a referendum?

Hon. U. Dosanjh: With respect to that matter, they have the power to be able to change their constitution and do exactly what the hon. member says they could do.

G. Abbott: I understand that. The question is whether, in order to make an amendment to their. . . . I guess they can't change the treaty, but in order to change the structure of government, would that require the five-step process which is contained in the section around amendment to the constitution? Or is it something that they could do as per their opportunity to change the rules and proceedings of the assembly?

Hon. U. Dosanjh: It would be a change to their constitution and to the voting rights and citizenship and the like.

G. Abbott: Paragraph 20 reads: "Nisga'a Government will provide that individuals who are ordinarily resident within Nisga'a Lands and who are not Nisga'a citizens may participate in a Nisga'a Public Institution, if the activities of that Nisga'a Public Institution directly and significantly affect them." At least at this point, the Nisga'a public institutions we are dealing with are, in all probability, school, health and police boards; I don't know whether there's a possibility of additions being made to that list down the line.

The phrase I want to bring some attention to at this point is: ". . .if the activities of that Nisga'a Public Institution directly and significantly affect them." Now, can we safely assume that every meeting of the school board, every meeting of the health board, every meeting of the police board pertains to subject matter which will directly and significantly affect non-Nisga'a citizens? In short, is there any limitation around the participation of non-Nisga'a citizens in respect of those public institutions?

[1140]

[ Page 11830 ]

G. Abbott: I didn't want to go down the road of looking at what would happen should a decision be made without proper notice and all that stuff around appeals and reviews. My question relates to the ongoing activities of the school, health and police boards in the Nass Valley. Again, the question is this: would the operation of these boards be entirely comparable to the operation of a school, health or police board in the rest of British Columbia? I don't know about police boards, so let's say school or health boards. Can we assume that the non-Nisga'a citizens would be invited to participate on the same basis, with the same full opportunity to discuss, debate and vote that would be available to Nisga'a members of those boards?

Hon. U. Dosanjh: I'm somewhat troubled at the thrust of this question, as I have been a couple of times earlier this morning. This government and the federal government assume that these institutions and mechanisms that the Nisga'a will put in place will meet all of the requirements of the treaty. Those requirements have matters of review and appeal in them -- and, at the end of the day, judicial review. Whether or not their school or health boards have exactly the same structure as you'll find in the rest of British Columbia would be impossible to guarantee. They will have to have the kind of structure that meets their needs and the needs of people on the Nisga'a lands. Then the mechanism they put in place would be judged on the principles and provisions enshrined in the treaty, and those issues are, at the end of the day, justiciable.

I think it's important for us to operate on that basis. Otherwise, it's a matter of being able to say that if you have certain governmental authority -- whoever you may be -- we would assume that you would live up to the obligations enshrined within that authority. I operate on that basis, and I'm somewhat troubled by the thrust of the question.

G. Abbott: I'm surprised and disappointed that the minister is troubled by the question. I'm frankly puzzled as to why he would be troubled by it. I frankly think that the Attorney General would be near the front of the line in saying of the opposition, if we were to say: "Well, let's just let sections 19 to 21 go through. Obviously they've negotiated this. If things aren't clear, then they're justiciable at the end of the line, so don't bother looking any deeper than that. . . ." I think that it's not only puzzling, it's unfair for the Attorney General to say that. I really do. Again, what we are trying to do here. . . . It's not an obscure theoretical discussion. At some point, a few months hence, police, health and school boards are going to be set up.

An Hon. Member: They're already there.

G. Abbott: They're already there; they are going to continue. I think that the non-Nisga'a citizens have some rights and some opportunity to know whether the opportunities they have to participate. . . .

Interjection.

The Chair: Through the Chair, please, members.

[1145]

Hon. G. Wilson: If I'm exercised, it's because I'm just staggered at the astounding ignorance being demonstrated by the members opposite of what already exists, already works and has worked very well in the Nass Valley. If you want to know what puzzles us. . . . The members opposite argue consistently for greater autonomy for local school boards and local hospital boards, except when it's aboriginal and it happens in the Nass Valley. Then there's all kinds of distrust and doubt.

Now, we have gone over and over the reasons why there is public opportunity for non-Nisga'a people to sit on boards that affect them and why there is a difference with respect to the management of governance on private land. That we know, because the Nisga'a own the land. The Attorney General has repeatedly answered that question. So if you wonder why the members over here are exercised, it's because of the astounding and profound ignorance that's being demonstrated by the members opposite.

Interjections.

The Chair: Members, let's continue what has been to date this morning a very parliamentary discussion and carry on in that manner.

G. Abbott: Continuing the discussion, I am to assume, then, from the words of the Attorney General and the Minister of Aboriginal Affairs, that the phrase "if the activities of that Nisga'a Public Institution directly and significantly affect them. . . ." All of the decisions of those boards will directly and significantly affect them.

Hon. U. Dosanjh: Paragraph 20 is rather broadly worded. It could mean that they may have the opportunity to participate in each and every deliberation of the institution or in some of the deliberations that may affect them. I think that would be determined by the institutions themselves. There is redress available, which I've already alluded to, so I think I'll confine my remarks to what I've just said.

G. Abbott: Paragraph 21(b) states: ". . .if the members of a Nisga'a Public Institution are elected: (i) the ability to vote for or become members of the Nisga'a Public Institution, or (ii) a guaranteed number of members, with the right to vote, on the Nisga'a Public Institution." Is the determination on whether those institutions are elected or appointed going to be made by the institutions themselves?

Hon. U. Dosanjh: By the Nisga'a Lisims government.

M. de Jong: I just want to make sure that I understand exactly how paragraph 20 operates, because I'm a bit confused by the use of the words "will" and "may."

[ Page 11831 ]

[1150]

Hon. U. Dosanjh: I disagree. In fact, the truth is quite the opposite. There is a guarantee embedded in paragraph 20: "Nisga'a Government will provide that individuals who are ordinarily resident within Nisga'a Lands and who are not Nisga'a citizens may participate. . . ." But that's the empowerment of the non-Nisga'a. If the Nisga'a institution is simply discussing buying paper-clips, do you want to force non-Nisga'a to definitely attend that meeting if they don't want to?

M. de Jong: They should have the right to.

Hon. U. Dosanjh: I think it's appropriate that if the decisions are significant and significantly affect their lives, they will have the right to participate. That right will be provided. That's what the "will" refers to in the first line of paragraph 20, and "may" in the second line of paragraph 20 refers to the discretion of the non-Nisga'a to choose or not choose to participate in that matter.

M. de Jong: That might be helpful. It might be more helpful as the Attorney General moves towards offering an example of how that section operates. I'm still troubled by the presence of the word "may," but if we can get an example of how that operates, maybe that will help ease that anxiety on my part.

Hon. G. Wilson: Well, that and more scintillating questions will be answered after lunch.

Noting the hour, I would move 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. M. Farnworth moved adjournemnt of the House.

Motion approved.

The House adjourned at 11:53 a.m.

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