Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

[ Page 11883 ]

Prayers.

Orders of the Day

NISGA'A FINAL AGREEMENT ACT
(continued)

C. Hansen: I notice the number of support staff growing as we get further into this, so I would certainly like to welcome them to the chamber this morning.

We covered most of the substantive issues yesterday afternoon, as they pertain to the sections on health services. There are some areas that I still want to address before we move on to other areas. They may seem little bit disjointed, because they're not necessarily the flow of one particular thought but are more cleaning up some of the loose ends. There was a commitment made by the ministry to develop an aboriginal health strategy, and I'm wondering if the minister could advise us where we're at with that aboriginal health strategy and where the Nisga'a health services will fit into that strategy.

Hon. P. Priddy: The aboriginal health plan is indeed still a work in progress, if you will, although a significant amount of work has been done. But as it relates to the Nisga'a, which is, of course, the issue under debate -- or the topic under debate, if you will -- as soon as the treaty is completed and signed, then the agreement with the Nisga'a will be as well.

[1010]

Hon. P. Priddy: There has been some work done on this to date, certainly as part of the federal program as well, but it is something that will not come into effect until the treaty is signed. As soon as the treaty is signed, then that work will come into effect.

C. Hansen: What I'd like to get from the minister is a sense of what areas this will cover. What kind of risks are being covered? What is the scope of the time lines? How far in the future. . . ? What broad areas. . . ? What are the financial risks, basically, that we're going to be managing under that plan?

Hon. P. Priddy: I think we had a bit of discussion about this yesterday. This is really the kind of question that should be dealt with under the fiscal financing agreement. So I don't know whether the member would rather address those questions under the fiscal financing agreement, when all of those issues can be looked at.

C. Hansen: Certainly this is something. . . . We don't have to get into substantive debate now. My sense is that if we look at the sections that are before us in the actual agreement, these are the sections that really set the parameters for all of the other side agreements and subsidiary agreements that we have, including the fiscal financing agreement. But certainly I would be interested in getting more detail on that financial risk management plan as it is developed and perhaps becomes a finished document. So maybe I'll just leave it at that. We don't have to get into a great deal of debate at this time.

In the area of the provincial government's specific involvement, the Nisga'a government will continue to pay medical premiums on behalf of Nisga'a citizens. They will also cover ambulance services, which are provided for in the agreement. I'm wondering if the minister has any projections as to what that means in terms of revenues and costs to the province. If you take the three components of the provincial government's ongoing responsibility once these agreements are in place. . . . The provincial government will continue to receive revenue from the federal government for insured services for Nisga'a citizens. We will continue to receive revenue in terms of MSP premiums. We will also continue to receive revenues vis-à-vis ambulance services. I'm wondering if there are projections in terms of what those revenues will amount to.

The second part of my question, which I'll put on the table now, is how those relate to costs. In other words, is it projected that those sources of revenue are going to in fact cover the ongoing costs that the provincial government will continue to bear?

Hon. P. Priddy: Currently the arrangement will stay the same; it is the status quo. There are not any anticipated changes to that at this time. Once the treaty is signed, the moneys will stay the same. The method of delivering those dollars will change some in order to give the Nisga'a the power, which they so rightly deserve, to manage their health system. But the moneys will stay the same, and the money that comes to the province for MSP will stay the same.

[1015]

For the sake of clarity, this transition to the provincial system is in fact a transition whereby the federal government was paying those amounts to the province; instead, that money is now being transferred to the Nisga'a government. So for a temporary space in there, the Nisga'a nation is going

[ Page 11884 ]

Hon. P. Priddy: I think the member may want to pursue this further under a different discussion. Currently the amount that was paid from the federal government will be paid to the. . . . Instead of being paid from the federal government, the Nisga'a will. . . . Sorry, I'm losing my train of thought here. During the transfer period, the money will be coming from the federal government to the Nisga'a, and then the Nisga'a will reimburse us.

C. Hansen: I want to come back to a discussion that we had yesterday afternoon with regard to the general practice services agreement, as it might relate to sections 86 to 88 regarding aboriginal healers. I'm wondering if any amendments are going to be necessary to the general practice services agreement with regard to the introduction of registered aboriginal healers.

Hon. P. Priddy: No, there will not.

C. Hansen: In terms of these three sections, do they have any cost implications to the province of British Columbia?

Hon. P. Priddy: No, they do not.

C. Hansen: In the discussion we had yesterday regarding the general practice services agreement, there was some question about the expiry date of the agreement. With the agreement, we were talking about which copy I had and which copy had been sent and whether or not I had an old copy. I think we were in fact talking about the same copy, and that was one that came into effect on April 1, 1997, and expired on March 31, 1999. In other words, it expired very recently. I just want to pursue briefly the discussion we had in terms of the status of this agreement as a legal document, as of today, given that the expiry date has passed. The minister had indicated that this agreement has in fact been renewed, and I'm just wondering under what auspices. Has a renewal formally been signed? Has it been formally applied for?

[1020]

L. Reid: I wish to begin discussion on section 89, child and family services, and lead through, I understand, well into the hundreds in terms of preschool and education issues.

I began my discussion with the Attorney on Thursday, and I would be keen to know if we can continue the discussion. I, frankly, believed him when he said that we would discuss these issues in some detail when we reached section 89, child and family services.

So my questions pertain to. . . . Let me start with a bit of historical perspective on the last number of days in terms of where I believe we are. I will reference specifically the three reports that have come down since we last spoke. One is "The Youth Report," put out by the children's commissioner, one is yesterday's Children's Commission report for 1999, and one is the B.C. Ministry for Children and Families report, "Strategic Plan for Aboriginal Services."

Each of these reports, particularly the one written by the young aboriginal authors, makes mention of the need to continue to access services. They don't wish to be in any way turned away from services that are currently offered by the office of the children's commissioner, the children's advocate and the Child and Family Review Board and its various iterations. They speak very strongly in this report of their desire for that to continue. They don't speak in this report of comparable service, comparable standard. They see these options as being available to all young people in the province of British Columbia -- not different for Nisga'a individuals in the province. Is it the intention of the Minister of Aboriginal Affairs as well that these services will continue to be offered across the board to all young people in the province?

Hon. G. Wilson: I thank the member for the question. The issues with respect to aboriginal youth and, indeed, youth in British Columbia are foremost in my mind with respect to this ministry. There are some very serious issues that need to be dealt with. I think it is true to say, also, that within the Nisga'a they also have some concerns with respect to making sure that Nisga'a youth have equal opportunity and have the opportunity to be able to participate in British Columbia.

I don't necessarily disagree with many of the sentiments in that report. I think you will find, though, that within the aboriginal community there are many, many different views and approaches and ideas as to how we should proceed. One of the great challenges is to make sure, as we move forward, that all of these ideas and concerns are in fact addressed and taken into consideration. Certainly you have my commitment to make sure that those voices are heard and are acted on.

L. Reid: Given that the transition period for this process is likely five or ten years or perhaps longer, I think the enormity of the task to recreate a child protection system in the province -- as we know based on our current crisis in child protection -- is not going to be an easy task to undertake or, frankly, to complete. In that that's the case, we are probably looking at ten or 15 years before there is a comparable system -- and, frankly, a superior system -- in place to the one we have today. I see individuals nodding. I trust that that is probably an accurate assumption.

In terms of services available during a transition period, will the minister commit today that access to these resources -- children's commissioner, office of the child and youth advocate. . .that those services will be parallel services until these new facilities, these new opportunities and these new processes come into being?

Hon. G. Wilson: I think that one of the great benefits of this treaty, frankly -- and all treaties. . . . I think the Sechelt, through their AIP, are now looking at some issues with respect to family services and agreements that are able to be made with respect to delegation of authority to first nations, to be able to govern in a way that looks after the interests of first nations children. So I think that the treaties will enhance that process. It will perhaps move us along much more quickly to some resolution on some of these issues.

[1025]

[ Page 11885 ]

I think that in the delegation agreements that are provided for within this particular treaty -- Sechelt is now coming along, and we've got about fifteen other tables now mandated and moving ahead -- one of the primary areas of concern is with respect to family and children's services and the opportunity for first nations to be able to finally have some opportunity to manage issues relating to their children at a local level, which in the past has not been available to them. I think we have a systemic problem here, and I think the member. . . . Well, I know the member is aware of it, because the member and I have talked about this in other forums. So it is a serious issue, and it's one that we have to move quickly on. I'm anxious to do that, and I would extend an invitation to the member opposite. If she'd like to work on some new program initiatives, I welcome her input as to how we can manage this issue, because it is a very, very serious issue and one that we have to move on quickly.

L. Reid: For the minister's benefit, the reference was not specifically urban aboriginal young people; it was whether or not these resources that are available today will be parallel resources as we lead into the creation of new programs. That was specifically the question: will young aboriginal Canadians today -- Nisga'a British Columbians specifically -- be able to access these resources in a parallel manner until the new resource is in place?

Hon. G. Wilson: The answer is absolutely yes.

L. Reid: Even though I know that some of this discussion is hypothetical, because members opposite are in no position to predict the future, in terms of the young people who have come to me in the last number of weeks regarding these questions, they are not convinced that there will be an appeal process in this new way of doing business in the province for Nisga'a young people. We all know that the appeal processes in place today are access to the children's advocate and the children's commissioner. If someone is in the care of the Ministry for Children and Families today, and they have issues surrounding that care, they can seek an outside complaint process. Hypothetically -- because probably that's where we are in this discussion -- will Nisga'a young people who are finding fault with the care that will be offered to them under this new mandate have access to any care process, any complaint process, once their new processes have been finalized?

Hon. L. Boone: Yes, they will.

L. Reid: For the record, will those processes include the children's advocate and the children's commissioner?

Interjection.

L. Reid: Specifically, will the processes they are able to avail themselves of include the office of the children's advocate and the office of the children's commissioner?

Hon. L. Boone: Until they bring down their own law, they have access to the children's commissioner and the children's advocate. Once they bring down their own law, they would then have to have in place comparable standards and resources for those children.

L. Reid: From the minister's remarks, I'm going to understand that until they have those resources in place -- we're probably talking five to ten years. . . . Let's assume this Nisga'a child protection strategy is in place ten years from today. Is the intention for it to include an appeal mechanism for children who are not being served appropriately?

[1030]

Hon. G. Wilson: Just so that we don't get off on the wrong track on the discussion, there are two matters with respect to this particular question that I hope are not being confused. With respect to the drawing down of Nisga'a power and the implementation of Nisga'a law, that is something that may take some time. However, in the interim they may administrate our programs. I think the member shouldn't be confused between the time that the Nisga'a may -- and it's a may. . . . They may choose to just maintain and stay with our programs; they may not choose to draw down their own power. In the interim, if they're administrating our programs, then they have comply with all of the regulations and rules of the province. I hope that those aren't. . . . The member alluded to a ten-year period; that's not necessarily so.

L. Reid: Certainly the minister's comments are fine in terms of transition and the final stages. But I think we understand -- I think the minister understands, truly -- that there are two areas that we want to address in some detail this morning, so I was trusting that the answer would be forthcoming. Frankly, the Minister of Aboriginal Affairs didn't answer the question. He attempted to clarify the question, but oddly, that was not comfort to me.

I'll now try this one more time, in terms of the question -- and I believe the answer was going to be a yes. It is whether or not those individuals -- and let's take Nisga'a youth as an example -- who find fault today with a child protection mechanism would have avenues to pursue an appeal process -- either through the children's commissioner or the children's advocate or, in a more arm's length manner, sometimes the office of the ombudsman? The minister is nodding, so we agree that those things are currently in place.

What the Minister of Aboriginal Affairs attempted to do was to suggest that that's a different process -- if indeed the Nisga'a nation attempts to put in place a different set of programs. But in fact they may not. Agreed, that's an option they have at their disposal. The question was: will there be a mechanism for an appeal process? Has any of this discussion spawned the intention that Nisga'a youth will be able to appeal a process that directly impacts their care, once this process is finalized?

Hon. L. Boone: I thought I answered that already. If they choose to bring in their own law. . . . The Minister of Aboriginal Affairs was correct. They may choose not to; they may say: "We'll just go with your processes." But if they choose to do so, then they must have comparable standards and processes in place, and that would include an appeal process for those children.

[ Page 11886 ]

Hon. L. Boone: Yes.

L. Reid: I thank the minister for that. The reassurances we've had to this point have simply been that they would have access to the office, not that the office would have any authority. So if that is indeed the case, I am happy to pass that on to the individuals who have come to me.

One of the areas I wanted to canvass in some detail, because I think it's an interesting report, is the B.C. Ministry for Children and Families' strategic plan for aboriginal services. I see some of this being parallel to what is happening today in the Nisga'a debate, in that this will probably govern what happens over the next five to ten years, until the implementation is complete on Nisga'a. Is that the minister's intention?

Hon. L. Boone: The agreement that is currently in place was signed in 1997. We were in a pre-treaty environment, so we were working within the guidelines that we had, but the agreement that we have will stay in place on Nisga'a.

[1035]

These individuals who have come, young people particularly, have enormous concerns. They don't see this transition period as being a precise time period. They see it as going on for most of their young lives. It will be ten or 15 years before there is a comparable standard in place. That is speculation on my part, but no one on the benches opposite has given me comfort that this is going to look like a brand-new process in three to five years. I know that is the ministry's intention, but it's probably unlikely.

We have not rejigged the Ministry for Children and Families in three to five years to make it a workable entity. To somehow suggest that all of that is possible in three to five years for a brand-new treaty seems like pie in the sky at best. If the minister has information about a tighter time line that will see these comparable standards in place by a particular moment in time, I would welcome that information.

Hon. L. Boone: Well, I don't know quite. . . . We're all sort of looking over here, because we're not quite sure what you've said over there and what the question is.

We currently have an agreement in place with the Nisga'a. That agreement will stay in place once the treaty is formally ratified and until such time as the Nisga'a decide to bring in their own law. Once they do so, and if they decide to do so, then whatever standards they bring in will have to be comparable to the standards that the province has. Otherwise, they will not be able to bring in their law regarding that. That is very clear. The standards must be comparable.

Right now, the agreement is there, and the standards are to be comparable to what we have here in the province of British Columbia. We have agreements in place, so I'm not quite sure what you are alluding to or what your question is. If you could precisely say what your question is, in one sentence or so, then I can perhaps answer it and maybe we can figure out what you're concerned about.

L. Reid: For the minister: when will these comparable standards be in place?

Hon. G. Wilson: Under the delegation agreement, they are in place now. They remain in place. If the Nisga'a should bring down their own law, those comparable standards will have to be embodied in the law that they introduce. There is no point at which those standards, provincial standards, do not apply.

L. Reid: I appreciate the minister's comment, but belief in what he has said is, frankly, not found in a number of aboriginal young people today. They do not believe that comparable standards exist. Those individuals have come to meet with me. They have legitimate concerns, and you're basically saying: "Status quo." What we have today is what we'll have under a new treaty. That is not going to give the young people in this province tremendous comfort, and that, frankly, was the answer to your question -- no?

Hon. L. Boone: We already have in place standards that the director has approved that are comparable to our standards. We do not agree to hand over certain delegated powers to the aboriginal groups until such time as they have indicated and proved to us that they capable of assuming responsibility for those particular areas. So there are comparable standards there. We are working with them. With regards to whether or not they choose to draw down their own laws, those comparable standards will be there at that time. I mean, that's all supposition, because we don't even know if they will choose to enact their own laws.

[1040]

It appears that that is indeed not the case. So perhaps let's move to a consideration of the realignment. When I referenced earlier the B.C. Ministry for Children and Families' strategic plan for aboriginal services across this province -- "Therefore the ministry is committed to a realignment of existing resources over the next three to five years. . . ." It appears that that is indeed the plan for the entire province over the next three to five years, and it may or may not have any impact on Nisga'a. We may proceed today on Nisga'a, but the status quo may not change.

[ Page 11887 ]

I mean, I have difficulty aligning what the minister has said with the announcement that somehow children and families would be better served as a result of this treaty. What both ministers have said is that indeed, where we are today is where we'll be. Everyone opposite has found tremendous fault with that. Why is it appropriate today? That would be my question.

Hon. G. Wilson: I think the member opposite picked up her estimates notes rather than her treaty notes, because these are broad questions of general application to the province that probably should be. . . . I'd be delighted in my estimates. . . . If the member would come in and talk about it, I'd be happy to do it, and I'm sure the Minister for Children and Families would be delighted to talk about the general provincial standards in her estimates debates.

But what we're actually talking about here -- under the governance section in this treaty -- is an opportunity for the Nisga'a, if they should choose, to put in place laws with respect to child and family services on Nisga'a lands, and affecting Nisga'a only, that would allow them to put in place comparable standards to provincial standards. That's what we're talking about here. Now, I'm sure the member opposite isn't suggesting for a minute that Nisga'a children are not better served by being administered by Nisga'a people. I'm sure the member opposite isn't suggesting that we shouldn't trust aboriginal people to look after their children. I'm certain that's not her question.

So I think that maybe what we need to do, in order to get focussed here, is to start to look at sections 89 and onward in the governance section of Bill 51 and deal with the text of this treaty rather than talking about the broader, general issues around aboriginal children, which I think are legitimate questions for estimates. They are very important issues and ones that I'm keenly interested in debating, but not in this forum.

L. Reid: For the minister's benefit, we are in fact on section 89, child and family services: "Nisga'a Lisims Government may make laws in respect of child and family services on Nisga'a Lands, provided that those laws include standards comparable to provincial standards intended to ensure the safety and well-being of children and families." So if the minister would be kind enough to reflect on the Blues at some point, he will know that every question I have asked this morning is regarding the time line for the introduction of those comparable standards.

The answer has been, I believe, remiss in a number of ways. The introduction of these comparable standards, I'm told by the Minister of Aboriginal Affairs, has in fact happened. Under this agreement of May 5, 1997, we are proceeding status quo. So what I'm hearing this minister say is that we cannot count on any significant improvement in how aboriginal children are treated in the future. I basically hear an enormous acceptance of the status quo. Every single member on the government benches has found fault with the status quo.

[1045]

Hon. G. Wilson: I think that if the member can get a chance -- perhaps over lunch -- to get the advance Blues, she should take a look at what she just said. On the one hand, she's saying, I believe, that the status quo is unacceptable; that she wants advanced standards, additional standards, for Nisga'a, standards greater than those applied to the rest of the province; that she was hoping that this treaty would put in stricter standards, higher standards, greater standards. She wants improvement. Well, if we were to do that, then those standards would likely not be comparable because they would be greater than.

When the member opposite argues that the status quo is unacceptable, she may well be correct. Maybe we do need to make improvements with respect to aboriginal children. And as a whole -- as a province as a whole -- chances are that we will, in which case Nisga'a law, should they choose to implement it, will have to be comparable to those new standards. But until they choose to do so, there is an agreement in place that provides the opportunity for equal application with the rest of the province. It's pretty straightforward.

I don't, frankly, know how else we can deal with this matter, except to say that a comparable standard is a comparable standard. If the member wants to take issue with what the standard is, that is a bigger, broader debate for a larger and perhaps extended discussion outside of the context of the legal language of the text of this agreement.

The Chair: The Chair would observe that members on both sides are making their points. They're now repeating their points, so I would caution members in regard to repetition.

L. Reid: The minister has made the point that comparable standards has been argued, but it was the minister who in fact found fault with the status quo. Indeed, if this is likely to make lives better -- which I think is what we as legislators in this province should be about -- that comparable standard has to be the focus of this debate. I'm not comfortable with the status quo. What the minister has said is that indeed he is.

The agreement -- the regulations found in the May 5, 1997, document. . . . The Nisga'a nation, under this treaty, may or may not proceed. If they choose not to proceed, the status quo is all we're left with. There is no other option. So has the minister today given me comfort in that? No. In terms of knowing how the future will unfold, we probably won't have the answer to that question for a year or two, but in terms of where we as opposition members are, this is vital to the success. Every single British Columbian wants to know that in five years time, somehow the life and livelihood of these individuals, particularly young people, will have been improved as a result of this treaty. From what the minister has said, I have no assurance that that will indeed be the case.

[ Page 11888 ]

[1050]

That agreement will stay in place with provincial standards and provincial operational standards, because the director of child protection is responsible for those children. When and if -- and that is the big "if" -- they decide to bring in their own law, then they will do so with comparable standards. But until such time as they bring down their own law, we won't be looking for comparable standards, because, in fact, they will operating under the standards and the laws of the province of British Columbia that have been agreed upon from working with the aboriginal communities.

No, it's not that we haven't done anything. We've come a long way in terms of getting the delegated agreement in place, so that we can work with communities to make sure that they are involved and that they have some responsibility for their children. We will continue to do so even when they get their own laws to make sure that their standards are comparable to provincial standards. They can beat those; they can improve them. They can do better than our standards, but they can't come in with anything less than our standards.

L. Reid: My fear, with what the minister has just said, is that a year from now or two years from now, we'll be having a discussion, and this minister will say, "Well, that's the grey area; someone has fallen through the cracks," that the authority of the director of child protection of this province ended, that the comparable standard was not yet in place and that there's no answer to the question.

I reference specifically section 90: ". . .if there is an emergency in which a child on Nisga'a Lands is at risk, British Columbia may act to protect the child. . . ." I need to know from this minister why that obligation would be questioned. British Columbia may choose to act. I have not heard the minister today give me any certainty around when these comparable standards would be in place, other than to continue to reference this document, which we have heard -- many times from the benches opposite, frankly -- is not comparable standard today. So indeed, we're accepting an inferior document, and then we're going to say "may or may not choose to act." I'm not clear that indeed children in this province will be protected.

I can envision many scenarios where the province may choose not to act and will have downloaded that responsibility when, in fact, the capacity of the Nisga'a nation to take on that responsibility may not yet be fully realized. I am strongly of the contention that this is going to be a five-to-ten-year process. Both ministers' offices suggest: "Oh no, a year and a half from now comparable standards will be in place." I am not convinced that we will see improvement in the quality of lives of children in this province with the discussion around "may or may not choose to act." I await the minister's convincing arguments.

Hon. L. Boone: Well, you know, it's interesting, because you take things that we say and you twist it all around. We have never said that in a year and a half there'll be comparable standards. We say that the Nisga'a government, when and if they choose to bring in their own law, will then bring down comparable standards. Right now there is a delegated agreement. That delegated agreement is worked within the laws of British Columbia, and we have operational and practice standards that apply within the delegated agreement that we have.

When and if the Nisga'a government chooses to enact its own law, then we will look to make sure that they have comparable standards, but not until such time as they enact their own law. Right now it is the law of British Columbia that remains in force there and will remain in force there. We don't need to have any comparable standards right now, because we have the law of British Columbia in place.

[1055]

Hon. L. Boone: I thought that we -- both the Minister of Aboriginal Affairs and myself -- had made that quite clear. It is up to them as to when and if they choose to enact their own law. If they don't choose to enact their own law, then the law of the province of British Columbia will remain in place.

L. Reid: So when we look at the document that was brought down yesterday, which says that it is the intention of this government over the next three to five years to realign existing aboriginal services for every aboriginal nation. . . . That is somehow going to be a parallel process to what happens with the Nisga'a debate today and what happens with all the other treaties that are yet to come.

Hon. L. Boone: I think you are getting off track here. We are dealing with the Nisga'a agreement, so, please, let's not get into the aboriginal strategy. We can deal with that through our estimates, hon. member.

[ Page 11889 ]

Hon. L. Boone: Yes.

L. Reid: In terms of other questions that I wish to proceed with today, there are a number of questions that a number of individuals have kindly asked that the minister respond to. These are specifically around child abuse. I note that in the document that in fact will be a parallel document until this process is in place, it talks about everyone continuing to have the responsibility -- the obligation -- to report instances of child abuse. Is that considered to be a different process under the Nisga'a treaty?

Hon. L. Boone: No.

L. Reid: A number of individuals have raised the question regarding Spallumcheen, in terms of director authority for child protection. Indeed, these are some of the issues I canvassed earlier with the Attorney: the definition of "in the best interests of the child" and whether language and culture was indeed the only defining factor. That appears to be some of the concern regarding Spallumcheen. It doesn't appear to be a concern that has been alleviated under Nisga'a in terms of the placement of children. Can the Minister of Aboriginal Affairs perhaps comment on his understanding regarding Nisga'a children? Let's start with a specific reference. How many Nisga'a children today are in the care of a relative?

Hon. L. Boone: Really, hon. Chair, I don't know what getting into the number of children who are with relatives has to do with the treaty. The Nisga'a treaty does not address those issues.

The Chair: The Chair would ask members to relate their questions and comments to the sections of the treaty.

L. Reid: The question has relevance, hon. Chair, because the Attorney General indicated in last Thursday's debate that language and culture was a deciding factor. In fact, it was going to be a discussion that had a lot to do with placing aboriginal children in aboriginal foster families. I don't take any issue with that. But in terms of the language and culture discussion, what emphasis, what focus, has the ministry placed, to date, on placing aboriginal children in the care of a relative? I think it's an area that they've sadly neglected in a lot of instances, and again I have no assurance that somehow that protocol is going to change as a result of this treaty.

[1100]

I think it is quite clear that first nations people have been concerned for decades as to what we, collectively, have done to their children. In the context of these services or adoptions and the like, culture and language would play a very prominent role, but they wouldn't be the only factors. The best interests of the child have to be taken into account. That's a concept that's well known to the courts in British Columbia.

L. Reid: I thank the minister for that, but I would ask him to reference the Blues of last day, because we did not have clarity on that question. My concern was not alleviated then; it is slightly alleviated today but not with great confidence. A number of issues have come before this Legislature, and a number are before our courts in terms of adoption. Aboriginal relatives were not considered, and so we ended up with a government in huge legal throes in terms of children being placed in non-aboriginal homes.

I'm not convinced that this is a concept that's better understood today as a result of this treaty. I too have some agreement with language and culture, but I do not see that as being the only defining factor. In fact, I see children in this province. . . . When someone comes to determine best interest, they truly look at a variety of factors. A number of questions that I was asked to raise talk specifically about that. Will language and culture form a significant part or form the entire part? The Attorney General is saying today that it will indeed form a significant part but only in concert with all those other factors. I accept that, and I will be happy to pass that on.

A question specifically regarding non-aboriginal children living on Nisga'a land. My understanding is that all the other processes in place today will continue and that there will be no issues around access for those services. Can the minister perhaps say where indeed the priority will be placed on ensuring that those kinds of services are in place for non-aboriginal children?

Hon. L. Boone: The question was worded a little strangely, but under the agreement, a non-Nisga'a child on Nisga'a land will receive the same services delivered by the Nisga'a band as any other child in that area -- exactly the same as anybody else.

L. Reid: In reference to section 92, perhaps the minister could clarify her answer to the last question, which applied to non-aboriginal children. Will the same effort be made to look after Nisga'a children who do not reside on Nisga'a land?

Hon. L. Boone: I'd like to correct an error that I made. I referred to the band, and that was incorrect. It would be the Nisga'a government, of course.

We currently provide services to the Nisga'a children that are off Nisga'a land, and we will continue to do so.

L. Reid: The same section -- and I'm on section 94 -- states: "Nisga'a Government has standing in any judicial proceedings in which custody of a Nisga'a child is in dispute, and the court will consider any evidence and representations in respect of Nisga'a laws and customs in addition to any other matters it is required by law to consider." In that I think I have had some commitment today that this "Strategic Plan for Aboriginal Services" will be the parallel document until implementation of the treaty, there is a concern that I have in terms of definition.

[1105]

[ Page 11890 ]

Hon. L. Boone: The aboriginal strategy that you keep talking about as a parallel document is a broad policy document for this ministry. We are engaged in treaty with the Nisga'a, and we would consult and work with them as to how we deliver services, but we have a delegated agreement with them -- that is, the agreement that is signed with them. What that aboriginal strategy tells you is that we are working to develop other delegated agreements throughout the province and to work towards those things. But please, let's concentrate on the agreement that we have, which is a delegated agreement for the Nisga'a. That will simply be in place once this treaty is actually passed.

L. Reid: Just one question before I allow my colleagues to proceed. This broad policy agreement, then, from the minister's assumption, is stage one -- indeed, it should lead to delegated agreements across this province -- and then the next step would likely be a treaty process. Correct?

Hon. L. Boone: It possibly is. It may or may not lead to delegated agreements in some places. We already have some delegated agreements around; in some places we may not actually reach that process. But this forms the basis of our dealings with aboriginal communities. If we choose, and if they choose, to go into a delegated agreement, yes, this is the basis of it.

The Chair: Member for Richmond-Steveston, I wonder if I could, before I recognize you, just ask leave of the House to make an introduction at this time.

Leave granted.

The Chair: With us today in the gallery is a group from the Canadian College of Business and Language. There are some 24 adult ESL students and Ms. Carolyn Jordan, their instructor. Would members please welcome them.

G. Plant: I want to explore some of the logic in terms of funding obligations in paragraphs 89 through 93, which I think my colleague is moving past. As I understand it, paragraph 89 contemplates the possibility that the Nisga'a Lisims government will have the power to make laws in respect of child and family services on Nisga'a lands for both Nisga'a and non-Nisga'a citizens. Is that so? And assuming that I'm correct, what. . . ? I guess the simple question is: who's going to pay for it?

Hon. L. Boone: I just wanted to make sure that I was correct. The federal government will be funding all of the services there.

G. Plant: And will that funding take place through the mechanism of the fiscal financing agreements?

Hon. L. Boone: Yes.

[1110]

Hon. L. Boone: You're correct that there is. . . . The federal government has responsibility for that, but there's a very small number of non-Nisga'a on there. We will enter into agreements with the Nisga'a government to fund some of those.

G. Plant: So to restate it: the province, then, considers that it has an ongoing obligation to fund whatever limited service requirements may arise in respect of children and family services for non-Nisga'a on Nisga'a lands.

Hon. L. Boone: Yes.

G. Plant: My guess is that given that we're talking about a relatively small group of people and a legislative jurisdiction that is permissive and may not be fully embraced, the province doesn't have any dollar amount, at this point, attached to the potential cost that might be associated with providing those services. But if I'm wrong, I ask the minister to let me know what those dollar figures are and to indicate whether they would also be dealt with through the mechanism of fiscal financing agreements or through some other arrangements, such as the kinds of agreements that are talked about from time to time through the treaty.

Hon. L. Boone: We will be purchasing those services already, so it won't be an additional cost to us. It's just a matter of directing where those dollars go.

G. Plant: The minister's answer confuses me in this respect. The fiscal financing agreement is a pretty comprehensive document in terms of identifying what each level of government considers to be the ongoing financial obligations that flow from the treaty. I don't see anything in the fiscal financing agreement about provincial obligations to fund the provision of child and family services for non-Nisga'a children on Nisga'a land. So I assume that that dollar figure is somewhere else, but it surely is a figure that exists somewhere.

I guess I was just confused by the minister simply saying: "Well, this is something we're already doing, so there's no additional cost." A big part of this agreement is about sorting out in fact who's going to do what after the agreement comes into place.

[ Page 11891 ]

[1115]

G. Plant: In terms of the fiscal financing agreement that's going to come into effect when the treaty comes into effect, we already know there's a dollar figure for the ongoing provision of children and family services to Nisga'a children on what are now the reserves. What the FFA does is translate that number on a going-forward basis, for the first five years of the treaty, as federal dollars. Is that correct?

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

G. Plant: The other category, I suppose, of children and families that I want to understand a bit better is those who are Nisga'a and who are outside Nisga'a lands. Now, I understood from the discussion earlier between the minister and my colleague that the province's basic perspective is that the status quo will prevail -- that is, the province will continue to have jurisdiction and authority over Nisga'a children and families under provincial laws or laws of general application subject, of course, to the possibility that an agreement might at some point be entered into under paragraph 92. Is that basic framework, as I've stated it, correct?

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

G. Plant: In terms of that ongoing obligation, that would include the cost of discharging that obligation, which is currently a cost borne by the provincial government as part of its general budget for the Ministry for Children and Families services. Does the government have a sense of what, if any, would be the dollar figure that could be attached to the provision of child and family services to Nisga'a children off Nisga'a lands? Alternatively, I suppose, we may be in a situation similar to what we were discussing yesterday in the context of human resources, where race is not a precondition to being a child who is potentially subject to service under the laws of British Columbia, and the province may therefore not really know what that dollar figure is. I can therefore understand that the province may not know what the amount is, but if there is some sense of what that cost is -- which, frankly, is going to be an additional ongoing cost to the province after the treaty -- I'd be interested in knowing what the amount is.

Hon. L. Boone: You almost answered your own question. We haven't broken that down, and we haven't got those figures.

G. Plant: I take it that in the fullness of time, if what is contemplated by paragraph 92 in terms of negotiating and attempting to reach agreements in respect of child and family services for Nisga'a children who do not reside on Nisga'a lands. . . . The province at that point would have to come to terms with those issues: first of all, identifying who we're talking about; secondly, organizing the provision of services for them; then thirdly, worrying about who's going to pay for it. But that bridge hasn't been crossed yet. Is that a fair statement?

Hon. L. Boone: The member is correct. You know, we would have to find a means of identifying individuals, etc., and then we would be working with the Nisga'a government to see if we could negotiate a way that they can deliver services, etc. But we haven't crossed those bridges yet.

[1120]

Hon. G. Wilson: Like in any other provisions of the treaty, if the treaty requires comparable standards, the appropriate ministries will make sure that those standards are in place. At the end of the day, I suppose, if there's conflict, it will be the courts that will decide whether those standards are comparable.

L. Reid: Perhaps just to further that point, a number of documents talk about a standard of proof -- that indeed comparable standards have to meet a particular standard of proof. Is the ministry saying. . . ? Let's take the example of the Ministry for Children and Families. Are we saying that the comparable standard will in fact only be accepted by the director of child protection for this province? If it's a child protection issue, will the standard of proof be provided by the director of child protection?

Hon. G. Wilson: I wonder if the member might point to the section or clause where standard of proof occurs, because we're not quite sure where in the treaty the term "standard of proof" applies. If the member could point out where it is, then we could maybe answer her question.

L. Reid: No, in fact it is not there. That's my question. Indeed, who will determine the standard of proof for what a comparable standard might be? That is the essence of this discussion.

Hon. G. Wilson: I'm not quite sure what the member means by a standard of proof, but I'm assuming that if the member is talking about comparable standards, which are part of the language of the text, the ministries will have to make sure that those comparable standards exist. If there is a dispute to that extent that can't be resolved, then in the final analysis the courts decide.

L. Reid: So I'm going to assume from the minister's comment that he's saying that the Ministry of Aboriginal Affairs and the Ministry for Children and Families will somehow come together to decide the standard that should be met -- correct?

Hon. G. Wilson: I think there is a general assumption on this side -- and I would assume it would be on the other -- that the Nisga'a want to act in the very best interests of their children. We assume they will. Assuming that they will, when they write their laws to make them comparable with ours, there will be some discussion to make sure that those laws are in fact comparable and that the very best interests of Nisga'a children are protected and respected. I would assume that the Nisga'a would want that, and I think the members opposite would probably agree.

[ Page 11892 ]

L. Reid: So in the interim phase -- in the transition phase, if you will, prior to this treaty being implemented -- the current legislation of this province that looks after child protection. . . . Everything continues to be in place until this ministry, in concert with the Ministry for Children and Families, determines that comparable standards are in place. Frankly, we don't know if that's five years, ten years, 15 years or if at all, based on the minister's earlier comment.

[1125]

If there is a dispute, my speculation would be that that dispute could be resolved well before it became so contentious an issue as to have to go to the court. But if we cannot, then in the final analysis the court would make the decision.

L. Reid: I've now heard the minister say that numerous times. The point truly was that there is absolutely no obligation in this treaty for them ever to take the ball and run with it. Paramount to this is the notion that they can choose to act. The minister is assuming that that action will happen, but there's nothing here that will prevail if that option is not taken -- correct?

Hon. G. Wilson: Let me try and put it as succinctly and clearly as I can. At no time will provincial standards or comparable standards not apply -- at no time. If the Nisga'a should choose to draw down powers and put in their own law, they have a right under this treaty to do so, but it must be comparable to that of the province. If they choose not to, they may choose to simply allow the provincial programs to prevail, in which case they will prevail. But at no time will there not be comparable standards applying to Nisga'a.

L. Reid: Certainly I'd be happy to pass on those answers to the individuals who have, again, enormous concern about how this will unfold.

In terms of specific sections, I will again reference section 97: "Nisga'a law applies to the adoption of a Nisga'a child residing off Nisga'a lands. . . ." The minister has, frankly, been given notice now that when we come back to this debate, I will be very keen to learn how many children are currently in the care of a relative. It seems, for the record, not to have been an option that was exercised.

There certainly are enormous rumours out there in terms of the standard for aboriginal foster families today. If indeed language and culture is a factor. . . . Again, I would simply put the question directly to the minister: is your ministry currently working on a different set of standards for aboriginal foster homes?

Hon. L. Boone: While I'd love to get into that, that is an estimates question. I would like to focus on this because we do have a limited time to debate this treaty, and I think we should be spending it on this treaty.

L. Reid: I take it that the minister has accepted notice that when the estimates debate does unfold, that information will be readily available.

In terms of the adoption question, certainly it seems to be an issue that garners much public attention. My specific questions this morning will be about the confidentiality aspects of that. Much has happened in this province regarding the adoption reunion registry and a number of those other facets. Will that same undertaking allow for information to be readily shared among aboriginal children who have, to date, been adopted? Will that information be open to them or not?

Hon. L. Boone: The same laws apply.

L. Reid: So we are to understand from the minister's comments that there will be identical adoption practices in the province for Nisga'a children from the day forward from this treaty -- or, indeed, for all children who have previously been adopted or will be adopted into non-aboriginal families under this government.

[1130]

L. Reid: I appreciate the minister's comment that standards are in fact the same, but that practice may indeed be different. It begs the bigger question, because right now we evaluate the standard of an adoption process based on the practice that got us to that point. I think the minister is embarking upon a process that could in fact be dramatically different, and that may not necessarily be good or bad. It's just that, frankly, today it's unknown. We don't know what that process is going to look like.

The question I have, in terms of substantially expanding the scope of responsibility for adoption. . . . Under this treaty, I would assume -- and I would ask the minister to correct my assumption -- that this is a dramatically different adoption process than for any other aboriginal nation in Canada. In fact, this delegates more authority to the Nisga'a, for the first time, than in any other situation in Canada. Correct?

[ Page 11893 ]

L. Reid: The question is very specific: is this delegated adoption authority unique in Canada? Will the Nisga'a nation be the only group of individuals that have this particular type of delegated authority?

Hon. U. Dosanjh: First of all, this is a treaty that we entered into subsequent to negotiations, and I think that's. . . . We agreed that it was appropriate for Nisga'a to be able to exercise these rights. I would limit my answer to that. I've actually forgotten the latter part of the question that the hon. member asked.

L. Reid: Is it unique?

Hon. U. Dosanjh: Well, I would have to survey all of the treaties across the country and all of the authorities that municipal governments used to be able to enjoy on social services, health, and the like, for decades. The fact that they don't have those powers or duties is a recent change, so I'm not going. . . . I think it would unfair to ask that question and absolutely foolish to answer it.

M. de Jong: I wonder if I could just ask the Attorney General this. We have heard he and the minister explain, on a number of different occasions during this debate, the paramountcy of the notion of the best interests of the child, and I understand that. I'd just like to know how the treaty would operate to take account of a Nisga'a Lisims government ordinance that attempted to codify the best interests of the child test -- for example, saying that there is a presumption that the best interests of the child are served by ensuring placement within a Nisga'a family. I think the Attorney General understands the question. How would the treaty operate to take account of an attempt to codify that test in that way?

[1135]

In terms of any assault that one might want to make on the Nisga'a provisions once they come into place, I think that the weapon to use would be section 3 of the Adoption Act. If their provisions don't meet those kinds of standards, they would obviously be deficient and the court would be able to deal with those issues.

L. Reid: I appreciate the Attorney General's comments. But section 96, unlike all the other sections, makes no reference to comparable standards -- an oversight perhaps or intentionally to allow for the Minister for Children and Families' comment that the standards are the same, but the practice will be different. I need a bit more information than that when it comes to. . . . Was it the intention of the drafters to in fact leave out comparable standards from that section and, frankly, to put it in the majority of the other sections that have looked at social programs for children and families?

Hon. U. Dosanjh: I think the reference to the express provision that the best interests of the child be a paramount consideration in determining whether an adoption will take place -- that the Nisga'a would have to make those provisions and that particular provision would have to have that in place -- ensures that that would be done and that they would have to have standards that are comparable. At the end of the day, remember, it's the Supreme Court of British Columbia that's going to determine whether or not the child's best interests are taken into account. And if that provision -- one could argue whatever provision the Nisga'a put in place -- doesn't adequately address the concept of best interests of the child. . . . Lawyers are very adept at dealing with those issues.

I'm somewhat troubled. We come to this again and again in the way that these questions are being posed. I'm troubled by the underlying assumption, in all of these questions that come our way, that somehow the Nisga'a would not want to protect the best interests of the child in the way they frame their adoption provisions. I'm actually absolutely struck by the tone that comes this way in terms of the questions that are asked.

L. Reid: What the Attorney General should be struck by is the underlying concern in these questions.

Interjection.

L. Reid: The underlying concern in these questions, Mr. Attorney General. . . . My specific question is valid. I believe the Attorney General understands my concern. I believe. . . .

Interjections.

L. Reid: Perhaps the minister could ask the people who intend to heckle to return to their seats, and the hon. Chair could call for order.

The Chair: All members realize that they must be in their seats to make comments.

L. Reid: The specific question to the Attorney General, which he intends to somehow slough off, is only about whether or not -- let's take him as an example -- he is convinced that. . . . Should the Nisga'a nation come back and define appropriate adoption placement only on the basis of language and culture -- under this section, that is absolutely permitted; from his previous response, that is permitted -- will that cause him any concern?

It causes me, as a member of this Legislature, enormous concern. I think there are a number of factors at play, and I speak as an educator. I speak in terms of someone who has actually taught aboriginal children in this province. There are enormous factors at play. What this section does is allow the definition to be unassailable. If the definition comes back to

[ Page 11894 ]

[1140]

L. Reid: I trust that the Attorney is correct in that. I would not be pleased to find us in the courts a year or two from now, having enormous legal battles that somehow again do not protect children. My concern has not been noted appropriately by this Attorney, hon. Chair. I have enormous concern about the value that hasn't been placed on childhood -- aboriginal and non-aboriginal alike -- in this province. I needed to know from this Attorney that somehow this would be a better course of events. The likelihood, in his eyes, is that it may be.

Interjection.

L. Reid: The Attorney is nodding his head, hon. Chair, and suggesting: "Let's hope." I was looking for some assurances.

I have some further concern regarding the openness provisions. I have some concern regarding the adoption process, and I touched on it earlier. My specific question: if indeed there's inconsistent. . . ? Well, let's start with the process. Once an adoption has gone through and a Nisga'a aboriginal child has been adopted, that record will become a matter of public record within the province. That is how I read that section. If that is indeed the case and someone wishes access to that information, the avenues we have open to us today are freedom of information. What about human rights challenges, at both the provincial and federal levels? Will any of that discussion ever come to bear? Will there be the possibility that human rights challenges could in fact be brought to bear on aboriginal adoption? That's a specific issue that's been raised to me by an aboriginal person. They believe that the door will be shut to them, that in fact they will not have access to that information. If the Attorney could comment.

Hon. U. Dosanjh: I think we addressed the issue of the Human Rights Code and federal human rights legislation in whatever endeavours the Nisga'a engage in under this treaty. Those pieces of legislation would apply, because they are laws of general application. I can't think of all of the various permutations and combinations under which these issues may arise, but I can assure the hon. member that those codes -- the Human Rights Code of British Columbia and the Canadian Human Rights Act -- would apply. Records of adoptions would become official records, as they do under the provincial Adoption Act. They would not be public records. By that, I mean that they wouldn't be publicly accessible, except through appropriate channels, as other records in that registry are.

L. Reid: I'm going to suggest that the Attorney and I agree on this point: that indeed the Nisga'a treaty is subject to provincial, federal and international human rights legislation. Would that be correct?

Hon. U. Dosanjh: I can't speak for the international. Canada is the only entity that can deal with international issues. In terms of the federal human rights legislation and the provincial human rights legislation and the Charter of Rights and Freedoms -- the equality sections and all -- they all apply to the treaty.

[1145]

Hon. U. Dosanjh: I would really like the hon. member to be a little more specific in the question, and I will give her this comment if it might assist her in clarifying her question. On the effective date, the provincial law continues to apply completely until they draw down this power to make the law. That might be six years, six months or ten years down the road; it might be never. I would like the hon. member to be a little more specific, so that I can maybe somewhat intelligently answer the question.

L. Reid: I will read the actual question into the record. Section 98(c) states: "If the Director of Child Protection. . .becomes the guardian of a Nisga'a child, the Director will consent to the application of Nisga'a law to the adoption of that child, unless it is determined under provincial law that there are good reasons to believe it is in the best interests of the child to withhold consent." So the specific question is: does this section mean that the province must prove its case before it can withhold consent for the Nisga'a to become the guardian of a child that is currently in government care? And I don't mind if the answer reflects upon them picking up this responsibility six months, six years or ten years, as the minister stated. When that time is reached -- if it's reached -- what happens around that process?

Hon. U. Dosanjh: The answer to the question posed is no.

L. Reid: So the entire responsibility for the child in care is transferred whenever that moment in time is reached, and there is no obligation.

[ Page 11895 ]

Interjection.

L. Reid: So from the minister's comment, the likely outcome is that a direct transfer of those children would follow -- that indeed children who are today in the care of the director of child protection would, once this treaty has been accepted and that aspect has been finalized, become children in the care of the Nisga'a nation. Yes or no.

Hon. U. Dosanjh: Paragraph 98 has nothing to do with transfer of children from one entity's care to the other's. This is about the application of Nisga'a law to the adoption process.

L. Reid: The Attorney is correct; that is indeed what it says. But the question is still valid. Because these adoptions often take years, someone today -- the director of child protection -- is considered the guardian of that child. If those adoptions are still in progress when this aspect of this agreement is finalized and implemented, who then becomes the guardian of those adoptions in progress?

Hon. U. Dosanjh: The director still remains in that legal position until that position is changed either by the director or by a court order.

L. Reid: Perhaps the Attorney could respond in terms of if there will be a comparable person under this treaty who will become the guardian of these children, on behalf of the Nisga'a nation, for adoptions that have not been completed.

[1150]

L. Reid: The question was more specific than that. To use the minister's analogy, an example: if the answer to the adoption question is yes -- that's the question -- what we have today, currently under the Minister for Children and Families, is that the child is in the care of the director of child protection. The director of child protection is that person's guardian. The reference is specifically: "If the Director of Child Protection, or a successor to that position. . . ." My question was: if indeed that's going to be a comparable position within the Nisga'a nation, who would that be under the Nisga'a government? Are they going to create or craft an identical service delivery mechanism?

The people who are asking the question want to know who indeed they will be seeking counsel from should they have an adoption that is captured by this time line, in that the process for adoption in this province is not speedy. They indeed anticipate problems down the road -- that they will be responsible to the director of child protection. The process unfolds, and it's not complete by the time it's picked up the new Lisims government. What is their option?

Hon. L. Boone: Well, indeed, this is very confusing -- the way you go about things, hon. member. They may choose to enact their own law. If they choose to enact their own law, then they have to have comparable standards and comparable options there for them. And they may have a director; they may have somebody called something else. It would be comparable to whatever it is that they have. But until such time as they choose to bring down their own law, our laws prevail. The laws of British Columbia prevail.

L. Reid: Noting the hour, I would move that the committee rise, report progress and ask 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. I. Waddell moved adjournment of the House.

Motion approved.

The House adjourned at 11:55 a.m.

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