Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

[ Page 11897 ]

The House met at 2:07 p.m.

Hon. D. Streifel: Hon. Speaker, it's a pleasure for me today to introduce a good friend of mine, Dax Kurtz, the son of the partner of my executive assistant, Sharon Kurtz. Dax is in the House visiting us today. He's recently graduated from BCIT in a gas turbine engine course, and I welcome him to the House. I congratulate him on his graduation and wish him all the best of luck in the future. Will the House please make him welcome.

R. Thorpe: Today visiting from Trail is Robert Hobbs from West Kootenay Power. I'd ask the House to please make him welcome.

L. Reid: I've a number of introductions to make today. The first is Mr. Michael McCoy, who has joined us. Michael is the executive director of Touchstone Family Association in Richmond, and I would ask this House to please make him welcome.

The remaining introductions are of an appreciably larger group. I would ask the House to make the following individuals very welcome: Jacky Cheng, Angela Cheng, Betty Fung, Albert Wong -- Albert and I are members of the Richmond Chinatown Lions Club, so I'm delighted that he's joined us -- Connie Chan, Bennie Yung, Juliana Yung, Bud Hoffard, Nelson Tsui, Chi Lap Lin, Cindy Lin and Lucy Quinn, who is also a member of the Richmond Chinatown Lions Club. I would ask the House to please make them all very welcome.

Hon. J. Pullinger: I know all members of the House are aware that this is National Volunteer Week. I therefore had the wonderful opportunity to have lunch with a number of volunteers from around here, who represent all the volunteers in British Columbia. I'd like to introduce them to the House.

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I also want to make special mention of Gwen Webster, who was a recipient of the Youth Spirit Award in my riding, and Lesley Sjoberg, who received the Volunteer Spirit Award in Cowichan. Ruth Richards was invited today as well, but unfortunately, she's going in for surgery and was unable to attend. She's been with Esquimalt Silver Threads for 30 years. I'd like all members of the House to please help me welcome these wonderful volunteers who make our communities a better place to be.

C. Clark: We have a guest in the press gallery today, the world and national editor of the Vancouver Sun, Mr. Stewart Muir. I hope the House will make him welcome.

Hon. M. Farnworth: In the gallery today are two individuals, Robert Hobbs and Keith Bell. Robert is the director of regulatory and government affairs for West Kootenay Power Ltd., and he's meeting with a variety of people in Victoria today. Would the House please make them welcome.

J. Doyle: In the gallery today are friends of mine who used to reside in Kaslo and now reside in Victoria. Agnes Nomland is a good friend of our government. With Agnes today is a visitor from Kaslo, Clarice Caywood. I'd like the House to make them welcome, please.

J. Reid: It's my pleasure to introduce to the House today my constituency assistant from Parksville, Anne Cameron.

E. Walsh: It gives me great pleasure to introduce to the House today Christina Vandervoort. Christina is an HEU member, and she's also on the executive of HEU. I would ask the House to please make Christina welcome.

Hon. M. Sihota: Hon. Speaker, in the gallery today is a constituent of mine who is a teacher and also a friend of the member for Skeena: that's Lucy Trigo. Would all members please give her a warm welcome.

The Speaker: I have an introduction to make of special guests of mine. I don't often get family members here, but I have first cousins here from Toronto: Malcolm and Elizabeth Campbell. Malcolm is a recently retired accountant from a big firm in the Toronto area. They are visiting Victoria to enjoy not only the beautiful scenery but also the wonders of what happens in here. Would the House please make them welcome.

Oral Questions

DEBATE ON NISGA'A TREATY BILL

The Speaker: Would the member please inform the House whether his question is referring to a matter which is on the order paper -- in Votes and Proceedings.

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The Speaker: Thank you. Then I think it's out of order.

Some Hon. Members: It's in order.

The Speaker: I'm sorry -- half a minute here.

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G. Campbell: Hon. Speaker, perhaps I could phrase the question in a different way. Is the Premier willing to live up to his word to the people of British Columbia or not?

Hon. D. Miller: I want to say very simply that the quote that the Leader of the Opposition used with respect to what the Premier said. . . . I want to say very clearly that the Premier was right.

The Speaker: First supplementary, Leader of the Official Opposition.

G. Campbell: Last week we heard from a well-respected Nisga'a elder, Frank Calder, with regard to the issue of shutting down debate with regard to the treaty. He said that closure was coercion. So I have a question again for the. . . .

Interjections.

The Speaker: I'll hear the member's question before I make any judgment.

G. Campbell: I have a question for the government. This is with regard to the Premier's oft-made quote that the MLAs would have the opportunity to vote on each and every clause in this treaty and the settlement agreement in this House. As part of the Premier's excuse for not giving the people of British Columbia a voice in the treaty mandate, he said that MLAs would have the opportunity to vote on each and every clause in this House.

My question is to the Minister of Aboriginal Affairs. Can the people of British Columbia count on the Premier keeping his word and every MLA being able to vote on each and every clause in this agreement in this House?

Hon. D. Miller: Hon. Speaker, the Nisga'a have been pressing with various governments in this country for -- how many years? -- 111 years to accept the fact that there is a responsibility to negotiate land claims. They've been actively at the table for 26 years. The Liberal opposition has played game after game after game. Court cases. . . . The words of the Leader of the Opposition are hollow; it's more game-playing by this Liberal opposition. Let's get on and pass this treaty, do the right thing by the Nisga'a and for the people of this province, and stop your game-playing.

The Speaker: Second supplementary, Leader of the Official Opposition.

G. Campbell: To the Deputy Premier. Maybe the Deputy Premier could care enough about this that he would pay attention to the debate that's going on in the House. This is what your Aboriginal Affairs minister said.

The Speaker: Through the Chair, member.

G. Campbell: "I think it's been a very productive debate. . . ." This is the NDP's Aboriginal Affairs minister. "I appreciate the members opposite not only for some of the insightful questions but some of their good suggestions." Further -- this was on Monday: "These are important issues that obviously need to be canvassed further."

It was wrong 100 years ago to slam the door in the faces of the Nisga'a. It is equally wrong to slam the door on the elected representatives of this province.

Interjections.

The Speaker: Order, members.

G. Campbell: My question is to the Deputy Premier.

Interjections.

The Speaker: Members, come to order.

G. Campbell: My question is for the Deputy Premier: why is he afraid to have a full and honest debate about every clause of this treaty, so that every British Columbian has a chance to have their questions answered?

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Interjection.

The Speaker: Member, member.

Hon. D. Miller: Here he stands in the Legislature, saying, "We need more time to debate," when he foreclosed the debate. His party and he foreclosed the debate by saying to British Columbians: "We will never accept this treaty. We went to court." What a sham! What a sham for that man to now stand and go through the sham of saying: "We haven't had enough time to debate!"

The Speaker: Minister, minister.

Hon. D. Miller: We invited the opposition: "Do you want to sit later? Do you want to have more hours?" They never came to us.

The Speaker: Minister, take your seat.

Interjections.

The Speaker: Order, order!

Hon. D. Miller: They want to play this. . . .

The Speaker: Minister, take your seat.

Interjections.

The Speaker: Minister, take your seat.

Interjections.

The Speaker: Members will come to order.

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The Speaker: Government members and ministers of the Crown will come to order.

Next question, from the member for Vancouver-Little Mountain.

G. Farrell-Collins: I'd like to quote from Mr. Calder for the members opposite.

Interjections.

The Speaker: Members, members. Come to order, members.

Proceed.

G. Farrell-Collins: Thank you, hon. Speaker. I know that the members opposite, on the government side, don't like to have debate, don't like to hear open conversation. They would like to shut people down, but all members in this House have a right to be heard, and that member should know it as well as any.

The Speaker: The question.

G. Farrell-Collins: Maybe if she could keep her word around House negotiations, we wouldn't be here today. We would have been here in February.

The Speaker: Member, focus on your question.

Interjections.

The Speaker: Members. . . .

G. Farrell-Collins: Mr. Calder says: "It's going to be the first treaty in this province, and I would like to see it thoroughly considered before passage or agreement on it. I think I speak on behalf of quite a number of people in that respect. A closure, to me, is more of a coercion. I don't want any treaty to be coerced on me."

The Speaker: And the question?

G. Farrell-Collins: When did this government lose every principle it had? When did they decide that they can do absolutely everything they want, anything they want, despite the rules, despite precedents, despite the right of four million British Columbians in this province to be heard?

Hon. D. Miller: I want to congratulate the Opposition House Leader, because he managed both to look indignant -- a little bit of high dudgeon there -- and to keep a straight face. He kept a straight face.

The Speaker: Minister, to the answer.

Hon. D. Miller: You would think. . . . It must be those lessons he learned, having been betrayed by his own leader and having to fall on his sword on the pension issue.

The Speaker: Minister, minister.

Hon. D. Miller: He learned a lot about politics. What we just witnessed was just pure, straight, unadulterated politics, hon. Speaker, not any sincere desire. . . .

The Speaker: Minister, take your seat.

The Chair wants to caution both sides about indulging in some personal allusions that are not permitted under our rules. I want to advise all members involved in questions and answers in that regard.

Next question. First supplementary, the member for Vancouver-Little Mountain.

G. Farrell-Collins: I don't need to take lessons about falling on swords for a leader. That man couldn't drink a glass of water without leaking it through 40 holes.

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The Speaker: Member, your question, please.

G. Farrell-Collins: . . .here's the penultimate question.

The Speaker: Come to your question.

G. Farrell-Collins: These are important issues that obviously need to be canvassed further. I agree with the Minister of Aboriginal Affairs. Why doesn't he stand up for the principles that he left on this side of the House and demand a full debate for the people of British Columbia on Nisga'a?

Interjections.

The Speaker: Remember the caution all members were given two minutes ago.

Hon. D. Miller: Hon. Speaker, perhaps one of these days we might have a debate about policy, and we could test some of these things. But sincerely, I really want to repeat that it seems to me that British Columbians have been engaged now, in an active way, for well over 26 -- almost 27 -- years in developing the first modern-day land claim treaty -- in this case, with the Nisga'a people of northwestern British Columbia. It has been a long process but one that generally. British Columbians, I think, support. They expect their elected representatives to get on with the business at hand, and we are doing that, I think, in a very responsible way.

M. de Jong: Madam Speaker, we could have been here in February. We could have been here in March, debating this legislation.

Interjections.

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An Hon. Member: Where were you?

M. de Jong: I was looking at another government program that's gone from here to there, and it's costing British Columbians millions of dollars. That's where I was.

The only reason we weren't here is because the Premier was hiding from questions about his relationship with an individual who secured a licence-in-principle for a casino that defies all logic. That's why we weren't here.

Let the Deputy Premier explain to British Columbians why it is that their fundamental right to have every clause of this first modern-day treaty debated should be sacrificed because the Premier didn't have the courage to be here and answer the tough questions.

Hon. D. Miller: As I've said, I think we have allocated a significant amount of time. . .

Interjections.

The Speaker: Members, watch the interruptions.

Hon. D. Miller: . . .for a very important piece of legislation. In fact, I do believe that the time taken so far with the debate on the Nisga'a legislation is perhaps the longest of any piece of legislation ever dealt with in this House -- maybe not the longest, but certainly amongst the longest.

We have, in addition to that. . . . When the Government House Leader served notice that we would use closure, she did invite the Liberal opposition; she did suggest that if they wanted more time, we would accommodate that time by sitting nights, by extending to more hours. They have not come forward with any request for additional hours. Therefore I suggest that the show they're putting on today is somewhat hollow, faced with the reality of their action.

Interjections.

The Speaker: Members, members. Member, take your seat.

I'm going to extend question period for a minute and a half, if we can do that by the clock. Given the interruptions that took place, it was difficult to get all the questions and answers heard properly. So I'm going to extend it by one question and one answer.

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My question to the Minister of Aboriginal Affairs is: is that why he was replaced? Is that why this minister was replaced as Aboriginal Affairs minister -- because the Premier wanted someone who would nod compliantly when the Premier said: "Democracy be damned; I'm ending debate now because it's politically convenient for me to end debate"?

Hon. G. Wilson: Hon. Speaker, I find it amazing that this member stands up worrying about debate on Nisga'a. That member, the official opposition critic, took off to India or Pakistan in the middle of this debate.

You want to talk about democracy. We have spent, by the end of Thursday, 123 hours on debate. We have spent more time debating this bill than the patriation of the Canadian constitution -- more time than any other bill in the history of this Legislative Assembly. It is true that the Nisga'a people are upset that we have to bring in closure. The reason they're upset is because of the complete lack of effective debate on that side of the House; that is why they're upset. They're upset that that side of the House would choose to take them to court to end this treaty; that's why the Nisga'a are upset.

Interjections.

The Speaker: Hon. members, come to order.

Interjections.

The Speaker: Members, question period is over.

Ministerial Statement

NATIONAL VOLUNTEER WEEK

Hon. J. Pullinger: Thank you, hon. Speaker.

Interjections.

Hon. J. Pullinger: It's unfortunate that I already hear the opposition saying, "Oh, let me guess; it's on volunteers," in the usual disparaging way. What an unfortunate way. . . .

Interjections.

The Speaker: I encourage members. . . . The Chair is prepared to recognize the continuation of the work today when there's quiet in this chamber and no interruptions.

Minister, proceed.

Hon. J. Pullinger: This is National Volunteer Week. We in this chamber, as representatives of the people of British Columbia, have the opportunity today to stand together to applaud and thank the 1.3 million volunteers whose work so enriches our communities and our province.

As B.C.'s first minister responsible for volunteers in the community service sector, I had the honour today of meeting and enjoying lunch with a number of special volunteers who I introduced earlier. These hard-working individuals deserve recognition for the remarkable contributions they've made through their volunteer efforts. They've selflessly given of their time and of themselves to make the lives of their fellow

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These individuals have reached out to others in their communities through volunteering -- in some cases, for as long as 28 years. I hope I speak for every member of this House -- in fact, for all British Columbians, I'm sure -- when I extend a strong vote of thanks to these volunteers who are with us today and to the rest of the 1.3 million who are not.

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Interjections.

Hon. J. Pullinger: Hon. Speaker, it's so unfortunate that this is the third time I've made a statement, and every time the opposition interrupts and heckles and disparages volunteers and the responsibility in this government for volunteering. It's really unfortunate.

The Speaker: Members, come to order. Ministerial statements are not debatable items, except when the reply comes forward and there is an opportunity to make a brief factual reply.

Hon. J. Pullinger: Economic and social changes in this country and in this province in the wake of globalization have had an interesting result. They've resulted in a very much renewed focus on local community and particularly on the untapped potential for communities to grapple with and solve many of the problems that they face today, as a result. There's a renewed awareness of the fact that communities are where we live our lives, where we define ourselves and our potential to reach our individual and collective goals and where we define and live out our values.

In recent years we've heard a great deal about the values of global economies, about the value of individual achievement, about investment, about competition and about the marketplace as a solution for virtually everything. These are the values of a global economy, and we hear them virtually daily.

In contrast, we've heard little about the value of civil society -- about cooperation, inclusion, tolerance, equality and about the idea of community. As Alexa McDonough, federal leader of this party, said recently: "We're a country built on the idea of community, that you help your neighbour and your neighbour helps you. It's the idea behind. . . ."

Interjections.

The Speaker: Members will come to order. The member for Kamloops-North Thompson will come to order.

Hon. J. Pullinger: I'll continue with the quote: "It's the idea behind every barn-raising in our history. It's the idea behind every. . . ."

Interjections.

Hon. J. Pullinger: Hon. Speaker, I'll begin again from the beginning of the quote, because the members opposite can't be respectful of volunteers long enough to listen to a very short statement. Let me start from the beginning of the quote again: "We're a country built on the idea of community, that you help your neighbour and your neighbour helps you. It's the idea behind every barn-raising in our history. It's the idea behind every labour union. It's the idea behind public transit, public education and public health care."

Over the past year, I've had the privilege of travelling the province and meeting with many people in their communities. I'm encouraged by the resurgence of interest in community and the values that build community. I'm encouraged by the growth in volunteerism, the freely donated time people give that is so central to building community.

Hon. Speaker, in this time when so much is being torn down and so much focus is on the values of the marketplace, it's encouraging to recognize that British Columbians still hold dear the people-first values of community that built this remarkable province and country. I'm pleased that our government has recognized the emergence of the voluntary, or third sector, and is beginning to involve the sector in the decision-making process in a way it has never been involved before.

I've consulted and worked with the sector for many months now. We're very close to having an agreed-upon strategy -- the first ever -- to enhance and strengthen the voluntary sector. We've engaged the sector in helping our young people get training and experience through volunteering in their communities while building credits towards post-secondary education. That program was announced today as having been a success and is being extended.

We have, for the first time ever, invited the third sector to the table to talk about economic development in coastal and resource communities. We're looking increasingly to the third sector to help government help disadvantaged people gain the support and skills they need to become independent.

Volunteers in the third sector play a vital and increasingly important role in our communities, our families and our daily lives. It is with a great deal of pleasure, then, that I stand here to recognize National Volunteer Week and to extend, on behalf of the government members of the House, to every one of those 1.3 million volunteers in the province a very well-deserved and hard-earned thank-you.

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K. Whittred: I too would like to congratulate the volunteers, particularly those volunteers who have joined us in the House today. We congratulate you for the unselfish gift that you make of your time and energy on behalf of all British Columbians. It is difficult to think of almost any endeavour, whether it be in the arts or sports or community events or fundraising for things such as the Cancer Society, where volunteers do not play an absolutely vital and important role.

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We value volunteer organizations that went out and raised money to buy buses to take seniors on outings, and we wonder why those buses sometimes sit idle. The reason is because the volunteer driver is thought to be possibly taking a job from a union worker.

We look at the capping of gaming revenues for charities, which has reduced the amount of funding available for charitable organizations, while hundreds of millions of dollars are channeled into general revenue. One of the outcomes of this activity has been a 22 percent increase in the food distributed through food banks. But perhaps the most shocking of all is the closing of the Pender Detox Centre, where the volunteers who march for the Salvation Army were forced to close the facility when funding was removed.

G. Campbell: We support the charities in Nanaimo.

K. Whittred: We support the charities in Nanaimo. We value and we thank and we hold in esteem the work of volunteers. We value that work not only in word and spirit but with policy and process that recognize and value the work of volunteers and the organizations they represent.

Orders of the Day

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NISGA'A FINAL AGREEMENT ACT
(continued)

On the schedule, chapter 11 (continued).

G. Hogg: Moving to sections 100 through 102, preschool through grade 12 education. . . . These sections provide the option for the Nisga'a Lisims government to make laws in respect to K-to-12 education for people living both on and off Nisga'a lands and for both Nisga'a and non-Nisga'a residing within the Nisga'a lands. It includes the teaching of Nisga'a language and culture, and the laws must include provisions for curriculum, examinations, standards for levels of achievement, transfer of students and certification of teachers.

I agree with the comments coming from both sides of the House that were suggesting that in this province we have not done well by our first nations people in terms of the provision of educational services to this point in time. And I appreciate and understand that the intent of these sections in chapter 11 is to allow the Nisga'a people greater control of their education and to ensure that education for their children is more relevant and appropriate. With respect to the issues of governance that apply to this, I will try and use the system as I understand it today within our educational system as a touchstone to review my understanding of these sections.

My first question corresponds to the children of B.C. school age. Under provincial law, children resident in B.C. of school age are entitled to free public education, and parents are required to provide their children with an enhanced educational program, either in school or at home. If the Nisga'a Lisims government legislates in respect to education for Nisga'a citizens, as permitted in section 100, is there any expectation that there will be the same rights and responsibilities held for them?

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G. Hogg: Section 100 puts limitations on the authority of the Nisga'a Lisims government to legislate in respect to education. Under (a), standards for instruction that allow students to transfer to other districts and to gain access to post-secondary institutions must apply. Under (b), teachers must be certified in accordance with standards comparable, but not necessarily identical, to those of the College of Teachers of B.C. or the independent school teachers certification committee. How will such comparability be determined?

Hon. G. Wilson: Well, there are standard processes of accreditation that would apply.

G. Hogg: With respect to the standard processes that have been applied in discussion with the B.C. School Trustees Association, they have concerns with respect to the issues of comparability. I wonder if the minister would make more specific reference to the specifics that he is referring to in terms of those standards of comparability that would be applied.

Hon. G. Wilson: The first is that this is a choice that the Nisga'a have. They may choose to maintain the status quo.

Secondly, the member will know that all of the curriculum issues and examinations and other standards and permits and so on have to be in compliance with the provincial standards. There are provisions with respect to the certification of teachers that will have to be complied with, and those will be standard to the provincial regulation. With the exception of the teaching of the Nisga'a language and culture, there is no provision for anything to be otherwise.

G. Hogg: Will other school boards and independent schools and post-secondary institutions determine whether or not to recognize Nisga'a student credentials as comparable when placing transfer students or granting post-secondary admissions? So if somebody from a Nisga'a school district is applying to a post-secondary institution, in terms of the acceptance of those, how will those admission criteria be granted or be determined? Will that be incumbent upon the institution to which they apply?

Hon. G. Wilson: It will be exactly as it is out of any other school.

G. Hogg: With respect to conflicts which may arise -- and I reference section 101, where they talk about inconsis-

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Hon. G. Wilson: Hon. Chair, I think the member will know that the Nisga'a may pass laws. Those laws must be comparable with provincial standards. So if those laws are not comparable with provincial standards, then they're inconsistent with the treaty. Therefore they would not apply. There are, however, provisions with respect to Nisga'a language and culture which the Nisga'a may embark upon, and that's a separate issue.

G. Hogg: I then ask the minister to please define for me the intent of section 101 with respect to the inconsistency and when, in fact. . . . You could give me an example of when you might see that apply with respect to the extent of an inconsistency or conflict.

Hon. P. Ramsey: It could be something as simple as a school-year calendar.

G. Hogg: Will the College of Teachers determining whether the Nisga'a standards for teachers are indeed comparable, if a Nisga'a teacher applies for BCCT certification? Will it be the College of Teachers that determines the standards for those teachers?

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G. Hogg: I appreciate that they must be comparable -- or that the intent is that they would be comparable. In discussions recently with the BCSTA, they've expressed concern as to what would occur if in fact there isn't comparability -- if comparability is not found. How is that resolved? Who has the right of say with respect to that?

Hon. P. Ramsey: The treaty specifies that there must be comparability. If a law was passed where there was no comparability, that law would be in violation with the provisions of the treaty and would have no effect.

G. Hogg: If the Nisga'a Lisims government sets up an institution to replace the existing school board, will that institution come under federal labour legislation?

Hon. P. Ramsey: That's our expectation.

G. Hogg: What then will be the effect on union certifications and the application of provincial law, including provincial bargaining, in such circumstances?

Hon. P. Ramsey: There are provisions in the federal code for successorship rights.

G. Hogg: With respect to the Nisga'a government that will be set up, would I assume that the Nisga'a government would carry on a function, as well, as we currently understand school boards to function? Would that be an adjunct to their current responsibilities or the responsibilities that they would take on?

Hon. P. Ramsey: Yes. They could set up a board if they drew down these powers that were to function as a school board. There would not be a school board under the provisions of the provincial School Act. It would be a school board under the provisions in the Nisga'a Lisims government.

G. Hogg: So I'm assuming that they could hold elections and have school boards. The options would be wide open to make any form of governance that they would see appropriate to address the needs of their citizens both on and off their lands.

Hon. P. Ramsey: To the member, I'm not sure I caught the gist of his question. Let's sort of review. I mean, one of the fundamental principles of Nisga'a Lisims government is that it can make laws respecting Nisga'a citizens on Nisga'a land -- not for non-Nisga'a citizens on Nisga'a land.

G. Hogg: It does make reference in section 102 to persons other than Nisga'a citizens residing within Nisga'a lands. Those are the ones that I was making reference to -- and the negotiations thereon.

Hon. P. Ramsey: Those negotiations would be between the province of British Columbia and the Nisga'a government for making provisions for education of the persons captured by paragraph 102(a) and (b): persons other than Nisga'a citizens and Nisga'a citizens residing off Nisga'a lands.

G. Hogg: With respect to these negotiations, I'm assuming, then, that the Nisga'a government would negotiate directly with the provincial government in terms of setting up the provisions for any type of educational system for both on and off the lands, for both non-Nisga'a and Nisga'a people, and come to some type of agreement as to how they would carry out those types of provisions from K-to-12 -- in whatever form that they might have -- as long as we have, as laid out in section 100, the comparability, the standards and the equitability that exist across those. Is that correct?

[1500]

G. Hogg: Just one more question with respect to the Nisga'a law prevailing in the event of any inconsistency or

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The Chair: I recognize the member for Comox Valley.

E. Gillespie: I ask leave to make an introduction.

Leave granted.

E. Gillespie: It's a great pleasure to be able to introduce some students who are here today with their parents and their teacher, Mrs. Amy Yakimyshyn. They're from Tsolum Elementary, school district 71, in the Comox Valley. I ask you all to join me in welcoming them.

Hon. P. Ramsey: The opposition wants to ask multiple questions at a time.

The principle as set out is fairly clear, and that's comparability, particularly in the areas that are absolutely vital to ensure quality education for Nisga'a children -- curriculum, standards for teachers, and the like. There are clearly opportunities on a whole range of issues for the Nisga'a school system -- if they set one up, if they draw down their powers -- to differ in operational ways from a provincial school board. But the broad principle is, I think, fairly clear: comparability. If they enact a law which is in dispute as far as whether or not it meets comparability provisions, there are dispute resolution provisions in the treaty that would apply.

K. Whittred: I have one or two questions relating to the curriculum, examination and standards. Let us assume, for the sake of argument, that Nisga'a Lisims government chooses to set up its own school system and create its own curriculum. When its students, under that scenario, apply to a post-secondary education institution, would they then be evaluated as a student from any other province would be?

Hon. P. Ramsey: I'm seeing if there's any elaboration needed. The answer is yes.

[1505]

Hon. P. Ramsey: I think your understanding is broadly correct. There is a guide of transfer set up by the CMEC -- the Council of Ministers of Education of Canada -- that enables this sort of cross-school system recognition of comparable achievements in public schools for admissions to university. But what is envisioned by the treaty actually goes beyond that. What both the Nisga'a and all signatories to the treaty are looking at is being able to facilitate the transfer of students in a Nisga'a school system to a provincial school system -- or the other way -- if those transfers should occur at grade 5, at grade 10, at grade 8 or whenever. So it's not just the end point we're looking at. This contemplates rough comparability of curriculum throughout the school system that the Nisga'a Lisims government could establish.

K. Whittred: I have just one or two questions. This is really the only aspect of this section that I want to pursue. I hear what the minister is saying about comparability at various grade levels. That also exists now between provinces. If a student moves, they are put into the appropriate placement. The point I was trying to make is that if the Nisga'a school system chose not to set up their own school system and chose to remain within the B.C. system, then their course offerings, if you like -- and I will use the grade 12 level, because it's the easiest -- would by necessity conform with the rest of the province so that there would be entrance to university. Because the universities -- or the post-secondary, I should say -- do say you need English 12, four subjects numbered 12, and so forth. And that would be a different scenario than if the Nisga'a set up their own school system, where the equivalency then comes into play. Is that a correct statement?

Hon. P. Ramsey: I may be missing something, but let me see if I got the gist of what you were asking. If the Nisga'a choose not to draw down their powers, then district 92 simply continues. It continues to do the provincial curriculum in all respects, including graduation requirements.

K. Whittred: But the other scenario is that if the Nisga'a chose to set up their own school system, then students coming out of the Nisga'a school system would be evaluated when they applied to a B.C. institution as a student would be from any other province. Is that correct?

Hon. P. Ramsey: A student graduating from the Nisga'a school system, if they drew down their powers and set it up, would have received a course of instruction comparable to the B.C. curriculum, including graduation requirements. The evaluation of that curriculum for entrance to university lies in the hands of the institution you're seeking admission from. Now in British Columbia, of course, we have broad requirements set out for all institutions, but individual institutions get to set specific requirements, sometimes even for individual programs of study. Those requirements would apply to students graduating from the Nisga'a school system, as they do now to students graduating from district 92, a provincial school board.

[1510]

[ Page 11905 ]

K. Whittred: I will concede to my colleague.

G. Plant: I want to explore, just for a question or two, the scope and extent of Nisga'a lawmaking power under sections 100 to 102. The School Act of British Columbia has rules about eligibility and rules that require certain individuals who meet the requirements set out in that act to attend a school or enroll in an education program. These provisions in the treaty that we have before us give Nisga'a Lisims government lawmaking authority in respect of preschool to grade 12 education on Nisga'a lands of Nisga'a citizens. Is it the government's view that the scope of that lawmaking authority would extend to such questions as age requirements or age eligibility for participation in preschool to grade 12 education?

Hon. P. Ramsey: They may make laws in respect of preschool to grade 12, so I think the answer to the member's question is: if they wish to vary eligibility by age, they can. The fundamental premise underlying this section on K-to-12 is the desire of the Nisga'a to have the ability to mesh well with the public K-to-12 system and the public post-secondary system in this province, not to throw roadblocks in the way, and clearly to be masters in their house over educational issues. In my conversations with the Nisga'a about education, that desire for a meshing of the systems is one of the key points that they're looking at.

[1515]

Clearly, as the questions and the discussion between my colleague from North Vancouver-Lonsdale and the minister indicated, the Nisga'a are going to always have an incentive to ensure that to the extent that they draw down these powers, they administer an education system that ensures that Nisga'a students reach high levels of achievement -- so that, in fact, there will be transferability and graduates from Nisga'a institutions will be as qualified to enter the universities of British Columbia and elsewhere as public or other school students in British Columbia would be. That's the hope, I suppose, that we all have. The minister's answer was helpful, because it does illustrate that we are talking about the ability to make laws, and I think that's important.

Let me take one aspect of that issue one step further, though. The School Act of British Columbia is pretty clear that some individuals -- individuals who are resident in British Columbia and who are in a certain age bracket -- have obligations. They have to enrol, to participate, in educational programs provided by a board, so long as they're in that age window. The question arises of whether and how the provisions of this treaty relate to those obligations. Obviously there are going to be circumstances where someone who is a Nisga'a child is going to be a person resident in British Columbia, so section 3 of the School Act looks like it applies. There is no consequential amendment to the School Act that deals with this particular issue. However, in other contexts in the course of this debate, we have talked about the general provisions in Bill 51 itself, particularly section 3, which give the treaty full force and effect in law, and I think it's useful to continue to explore the reach of that provision. I want to ask the minister whether, in effect, it is section 3 of Bill 51 that trumps these specific requirements about enrolment that exist in the School Act so that it's the bill that governs rather than the School Act -- at least as a general principle and, I suppose, subject to whatever particular laws the Nisga'a may make. The Nisga'a may, of course, make a law in which they adopt provincial laws.

Hon. P. Ramsey: I'll take a first cut at this and then, as far as different clauses, the Attorney may wish to comment. What's contemplated here is the Nisga'a Lisims government being able to set up what would be the equivalent of a school board to run education for K-to-12 students on Nisga'a land -- the Nisga'a citizens on Nisga'a land. In doing so, their law setting up that board must be comparable in the big areas of curriculum and teacher certification, which is clearly the hallmark of what we expect in standards in a public school system.

[1520]

G. Plant: The reason why I asked the question in part in this context is because the School Act does, as the minister says, speak about obligations in terms of boards, and a board is a defined term in the School Act. I don't believe that it's defined in a way that on its face would extend to whatever body the Nisga'a may establish, exercising their lawmaking authority. They could call it a board and, I suppose, that might make it a board.

There's that possible dissonance, if you will, in terms of the strict language of terminology. And I may have missed something in the treaty that the minister can point out to me, but the question then is: if it's the intention that the Nisga'a, when they exercise their lawmaking powers, will do so through a board -- and I recognize that such a board would be a Nisga'a public institution -- how does such a board become mechanically sufficient for the purposes of dealing with the obligations in the School Act so that they no longer apply? I'm just trying to figure out how the two systems do or

[ Page 11906 ]

Hon. U. Dosanjh: I think the answer is found in that well-known section 13 of the "General Provisions," which says: "Federal and provincial laws apply to the Nisga'a Nation, Nisga'a Villages, Nisga'a Institutions, Nisga'a Corporations, Nisga'a citizens, Nisga'a Lands, and Nisga'a Fee Simple Lands, but. . .in the event of an inconsistency or conflict between this Agreement and the provisions of any federal or provincial law, this Agreement will prevail to the extent of the inconsistency or conflict." What that really says is that under the circumstances put forward by the hon. member, if the Nisga'a do not make laws with respect to a board and the like, the provincial law continues to apply.

G. Plant: We'll have to turn that over. If the Nisga'a do make laws, then those laws will prevail.

Hon. U. Dosanjh: To the extent of any inconsistency or conflict, Nisga'a laws would apply. Otherwise, they could sit side by side and operate together.

G. Plant: That's helpful.

I want to deal briefly with the issue of funding. In the fiscal financing agreement there is just over $9 million set aside as the base-year funding amount in respect of education. I assume that's not necessarily restricted to K-to-12 education. That's all federal money. Is there provincial money committed in respect of the provision of education services to Nisga'a currently and over the course of the first fiscal financing agreement term, which is five years?

[1525]

G. Plant: Is it expected that the province will continue to fund the provision of education services by the Nisga'a, should they take on the authority to do that, for non-Nisga'a citizens or non-Nisga'a children?

Hon. P. Ramsey: Yes, it is contemplated that we continue to have responsibility and fund the Nisga'a school board to provide those services.

G. Plant: I could imagine that there are children across British Columbia of Nisga'a origin who are currently enrolled as students in a variety of public schools -- other arrangements in a variety of school districts across British Columbia. . . . I assume that barring special cases, the province essentially funds the education of those people to the same extent that it funds all other students in the public schools of British Columbia. Presuming for the moment that that assumption is correct, could I go further, then, and ask the minister whether it would also be correct that the province doesn't foresee anything changing in that regard after the treaty comes into force?

Hon. P. Ramsey: There is a provision -- 102(b) -- that does contemplate discussions with Nisga'a Lisims government about provisions for Nisga'a children residing off Nisga'a lands and receiving education in the public school system of the province.

G. Plant: But for that, it will remain as it is now, at least until such time as the agreements contemplated by section 102 are negotiated. Is that correct?

Hon. P. Ramsey: Yes, your understanding is correct.

G. Plant: I want to broaden the discussion for just a moment and try out a fairly general proposition that the Minister of Aboriginal Affairs may be able to correct. We've established in a number of contexts -- children and families, social services and now education -- some aspects of the way the province currently delivers those sorts of services to all British Columbians, outside Nisga'a lands, some of whom may be Nisga'a citizens. It seems to be the case that while there are provisions made for the possibility of agreements being entered into with respect to the delivery of particular services to Nisga'a citizens off Nisga'a lands -- and there's certainly the expectation that in the fullness of time some of those agreements will be made -- generally speaking, the province will continue to have the same obligations and the same financial burden in respect of the delivery of social services, in the broadest possible sense, to persons of Nisga'a descent who are not living on Nisga'a lands. In that respect and to that extent, for those people this treaty will not change much -- if anything. Is that a correct statement? If it's overly general, I'm sure the minister will correct me.

Hon. G. Wilson: Insofar as Nisga'a jurisdiction doesn't extend to them, I would say that that's a true statement.

[1530]

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

J. Dalton: I have probably two questions about the K-to-12 system that may be set up. The Minister of Education has responded to the committee about a comparable system if they invoke the provisions under 100. I'm wondering if the minister or perhaps whoever else could assist us with the very important issue of accountability. I'm thinking of the auditor general's report. For example, if the Nisga'a were to set up a system comparable to the existing school district that is there now, would the accreditation-of-schools process be applicable? Secondly, would the testing of grades 4, 7 and 10 students also be invoked?

[ Page 11907 ]

J. Dalton: I think that probably leads into my other question or concern, particularly with other than Nisga'a citizens who may be within the Nass River area and, of course, who may also be taught under the new Nisga'a system, if they develop one. If such students, who are non-Nisga'a but within the Nass River area are taught under this potentially new Nisga'a system, would those teachers have to be members of the BCTF, or would they have their own union or association? I'm just trying to picture how this new potential system will fit within the current framework -- in particular for the non-Nisga'a within the Nass Valley.

Hon. P. Ramsey: Again, back to one of the principles underlying the treaty, a Nisga'a government would not have jurisdiction over non-Nisga'a residing on Nisga'a lands. The province, the Ministry of Education, would seek, under section 102(a), to negotiate with the Nisga'a school district for provision of education services to children of non-Nisga'a on Nisga'a lands.

M. de Jong: I don't believe there are any other members dealing with sections 100 to 102. We will proceed, then, under the heading "Post-Secondary Education," with sections 103 to 107. My colleague from Okanagan East is here for that purpose.

J. Weisbeck: A number of my questions have been answered as we talked about this transition from high school to post-secondary education. But I would like to get some sort of an idea of the current situation, the scope of the need of the Nisga'a. For example, what are the demographics? What are we involved with here? We're talking about 5,000 Nisga'a. I mean, what is the current number of students who are now attending post-secondary institutions, and what are the demographics, for example, of 18-to-25-year-olds? I'm trying to get an idea -- and the public might like to know as well. . . . When we start talking about them possibly setting up their own universities, what sort of a population are we dealing with?

[1535]

J. Weisbeck: Currently are there any post-secondary programs offered by the Nisga'a?

Hon. G. Wilson: The answer to that is yes. The Nisga'a currently offer programs in partnership with Northwest Community College and the University of Northern British Columbia. So those programs are currently in place.

J. Weisbeck: You mean there's a contract with those institutions, or are they. . . ? I was also asking if there are any programs offered on Nisga'a lands at this point.

Hon. G. Wilson: The answer is yes, there are.

Interjections.

Hon. G. Wilson: Yeah, that member probably is prepared to stand up and answer them. Quite true.

The answer to that is yes, two -- with Northwest Community College and with the University of Northern British Columbia.

J. Weisbeck: It's my understanding that there is a number of options available to the Nisga'a. First of all, you can maintain the status quo: they could attend a university or college of their choice. Secondly, you could contract a university to offer the programs. Thirdly, obviously they're able to create, under this treaty, their own universities, colleges or institutions. It's also my understanding that currently the Department of Indian Affairs and Northern Development provides funding to the post-secondary student support program. How would this change under the treaty -- this funding process?

Hon. G. Wilson: The funding would come through the fiscal financing arrangement, as is spelled out in the text of the treaty. They will also be eligible for student loan programs.

J. Weisbeck: How would these dollars be determined, as far as the need? Is it on a per-student basis for some of the capital projects? How would these dollars be determined?

Hon. G. Wilson: Largely, it's a rollover of existing dollars. But should the Nisga'a choose to administer it, then they would put in those new regulations.

J. Weisbeck: If the Nisga'a decide to create their own institutions, is there any relationship at all to the university or college acts? Would they have to create their own college-university act?

Hon. G. Wilson: It makes it very clear under 104: "Nisga'a laws in respect of post-secondary education will include standards comparable to provincial standards in respect of. . . ." And it talks about institutional organization, admission standards, instructor qualifications, curriculum standards and requirements for degrees, diplomas and certificates. So either they could choose to have an institution that would be governed under the existing law, or they could -- much as we've said in every other section that deals with Nisga'a law -- choose to put in their own. But it would have to be comparable to what exists today.

J. Weisbeck: If they're allowed to set up their own private post-secondary institution, would they be required to participate in an accreditation process?

[ Page 11908 ]

[1540]

J. Weisbeck: In section 103, they're obviously allowed to create a post-secondary institution. I'm curious to know: who are they accountable to? I mean, how do we determine whether or not this is cost-effective?

Hon. G. Wilson: I'm not quite sure what the question. . . . Who are who accountable to? The Nisga'a are accountable to the Nisga'a nation. The Nisga'a nation are accountable to the Nisga'a. So if they choose to establish a post-secondary institution, the Nisga'a people will obviously hold their leaders accountable for that decision.

J. Weisbeck: But they're receiving funding from the federal government. So are they ultimately accountable. . . ? Do their programs, whether they're being cost-effective or not. . . ? Are they accountable to the federal government?

Hon. G. Wilson: The fiscal financing arrangements provide opportunity for the Nisga'a to access post-secondary education. It's discretionary to the Nisga'a as to how they commit their money and how they'll spend their money. In terms of the accountability, obviously they're not going to enter into an arrangement that is going to be less fiscally responsible than the existing arrangement. Given the cost of building and establishing a post-secondary educational institution, the cost of running an institution and the cost of trying to maintain that institution in the long term, I would suspect that that would be weighed very carefully against the existing arrangement, which provides them access to community colleges and to the university of the north.

I'm not quite sure where the member is headed in this, but they're clearly not going to embark upon the expenditure of money just for the sake of spending money.

J. Weisbeck: In section 104, the standards of instruction allow the transfer to other post-secondary institutions. Currently in British Columbia we have the "British Columbia Transfer Guide;" the British Columbia Council on Admissions and Transfer has produced this guide. Would the Nisga'a university be involved with that transfer guide?

Hon. A. Petter: I think the answer is that in order to satisfy the condition in section 104(d), "curriculum standards sufficient to permit transfers," they would have to ensure that the standards were ones that were acceptable through the regular procedures for students transferring into provincial post-secondary institutions.

J. Weisbeck: In section 106 it talks about the Nisga'a being able to establish education services outside of Nisga'a lands. Does this mean that the Nisga'a peoples can get involved in the business of education, the business of post-secondary education?

Hon. A. Petter: The Nisga'a government can get into the provision of post-secondary education services, as can any other citizen, provided they do so in accordance with the prevailing laws of the jurisdiction -- provincial and federal, obviously -- in which they choose to operate.

[1545]

In section 107, I'm a little concerned about the word "prescribe." I looked in the dictionary for the definition. It says: "lay down or impose authority." It almost appears to me that they can walk into a university and sort of say: "This is the course or curriculum you're going to supply." Could you please clarify that for me?

Hon. A. Petter: If the member reads the section, he'll see that what it says is that the Nisga'a government "may prescribe the terms and conditions under which Nisga'a post-secondary institutions may enter into arrangements with other institutions. . . ." Of course, the provisions under which those other institutions are prepared to agree are prescribed for them through their legislation and their authorities. The Nisga'a government does not have the authority to prescribe those conditions. The prescription here is simply as to the terms and conditions under which the Nisga'a post-secondary institutions must operate in trying to reach arrangements with other institutions.

J. Weisbeck: My final question is this: how are non-Nisga'a treated relative to attending a university on Nisga'a lands?

Hon. A. Petter: I think the answer is: in the same way that anyone is treated, so that if such a person wished to attend an institution on Nisga'a lands and met the eligibility requirements, they would be able to participate.

M. de Jong: Let's pursue a point that arises out of that, just briefly. To my understanding, broadly speaking, there are in this province two types of post-secondary institutions: one that we would categorize as public post-secondary institutions and a second category of private post-secondary educational institutions. Do these sections collectively, under the post-secondary education provisions, contemplate the Nisga'a creating either type of post-secondary education?

Hon. A. Petter: These sections provide for the creation of either form of post-secondary structure, as I understand it.

M. de Jong: That's helpful. The minister will know that over the past number of years there's been at least a couple of examples of litigation where there has been some question about the conditions set by private post-secondary institutions for entry and also the conditions that have been set by those institutions for graduation. By that, I am not referring to academic prerequisites. I think the minister is aware, for example, of the Trinity Western example that I think is now through the courts, past the appeal period. But I'm not sure about that. Anyway, I cite that as an example, not because I want to deal with that specifically.

So the issue, then, really relates to the ability that the Nisga'a would have to set those conditions of entry and to how wide a discretionary power they are granted. I suppose the question that we alluded to briefly a moment ago is, for example: would the Nisga'a be in a position to establish a post-secondary education that was exclusive to the Nisga'a,

[ Page 11909 ]

Hon. A. Petter: If I understand the member's question, the Nisga'a are certainly free to establish certain standards that would affect admission. But if those standards were used in a way that excluded any category of people, it would have to be a standard that was consistent with the Charter of Rights and Freedoms. It could not be used in a way to discriminate, for example, on the basis of race or other such characteristics, under section 15 of the Charter.

M. de Jong: We know that there are, for example, private post-secondary institutions that establish as a guideline or requirement for entry adherence to certain religious principles. Is that something that these provisions collectively grant the Nisga'a the power to incorporate with respect to any institution that they create?

[1550]

M. de Jong: To be clear, these provisions do vest in Nisga'a Lisims government the authority to create or determine the legislative parameters around which such a private institution would (a) be created and (b) operate. This is one of those areas where there is paramountcy for Nisga'a lawmaking authority.

Hon. A. Petter: It's really no different than a situation off of Nisga'a lands. In B.C., for example, a private institution can establish. There's nothing that prevents such an institution from establishing, providing it meets certain criteria in respect of private post-secondary requirements. If that institution, however, starts to engage in practices that start to exclude people in a way that is invidious or potentially so, then remedies can be taken under Human Rights Code protection. The expectation is that either the federal or provincial Human Rights Code would likely apply in respect of such an institution on Nisga'a lands as well.

The situation is really no different here than it is there. And just as, if the provincial Legislature tried to pass laws with respect to private institutions that contemplated or encouraged some invidious distinction, it would be subject to Charter challenge, the same would be true of Nisga'a government were it to try to do that in its case -- neither of which I anticipate happening.

M. de Jong: That's helpful. But I think the point that I wanted to make -- and that I think the minister has confirmed -- is that pursuant to these provisions, the Nisga'a will be granted the power and authority to create a public post-secondary institution and a private post-secondary institution, but in so doing, the legislation giving rise to that private post-secondary institution must withstand scrutiny, the laws of general application -- in particular, the Charter. Have I stated that correctly?

Hon. A. Petter: Yes, I think the member has stated it correctly. I wouldn't say "the capacity to create private secondary institutions" but "the capacity to create a legislative framework or rules that govern it" -- subject, as the member says, to the proviso that that framework, like the public institutions, must pass muster with respect to the Charter and other requirements contained within the treaty.

G. Plant: The minister drew a distinction there which I think is useful. After all, what the paragraphs in question do is give Nisga'a Lisims government lawmaking authority, and a lawmaking authority extends to laws with respect to the establishment of post-secondary institutions. Someone could come along and comply with those laws -- it may be Nisga'a government, or it may be any organization or private individual -- and say: "Well, under these laws, I'd like to establish a post-secondary education institution." So it's the laws that have to pass the scrutiny that perhaps. . . . At least in the first instance it would be the laws -- and then whatever the institutions themselves do. In that respect the situation is, I believe, no different than currently obtains in British Columbia outside Nisga'a lands.

[1555]

I recall that when we talked about the application of the Charter in the early stages of this debate, we talked about the extent to which Nisga'a government would or would not be a government within the meaning of section 32 of the Charter. I'm not sure that we ever canvassed section 15(2) of the Charter. The question -- and this is as good a context as any to make it -- is: if Nisga'a Lisims government were to make a law in respect of post-secondary education within Nisga'a laws, within Nisga'a lands, and if such a law -- that is to say, a law within the meaning of section 103 of chapter 11 in Bill 51. . . . Would that, from the government's perspective, be a law within the meaning of section 15(2) of the Charter?

Hon. A. Petter: I wouldn't presume to answer. I think that it'll be for the courts to determine, under subsection 15(2), when a situation is such that it meets the requirements of that subsection. All I would say is that it seems to me that the same situation pertains now, in respect of off-Nisga'a lands, as on Nisga'a lands, and just as the provincial government can justify laws with reference to subsection 15(2), so will the Nisga'a government. But I wouldn't presume to predetermine what that would be.

G. Plant: I think the minister is perhaps taking two steps, where I'm only interested in taking the first. The second step

[ Page 11910 ]

Let me just conclude the question by saying this. Clearly the issue is something that lawyers could debate. I'm not, at this point, even hopeful that we would go very far down that path. What I want to know is: what is the government's position with respect to that issue?

[1600]

G. Plant: I'm not surprised at the answer. The reason the question suggested itself to me was that we have begun to explore the extent to which it might be open to the Nisga'a government to make laws in respect of post-secondary institutions that might, for example, discriminate, in the broadest possible sense, on the basis of race. The minister, in that context, said that such laws would have to pass Charter scrutiny in the context of section 15. I think that's correct, but I wanted to particularly make the point that it's both the first half and the second half of the Charter.

It was not a trick question, to alleviate any concern that the minister might have. Clearly, if there was a question raised of the sort that is suggested by the particular example, it is conceivable -- and we are being hypothetical; we're being speculative -- that someone might, on the one hand, challenge such a law made by the Nisga'a on the basis that it violates the equality provisions of section 15(1). But equally, Nisga'a government might then choose to argue: "Yes, but this law meets the requirements of section 15(2)." And whether that is so would turn on the language of the particular law in question. That's really not to ask another question; it's simply to explain the context within which the original question arose.

I have no other questions in respect of post-secondary education.

S. Hawkins: I have some gaming questions to ask the minister. The first one is the section. . . . Sections 108 and 109 are entitled "Gambling and Gaming." In those two sections the terms "gambling" or "gaming" are used. I wonder if the minister can explain why they're used. Is there a difference between the two?

Hon. G. Wilson: With the movement of staff, I'm afraid I didn't hear the question.

S. Hawkins: Are we expecting staff, then, who can answer those questions?

An Hon. Member: No, he didn't hear the question.

[1605]

[J. Cashore in the chair.]

Hon. G. Wilson: The reason is so that it's consistent with the statutes of British Columbia.

S. Hawkins: In the White Paper that was released in January, there was a presentation from the Ministry of Aboriginal Affairs that is included in the White Paper. It says very specifically that the Delgamuukw decision makes it clear that there should be meaningful consultation with aboriginal communities on governance issues that affect first nations. I'm wondering if, within this treaty process, there have been consultations with the Nisga'a in developing these two sections.

Hon. G. Wilson: Well, of course. We negotiated the treaty, so there have been detailed discussions.

S. Hawkins: Were gaming consultants used to develop these two sections?

Hon. G. Wilson: We were trying to actually come up with all the names. But our staff who are present -- in fact, the two gentlemen who are with me today -- were largely responsible for negotiating these two contracts and also used government staff to provide them background information as required.

S. Hawkins: If the Nisga'a were to establish their own gaming facilities in accordance with federal and provincial laws, would federal and provincial consent still be required? In other words, will it be possible for the Nisga'a to establish gaming facilities without the consent of higher levels of government?

Hon. G. Wilson: Well, I think we need to be clear that the Nisga'a cannot establish gaming facilities -- period. End of story. Only we can do that.

S. Hawkins: Right now the province is in the process of establishing or perhaps introducing a gaming act. Would a provincial gaming act apply to any potential Nisga'a gaming facilities?

Hon. G. Wilson: The answer is yes.

S. Hawkins: Would this provincial gaming act, then, seek to clarify issues surrounding first nation gaming issues that we know, such as division of gaming revenues, addressing addiction and regulation and jurisdiction issues?

Hon. G. Wilson: Those are questions that deal more specifically with the legislation. They really don't have impact specifically on the language of the treaty.

[ Page 11911 ]

Hon. G. Wilson: Sections 108 and 109, the two paragraphs that deal with gambling and gaming, are written to describe how the Nisga'a would fit into provincial law. Any changes or amendments to Nisga'a law obviously will have an impact, should they choose to move forward and the province undertake to permit that. So the two paragraphs that we're talking about are simply a description of how the Nisga'a fit into whatever the laws of the province are with respect to gaming. They're not paragraphs that set out provisions for the Nisga'a to enter into their own kind of establishments.

[1610]

Having said that -- in all seriousness, I might add -- I want to ask the minister, with respect to section 109. . . . Section 109 appears, on behalf of the Nisga'a, to acknowledge the province's role in regulating gambling both on and off reserve lands and appears to acknowledge that currently the province's jurisdiction with respect to gambling is being extended to Nisga'a and to Nisga'a lands. Am I reading section 109 correctly?

[E. Walsh in the chair.]

Hon. G. Wilson: It's the position of the government that our laws apply now. So what this suggests is that we will continue to have that application apply.

J. Weisgerber: I think it's important to understand where we're going. If someone were to propose, on the passing of this legislation, a casino on Nisga'a land, that application would now go through the provincial process, perhaps with all the warts that might be on it. But it would still go through the province's process and would require approval by the Gaming Commission before a casino could be established on Nisga'a lands.

Hon. G. Wilson: With all its warts, the answer is yes.

J. Weisgerber: I may want to come back briefly to that. But I'm interested in the language in the last line of section 108. The reference is: ". . .conditions established by Nisga'a Government that are not inconsistent. . . ." I'm curious to know if anyone could tell me why a double negative would be applied, why that paragraph wouldn't simply read: ". . .and make reference to laws that are consistent. . ." -- as opposed to "not inconsistent."

Hon. G. Wilson: We all learn new things each day. I'm advised that in legal parlance, "not inconsistent" means that all of the rules can in fact be completely consistent with additional or added restrictions the Nisga'a may put in place. For example, our laws may say that rules (a) through (c) have to apply. The Nisga'a may say (a) through (c), including (d), which would increase the regulation and therefore not be inconsistent with but perhaps not be consistent with -- if I've got it right.

J. Weisgerber: The minister's reputation for conciseness is in tatters, but beyond that. . . .

If I understand that correctly, at the very least the federal-provincial standards would apply, and this is a more cautionary use of words. I thank the minister for that clarification. Reading it, one gets the impression that perhaps there is something less than straightforward intended by that, but I'm prepared to accept that explanation.

[1615]

Hon. G. Wilson: Yes, it would be precisely the same. We would still manage and monitor it just as we would any other facility in British Columbia.

J. Weisgerber: I'm wondering, given the openness of the application process, how this might affect a non-Nisga'a applicant. If there was a decision in New Aiyansh or Greenville or one of the other communities to proceed with a casino, would all of the applications be vetted? Would there be an open process? The provincial rules appear to demand some openness, some competition in the process. I'm wondering if that is the logical extension of what we're hearing today.

Hon. G. Wilson: Yes, the same process would apply. We might argue about the process, but the same process will apply.

S. Hawkins: Section 108 suggests that perhaps the Nisga'a could establish their own RFP process for gaming institutions without federal or provincial involvement. Is that correct?

Hon. G. Wilson: No. I don't think so -- not if I heard the member correctly.

S. Hawkins: It seems to me that section 108 could also enable the Nisga'a to unilaterally establish terms and conditions for new gaming or gambling facilities as long as they're consistent "with federal and provincial laws of general application," as it says. Is that correct?

Hon. G. Wilson: Actually, I'm having a little difficulty hearing the member, so I want to make sure that I get the positives and negatives correct. They can establish laws that

[ Page 11912 ]

S. Hawkins: Just to clarify, section 108 does not enable the Nisga'a to establish gaming facilities on their own. That would have to go through the province before they could do that.

Hon. G. Wilson: That's correct.

S. Hawkins: It also says that the terms and conditions for these new facilities have to be consistent with federal and provincial laws of general application. I wonder if the minister would define "general" in the context it's been used -- general laws.

Hon. G. Wilson: Hon. Chair, I would refer the member back to the definition section in the front of the treaty. The member will see that there is a definition for "laws of general application," which reads: "includes federal and provincial laws that apply generally in British Columbia, but does not include federal laws in respect of Indians or lands reserved for the Indians."

[1620]

Hon. G. Wilson: I'd be reluctant at this particular juncture to get into a detailed discussion on what the ministry policy is with respect to negotiation of gaming issues at the various treaty tables, because each treaty table is going to have, obviously, a different set of criteria that they would want to have negotiated.

On the other hand, I don't mind at all, once into the estimates process, if we want to have a broader, more general discussion around first nations gaming issues. They're relevant; they're important. I'm happy to do that in that process. But as each treaty is negotiated, if the issue of gaming is relevant to the particular first nation, that is advanced, and it is negotiated as an individual item.

S. Hawkins: This government has committed to no more than ten casinos for profit. I'm wondering if that number, ten, is inclusive of new aboriginal gaming facilities.

Hon. G. Wilson: I'm advised that any gaming facilities that are established by the Nisga'a would count against that total.

S. Hawkins: Because this treaty has been described by the Premier as a template for all future negotiations, how will the government deal with treaty lands within existing municipal jurisdictions when it comes to gaming facilities? For example, the Squamish nation is within a municipal jurisdiction. Will those municipalities be consulted on what's going on within that nation if they wish to pursue gaming facilities?

Hon. G. Wilson: Again, we're sort of straying away from the particular bill. But the answer is yes. There will be a local TAC and also a RAC that will be associated, as well as a local advisory committee that may be there. If we use the Sechelt's as an example, there has been wide and full community discussion around all issues. I think that, obviously, this is a sensitive issue in some communities. Most communities would want to have some input, and they do.

S. Hawkins: For those communities that are adjacent, then, to first nations -- and I appreciate the comments the minister made about consultations -- will their say make a difference? I guess that's what I'm saying. And how will it make a difference? If the Nisga'a want to establish gaming facilities beside non-first nation land, how much of an impact will those communities have if they do not want gaming facilities beside them?

Hon. G. Wilson: It's hypothetical in the extreme with the Nisga'a, because as the member will know, there are no adjacent municipalities in the Nisga'a model because of the isolation of the Nass. So the question just doesn't apply to the Nisga'a.

But on a more general level -- and again, there will be an area for us, as we get into estimates, in a different forum, to have a more expanded debate. Let me just say to the member, with respect to the more general nature of the question, that obviously adjacent municipalities are going to want to have input into discussions surrounding gaming licences with respect to first nations. Most first nations are aware that this is a sensitive issue. Some first nations want nothing to do with them; others see it as an economic opportunity. There is a wide variety of opinion, and clearly there is a need for and, I think, a desire by all parties -- aboriginal and non-aboriginal alike -- to have a more broad discussion at the community level prior to proceeding on these licences.

[1625]

Hon. G. Wilson: They would be found within the laws of the province, and that may be under a new provincial gaming act, if one was to come forward. What these two sections say is that whatever those provincial laws are, these two sections demonstrate how the Nisga'a will plug into that so that they are covered and governed by those laws.

R. Thorpe: Looking at section 110, does this mean that the Nisga'a will have the right to establish, for instance, the

[ Page 11913 ]

Hon. I. Waddell: I'm rising as the minister responsible for the liquor distribution branch, and I will answer the member's questions on this.

The general answer is no.

Interjection.

Hon. I. Waddell: I'll give my friend a little rest. He deserves it; he's been doing such a great job.

Generally, what's happening in this section of that act is that we have adopted the provincial liquor regime, which the hon. member is familiar with, to the Nisga'a community -- to their circumstances. They wanted some control over liquor sales on Nisga'a lands, and therefore what we've authorized them to do is basically to use the licensing elements of our system. For example, if you want right now to get some liquor for a wedding, you go to a liquor store manager and get a permit. Or if you're in a rural area, you go to the police to get a permit. Now if you're in Nisga'a lands, you will go to the Nisga'a government offices and get the permit there.

But I draw the member's attention to section 111. It says: "In the event of a conflict between a Nisga'a law under paragraph 110 and a federal or provincial law of general application, the federal or provincial law prevails to the extent of the conflict." So it is subject to our overall liquor laws.

R. Thorpe: I just wonder, then, what is the purpose of section 110, where it says: "Nisga'a Government may make laws in respect of the prohibition of, and the terms and conditions for, the sale, exchange, possession, or consumption of intoxicants on Nisga'a Lands?" Why do we have 110, then?

[1630]

R. Thorpe: If I understood the minister correctly, then the Nisga'a really have no rights under this provision. It's all the rights of the province of British Columbia and the laws of British Columbia, with respect to the Liquor Distribution Act and the Liquor Control and Licensing Act, if I understood correctly. Is that what the minister is saying?

Hon. I. Waddell: Generally, that's correct.

R. Thorpe: With respect to the purchase of beverage alcohol products, will the Nisga'a only be able to purchase their product through the liquor distribution branch?

Hon. I. Waddell: The answer is yes, and I cite section 112(a).

R. Thorpe: Will those prices be exactly the same prices at which the product is sold to all other British Columbians?

Hon. I. Waddell: Yes, with one little caveat, and that is on the taxation for the first eight years. They have to pay taxes, but later, if they don't agree to put taxes on, then it could be slightly less.

R. Thorpe: What I believe I heard the minister say is that the Nisga'a lands have the potential to be a tax-free zone for the sale of beverage alcohol in the province. Is that correct?

Hon. I. Waddell: No, I didn't say that.

R. Thorpe: Then I'm just wondering if I could get a precise clarification on what will be the tax regime with respect to beverage alcohol sold by the Nisga'a government. Will it be exactly the same tax regime as the one for products that are sold to all other British Columbians -- yes or no?

Hon. I. Waddell: For an eight-year period Nisga'a citizens would be exempt from paying the 10 percent provincial alcohol sales tax and 7 percent GST on alcohol purchases made on Nisga'a land.

R. Thorpe: I just want to clarify, based on those. At a minimum, there will be a 17 percent discount on products sold by the Nisga'a on their land, as opposed to products sold to British Columbians.

Hon. G. Wilson: I think that before we get onto a tangent here, we need to put this into some perspective. Let me come back. Under section 110, "Nisga'a Government may make laws in respect of the prohibition of, and the terms and conditions for, the sale. . . ." It's to provide the opportunity for the Nisga'a government to essentially restrict the sale of alcohol, should they choose to do so. One of the things that the Nisga'a have attempted to do is to have greater control and certainty with respect to the supply of alcohol, in order for them to have prohibition and restriction.

The other point I would make, with respect to pricing, is that the allocation and pricing of alcohol will be the same as it is around the province. Tax exemption runs with the individual, not with the product. It is important to recognize that this is the distinction.

R. Thorpe: I know that some of my colleagues have a couple of quick questions. But with respect to provision 113, I just want to. . . . Is it fair, hon. Chair, through you to the appropriate minister, that. . . ? Will the Nisga'a then have to comply with all current and future liquor distribution, liquor licensing and control acts and regulations, as applicable to all other British Columbians?

[1635]

M. de Jong: This section, like many of the other sections in this particular chapter, really is an exercise in trying to ascertain the breadth of the jurisdiction that's being granted to Nisga'a government here. So can I just ask a quick series of questions? Does the jurisdiction that the Nisga'a assume pursuant to these sections allow for the imposition -- and I think I know the answer to this -- of an outright ban on the possession and sale or purchase of alcoholic products on Nisga'a land?

[ Page 11914 ]

M. de Jong: To either minister: is that a power that any other municipality or local government in the province would enjoy?

Hon. G. Wilson: Certainly every first nations band. . . . I believe -- and I'd maybe get this checked -- that the Sechelt have that provision.

M. de Jong: Well, that's partly helpful. But the question really related to non-aboriginal local governments. In a moment we will get to the. . . . Well, maybe I'll do it now.

One of the things we have grappled with as we've gone through this debate is the notion and the objective of trying to establish for Nisga'a the degree of local autonomy that exists for other British Columbians. We've talked about that often in the sense of local government rights and local government authorities. But I think we can also talk about it in terms of the individual. We're not going to revisit the debate about the collectivity of ownership versus individual ownership; that's not the purpose.

I am, however, interested in the rights of an individual vis-à-vis their local government to, in this case, purchase or possess alcoholic items that are otherwise lawful in the province and that any other British Columbian would have the right to possess. But in this case, that may be a right withheld from individuals on Nisga'a lands.

Hon. G. Wilson: Well, if the Nisga'a Lisims government should choose not to have a retail outlet for alcohol on Nisga'a lands, that's their choice. There's nothing to suggest that they have to have retail outlets, and they're not going to be forced to have alcohol outlets on Nisga'a lands. So if they don't, and the Nisga'a want to go and buy a case of beer, they may have to go to Terrace, I suppose, or somewhere else to get it. There's nothing that basically forces or obliges the Nisga'a Lisims government to permit alcoholic retailers on Nisga'a land. By the same token, there is nothing here that is a prohibition to that either. All these sections say is that the Nisga'a Lisims government wants to have some control over that.

M. de Jong: As I understand it, there are no such outlets on the reserve lands now. Maybe the question that I should ask quickly is: how could these provisions operate to affect what presently exists in Nass Camp, where there is a liquor distribution outlet.

Hon. G. Wilson: There is no effect on Nass Camp.

M. de Jong: So the jurisdiction that the Nisga'a are granted pursuant to these sections could not be utilized to restrict the ability that presently exists to consume and possess alcoholic beverages there.

[J. Cashore in the chair.]

Hon. G. Wilson: Keep in mind that this only affects the retail of alcohol on Nisga'a land. Nass Camp is not on Nisga'a land, so it's not covered.

[1640]

It strikes me that we are limiting, in a very real way, some individual rights. We are limiting those individual rights. Maybe the government isn't troubled by that. Apparently they aren't; they've agreed to the terms. One of the words we hear an awful lot on this side of the House is paternalism. I'm wondering if you can reconcile what appears to be a lingering element of paternalism.

Hon. G. Wilson: I can reconcile it, I think. This is consistent with existing practices with respect to band councils, which have been put in place at the request of first nations. These two sections are in here at the request of the Nisga'a -- nobody outside of the Nisga'a. It is something that is not inconsistent with the governance of alcohol on aboriginal land throughout British Columbia today, should the band councils choose this option.

It's a consistent policy. It's not inconsistent with anything that is past practice, and it is there at the request of the Nisga'a. So I think we can be safe that it's not paternalistic.

M. de Jong: Well, let me try this. Not to be unnecessarily argumentative, it is there presumably at the request and/or insistence of Nisga'a government. You know, any government wants to possess the maximum powers and authority possible vis-à-vis the relationship with their citizenry. I mean, I don't think that's a novel thing. I think if you asked any local government, they would jump at having the same powers. So while I understand the minister saying, "Well, Nisga'a government want this," in the relationship that exists between people and their local government, I'm not sure that should be the threshold test for whether or not something's going to be in a treaty.

Hon. G. Wilson: I've been to those Union of B.C. Municipalities conventions. I've been to their happy hours. I'm not sure how many local politicians would jump at the prohibition law.

I think the point here is that this provision and the provisions that exist in this particular section provide the opportunity for the Nisga'a to have a consistent governance model over alcohol distribution and supply on their land. It's nothing that is particularly inconsistent with other practice around the provinces with respect to first nations. It was endorsed in the referendum by the Nisga'a people themselves, so it's not as if the government's imposing this. It's something that they asked for. It doesn't impact in any way on a person's individ

[ Page 11915 ]

[1645]

Hon. I. Waddell: Just before I answer that, apropos of the member's previous question, in practice dealing with municipalities and liquor, if the municipality of Vancouver doesn't want a liquor store in the downtown east side, the province cooperates and doesn't put the liquor store in or removes it from the downtown east side. There are all sorts of things in terms of licensing, where we cooperate with the municipality. We don't put a beer and wine store next to a school. We turn that down, because the municipality complains. So in the real world that's how it kind of works.

With reference to the regime, it will be basically a provincial regime, except it has the Nisga'a government involved in the workings of the regime. But I draw the member's attention to section 111, which says that if there's a conflict, federal and provincial laws prevail. So it's basically doing the provincial law with some Nisga'a administration.

M. de Jong: Thanks. That was a helpful dissertation, I think. But I think the question was a little more straightforward than that: under this regime, will alcoholic beverages offered for sale on Nisga'a lands only be offered for sale by Nisga'a government or by an agency of Nisga'a government?

Hon. I. Waddell: Section 112 says "the Nisga'a nation, its agents and assignees," so they could assign it to someone else, who might be non-Nisga'a, who would run it or do it. But if you follow section 112, that's what it says.

M. de Jong: So if we follow that argument, then, the possibility exists that a private operator could derive a licence or the right from Nisga'a government to operate a beer and wine store or a pub. Is that correct?

Hon. G. Wilson: It was the last part of the question that I didn't get. Perhaps you could repeat it.

M. de Jong: I only want to confirm that this regime contemplates the possibility that a private operator could derive a licence from the Nisga'a managing authority to operate a cold beer and wine store -- or a pub, for that matter -- on Nisga'a lands.

Hon. G. Wilson: The answer is yes, if they meet the provincial regulations.

G. Plant: Section 110 allows Nisga'a government to make laws in respect of the terms and conditions for the sale of intoxicants on Nisga'a lands. I would have thought that someone could have argued that price was a term and condition of sale, so that Nisga'a government could make laws in respect of the price of intoxicants sold on Nisga'a lands. Is that an argument that the government accepts or rejects? If it rejects it, I'd be interested in an explanation for how that's so.

Hon. G. Wilson: The reference to sale talks about the hours of sale. The Nisga'a have the right to set hours of sale, provided that they're not more expansive than federal or provincial laws.

G. Plant: I'd feel better if it actually said "hours of sale." But is the minister quite confident that this is the only way in which the term "sale" would operate in paragraph 110?

[1650]

G. Plant: Quite frankly, I find that surprising. It seems to me to be absolutely without any foundation whatsoever. However, the minister has that confidence. I guess that's what happens when you're in government -- you get to read something and say: "Even though in its plain language the terms and conditions of sale would be a pretty wide and open thing and might well include price, we're confident that anyone reading this provision over the next 30 or 40 years will only ever think that it's about hours of sale."

Let me ask another question about another aspect of it, which is laws in respect of the terms and conditions for possession or consumption. Would that give the Nisga'a government jurisdiction to make laws in respect of the age at which Nisga'a citizens would be permitted to possess or consume intoxicants on Nisga'a lands?

Hon. G. Wilson: Well, they could certainly make it older, but they couldn't make it younger, because that would be considered in conflict with the provincial regulation.

G. Plant: The principle being that they could make access to liquor more restrictive but not more expansive and that the concept of conflict within the meaning of paragraph 111 is only engaged when the Nisga'a try to do something that would be more expansive than that which is permitted under provincial law, at least in this context. Is that correct?

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

G. Plant: The other small point I guess I want to make is that the power conferred upon Nisga'a government by paragraph 110, in respect of the possession or consumption of intoxicants on Nisga'a lands, would be an instance where the laws would apply to possession or consumption by anyone -- whether Nisga'a or non-Nisga'a -- in respect of the possession or consumption of intoxicants on Nisga'a lands.

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

G. Plant: This, then, would be a situation where conceivably, Nisga'a government would have lawmaking authority over a larger group of people than simply Nisga'a citizens. Of course, in this case we could be talking about people who live on Nisga'a lands who are non-Nisga'a, but we could also be talking about people who are travelling through -- tourists

[ Page 11916 ]

Hon. G. Wilson: Well, it's not exclusive, so both federal and provincial laws will apply in addition. Secondly, I would argue that the fact that the Nisga'a choose not to have alcohol retailing on Nisga'a land is hardly governing over somebody. It just simply means that when you travel onto Nisga'a land, you aren't able to buy alcohol, should you choose to. You'll have to go off Nisga'a land and buy it there. It's not unique in Canada to have those jurisdictions.

G. Plant: The jurisdiction is not unique, but it is precisely government. I think the minister is fooling himself if he thinks that that's not exactly what government is. Government is about making rules that apply to people. At least that's the way I usually experience government. But I don't think we're having a major disagreement on that point.

[1655]

[W. Hartley in the chair.]

Hon. I. Waddell: Since the member referred to me in previous questions, I'll answer that. The answer is yes.

M. de Jong: I think that takes us to the collection of sections falling under the heading "Devolution of Cultural Property." Let me just say by way of preface to the questions that follow that this is one of those sections where I am suspicious. I am always suspicious when any government presumes to acquire rights to impose itself on the lives of individuals. I want to explore for a moment the rationale around which these sections were created. I think we should have that discussion recognizing the present federal regime, which I think the minister will characterize rightly as being entirely unsatisfactory.

Yet when I read these sections, I think you can say that they deal with two possible circumstances with respect to the devolution of items of an estate: where there is a will and where there isn't a will. These provisions provide for government to involve itself in that process in either case.

When I read sections like 115, which defines cultural property, in this case, as any "personal property that has cultural significance," I am impressed by how broad that definition is. The minister will say: "Well, here you go picking on the Nisga'a government; why do you doubt the legitimacy of their intentions?" But I would be suspicious of any provision that presumed to grant any government the kinds of powers that are contemplated here -- recognizing, as I say, the unsatisfactory nature of the present regime. So let us begin by at least exploring the breadth of the definition that is offered in section 115.

Hon. G. Wilson: I would have thought quite the opposite -- that instead of being suspicious of this particular section, this would be one section the members opposite would have seen great value in and would have embraced and endorsed without hesitation.

[1700]

Now, far be it from me to stand up here and suggest what does and doesn't have cultural significance to the Nisga'a. That's something that is a case that would be made by the Nisga'a on an item-by-item basis. We've made huge strides with a variety of different collections around the country with respect to these provisions. Nobody seems to be inconsistent about that definition when it's on an item-by-item basis, because clearly, its historical role, its use -- all of the kinds of past practices that are associated with those properties -- are well documented and established, either through Nisga'a oral history or with respect to fairly well established rights of ownership and patterns of ownership through time.

G. Plant: Let me explore one possible way in which these provisions might work. Let us suppose, for example, a situation of a Nisga'a chief who has possession of regalia and other tangible personal objects that have a connection to the clan of the chief and are important symbols with respect to the hereditary chieftainship that currently resides in my hypothetical individual. Now, that person dies. In my hypothetical example -- by a set of circumstances that is difficult to fathom, perhaps -- the individual chooses to leave his entire collection of personal regalia to a museum in Nova Scotia.

I foresee the possibility that in such a situation, Nisga'a Lisims government might choose to commence an action in which it sought to vary the will of that chief and to make arguments in court around the importance to the Nisga'a of having those particular objects remain within the domain of Nisga'a lands, within the line of succession of the chieftainship. These provisions would give Nisga'a government the ability to commence that action and to make those arguments. They would not predetermine the outcome of that action. But it would make those considerations, generally speaking, relevant. Is that scenario one of the things that is caught by these provisions?

Hon. G. Wilson: In general terms, I would say that is correct.

G. Plant: One of the things that Nisga'a Lisims government acquires under these provisions is the power to make laws in respect of the devolution of cultural property of a Nisga'a citizen who dies intestate. If my hypothetical example were changed so that the individual in question had not left a

[ Page 11917 ]

[1705]

A great deal of work has been undertaken already with respect to getting these collections back. As the member will perhaps remember, there was a ceremony at our own museum with respect to collections of Nisga'a properties that have significance. I think it is safe to say that in the scenario where there is a hierarchy -- sort of like a handing on, if I can put that. . . . That's not really what's at issue here.

What is at issue here are, for the most part, properties that are outside of Nisga'a lands that may in fact need to be looked at. I think that the member needs to be aware, with respect to what we're dealing with here in terms of the devolution of cultural properties, that most of what we're dealing with are known.

G. Plant: I'm a little bit confused by some aspects of the minister's answer. We're not talking about whatever chapter it is -- chapter 17, I think. We're talking about Nisga'a government lawmaking authority under paragraphs 115 to 120. I assume that the Nisga'a government lawmaking authority here relates to cultural property, which meets the definition in paragraph 115, wherever it's situated. It could be in Chief Smith's living room, or it could be sitting in some place well outside Nisga'a lands. The minister may be right: the majority of it may well be known. We may know about it. But the issue we're talking about here is the scope of lawmaking authority.

Hon. G. Wilson: That's correct. As long as we're talking about Nisga'a citizens here -- and I think the member knows that -- that is quite correct. They may well be on Nisga'a land, or not.

G. Plant: I appreciate the clarification that the minister made, because it's an important one. The lawmaking authority here only extends to cultural property of a Nisga'a citizen. But, by the way, it is lawmaking authority in an area that, from my understanding, can in fact create intense personal feeling within some families and within some houses or clans or tribes, depending on the situation. I know, for example, that in other Tsimshian-speaking communities, the acquisition of names, which carries with it, on many occasions, the right to tangible personal objects like a mask or a collection of masks. . . . The feasts around the acquisition of names may involve the exchange of tens of thousands of dollars. There can often be a real struggle within a community over who is to be the successor, and so on.

I think it would be unwise to discount the importance of these provisions in terms of the potential for their actual impact on the lives of the Nisga'a. To pick up a theme that I think each member of the government who has spoken during this debate has emphasized, we're talking here about something that's pretty close to the heart of what it means to be Nisga'a -- their cultural identity. It's not unusual, in those circumstances, for feelings to run high. I know of instances, for example, where there has been conflict between the wish of the Minister of Indian and Northern Affairs and the wish of a clan or tribe.

One of the objectives, I expect, of these provisions is to give Nisga'a government the ability to make laws that hopefully will alleviate that uncertainty and at least create greater clarity and certainty around those issues. Am I correct that that's part of the objective here?

[1710]

G. Plant: I think, then, that we may end up going back to some of the issues that my colleague wanted to raise. I am certainly going to go back to 115 for long enough to ask the question whether personal property that could be caught by this section would include, for example, the right to tell an oral history. Or is that dealt with in some other part of the agreement?

Hon. G. Wilson: In general, we're talking about tangible. . .and whatever can be disposed of within a will. But that's not to suggest that. . . . What the member poses is an interesting question. I think on our side we would doubt that that's the case. It may be the case, but in general terms we're talking about tangible possessions.

G. Plant: I think what the minister has done is essentially not foreclosed the argument completely that personal property may have a broader definition than actual tangible, physical objects, and presumably in the fullness of time we would see whether or not it did extend beyond those objects. Is that fair?

Hon. G. Wilson: I think that's fair. I'm told that the legal term of what we're talking about are hereditaments, which the member opposite may know more about than I do.

G. Plant: Some of them are incorporeal, as is my colleague from Matsqui, in some respects.

M. de Jong: Let me try, in my own clumsy way, to return to where I think the conversation between the minister and my colleague began. And having listened to that exchange, let me say this: I think the provisions we're dealing with here, insofar as they apply to an intestacy, are reasonably defensible. I think you can make the argument that the minister, in fairness, has made about preserving the communal interests.

I'm less persuaded -- and I do want to pursue this briefly -- when we come to the provisions that provide for the

[ Page 11918 ]

[1715]

Hon. G. Wilson: I hear what the member is saying, but there are a couple of points I would offer. First of all, the Nisga'a government can't overrule it. All they can do is go to a court and have a court set it aside if they can mount a case. The second issue is with respect to what it is that we're talking about here, and it is limited specifically to those defined ceremonial regalia or similar personal properties associated with a Nisga'a chief or clan, and cultural property that is deemed to have a cultural significance to the Nisga'a nation.

We're not talking about individual Nisga'a, and we're not even talking about individual clan groups within the Nisga'a nation. We're talking about the Nisga'a nation. So I think that while the member has a point, I suppose, that there is a provision here for the Nisga'a to overrule the last will of an individual and -- I'm using his words here -- to essentially try to get it overruled by virtue of an application to court, the fallback would be to suggest that this is something that the Nisga'a wanted in there. This is something that the Nisga'a have fully debated and discussed among their own people and something that has been fully supported and endorsed by those people. So I think that we would have to argue that this is something that the Nisga'a see as a desirable feature.

M. de Jong: I'm not going to belabour the point. And I want to say first of all that I do recognize that what this affords Nisga'a government is the opportunity to make application. As the minister and my colleague settled earlier on in this debate, it in no way predetermines the outcome of that application. But as I listen to the minister's response. . . . I don't dispute the interest on the part of Nisga'a government and those individuals presently on the Nisga'a tribal council who were negotiating this treaty to try and preserve the maximum power available to ensure the continued holding of these cultural artifacts, but as I was listening to the minister, I thought to myself, that surely individual Nisga'a have as great an appreciation of the significance of those. . . .

Interjection.

M. de Jong: Well, maybe the minister disagrees with that notion. Maybe I'll let him respond to that.

Hon. G. Wilson: I think there are two things. It does protect against a capricious act where a person says: "Well, I know what it is. I'm just going to give it to somebody else anyway." Secondly, it may well in fact be the case that individuals are not aware of the full cultural significance of the artifact or the property that they hold. I think that in either instance, there is a need for this to be in the treaty. It's certainly something that the Nisga'a themselves have seen as a desirable feature.

M. de Jong: I confess to not having as good an appreciation as perhaps I should, or as others in this room have, as to the extent of the number of items that we are discussing here. Like any of these kinds of provisions, the concern that one on the opposition side of the House has an obligation to explore is the potential for abuse and the safeguards that are built in to ensure that Nisga'a citizens don't become the subject of an overzealous government that is seeking to overly control the devolution of items within an estate. I say candidly that were this any other government, were this a provision of the British Columbia Wills Variation Act, I would have the same concerns.

[1720]

M. de Jong: I think this is the last question. The minister's response is a valid one, although I would make the observation that to some extent, the courts will be embarking upon uncharted territories with respect to wills variation applications of this sort. I think this would be new territory, unless the minister has something else to offer.

Hon. G. Wilson: I think that's true: it would be new territory.

G. Plant: I have two final questions in respect of these provisions. First, earlier I hypothesized a situation where Nisga'a Lisims government might make laws that perhaps gave expression to a conventional understanding of Nisga'a traditional law with respect to the succession of property that is attached to chieftainship or something like that. There is, though, no guarantee in the treaty that Nisga'a government laws will conform to that conventional cultural understanding, whatever it might be. The lawmaking power in paragraph 116 is fairly open-ended. It says that they may make laws in respect of the subject matter, and presumably they may make any laws they see fit to make in respect of that subject matter. The acid test of the appropriateness or the suitability of such laws would presumably be the electoral process for Nisga'a government within a Nisga'a community. Is that correct?

Hon. G. Wilson: Yes, I think it is generally correct that it's up to the Nisga'a and they, like those of us in this chamber, will rise and fall according to the electorate.

G. Plant: One of the things that we have touched on from time to time is the relationship between the provisions in this

[ Page 11919 ]

Perhaps for the sake of completeness of the discussion we've now had, could the minister explain if there is some general principle that has informed whether and when the government has said: "Yes, here we need consequential amendments; on the other hand, here we don't"? If there is a general principle, then certainly people reading the debate years hence would be assisted in knowing how it is that the government has decided to choose consequential amendments in some cases and not others.

[1725]

G. Plant: The first of those principles is interesting. I suppose you could say, at a very colloquial level, that one of the reasons why there are consequential amendments being made to the Wills Variation Act is so that the estates practitioners don't have to get the treaty out when they have an issue around Nisga'a cultural property. They can deal with the problem within the four corners of the Wills Variation Act -- in other words, transparency, in a sort of a practical user's sense, of the laws of British Columbia. Am I reading too much into that?

Hon. G. Wilson: Yes, that's precisely right.

G. Plant: Most recently we dealt with the School Act as another statute that, in some respects, is affected by the treaty -- if and to the extent that the Nisga'a government makes laws around issues like age for enrolment in a school board. And that is a case where there are no consequential amendments. Rather than guessing at why that is so, perhaps in the interest of completing the explanation of the process, the minister could explain why the School Act falls on the outside of the three principles that he enumerated a moment ago.

Hon. G. Wilson: The answer is because the Nisga'a have not yet drawn down those powers. We don't know when they will, and we don't know what exactly we will have to look to with respect to amendments. There is a commitment for negotiation and consultation on that process.

G. Plant: The Nisga'a, of course, have not drawn down the powers in respect of the devolution of cultural property, either. But let me just say this: it may be that the implications for provincial legislation of the Nisga'a drawing down powers in respect of cultural property are pretty well understood now and are given effect in the amendments that are put in the bill, whereas the question of to what extent Nisga'a laws may impact on the School Act is really a harder question to predict at this point. So when and if the Nisga'a draw down the powers in respect of K-to-12 education, the question will then be more precisely posed. Am I right in understanding that it may be the case that at that point the province may consider it necessary or prudent to amend the School Act in a particular way in order to give effect to and avoid conflict with Nisga'a education powers?

Hon. G. Wilson: The answer is yes, and that's why we have paragraphs 27 and 28 with respect to consultation. The member is correct with respect to provisions under the devolution of cultural properties, in the sense that we have a very clear idea of what it is that's intended.

[1730]

Hon. G. Wilson: Generally speaking, the member is correct, assuming that in the drawing down of those powers, the Nisga'a process will be significant enough that it will require a consequential amendment.

G. Plant: There are conceivably situations where the Nisga'a could draw down powers in a way that would not require consequential amendments. So the real situation is that we simply won't know one way or the other until the need to know arises. It's helpful, frankly, to have some sense of what the province's approach is to that situation. Paragraph 121 of chapter 11 is actually, in a way, connected to the discussion we've just had.

I notice that the minister is in close consultation with someone. If that may result in some further clarification of something that I had asked about earlier, then maybe we should just wait a minute.

An Hon. Member: You're in trouble now.

Hon. G. Wilson: Well, maybe. I don't know.

We'll endeavour to put together a written commentary on a particular question that has a very specific legal and precise meaning. Rather than for me to further confuse the issue now, we'll come back to it. So if we can keep going, we'll draft something for you.

G. Plant: The something that is being drafted is going to relate to the issue of how and under what circumstances the

[ Page 11920 ]

Hon. G. Wilson: It has to do with a question that was asked earlier on and an answer given with respect to issues around intoxicants. We'll get the specifics clarified.

[1735]

The heading of paragraph 121 is: "Other Areas of Legislative Jurisdiction." It's one of those clauses that if you read it really quickly, blink your eyes a couple of times and don't pay any attention to it, you might think, oh my goodness, all of the things that have been very carefully set out up until this point now get exploded into uncertainty by a paragraph that says that, in addition to all the stuff -- the lawmaking powers -- that Nisga'a government have under this chapter, they also "may make laws in respect of matters within Nisga'a Government jurisdiction as set out in, and in accordance with, this Agreement."

At the very least, I suppose, this is kind of a for-further-assurances clause that says that anywhere else where Nisga'a government has particular, express lawmaking authority or jurisdiction that's outside chapter 11 is, if you will, brought under the umbrella of chapter 11 as part of the exercise of Nisga'a government powers generally. Is that a correct statement?

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

G. Plant: The question will no doubt arise at some point with respect to the limits on that lawmaking authority. The way it's expressed here, the phrase is: ". . .in respect of matters within Nisga'a Government jurisdiction as set out in, and in accordance with, this Agreement."

Let me take an example of something that. . . . Well, I think I know the answer. But just to test the limits, chapter 3 says that the Nisga'a nation owns Nisga'a land in fee simple at, I hope, a fairly straightforward, basic level. Someone would say that ownership isn't the same as jurisdiction; therefore, apart from what chapter 3 says expressly in terms of jurisdiction or lawmaking authority, the mere fact that the Nisga'a nation owns Nisga'a land is not something that is caught by paragraph 121. Is that correct?

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

G. Plant: So in understanding what paragraph 121 is intended to mean as we read the rest of the treaty, what we're looking for are provisions that relate to governance and decision-making kinds of issues and, even better, provisions where the treaty expressly speaks of lawmaking authority or jurisdiction. It's really the latter category that is the most apt to be caught by what at least is intended by paragraph 121. Is that right?

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

G. Plant: I think the final question is.. . . Paragraph 121 is not intended to enlarge the scope of Nisga'a lawmaking authority in any way. Is that correct?

Hon. G. Wilson: That's correct. It's not intended to enlarge the scope in any way.

M. de Jong: The remaining provisions of this chapter, beginning with emergency preparedness. . . . I'll try to keep these questions as concise as possible. How, if at all, does the power granted to Nisga'a central government, Nisga'a local government, compare with the powers of a municipality in British Columbia with respect to the declaration of a local state of emergency?

Hon. G. Wilson: It's exactly the same.

M. de Jong: On that section as well, any funding implications that may flow for the provincial government as a result of such a declaration. . . . Are they dealt with on an ad hoc basis, or is it contemplated that they would be at least referred to -- recognizing that they would be referred to in an anticipatory way rather than a specific way. . . . Are they dealt with on an ad hoc basis as they arise, or are they included within general funding arrangements with Nisga'a local government?

Hon. G. Wilson: When you work this through, it is effectively the same as the municipalities will.

[1740]

Hon. G. Wilson: That's correct.

M. de Jong: The last question then. Any obligation, then, that this imposes on the provincial government is subject to that caveat and those discussions and negotiations at the time it arises.

Hon. G. Wilson: Yes, that's right. The only thing that I would add to the section that the member might find of interest is a very small amount of federal money that's established in order for the Nisga'a to establish an emergency preparedness plan. Beyond that, it works exactly the same way.

M. de Jong: The minister refers to the federal component to that funding. There are no provincial dollars involved in the development of that plan?

Hon. G. Wilson: No provincial dollars.

M. de Jong: In the next group of sections -- 126 to 129, under the heading "Other Matters" -- there is a broad authority granted pursuant to section 126. The words from that section that are of interest to me relate to the authority the Nisga'a government has to make laws in respect to matters set out in this agreement, and includes "the authority to make laws and to do other things."

When I read that, it suggests to me the creation of a regulatory framework, the possibility of delegating some of the authority granted pursuant to this agreement to agencies

[ Page 11921 ]

Hon. G. Wilson: The member is correct: those are the general provisions. I suppose, with respect to certain matters of enforcement, there may be some extended issues. But generally speaking, the member is correct in his assumption.

M. de Jong: Enforcement in the way I think I hear the minister referring to it is dealt with in section 128. When the minister says that the wording in 126 may contemplate the mechanisms required to enforce certain provisions, maybe he can quickly elaborate on what that means.

Hon. G. Wilson: If one imposes a penalty, then presumably somebody has to pay it and somebody has to collect it. That's what it refers to.

M. de Jong: Let's talk about penalties and enforcement. Maybe the Attorney General can confirm that pursuant to section 128 there is granted to Nisga'a government and agencies of the Nisga'a government the ability to impose sanctions on individuals that would include imprisonment up to a term of six months. Is that correct?

[1745]

G. Plant: As the limits set out for summary conviction offences in respect of imprisonment, for example, rise or fall -- whether in the Criminal Code of Canada or the British Columbia Offence Act -- so too would the limits on Nisga'a government in respect of imprisonment?

Hon. U. Dosanjh: Yes.

G. Plant: The power conferred by paragraph 128 upon Nisga'a government to provide for the imposition of penalties is expressed in general terms. Thereafter the words are "including fines, restitution, and imprisonment." Well, to state the obvious, I suppose, but at least to state it, that raises the possibility that Nisga'a government may provide for the imposition of penalties in some form other than fines, restitution and imprisonment. Assuming that is the case, is Nisga'a government authority in that respect limited by the Criminal Code of Canada or the Offence Act, or is it more expansive?

Hon. U. Dosanjh: I would say that in fact that power is circumscribed. The limits are set in the Criminal Code and the Offence Act. If the hon. member looks at the wording, that's the indication.

G. Plant: There is lots of discussion about the development of alternative sentencing concepts, particularly the special way in which those can be developed in aboriginal communities. The question, I suppose, is whether Nisga'a government's ability to develop its own arrangements in that respect is limited by what the Criminal Code of Canada or the Offence Act may say about them. Or does Nisga'a government have the power to stretch out on its own? It may well be that in this respect the answer is found in the provisions of chapter 12 that deal with the Nisga'a court system, and that's how the issue is dealt with.

Hon. U. Dosanjh: Exactly.

G. Plant: Paragraph 129 says: "Nisga'a Government may adopt federal or provincial laws in respect of matters within Nisga'a Government jurisdiction as set out in this Agreement." I was trying to think how many options there are for Nisga'a government and whether adoption is yet another one.

Clearly, whenever the Nisga'a government has lawmaking authority that's granted in permissive terms, the Nisga'a government can make their own law or they can refrain from making any law. If they refrain from making any law, then existing provincial or federal law will continue to apply to the extent that. . . . I shouldn't say to the same extent it does now, because that's not so, but existing federal or provincial law will apply. The Nisga'a could, under the exercise of their lawmaking authority, in some instances enact a law which is virtually identical to an existing provincial law. Is that what is meant by the term "adopt" in this clause 129, or do the parties mean something else by adoption?

Hon. U. Dosanjh: I think that's essentially what it means. It could be done by a two-sentence piece of legislation.

G. Plant: In terms of process, what the Attorney General has said is that that would nonetheless be a piece of Nisga'a legislation -- as opposed, for example, to a resolution or a motion in the Nisga'a government. They're slightly different processes. I'm not sure if the Attorney General was intending to be exclusive or simply giving an example.

Hon. U. Dosanjh: I was simply giving an example. They could simply remain silent on it, as the hon. member has indicated, or pass a resolution -- not a law -- or pass a one-paragraph law importing a whole statute into their law.

[1750]

Hon. U. Dosanjh: Correct.

M. de Jong: We're now on the section "Elected Members of Nisga'a Government" and government liability. Let me just ask, in general terms with respect to section 130: are those provisions those that I would see when I open up section 287 of the Municipal Act, and was that the model that the drafters were presuming to adopt?

Hon. U. Dosanjh: Yes.

M. de Jong: I'll jump ahead to 132. I know my colleague has a further question with respect to section 130. Insofar as section 132 is concerned, does that represent the attempt of the drafters of this agreement to, in effect, codify the common law with respect to the vicarious liability assumed by the Nisga'a nation and the Nisga'a government?

Hon. U. Dosanjh: This provision is also similar to what exists in the municipal legislation.

[ Page 11922 ]

Hon. U. Dosanjh: Yes.

G. Plant: The second question I want to ask is to look at section 130 and make the observation that it is very carefully described as an immunity conferred upon elected members or former elected members. I guess that's narrower than the way in which the Municipal Act works. The Municipal Act, I think, generally extends to include councillors -- but also senior officials. Is there some logic behind the drafting of that that escapes me? Let me just say this: if the answer to that question is, "Well, look ahead, because sections 133 and 135 bring in all of part 7 of the Municipal Act. . . ."

Interjection.

G. Plant: Oh, I see. What's happened here is that the public officers are just dealt with in their own separate category, and that's the explanation. Is that correct?

Hon. U. Dosanjh: Correct.

[1755]

Hon. U. Dosanjh: I understand that the explanation is that 130(a) and (b) go a little bit farther than the Municipal Act, whereas section 138 is reflective of the actuality of the Municipal Act for Nisga'a public officers. But for elected members, the immunity is somewhat similar to the immunity that the hon. member and I may enjoy.

G. Plant: Among other things, there was thought to be a need to clarify that the immunity extends to the Nisga'a nation, Nisga'a Lisims government, Nisga'a village and Nisga'a village government, which might not otherwise be as obvious. Is that part of the explanation?

Hon. U. Dosanjh: Correct.

G. Plant: I want to turn to the execution provisions, which is sections 136 and 137. My colleague and I were just discussing this question. Is leave required before a writ of execution may be issued against a municipal government?

Hon. U. Dosanjh: Yes.

G. Plant: Well, my goodness me. Even at this hour, I'm still learning. It's a good thing.

Let me ask this question: do paragraphs 136 and 137 mirror existing provisions in the Municipal Act with respect to how writs of execution may be levied against municipal governments? I have to admit that I read part 7, but I didn't get to writs of execution.

Hon. U. Dosanjh: Let me read the answer that I've been given. Paragraph 136 is essentially equivalent to section 293(2) of the Municipal Act, but it is also slightly more comprehensive. Paragraph 136 also includes two additional factors for the court to consider in determining how it will proceed with respect to a writ of execution: (1) the funding and delivery of programs/services provided by the Nisga'a that are not provided by B.C. municipalities, and (2) the immunities from seizure of assets of Nisga'a, as set out in the agreement.

G. Plant: The first of those distinctions, which is the distinction between services provided by the Nisga'a nation or a Nisga'a village that are provided by municipalities -- those distinguished from other services. . . . The general objective here, I suppose, is to allow the court to consider the extent to which the issues of a writ of execution would impair the ability of government to deliver those services. Because Nisga'a government will be delivering a wider range of programs or services than municipal governments deliver, the language was drafted in a way to ensure that the issue, if you will, expanded to include all of the programs and services delivered by Nisga'a government.

[1800]

G. Plant: Paragraph 141 has to do with the obligation of British Columbia to consult with Nisga'a Lisims government in respect of any change to provincial law that would affect the protections and immunities that we've been talking about. But in this case the obligation is to consult to the extent and in the manner that the provincial government consults with municipalities. I'm not aware of an obligation to consult that exists in the Municipal Act, so the question will simply arise on a case-by-case basis. If the government intends to amend the Municipal Act in a way that affects these issues of immunity and so on, then if and to the extent that the government chooses to consult at all with municipalities, it's simply undertaken here that it will consult with the Nisga'a Lisims government.

Hon. U. Dosanjh: Yes.

G. Plant: Paragraph 142. The issue that we've not really explored in any detail in this debate but that I think is of some importance is the extent to which Nisga'a law may or may not have extraprovincial application. One reading of this is that the extent to which Nisga'a law may ever bind provinces or territories other than British Columbia will depend upon the consent of those other jurisdictions. So the jurisdiction outside

[ Page 11923 ]

Hon. U. Dosanjh: Correct.

On that happy note, I ask 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. D. Lovick moved adjournment of the House.

Motion approved.

The House adjourned at 6:04 p.m.

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