2004 Legislative Session: 5th Session, 37th Parliament
HANSARD

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

MONDAY, MAY 10, 2004

Afternoon Sitting

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MONDAY, MAY 10, 2004

           The House met at 2:04 p.m.

Introductions by Members

           D. Hayer: It gives me great pleasure to introduce 27 grade 5 students visiting from Pacific Academy in my riding of Surrey-Tynehead. Joining them is their teacher, Mrs. Debby Ryan, as well as 15 parents and volunteers who have taken time out of their busy schedule to accompany these students. Would the House please make them very welcome.

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           Hon. I. Chong: In the gallery today is a very distin-guished constituent of mine from Oak Bay–Gordon Head, Mr. Tom Osborne. Mr. Osborne is believed to be the youngest D-Day veteran, as he was a young man of just 15 years of age at the time of the Normandy landing. Born in 1928 in England, Tom was one of ten children. At age 15 he volunteered to serve in the merchant navy on the Admiralty rescue tug Assiduous. He was officially signed on May 15, 1944. On D-Day, June 6, the Assiduous was assigned as a rescue tug at the American beach-heads, Omaha and Utah, as well as having rescue tug duties at the Canadian beachhead, Juno. By his sixteenth birthday, Tom Osborne had earned the France and Ger-many Star. He has also been awarded the Pacific Star.

           He arrived in Canada in 1948 where he met and married his wife, Laura, who is also in the gallery today, and along with them is their son Dan.

           Mr. Osborne has many accomplishments which he is extremely proud of, and there are two that I would like to note. In 1986 he was made a life member of Vancouver Naval Veterans Association for initiating, designing, sculpting and raising money for the Sailors Memorial at Lonsdale Quay waterfront park in North Vancouver.

           In 2002, more recently, he was awarded the Queen's Golden Jubilee Medal in recognition for initiating the first Women Mariners Memorial to the eight Canadian women that lost their lives during the First and Second World Wars while serving in merchant ships. There has been no mention of these eight gallant women, so this was quite an accomplishment.

           Tom will be attending the sixtieth anniversary of the D-Day landings on June 6 in France. I hope today the House will make him and his wife and his son Dan very welcome.

           R. Stewart: I'm sure many members here in the House recall that Harry Potter was deemed to have come of age at 11 when he was sent off to live among the wizards. In the gallery today is my son Matthew. Matthew turns 11 tomorrow, and he's spending a couple of days here in Victoria with his father. Would the House please make him feel welcome.

           K. Stewart: It's my pleasure to give congratulations to a person who isn't in the House today — a lad from Pitt Meadows. He's over in Prague, and he was busy with his friends winning the World Hockey Championship for Canada yesterday. I'd like to thank Brendan Morrison for his contributions in bringing home the medal.

Tributes

FREDERICK GORDON ANTOINE

           Hon. M. Coell: It is with great sadness that I announce the passing of Grand Chief Frederick Gordon Antoine of the Coldwater Indian band in Merritt. Grand Chief Antoine died May 4 at 8 o'clock at the Cottage Hospice in Vancouver with his loving wife, Janice, by his side.

           He will always be remembered for his years of dedicated work towards increasing the quality of life of first nations. His visionary work has touched the lives of all who knew him. Grand Chief Antoine was known for his directness, his integrity and his love of life. He was instrumental in establishing the indigenous-operated Nicola Valley Institute of Technology, which was founded in 1984. By 1995 it was part of the provincial college system with accredited programs.

           He leaves his memory with his wife, Janice; his children Laura, Albert, Sara, John Paul, Stefany and Tracey; and grandchildren Tyson, Bruce, John Albert, Kolt, Anikka, Alana Mae, Lane and Gordon Gerald.

           British Columbia has lost a strong, courageous leader with a generous and gracious heart who cared deeply about his people and the natural world. Grand Chief Gordon, you took your place in our country, and you did well.

Introductions by Members

           Mr. Speaker: Hon. members, I have a couple of introductions today. I would like to introduce to you a new member of the Legislative Assembly management team. Ms. Jane Taylor, who is joining us in the gallery this afternoon, recently began her work as our new legislative librarian. I know Jane is looking forward to developing new and innovative library services to assist us in our work. Previously Jane worked as the director of the Ministry of Attorney General library. In addition to these years of experience, she brings great enthusiasm to her new position. Would all members please make Jane very welcome.

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           Also, hon. members, I would like to introduce seven new Legislative Assembly employees hired as the 2004 summer tour guide staff. They are starting today and work through to the end of the Labour Day long weekend, providing tours every 20 minutes, including weekends and statutory holidays. They are post-secondary students who will welcome tourists from around the world. In total, the tour office can offer tours in English, French, German, Spanish, Mandarin, Cantonese and Japanese. I would like you to welcome Lianna Chu, Céline Anderson, David Nicholls,

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Justine Elamatha, Kimberlee Hart, Fée Lapalme-Leblanc and James Cybulski.

Introduction and
First Reading of Bills

VITAL STATISTICS
AMENDMENT ACT, 2004

           Hon. C. Hansen presented a message from Her Honour the Lieutenant-Governor: a bill intituled Vital Statistics Amendment Act, 2004.

           Hon. C. Hansen: I move that Bill 43 be introduced and read a first time now.

           Motion approved.

           Hon. C. Hansen: I am pleased to introduce this legislation today. Bill 43 includes amendments that will improve the security and integrity of documents that are related to a person's identification, specifically birth, marriage and death certificates. Amendments will also allow a parent to apply to have a child's surname changed at the same time as they apply to the courts for a paternity order.

           The unfortunate reality is that our world has changed fundamentally since the tragic events of September 11, 2001. It was in the wake of the attacks on the World Trade Center in New York that government agencies across Canada began to look at ways to better protect our citizens by making identity documents like birth, marriage and death certificates more secure. The amendments we are introducing today align with recommendations that have been made by these various bodies across Canada.

           Specific security-focused changes we are making include requiring spouses or other people, such as lawyers who act on someone's behalf, who want to get a copy of a certificate to get written permission from that person named on the certificate; permitting parents to access the birth certificate of their children only if they are under 19 years of age or incapable; strengthening the authority of the chief executive officer of the Vital Statistics Agency to cancel certificates that are invalid or were obtained through fraud; and increasing the fines from the current $2,000 to up to $50,000 for infractions relating to these certificates.

           We are also making an amendment in response to a 2003 decision of the Supreme Court of Canada which found aspects of this act to be discriminatory. These changes will clarify that fathers can apply to have a child's surname changed at the same time as they apply for a paternity order. In other words, once the courts recognize paternity, the court in its discretion may order that the name of the child be changed on that child's birth certificate.

           I move that the bill be placed on the orders of the day for second reading at the next sitting of the House after today.

           Bill 43 introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

CORRECTION ACT

           Hon. R. Coleman presented a message from Her Honour the Lieutenant-Governor: a bill intituled Correction Act.

           Hon. R. Coleman: I move that the bill be introduced and read for a first time now.

           Motion approved.

           Hon. R. Coleman: I am pleased to introduce Bill 44, the Correction Act. The legislation under consideration today will create a new, modern Correction Act and enhance public policy. The Correction Act replaces the old statute and consolidates and modernizes existing provisions.

           Three main objectives are achieved in this new act. Public safety is enhanced through new or strengthened legislation for the supervision and control of offenders, protection of staff and inmates is improved through new security provisions for correctional centres, and accountability of officials authorized to discharge the powers and duties of this legislation will safeguard the rights and freedoms of individuals.

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           Today the corrections branch is responsible for the safe custody and control of over 2,000 inmates and the supervision of almost 20,000 offenders in the community. Corrections staff do a tough and remarkable job every day. I am pleased that this act will improve their safety and the safety of others in our correctional centres while protecting everyone's rights and freedoms.

           Mr. Speaker, I move that the bill be placed on the orders of the day for second reading at the next sitting of the House after today.

           Bill 44 introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

Statements
(Standing Order 25b)

NEW STUDENT SPACES IN
POST-SECONDARY EDUCATION SYSTEM

           R. Lee: I was very pleased to attend, with my colleagues, an announcement at the British Columbia Institute of Technology in Burnaby this morning, where the Premier committed to bringing in 1,145 new seats to BCIT.

           Many of my constituents are alumni, current or future students of BCIT, a polytechnic institute with over 48,000 full-time and part-time students. The addition of 1,145 new seats will provide more educational opportunities in applied and natural sciences, business

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and media, computing and electronics, engineering technology, health sciences and trades.

           As a parent to three children, I can attest to the importance of the availability of more seats in the post-secondary institutions. This is not only highly in demand from the students but also driven by our recovering economy as well as the increasing shortage of skilled tradespersons.

           Mr. Speaker, this government has made education a priority and has demonstrated this through its commitments to add 25,000 seats to the post-secondary system by 2010. The BCIT seats are just part of that strategy. Other details include 8,000 additional seats in the Fraser region, including a new SFU campus in Surrey and a new Kwantlen University College Trades and Technology Centre in Cloverdale.

           A new UBC Okanagan and a new Okanagan College will add 5,500 new spaces in the Okanagan Valley. The University College of the Cariboo will become a special purpose university and will assume responsibility for the Open University and Open College, with 800 new seats for the south Cariboo region. The five post-secondary institutions on Vancouver Island will add 4,000 new spaces, and 700 new seats will be added to the College of the Rockies and Selkirk College in the Kootenays.

           This is excellent news for the students. I am looking forward to seeing even more announcements in the months to come.

COMMUNITY OF SAYWARD

           R. Visser: One of Vancouver Island's most beautiful communities is Sayward. It's just north of Campbell River, at the confluence of the White and Salmon rivers. It sits as a gateway to the spectacular Johnstone Strait. It's a great setting. Nestled amongst the mountains, it's flat and fertile and has been the home of forestry, fishing and agriculture for more than a century.

           The folks there are hardy. They're resilient, but they're visionary. They have to be. The community has had to reinvent itself time and time again, and five years ago was when the latest round of change was thrust upon them, when their largest employer moved away. Since that day, everyone there has been hard at work exploring new opportunities and seizing them when they arise. Here's what they've accomplished.

           They have taken control of the local dock from Transport Canada and built a new Community Futures office there in the old warehouse, and they have plans to attract new commercial and recreational boaters. They've been awarded an infrastructure grant to extend the sewers to that dock and open up a new section of town for residential development. These properties will have some of the most spectacular waterfront views anywhere.

           There are new businesses developing in the dryland sort, both in forestry and in tourism. They have a new gas station and store. They have signed a management agreement with the Ministry of Forests to take control of the local Forestry campsites. They have taken responsibility for the world's largest cypress tree, Sergeant RandAlly. They have management agreements with the Ministry of Forests to conduct tours and maintain the trails and interpretive signs. They are extending that vision, because they also have the second- and third-largest cypress trees anywhere in the world, and they think they have the largest hemlock in the world.

           They have the dream of becoming the Valley of the Magnificent Trees. They've initiated the Kusam Klimb on June 19 of this year. It's a 22-kilometre endurance race from sea level to 5,000 feet and back, up and overtop of Mount Kusam. It's going to be a great day and a great race.

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           Here are the results. They sold 17 houses in 2003, and in 2004 it was 41. This is a great town that has taken charge of its future, and all of British Columbia should be very proud of them.

ADOPTION OF CHILDREN IN B.C.

           B. Locke: This past Sunday was Mother's Day. I know it was a wonderful opportunity for everyone to remember their mom. I have a great mom that I cherish very much, and I always try to let her know what she means to me.

           Family is important to all of us. As you know all too well, Mr. Speaker, we have seen many babies born to MLAs and staff in this building. Children are an extraordinary gift in our lives. They help us put our life in perspective — a reminder of why we do what we do and a reminder of what is important.

           I, too, am a mom. My husband and I were blessed with two incredible daughters. My children were not born to me; both my daughters were adopted. They are the centre of my universe. They challenge me — sometimes too often, especially in the teenage years. They make me laugh. They make me a better person. My daughters are woven into my life. I feel each of their pains and all of their happiness.

           Adopting a child is a very special life journey. For me, it made me think about who I was and how I saw the world. I know that sounds very esoteric, but the responsibility of raising children is a serious one. Of course, a lot of those idealistic goals go out the window when the real world of children and family comes in the door. In the end, it's all about family and love. I am grateful every day for the gift my girls give me.

           There are about 1,000 children in B.C. waiting to be part of a family. It's an incredible opportunity for them but an even greater gift to the parents, who will get to know the real joy that children bring into our lives.

           This weekend at the Burnaby Village Museum there will be a celebration of B.C.'s adoptive families. This will be a chance to see the happiness that comes from creating a chosen family.

           I would just like to remind all members of the Legislature of the beauty and joy that come from being a parent. It doesn't matter how the families are created. What is vital is the love and passion you feel for each

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other. Adoption has brought me two of the greatest gifts of my life, and for that, I will be forever grateful.

           Mr. Speaker: That concludes members' statements.

Oral Questions

CANADA HEALTH ACT AND
SURGERY ON LIBERAL MLA

           J. MacPhail: The Minister of Health blames the federal government for not defining "medically necessary." That's what he said last December when he caved in to the Premier's opposition to Bill 92 — the Medicare Protection Amendment Act, 2003 — and he said the same again last week.

           The member for Chilliwack-Kent has described the agony he endured before his surgery. There was a blood circulation problem worsening in his leg. He believed he needed immediate surgery. Any further delay put his recovery at risk. His doctor was also concerned enough that he gave advice to seek immediate treatment. Everyone in this House wishes the member for Chilliwack-Kent a speedy and full recovery.

           It may be difficult to provide definitions in the general, but in the specific it is often easier. The Minister of Health knows the patient. He's talked to him about his condition. Does the Minister of Health Services consider the surgery performed upon the member for Chilliwack-Kent medically necessary?

           Hon. C. Hansen: As the member knows very well from her experience as a health minister in government, it is not the ministers of health that answer those kinds of questions. It is doctors and physicians.

           Mr. Speaker: The Leader of the Opposition has a further question.

           J. MacPhail: Exactly. This minister would say that the interpretation of the Canada Health Act has been called difficult, but over the years provincial governments have paid billions of dollars for what they interpret as medically necessary. In fact, a federal minister's interpretation letter of 1985 on the Canada Health Act — "medically necessary" — makes clear that it's the provinces, not the federal government, who decide what medical necessity is. Here's what that interpretation letter says: "Provinces, along with medical professionals, have the prerogative and responsibility for interpreting what physician services are medically necessary."

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           The member for Chilliwack-Kent's doctor thought the surgery was medically necessary, because he registered him on a list at a public facility for that surgery. Perhaps the best test of whether the province felt this surgery was necessary medically is to know whether the Medical Services Plan paid for it.

           Will the minister please assure British Columbians who suffer from a ruptured disk, who need surgery, that he has not delisted this procedure? Will he confirm that the Medical Services Plan paid for the surgery performed on the member from Chilliwack?

           Hon. C. Hansen: While the member knows I'm not at liberty to discuss personal medical histories of people in the medical system in this province, I can tell the member that the member for Chilliwack-Kent was one of over 6,000 individuals in this province who had surgeries cancelled because of a very unfortunate and totally unnecessary strike by the Hospital Employees Union in this province. The determination as to whether a procedure is considered to be urgent or emergency or elective is a decision that is made by doctors.

           Mr. Speaker: The Leader of the Opposition has a further supplementary.

           J. MacPhail: There is nothing confidential about answering whether a surgery on an individual is paid by the Medical Services Plan. The minister knows that, and he deliberately avoided answering the question.

           The Canada Health Act ensures that medically necessary services are provided to everyone regardless of their financial situation. That's the principle of universality. The member from Chilliwack paid an expensive facility fee.

           Here's another federal minister's interpretation letter of the Canada Health Act, 1995, and I quote from it: "Facility fees are objectionable because they impede access to medically necessary services. Moreover, when clinics which receive public funds for medically necessary services are also charged facility fees, people who can afford the fees are being directly subsidized by all other Canadians. This subsidization of two-tier health care is unacceptable." In plain language…

           Interjections.

           Mr. Speaker: Order. Okay. Order, please.

           J. MacPhail: …some have described that as queue-jumping, special access for some based on their financial status.

           Will the Minister of Health admit that in this case, a violation of the Canada Health Act has taken place because the Medical Services Plan paid for the surgery?

           Hon. C. Hansen: One of the great difficulties with the Canada Health Act is that it is now actually just past its twentieth anniversary on April 1 of this year. In all those 20 years there has been virtually nothing in terms of jurisprudence or interpretation around the act.

           The letter that the member referred to is a letter from the Minister of Health at the time, Diane Marleau, which I have read in its totality, and it is virtually the only piece of interpretation around the Canada Health Act that exists. We have also in very recent months got an indication from the federal government that they are in fact willing to look at what the interpretation

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should be to the Canada Health Act. We don't know exactly where that's going to go, but I am sure it will be part of the discussions that first ministers will be holding in August.

           J. Kwan: Perhaps we've caught the minister on a bad day, for he cannot remember his earlier briefings. Here's what he said in the House a year ago in estimates: "The Canada Health Act dictates that a medically necessary procedure…must be funded publicly. Regardless of whether that surgery is performed in a privately owned clinic, whether it's performed…

           Interjections.

           Mr. Speaker: Order, please.

           J. Kwan: …in a privately owned doctor's office or whether it's performed in a publicly owned hospital, that surgical procedure must be covered by the public purse, and there can be no additional charges directly to the patient." Those were the words of the Minister of Health. Will the minister now admit, in light of his own words, that the province of British Columbia is in violation of the Canada Health Act?

           Hon. C. Hansen: The process that we have is one that is complaint-driven. From time to time we do get letters from patients who feel that there may have been violations of the Canada Health Act. If anybody in this province feels that they have been provided with services that may be in violation of the Canada Health Act, they are free to write to the Ministry of Health Services, and it will be investigated to the full extent possible.

           Interjection.

           Mr. Speaker: Order, please. The member for Vancouver–Mount Pleasant has another question.

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           J. Kwan: The Minister of Health Services knows full well the details of the situation, and he knows full well whether or not British Columbia is in violation of the Canada Health Act.

           Here's what the interpretation letter of 1995 says. Where facility fees are charged for medically necessary services in clinics which receive funding for those services under a provincial health insurance plan, they violate the user-charge provision of the act. That's section 19. That section of the act states that in order that a province may qualify for a full cash contribution from the federal government, user charges must not be permitted.

           Will the minister admit that the Canada Health Act has been violated and that a penalty is forthcoming from the federal government, or is there a secret federal-provincial Liberal agreement to take apart public health care in this country?

           Interjections.

           Mr. Speaker: Order, please. Order, please, hon. members. The Minister of Health Services has the floor.

           Hon. C. Hansen: As I indicated earlier, the alleged violations of the Canada Health Act…. It is a complaint-driven process. Patients have the right to write to the ministry. If a patient raises an issue, we will in fact investigate it.

           Interjections.

           Mr. Speaker: Order, please. Order, please, hon. members.

TRANSFER OF SENIOR
FOR LONG-TERM CARE

           W. McMahon: My question….

           Interjections.

           Mr. Speaker: Order, please.

           Interjections.

           Mr. Speaker: Order, please, hon. members.

           Interjections.

           Mr. Speaker: Order, please. Order, please. The member for Columbia River–Revelstoke has the floor. Let's hear the question.

           W. McMahon: My question is to the Minister of Health Services. Mr. Casey Phillips, a senior citizen in Golden, was transferred last week to a care facility in Burnaby. Last Thursday the NDP attempted to make a political issue out of Mr. Phillips's transfer and his situation, arguing that he should be able to receive medical care in Golden. I say: shame on the NDP.

           To the minister: can he explain why Mr. Phillips transferred from Golden to a care facility in Burnaby?

           Hon. C. Hansen: When I learned some of the facts about this case after question period last Thursday, I was quite perturbed with the approach that the NDP had taken on this particular issue.

           Mr. Casey Phillips was indeed transferred to a care facility in the lower mainland, and it was done so with the concurrence and the advice of Mr. Casey Phillips's family. In fact, I will quote from a letter from Mr. Elton Phillips, who is the son of Casey Phillips. It says….

           Interjections.

           Mr. Speaker: Order, please, on both sides of the House. Let's hear the answer.

           Hon. C. Hansen: Just to quote from Elton Phillips's letter: "The local home care people associated with interior health also have dad's best interests at heart." He

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goes on to say that he feels that these health care decisions are a matter for family with input from interior health, and he closes by saying: "I support interior health in their efforts."

           I think it is indeed unfortunate when the NDP will use a senior's situation — the transfer of a senior which was done with the support of the family — and use that as a way to drag an individual senior's case into the media in a way that brings disrepute to the health system in this province when, in fact, it should bring disrepute to the NDP members in this House and the NDP members in Golden.

           Interjections.

           Mr. Speaker: Order, please.

           Interjections.

           Mr. Speaker: Order, please.

B.C. RAIL AGREEMENT WITH CN RAIL
AND FIRST NATIONS CONSULTATION

           P. Nettleton: The Minister of Transportation has stated that he is glad to be on record backing his predecessor's handling of the B.C. Rail file.

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           Prince George Citizen editor Dave Paulson has often tried to make sense of the government's rationale in the sale of B.C. Rail. In his column of August 20, 2003, Paulson criticized the ministry's first attempts at providing information in the first of the government's biweekly updates. "Much ado about very little and needing a little more meat on the bone," said Paulson. Nothing much has changed. He also referenced one of the government's promises that the proponents must demonstrate how stakeholder groups such as employees, communities and first nations would benefit from the proposal, with Chief Harry Pierre of the CSTC stating that the Liberals failed to get first nations views on the issue.

           Mr. Speaker: Time for the question, hon. member.

           P. Nettleton: Again, nothing much has changed. My question is to the Minister of Transportation. For the record, would the minister concede that he and his ministry have failed to provide adequate information on the deal to the media and have from the outset blocked first nations involvement?

           Hon. K. Falcon: I'm pleased to address that question. Actually, one of the things we did do and made sure we did was that out of the $1 billion of proceeds we will see out of this transaction, we ensured that those 25 first nations that have had a historical relationship of some sort with the railway had an opportunity to benefit from the first nations benefits trust — a $15 million fund that they will have exclusively available for them to decide what to do.

           In terms of the north, we know about the $135 million northern development initiative that will come out of those proceeds — controlled by northerners to allow northerners to make economic decisions that can benefit and further their opportunity to compete. We know about the $17.2 million for the Prince Rupert port, which will open up the possibility of containerization and unleash all the potential out of that wonderful part of the northwest of this province.

           Really, at the end of the day, I think what we recognize is that all of the enormous benefits that will flow will flow directly back into, particularly, the communities up and down that corridor, and that will be a great benefit to folks right up and down the north of this province.

LEGISLATION ON DISPOSITION
OF HUMAN REMAINS AND
RIGHTS OF SAME-SEX COUPLES

           J. MacPhail: Earlier this session the government introduced and passed Bill 3, legislation that took away the rights of same-sex couples to have authority over the remains of their loved ones. The Minister of Finance told the public that the government would fix the bill to accommodate the public's concern.

           To the Solicitor General: it's been almost two months. How long do we have to wait for this government to restore rights to same-sex couples that it tried to take away?

           Hon. G. Collins: It did not take those rights away. It put those rights in regulation through a definition. Government said we would fix that legislation. We will fix that legislation.

           J. MacPhail: Where is it?

           Mr. Speaker: Please.

           Hon. G. Collins: We don't respond to the calls, the whips, of the member opposite. We said the legislation would come before the House. It will come before the House, and members will have the opportunity to respond to it.

              [End of question period.]

           Interjections.

           Mr. Speaker: Order, please. On both sides of the House, let's have order.

Tabling Documents

           Hon. C. Hansen: I would like to table a letter, which I referred to in question period, dated April 29, 2004, from Mr. Elton Phillips.

           Leave granted.

[ Page 10963 ]

Orders of the Day

           Interjections.

           Mr. Speaker: Order, please, hon. members. Let us hear the orders of the day.

           Hon. G. Collins: Thank you, Mr. Speaker. It's hard to be heard over the cackle of the member opposite, but I'll try.

           I call Committee of Supply. For the information of members, we'll be concluding the estimates of the Ministry of Sustainable Resource Management.

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Committee of Supply

           The House in Committee of Supply B; J. Weisbeck in the chair.

           The committee met at 2:41 p.m.

ESTIMATES: MINISTRY OF
SUSTAINABLE RESOURCE MANAGEMENT
(continued)

           Vote 35: ministry operations, $68,415,000 (continued).

           Hon. G. Abbott: There's just one item that I wanted to conclude on here. The member for Richmond Centre had asked last day what role the board would have in resolving a number of the assessment issues that are currently being discussed within the ministry. I am pleased to advise that the incoming chair of the B.C. Assessment board, Olga Ilich…. I had an opportunity to meet with her recently. She'll be working along with the leadership in the B.C. assessment authority to try to provide some very good advice to government with respect to how we can move forward on some of the more important issues, such as strata ownership and taxation, bed-and-breakfasts, and other related assessment issues.

           Vote 35 approved.

           Vote 36: Agricultural Land Commission, $1,957,000 — approved.

           Vote 45: Environmental Assessment Office, $2,897,000 — approved.

           Hon. G. Abbott: I move the committee rise, report completion of estimates and ask leave for the committee to sit again.

           Motion approved.

           The committee rose at 2:44 p.m.

           The House resumed; Mr. Speaker in the chair.

           Committee of Supply B, having reported resolutions, was granted leave to sit again.

           Hon. G. Collins: I call second reading of Bill 41.

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Second Reading of Bills

REAL ESTATE SERVICES ACT

           Hon. G. Collins: I move the bill now be read a second time.

           The new Real Estate Services Act deals with the licensing and conduct of real estate professionals who buy, sell and manage properties on behalf of others. The fundamental purpose of the licensing requirement is to protect the public and thereby preserve public confidence in the real estate sector. The new act furthers this purpose by enhancing public protection, while at the same time reducing the regulatory burden on real estate licensees.

           The Real Estate Services Act will maintain and enhance consumer confidence, for example, by requiring that persons who manage the affairs and finances of strata corporations — strata managers — obtain a real estate licence. The act also establishes a new real estate special compensation fund with increased compensation levels to protect consumers who have suffered loss caused by the theft or fraud of licensees.

           In addition, the new act will increase public confidence by enabling more responsive and effective regulation of the industry. Under the act, the Real Estate Council of British Columbia has been re-created as a self-regulating organization directly responsible for the licensing, education and discipline of all real estate licensees. The Real Estate Council will be equipped with a broad range of new investigative and enforcement tools, including the ability to freeze funds and impose monetary penalties. New procedural rules will ensure that licensees are treated fairly.

           The new Real Estate Services Act will also benefit licensees by enabling them to more effectively provide real estate services. As well, the act recognizes the independent contractor status of many licensees and allows for the development of regulations to permit licensees to carry on business through a personal services corporation.

           The new act will reduce the regulatory burden imposed by government on licensees by investing the Real Estate Council with rule-making power over licensing requirements, continuing professional education, real estate business standards and the conduct of licensees. This will give the council the flexibility needed to respond to changing market conditions and to adopt rules appropriate to the type of business carried on by a licensee.

           Mr. Speaker, government has undertaken extensive consultations with the real estate industry and the public during the development of this legislation. The new Real Estate Services Act, together with the new Real

[ Page 10964 ]

Estate Development Marketing Act, which deals with the marketing of new developments, will provide British Columbia with a modern and effective regulatory framework and will help ensure the continuation of public confidence in this important sector of the provincial economy.

           I move second reading.

           Motion approved.

           Hon. G. Collins: I move the bill be referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

           Bill 41, Real Estate Services Act, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

           Hon. G. Collins: I call second reading of Bill 42.

REAL ESTATE DEVELOPMENT
MARKETING ACT

           Hon. G. Collins: The Real Estate Development Marketing Act, which deals with the marketing of new real estate developments, will reduce costs and the regulatory burden on developers. It will also enhance consumer confidence in the real estate sector by providing greater protection for purchasers of real estate.

           The new Real Estate Development Marketing Act will provide developers with greater certainty by consolidating requirements currently found in legislation, regulations and policies of the superintendent of real estate. Developers will be able to market property at an earlier stage in the development process, prospectuses will be eliminated, and developers will be allowed to file simpler disclosure statements in all cases, regardless of the nature of the development property. Developers will also be able to use purchasers' deposit moneys to construct the development, if those moneys are appropriately insured.

           In order to protect purchasers, disclosure statements will continue to require full and plain disclosure of material facts. A purchaser who does not receive disclosure will have the right to rescind their purchase agreement with the developer at any time. Purchasers receiving disclosure will have a standardized seven-day period in which to rescind their purchase agreements, regardless of the type and location of their property.

           With regard to deposit moneys, the new act requires developers to place purchasers' deposits with regulated professionals who are familiar with trust responsibilities. Only if the moneys are insured can they be released to the developer for the developer's use in marketing or constructing the development.

           Finally, the new act provides the superintendent of real estate with more effective administrative powers to enforce compliance with the act, including the ability to take action against a developer who fails to provide meaningful disclosure to purchasers.

           This new Real Estate Development Marketing Act balances the developer's need for flexibility with appropriate consumer protection and will create a framework for smarter regulation of the real estate development sector in British Columbia. The new act, together with the new Real Estate Services Act, is a result of the first comprehensive review of British Columbia's real estate legislation in nearly 50 years. Extensive consultations have been undertaken to ensure that the new real estate legislation is effective, responsive and up to date.

           I move second reading.

[1450]

           Motion approved.

           Hon. G. Collins: I move the bill be referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

           Bill 42, Real Estate Development Marketing Act, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

           Hon. G. Collins: I call second reading of Bill 46.

HIGHWAY (INDUSTRIAL)
AMENDMENT ACT, 2004

           Hon. K. Falcon: I move that the bill now be read a second time.

           The Highway (Industrial) Act currently regulates industrial roads in British Columbia. While many of these regulations are essential for safety, they have not been updated in nearly 50 years. Over the past several months my ministry has discussed regulatory changes with the companies that use industrial roads. We decided it was time to modernize the act, and that's exactly what we are doing here today.

           The Highway (Industrial) Act is being renamed the Industrial Roads Act. It provides a framework to ensure the safety of industrial roads and the drivers, vehicles, equipment and traffic that operate on them. This bill streamlines the Highway (Industrial) Act and continues with our new-era commitment to reduce the red tape and regulatory burden in the province by one-third in our first three years.

           The benefits of this bill are many. It streamlines the approval process for companies that wish to use industrial roads. It eliminates regulatory duplication by exempting roads that are regulated separately by the Ministry of Forests and the Ministry of Energy and Mines, and it resolves problems in the existing legislation by removing outdated regulatory requirements.

           This government made a clear new-era commitment to cut red tape and eliminate inefficiencies. The government has already eliminated over 90,000 out-

[ Page 10965 ]

dated and redundant regulations, and we're already starting to hear and see the results across the province. We are number one in job creation. We are number one in small and medium-sized business confidence levels. More people are moving to B.C. for the first time than we've seen in years — positive net migration for the first time in six years. Our credit rating with both Moody's and Standard and Poor's has been improving.

           This legislation continues to move B.C. forward. It benefits our vitally important resource industries such as forestry, mining and oil and gas. It makes it easier for those industries to acquire applications and utilize resource roads. It allows business to do business. It allows us to bring out the best in British Columbia, and that is good news for all British Columbians.

           Motion approved.

           Hon. K. Falcon: I move that the bill be referred to a Committee of the Whole House to be considered at the next sitting of the House after today.

           Bill 46, Highway (Industrial) Amendment Act, 2004, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

           Hon. G. Plant: I call second reading of Bill 47.

TRANSPORTATION ACT

           Hon. K. Falcon: I move that the bill now be read a second time.

           The Ministry of Transportation currently has four separate statutes dealing with highway legislation: the Highway Act, the Ministry of Transportation and Highways Act, the Highway Scenic Improvement Act and the Build BC Act. There is no need for such a legislative mess. It is time to organize our core highway legislation in one place. As I've mentioned earlier, our government had a pretty clear new-era commitment that we would reduce the red tape and regulatory burden to eliminate inefficiencies. We are well on target to achieve our one-third reduction.

           In keeping with this new-era commitment, I present Bill 47, the Transportation Act. The Transportation Act consolidates key highway legislation into one organized, plain-language document that replaces four other ministry statutes. It results in a net reduction of regulatory requirements, and it corrects previous problems by using updated language, ensuring consistency and organizing the legislation in an easily accessible way.

[1455]

           On top of that, the Transportation Act implements a number of changes including clarifying the definition of a highway. The old legislation defines a highway simply as "a public way." The new definition requires that a public highway must be established as a highway according to specified methods. This provides government and the public with greater clarity and certainty around what a highway is in British Columbia.

           The new act also clarifies highway responsibilities between provincial and local governments and harmonizes provincial highways legislation with the Community Charter. In many places the old legislation does not distinguish between municipal and rural highways. Provincial and local government responsibilities are often duplicated and overlap one another. The new act sets out that the Minister of Transportation is responsible for improvements, structures and public works relating to provincial highways, and it reinforces that municipal highways are a local government responsibility under the Community Charter.

           This new act facilitates long-term highway and corridor planning between local governments and the province to help balance urban development with future traffic requirements. It fosters mutual planning between the ministry and local government around provincially controlled access highways. It is intended to promote development throughout the province. The new act also provides local government with a way to reduce the number of ministry zoning bylaw approvals as long as mutual corridor management planning takes place.

           This new act is going to improve business processes for the ministry. We will no longer have to search through four separate statutes to find the highway legislation we're looking for. It's going to improve relationships with local government and enhance public service. By eliminating unnecessary regulation, the act is going to cut a significant amount of red tape in the spirit of achieving our new-era commitment.

           Motion approved.

           Hon. K. Falcon: I move that the bill be referred to a Committee of the Whole House to be considered at the next sitting of the House after today.

           Bill 47, Transportation Act, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

           Hon. G. Plant: I call Committee of Supply, and for the information of members, we will be debating the estimates of the Attorney General and Minister Responsible for Treaty Negotiations.

Committee of Supply

           The House in Committee of Supply B; J. Weisbeck in the chair.

           The committee met at 2:59 p.m.

ESTIMATES: MINISTRY OF
ATTORNEY GENERAL AND MINISTRY
RESPONSIBLE FOR TREATY NEGOTIATIONS
(continued)

           On vote 11: ministry operations, $370,749,000 (continued).

[ Page 10966 ]

           P. Nettleton: I would like to refer the minister to a press release of the Union of B.C. Indian Chiefs dated April 22, 2004. I'm just going to reference the main thrust of their concern, as I understand it, with respect to what government is doing in and around their announcements with respect to B.C. Rail. I would ask the minister to respond, if I may.

[1500]

           In this release there's reference made to the government's approach to the B.C. Rail deal. It is their view that government is engaged in what they term a risk management approach. "This approach is premised," their press release reads, "on the continuing denial that aboriginal title and rights exist, while offering accommodation or benefits agreements to lessen their legal liability in the event that first nations prove aboriginal title and rights and that the government is found to have infringed on those rights."

           The UBCIC commissioned a legal review of the B.C. Rail deal. One of its findings is that government will use proof of economic benefit to argue that the damage suffered by indigenous peoples was mitigated or lessened, that indigenous peoples participated in and benefited from their decision to privatize B.C. Rail — and also possibly to show consultation.

           In the event that any indigenous communities who were part of the trust chose to challenge the transfer from B.C. Rail to Canadian National Railway in the future, government would likely argue that it met this test in part by seeking workable accommodations as evidenced by the creation of the trust. I know the minister has made it very clear in this House on a number of occasions, as have other ministers of the Crown with respect to the trust, that, in fact, that is not the case. Again, I would ask him to respond to this news release.

           They go on in the release to state that the Union of B.C. Indian Chiefs categorically rejects the notion that the B.C. Rail benefits trust comes with no strings attached. That's what Chief Phillip of the UBCIC states:

           "To date, the language of the provincial assurances state that the government does not believe aboriginal title or rights are involved in the transfer, because it's a transfer of existing rights rather than the creation of new ones. Therefore, consultation or accommodation is not required. The UBCIC is absolutely convinced that the existence of the trust will be used by government at some point as a workable accommodation in the event of a legal challenge."

           The minister, I'm sure, can and will respond to the thrust of their concerns here, and I'll be very interested in his response.

           Hon. G. Plant: I'm not going to be in a position to respond directly to a press release from the Union of B.C. Indian Chiefs that the member quoted from, because I don't have the press release in front of me. I'm not certain whether the remarks that the member has quoted from are reflective of the tenor of the press release.

           Nonetheless, let me attempt to answer what I think underlies the member's question by referring the member to some parts of the estimates debate that have already taken place on this subject. At one point in the estimates debate, I referred to a letter that my ministry sent in late March to the chief of the T'it'q'et band. It repeats some statements that we have made, I think, consistently and unambiguously since the initiative was first announced publicly late last year.

           On February 17, I wrote to the 25 first nations who are the potential beneficiaries or participants in the trust the following, among other things: "The B.C. Rail partnership agreement with CN Rail does not transfer any title to lands, and the creation of the $15 million trust does not involve aboriginal rights and title and related consultation and accommodation. Participation in the $15 million trust will not have any conditions related to assertions of rights and title."

[1505]

           I think that statement is straightforward and unambiguous. I understand that the Union of B.C. Indian Chiefs has a different view with respect to whether or not the B.C. Rail partnership agreement triggers any obligations to consult or accommodate in respect of aboriginal rights and title, but that's where that'll have to rest. There is a disagreement. However, it's hard to know why there could be any disagreement on the trust, because we have been as clear as it's possible to be, from the day the trust was first announced, that there are no strings attached to the $15 million B.C. Rail benefits trust.

           P. Nettleton: That's all very well. The minister has failed, however, to answer my question. I'll restate the question. I should also say that I'm happy to share the press release with the minister if the minister so wishes, so that he can get some sense as to the content and the context of my remarks with respect to this release.

           My question is to the minister. Proof of economic benefit — is that something that the minister may instruct government lawyers to argue at some future point with respect to a claim against the government in terms of the government's involvement with B.C. Rail, and in turn argue that the damages have been mitigated or lessened?

           Hon. G. Plant: No strings means no strings. We're not going to wave around the benefits trust as evidence that first nations in some way gave up their rights or that we did something to accommodate constitutional rights or title. It is as clear as clear can be. It doesn't really matter how many times you ask the question or how many times one attempts to craft a different question. The suggestion that this initiative is in some way intended to negatively affect aboriginal rights or title is a suggestion that exists only in the minds of those who somehow can't bring themselves to support the idea. It is not a suggestion that finds one iota of support in anything that has been said by or on behalf of government in relation to the B.C. Rail first nations benefits trust.

           P. Nettleton: I think it's important to put on record that in fact we will hold the minister to this — his as-

[ Page 10967 ]

surances today with respect to the concerns of first nations. I certainly will do my part, and I expect first nations, again, will hold this minister to account with respect to his assurances in and around the trust fund and B.C. Rail.

           J. Kwan: I just want to follow up a little bit more on this issue. For the minister's information, here are the areas in which I would like to canvass for the rest of estimates with the minister. I have a few more questions around the trust issue and then some budget questions around the TNO office. Then I would like to move to the issue around the representation agreement questions, then to the Frank Paul inquiry and then to pay equity. If there is still sufficient time, we may touch on some of the issues around legal aid funding, particularly relating to the refugee claimant issue. That's just for the minister's information in terms of preparing his staff.

           I would like to follow up, though, on one question that I did ask the minister, on which he committed to providing information to the opposition. That would the bands who have signed on to the trust — who they are — as well as the question of who has not signed on and who has since deleted the names from the trust. I want to be clear in terms of my request for that information from the minister, and that is to receive the names of the bands as well as the people who signed on, who didn't sign on, who deleted the names afterwards, and the timing of when those actions took place — just to be clear.

[1510]

           To follow up on the line of questioning I had put forward prior to today — I guess last week — in addition to the member for Prince George–Omineca…. As mentioned, the UBCIC actually have been opposed to the sale of B.C. Rail. In fact, they did commission a legal opinion on the matter. In spite of what the minister has said — that the creation of the trust has no strings attached for the aboriginal community and its members in terms of supporting the B.C. Rail deal…. There is an interesting question that's been raised by this legal opinion, to which I would like the minister's response. Let me just put parts of the legal opinion on the record.

           "A starting point for this analysis is the question: what legal gains does the province hope to achieve by creating the trust and having indigenous communities agree to be listed in its creation legislation? Two possible benefits to the province as a result of the trust creation are discussed here: (1) mitigation of legal liabilities that may accrue as a result of the BCR–CNR privatization deal regarding aboriginal title and rights; and (2) response to possible consideration of the federal competition bureau assessing Crown fulfilment of fiduciary obligations regarding aboriginal title, rights or reserve interests."

           The document goes on to say, regarding aboriginal title and rights impacts:

           "Provincial assertion that the sale of operating interests in B.C. Rail to CNR will not impact aboriginal title, rights or reserve interests. The province has taken the position that the transfer of B.C. Rail operations to CNR, through a partnership which will maintain underlying ownership of interests in the railbed with the province but lease these interests and transfer operations of the rail line to CNR, will have no impact on aboriginal title or rights or other interests."

           Then it goes on to quote where the government's position is reflected in its actual statements. I'll just skip over that. The document then goes on to say:

           "These letters reflect a political position — that there is no need to consult about the transfer of existing interests — rather than a legal reality. As a matter of policy, the province maintains that aboriginal title or rights do not exist unless proven in court or acknowledged through treaty and so denies that their actions will impact on those rights. Additionally, the provincial consultation policy states that there is no need to consult about renewals of existing tenures or permits. The province argues that there is no need to consult about the BCR–CNR transfer because there is no new interest being created, merely the continuation of an existing use."

           The document goes on to say:

           "This position has been questioned in Haida nation v. Weyerhaeuser, in which the Haida nation challenged the transfer and renewal of an existing tree farm licence. In that case, the BCCA held that there was an enforceable consultation duty on transfers or renewals of existing interests if they might impact upon aboriginal title or rights.

           "The provincial risk management approach involves denying that aboriginal title and rights exist while offering accommodation or benefits agreements which they hope will lessen or mitigate the legal liability in the event that indigenous peoples prove aboriginal title or rights in the future and the government is found to have infringed those rights. The province is developing a centralized database to track all moneys paid to indigenous peoples so that this information can be readily accessible in the future, should the province need to show that it accommodated the cultural and economic interests of indigenous peoples. Government will use proof of economic benefit to argue that the damage suffered by indigenous peoples was mitigated or lessened — that indigenous peoples participated in and benefited from their decision to privatize B.C. Rail — and also, possibly, to show consultation.

           "In the event that any indigenous communities who were part of the trust choose to challenge the transfer from B.C. Rail to CNR in the future, government would likely argue that it met this test in part by seeking workable accommodations, as evidenced by the creation of the trust. Provincial assurances that the trust does not equal consultation reflect the position that aboriginal title and rights are not impacted by the agreement, because they are a transfer of existing interests rather than the creation of new ones, and so consultation or accommodation is not required. Nonetheless, the existence of the trust will be used by the province in the event of a legal challenge.

           "There is no provincial assertion that they will not seek to introduce or rely upon the creation of the trust to evidence accommodation in the future. The language of the assurances given merely highlights that they do not believe aboriginal title or rights issues are involved in the transfer."

[1515]

           Let me just stop there. There is more I would like to quote and put on the record and put questions to the minister on, but let me just stop there on this question. The minister says there are no strings attached to the

[ Page 10968 ]

trust. It does not mean that the aboriginal communities support the sale of B.C. Rail or the B.C. Rail deal. There is a question that's being raised now about whether or not, if a legal challenge should surface, the government would use the trust as evidence of accommodation of the aboriginal community. I'd like the minister's response to that, please, Mr. Chair.

           Hon. G. Plant: Let be me be clear. I am not going to comment on a legal opinion letter read selectively by the member. She can continue to read it, but I'm not going to comment on it, because among other things, this is not a forum for debate about legal opinions. This is a forum where we are debating the budgetary estimates of the Ministry of Attorney General on the treaty negotiations office.

           The member concluded her remarks with a question, and the question was another version of the question that I have been asked and have answered many times. It's actually harder to put it any more clearly than this. There are no strings attached. There are no strings attached to the $15 million today. There will be no strings attached tomorrow and no strings attached next week or any week thereafter.

           If it turns out that the government's position on the obligation to consult and accommodate is not the correct position but, rather, there is some argument that a constitutional obligation arises on the face of the B.C. Rail investment partnership, then of course the question will arise: what steps has government taken to avoid infringing aboriginal rights and title? We will not be introducing a reliance upon or relying upon the $15 million first nations benefits trust fund in that context or any other context having to do with the question of whether or not the government owes aboriginal rights and obligations or fiduciary obligations in respect to the B.C. Rail investment partnership.

           I don't know, again, how much more clearly I could put the answer. The question is a product of a fertile legal imagination. It has no foundation in substance, in my respectful submission.

           J. Kwan: The minister tried to address the legal opinion questions I put to the minister by saying that the legal opinion has no legal substance. The aboriginal community takes a different point of view. I might remind the minister that the aboriginal community, I suspect, will take the matter to the courts and therefore really have a situation where certainty is further undermined in terms of addressing aboriginal land and title rights and in terms of addressing, from a business economic point of view, the question of certainty in terms of economic investment and economic climate for British Columbia. I think that the government's actions to date, which will potentially lead to further court action, do not serve British Columbians well.

           The minister would like to assert somehow that I've read selectively on the record the legal opinion. Let me tell you, Mr. Chair, I have read substantively the legal opinion onto the record as it has been written in the document itself. It's not a fabrication from the opposition side in terms of what the legal opinion consists of.

           The pertinent question that I put to the minister is this — about whether or not the assistance of the trust will be used by the province in the event of a legal challenge and whether or not the provincial government will assert that the introduction or creation of the trust is evidence that they have put forward to accommodate the aboriginal community in the future. The language of the assurances given merely highlights…. So far what the government has said is that aboriginal title rights issues are not involved in the transfer. That's all that they have said.

[1520]

           Now, how will one interpret the minister's words about no strings attached? Does that mean to say that if a legal challenge should surface in the future about the B.C. Rail deal, the government would not utilize the trust in any way, shape or form to defend the government's position? Let me just stop there. I would like the minister's answer to my question.

           Hon. G. Plant: The existence of the fund will not be used as an answer to or a defence for any claims brought by first nations in respect of the B.C. Rail investment partnership — period.

           J. Kwan: Let me just conclude, then, with the legal opinion in terms of their position on this matter.

           "In summary, government is likely creating the trust as part of its risk management approach to consultation with indigenous peoples. If indigenous peoples challenge the ultimate decision to transfer or sell operations of B.C. Rail to CNR, government will argue that they have accommodated the indigenous peoples through the creation of the trust. Where indigenous communities participated as beneficiaries of the trust, government will also likely use this information.

           "The purposes of the trust include economic development, cultural purposes and educational opportunities, areas which the courts have suggested might meet government's obligation to accommodate indigenous people's cultural and economic interests in aboriginal title lands in decision-making.

           "While little is known about the deliberations of the competition bureau, it is possible that they will take into account evidence of the province's 'accommodation' of indigenous people's rights in rendering their decision, and the push by the province to have this legislation concluded quickly may be in response to that."

Those are the concluding remarks from the legal opinion.

           The minister just said and put on record that he and the government will not be utilizing the trust to defend or to claim that the government tried to accommodate aboriginal rights and title on the issue around B.C. Rail. Well, let's just wait and see, then, in terms of where that is at.

           It might be of interest for the minister to actually write a response, an official response, to the legal opinion that I have put parts of onto the record. I would be happy to table this document to the minister, and I would seek whether or not the minister would actually

[ Page 10969 ]

respond in writing to this legal opinion. I would be happy to table it if the minister doesn't already have a copy.

           Hon. G. Plant: Mr. Chair, you will be interested to know that the position I've expressed on the floor of the Legislature has been stated clearly, repeatedly and unambiguously in a number of pieces of correspondence dating back to about December 8 or 9. Nothing I have said today is in any way different from that which we have said consistently, and so I'm getting to the point where I'm feeling that I think the government has actually made its position pretty clear.

           I have also made it clear now on the record for people who read Hansard, so we can look at the print that Hansard will appear in and consider that my answer in writing to the member's questions and to all other questions that have been asked about the B.C. Rail benefits trust and what government's purposes are in relation to it. That, I hope, represents an answer to the questions that have been asked about our intentions in respect of the $15 million B.C. Rail benefits trust.

           The Chair: Just a reminder, member. This line of questioning has been well canvassed. You might want to think about moving on to another line of questioning.

           J. Kwan: Let me just conclude, then, with these statements. The reality is that the legal opinion was obtained on April 15, 2004, well after what the minister says he has written and put on the public record about his position about the trust and the government's position about the trust. In spite of that, the legal opinion came forward with these concerns that have been identified.

[1525]

           I think there is validity in the questions that have been put from the aboriginal community's point of view — absolutely, especially given the historical experiences of the aboriginal community. Can you blame them that they have doubts about the government's intentions and where they want to go, given their experiences to date? I would say I wouldn't blame them — absolutely not. There is a long road to go with respect to trust and relationship-building. I think it is incumbent on this minister to actually respond in writing to the legal opinion that has been commissioned by the UBCIC with respect to this and to answer the issues directly raised in the legal opinion.

           Now, I'll leave that up to the minister to decide whether or not he thinks that he has answered the questions adequately. I will simply put this on record, and I will remind the minister that the legal opinion was put forward and obtained on April 15, 2004 — after the government's various letters that the minister says have addressed the issues. At the appropriate time I will table a copy of this piece of legal opinion for the minister's information. I would put on record to ask the minister to respond directly to the UBCIC with respect to the issues raised in this legal opinion, and I will leave it up to the minister to decide whether or not he will do that.

           I would also want to put on record that it is not just the UBCIC who raised the issues around this front. The Seton Lake Indian band has also raised issues around this front. In fact, there is a coalition that has raised the issues — the Title and Rights Alliance — around the sale of B.C. Rail deal, for example. There are huge concerns from the aboriginal community on this file and on the government's handling of the B.C. Rail deal. I should also add that the First Nations Summit has been on record to say that the trust…. This is, again, in spite of the minister's assurances about the letters that have been forwarded to the aboriginal community. The First Nations Summit has also been on record to say to the government that they felt they've been led down the garden path by the government on this issue. The Attorney General can protest all he wants, but the fact remains that there is considerable mistrust from the aboriginal community side on the intentions and the actions of this government.

           I would now like to move on, though, to the issues around the service plan relating to the ministry's funding. According to last year's service plan, in '03-04 to '05-06 the ministry changed the way core businesses are organized. In the '02-03 to '04-05 service plan, the core business areas represented the joint efforts of two or more branches working together. Now the core business areas are listed individually for each ministry branch.

           Have the ministry branches also been restructured, or is this just simply an accounting change?

           Hon. G. Plant: First of all, just to go back to the last issue, the member made something about the timing of my communications being prior to this opinion letter that she has been quoting from. I have actually also expressed myself pretty clearly in writing since April 15 in op-ed pieces that I think were published in at least the Vancouver Province and also one of the Prince George newspapers. So subsequent to the opinion letter, I think I have been pretty clear and on the record on these things, including over the last week or so when we have intermittently had the opportunity to debate the estimates of the treaty negotiations office. I think that's an important part of the clarification.

[1530]

           The other thing that I think is important to add before we move to the new topic is that while the author of the opinion letter makes certain contentions about how government will act, the author of the letter does not support those contentions by reference to any evidence — that is, any evidence in relation to our statements concerning the intended purpose of the B.C. Rail benefits trust. They represent hypothetical or speculative arguments. I've certainly spent quite a bit of time having to deal with them, and I'll continue to do that if I have to. But I think I am also going to continue to be as clear as I can that not only is there no basis for the concern that's been expressed, but no basis

[ Page 10970 ]

has been suggested. I mean, there is no evidence to support the contention that's been made by those who are apprehensive about this trust. They are thinking up problems, and that's fine. People can do that, but we have tried to be as clear as we can from the word "go" that the B.C. Rail benefits trust initiative is exactly what it intends and purports to be — nothing more and nothing less. In fact, I think that's what I said in one of those op-ed pieces.

           Now on to ministry organization. One thing that's changed, last year over this, is that the treaty negotiations office has been asked to file, and has filed, a stand-alone service plan. That is a new development. Last year to this, there has not been any significant reorganization within the treaty negotiations office. There is always a bit of minor moving around, but the basic organization at the treaty negotiations office is the same this year as it was last year.

           J. Kwan: The 2003-04 budget estimate shows a reduction in ministry FTEs from 3,514 in '02-03 to 3,464 for '03-04 — 50 FTE positions fewer. In estimates debate last year the minister said that ministry staffing levels were reduced as a result of voluntary departures, early retirements and workforce adjustments. He went on to explain that two divisions were merged into one and that all of the administrative support positions were consolidated into one branch.

           This year's estimates, however, show that the target number of FTEs set out in last year's budget has not yet been met, and instead of 3,464 the restated figure for the '03-04 year is 3,486. Could the minister advise? The 18 FTEs that differ between a two-year…. What happened to those 18 FTEs? Where is it slated to be cut, and why was the target not met?

           Hon. G. Plant: I need to ask for a bit of clarification from the member. We had been debating the treaty negotiations office, and the total staffing in that office is 88 FTEs. When the member uses the number in the 3,000 range, I think she's talking about the FTE count for the total Ministry of Attorney General and treaty negotiations office, and that's fine.

           For the purpose of organizing the staff I have with me here now…. I have TNO staff, and I'd be happy to answer those questions when we get to AG estimates. If the member wants to get to AG estimates now and nobody has any more TNO questions, I'm happy to do that too.

           J. Kwan: Yes, the numbers that I put actually incorporate the TNO office as well as the broader ministry. I only have a few questions around that area, so I thought I'd try…. But no, that's fine. I'll save the questions, in terms of the broader ministry, for later.

           Let me specifically focus on the TNO budget, then. The treaty negotiations office budget has been cut this year by $6 million between the '03-04 and '04-05 budget year. Half of the $6 million for this year is under the negotiations section of the budget.

           The First Nations Summit has actually put forward its concerns with respect to the budget cuts to the TNO office. Let me put the First Nations Summit's letter to the minister, to the Minister of Finance as well as to the Premier on record. It reads:

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           "Reduced budget for the treaty negotiations office.

           "We are writing to express our concern about the 37 percent decrease in funding over the next two years for the treaty negotiations office. This budget cutback will reduce the provincial, human and financial resources availability at treaty tables and will undoubtedly slow a number of negotiations.

           "In our view, one party to negotiations should not be able to reduce their funding levels in the midst of negotiations without at least consulting the other parties, nor should one party be able to divert funds away from a negotiation table for other purposes — i.e., promoting advancement of certain tables at the expense of others. All treaty negotiation tables are equally important and should be given the opportunity to move forward.

           "The budget cut to the treaty negotiations office is just another example of this government's lack of commitment to resolve treaties. Your government has stated that its priority is to expand efforts to achieve reconciliation with first nations, but that is not reflected in the '04-05 budget or the '05-06 budget plan for the treaty negotiations office.

           "Your government's strong desire to allow access to resources that are currently encumbered by aboriginal title cannot be dealt with in isolation. This government needs to take a comprehensive approach to good-faith negotiations to finalize treaties. Rather than negotiating comprehensive agreements, this government is focused on short-term, take-it-or-leave-it economic measures, providing little opportunity for negotiation and no long-term economic stability for first nations communities.

           "Despite these cuts, first nations remain committed to good-faith negotiations with the provincial and federal governments. We urge your government to reverse the cuts and restore funding to at least prebudget levels and commit to good-faith negotiations with first nations and Canada.

           "We wish to meet with you as soon as possible to discuss this serious matter. We look forward to an early response from you."

It's signed from the First Nations Summit task force. This letter was dated April 20, 2004, so it's a rather recent letter.

           On the question around the budget cuts, the First Nations Summit has expressed its views clearly to the minister. Also, I would like to know: from the $6 million cut under the negotiations sections of the budget, what aspects of the negotiations will be affected by this cut?

           Hon. G. Plant: Let me begin a subject that the member raises by referring to the $6 million reduction in the treaty negotiations office budget from '03-04 to '04-05. This is also an answer to the concerns expressed by the First Nations Summit, which — and I'm not blaming them or being critical of them for this — reflect an incomplete understanding of the way in which the operating budget for the ministry of the treaty negotiations office is spent.

[ Page 10971 ]

           There is a reduction of $6 million, and $2.95 million — that is half of that — represents a reduction in the originally anticipated budget for economic measures. As the member knows because she canvassed the subject earlier in estimates, we had, a year ago, planned for the possibility that the economic measures fund would have a $10 million allocation this year. But in fact, it has only a $7 million allocation.

           The $6 million reduction that we're talking about and its impact on our ability to maintain a negotiating presence at the tables immediately has to be reduced by half, because the $3 million that represented economic measures funding has no impact on our negotiating presence at the negotiating tables. That leaves $3.05 million in the negotiations budget. Of that, $1.645 million represents a funding commitment associated with something called the Clayoquot Sound interim measures agreement. My ministry's contribution to supporting that agreement will be expiring, and so of the $3 million balance that we reached after we got rid of the first $3 million, $1.645 million represents one item that again has nothing to do with supporting a negotiating presence at the negotiating tables.

[1540]

           That still leaves a little bit less than $1.5 million to explain. Of that, $1.2 million of savings will be achieved by reducing travel and using better business practices with respect to travel and other aspects of the way we do business. So of the $6 million reduction, only $194,000 is represented by a reduction in salaries in the treaty negotiations office. The FTE count for the ministry in '03-04 was 88, and it will be 88 in '04-05, so there is no change in the base allocation of FTEs in the ministry.

           We continue to maintain a presence at all negotiating tables. We have very deliberately been strategic in the allocation of resources as a matter of priority, because I believe the most important priority for the treaty process in the current fiscal year is to determine whether or not we can actually achieve final agreements. We are devoting an enormous amount of our effort and energy at achieving final agreements. We are, however, continuing to staff negotiations at other tables. We are doing that, I may say, also in a way that is strategic.

           If I may at this point, Mr. Chair, offer a comment, which I don't intend as a criticism. It is a comment that has to do with the way the First Nations Summit tend to express themselves in relation to these matters. There are two different ways that you can look at the treaty process; there are more than two. One is to take a high-level approach and attempt to generalize across the province and, in effect, create the implication that everything is happening everywhere at the same time according to the same pace towards the same conclusion. That's sort of the top-down approach. It's an approach that's easy to adopt because it doesn't require as much work in understanding the details of what's actually happening.

           The second approach is maybe the bottom-up approach. That is to look at the landscape of all of the tables, all of the places where we're negotiating, and ask the question on a table-by-table basis: where is this table at — not just what stage of the six stages of the BCTC process is the table at but, if they're at stage 3 and they've been there for six months or six years, what is happening? What is the rate of progress? What is the likelihood that this is a table that is going to move from stage 3 to stage 4 within the next short while? When you conduct that assessment on a table-by-table basis across the province — which, unfortunately, the letter from the summit doesn't do — you get quite a different picture of what is actually happening.

           There you get to see, for example, that while the Squamish first nation and the government of British Columbia and the government of Canada are formally in negotiations, we haven't made much progress in negotiations at the Squamish table for a very long time. I hope the Squamish would not disagree with me when I suggest that that is, as much as anything, a sort of mutually shared agreement that the Squamish first nation has other priorities, and we as a province have worked hard to try to deal with those other priorities. There's not much point in scheduling 15 meetings a month at the Squamish treaty table when there isn't that much work to do and when we are simply not engaging on a whole host of issues. We're not even past stage 2 — or maybe into stage 3, but we still haven't got the framework agreement. We've been at stage 3 with a few tables for years.

           Then we're at stage 4, which is the agreement-in-principle stage, with a number of first nations around the province. Again, if you look at that landscape, even if you just take out that group of people from the overall landscape, you'll find different tables with different visions, different timetables, different rates of progress, different expectations about how fast or how slow they want to go. I don't want to hide from this. You will find there are some tables where the first nations negotiators are saying they'd like the province or the federal government to move a little faster. Actually, there may be some tables where I wish we could move a little faster, where I wish the first nation would move a little faster.

[1545]

           Some of that frustration, I think, is endemic and inherent in the process, but I do think it needs to be put on record that we are maintaining a presence at all tables. We are making progress at the tables where progress is possible, and we are certainly making progress at the final agreement tables.

           J. Kwan: The issue I would like to take with the minister's comment is this. As we know, treaty negotiations do take a long time. Oftentimes with some groups it is perhaps more challenging than that of others; there are more issues to resolve than that of others. As we know and as history has shown us, a lot of times the work is about building onto what has been done to move it in the direction of final agreement or the final stages of negotiations. Where you have a situation where funding is reduced, those tables…. As the first

[ Page 10972 ]

nations said, "promoting advancement of certain tables at the expense of others" is what is at issue, what they raise in terms of budget reductions.

           In fact, I should just remind the House, Mr. Chair, that the budget cuts that I've talked about in this '03-04, '04-05 budget year is in addition to budget cuts that took place in the '02-03 budget years. I should say the budget was originally $51.1 million in '02-03, and then in '05-06 it is $21.8 million. That is a total of $29.3 million worth of cuts over a number of years. That's significant in terms of the budget reduction in this regard.

           The minister also says — and it is interesting — that $1.2 million of reduction is in the area of travel and better business practices. I would have assumed, though, that the government staff who are engaged in the negotiations process would have already been engaged in better business practices in terms of treaty negotiations. Expenses — i.e., for travel — would be incurred where it is necessary. I am not quite sure what the minister means when he says better business practices and reduction in travel. Reduction in travel would only mean that no travelling is taking place to facilitate discussions. Maybe I'm wrong in understanding that. Maybe the minister could clarify.

           Hon. G. Plant: First of all, you just can't slip back into some other number and pretend that number expresses what is implied by it. The $51 million, whatever that number was…. There was a year a couple of years ago — and I don't have those numbers in front of me — where something like $15 million or $20 million of the budget of the treaty negotiations office was a flow-through for the McLeod Lake Indian band adhesion agreement, and there was a big whacking chunk of money that was there for the Nisga'a final agreement. That's why you have to get down below the one-line number and find out exactly what's happening. Let me just be clear about the implications of the answer to the last question.

           We started out with $6 million — big number — in reduction, but what we came up with was $194,000 in actual salary reductions. In other words, taking a big-picture perspective, there was virtually no reduction at all — the same number of FTEs last year over this year. We have not had a cut in negotiating funding in this ministry in respect of the last year over this year. Certainly over the course of the three years of the service plan, we have had some reductions. I have to say, Mr. Chair, that that is a three-year stage of progress. I know the member won't like to hear this, but that is actually three years where we have turned the treaty process around in British Columbia, where we have actually achieved significant successes to the point that we're in four final agreement negotiations at one time, which is unprecedented. That's not bombast; that is a simple numerical fact. There has been no time in this process where there have been four final agreement negotiations progressing, as is the case today.

[1550]

           You can start with any big number you want, but the fact is that year over year there is really no reduction in the support, in the negotiating activities across the ministry as a whole. The member or the First Nations Summit uses the word "cuts" because it is the only word in their vocabulary. They use it even when there is an increase in expenditure. They use the word "cuts." It's like they can't get through a minute without a sentence that has the word "cuts" in it. I know I'm going to provoke the member into some long exposition of all the major cuts that have taken place, but she won't find them in the budget of the treaty negotiations office last year over this year when we're talking about the issue that got her started, which is our support to negotiation funding, because we do have all the resources for negotiation that we had last year.

           Let me be clear about something. I spent a fair bit of time in April travelling around the province, meeting with first nations — some that are in final agreement negotiations. We had a good discussion about what kind of progress we were making, what the stumbling blocks are going to be. I also met with some first nations that are at the AIP stage, stage 4, and took a bit of a measure of the landscape there, because we are looking for further opportunities. There's no doubt about it. I want success stories out of this process because I believe that success will breed success. If we get final agreements at those four tables, I think all kinds of things are possible. At that point we may have a hard time keeping up.

           At the moment if we don't get final agreements, then I think the process is going to be subject to a whole host of additional questions and scrutiny about why we're doing it in the first place. It doesn't matter if you have a dozen AIPs, if you can't get to final agreement sooner or later. I think that's a pretty sensible way to prioritize the allocation of scarce public resources.

           The member had a question about better business practices. In fact, this may come as a surprise to the member, but it is always possible to improve business practices. Sometimes it is possible to improve them because software is developed that's new and that allows you to do better project management.

           One of the things we've done in the course of the last year or so is tried to encourage first nations to move towards a consideration and, in some cases, even a negotiation of some of these issues on a regional basis. Instead of having to divide up in the three or four or ten or 12 or 25 different communities, there are times and places where we actually think we can do as much work as we need to by doing it at the regional level. Yes, there are times and places where I think there is a natural tendency to think the only way you can do the deal is to get on the airplane, but in fact you can probably make progress if you simply set up a teleconference.

           There is always, I think, an opportunity to figure out how you can spend money more effectively and more efficiently as you learn from what you are doing. You learn about how your existing practices are helping you get either more efficient or less efficient. Those are all, I think, opportunities for learning.

[ Page 10973 ]

           What we come down to at its base, in terms of the disagreement that exists between the summit and the province, is that we have taken the same negotiation resources and organized them more strategically so we are ensuring that we have all the resources we need to staff for final agreement tables. That means that at a small handful of AIP tables, we have a dialogue with the first nations at those tables about whether or not we are able to move forward as quickly as they would like.

           I will tell you this. If we wanted to, I bet we could go down the list of those AIP tables and I could identify issues, questions and challenges that are not necessarily the sorts of issues, questions and challenges where we would find an answer just like that by putting another negotiator on the file or having another meeting a month, because there are more difficult issues. There are issues oftentimes around what the vision is that the first nation has for what it wants at the table and how to bridge the gap between that vision and our vision of what is possible. Those issues oftentimes, frankly, just require a little bit of thinking as well as a bit of negotiation.

           I don't think that in fact we are in any way inhibited in our ability to achieve what are fundamentally the shared goals of Canada, British Columbia and, I hope, the summit, which is that we should get to final agreements.

[1555]

           J. Kwan: Let me just put this on the record. The minister says: "Well, gee, over the last number of years the budget hasn't really been impacted in the treaty negotiations office." You know what? It just so happens that in the last four years, the treaty negotiations office's budget has been reduced by some 57 percent — it just so happens over the last four years.

           The minister says: "Don't worry, though. Everything is fine." The minister likes to say that the opposition uses the word "cut" irrespective of what reality is. Well, let me just tell the minister this. What this government likes to claim is not a cut, and they like to re-term it into things like reassignment, redirection, and I think I heard the minister just say reorganize…. You know what? You can name it whatever you want to name it. People know the difference.

           This government is very apt, I might say, at inventing new words for the term "budget reductions" or for the word "cut," in terms of budget cuts. They will call it anything else but that, but British Columbians know the difference, and the First Nations Summit certainly knows the difference.

           I should also add this. It's an important issue that the First Nations Summit has already raised, and I would like to put this on the record again.

           "The government's strong desire to allow access to resources that are currently encumbered by aboriginal title cannot be dealt with in isolation. The government needs to take a comprehensive approach to good-faith negotiations to finalize treaties. Rather than negotiating comprehensive agreements, this government is focusing on short-term, take-it-or-leave-it economic measures, providing little opportunity for negotiation and no long-term economic stability for first nations communities."

           The strategic moves that this government has put forward…. There's another spin to it in terms of how the aboriginal community sees it, and I think the minister needs to take that issue and reflect on that.

           As we know, in terms of treaty negotiations, it is not easy. It is not easy to get to final agreement — not by any stretch of the imagination. It is not easy for the first nations community to get to the table either, for resources for them on the other side are also scarce. There is nobody that I think wants resolution on the treaty negotiation issues more than the aboriginal community themselves. They absolutely want resolutions. Why? Because they want a future for their community. That's what the process has been about. It is about the aboriginal community having a future for themselves.

           The minister can claim whatever he wants to claim, but I would ask the minister to take seriously the words of the First Nations Summit and the concerns they have raised. I would ask the minister to sit down to meet with the First Nations Summit about the budget reduction issues they have raised.

           The minister says he means no offence to the First Nations Summit when he tries to say they don't understand what really is going on. Well, you know what? The table could be flipped to the other side as well. Maybe it is also the problem that this minister doesn't understand the issues which the First Nations Summit is trying to put to the table and trying to get resolution for — these long-outstanding issues of treaty negotiations.

           Hon. G. Plant: The numbers actually, when you examine them, speak for themselves. The question is, though: are you willing to actually allow the numbers to speak for themselves?

           Let me give an example. In '02-03 there were treaty settlement and implementation costs of $20.666 million. That was a component of the number the member was using when she was talking about cuts. In fact, those had nothing to do with negotiation staffing. They were costs for things like the McLeod Lake Indian band adhesion agreement implementation or for the Nisga'a final agreement. Those numbers were reduced in '03-04 to $4.7 million. That is a significant reduction, but it has nothing to do with our ability to staff negotiations. It has everything to do with the timing and sequence of obligations to fund certain agreements entered into by the government.

[1600]

           This is not a matter of spin or rhetoric or message box; it's the reality. I don't know why we can't, in this province, ever seem to have a discussion based on the way things actually are. It seems to be the inevitable product of some disease in our provincial psyche that we can't debate about things as they are. The opposition has to pretend things as they might be and then use that as the basis for an argument.

[ Page 10974 ]

           There is definitely a challenge in maintaining an adequate negotiation presence in this process. There is no doubt about that. But you need to examine that challenge against the issues that, to her credit, the member did include in her last intervention — talking about making sure that we are responding to actual ability to make progress. That is a real challenge. You don't even have to get political before you acknowledge that that's a real challenge.

           The member says that it would be a good thing if I sat down and met with the First Nations Summit. I can't imagine that our government could meet any more often with the First Nations Summit. We have had quarterly meetings with the First Nations Summit Task Group since we were elected. We are the first government in the history of British Columbia to have a cabinet meeting with members of cabinet and the representative chiefs of the first nations of British Columbia in the same room. We are the first government in the history of the province to sit down and have a first citizens forum, where we as members of government and other community groups could sit down in a room with representatives of aboriginal groups — not just chiefs, but people who are responsible for on-the-ground, front-line service delivery — and talk about the issues that are at stake in aboriginal communities.

           The deputy ministers meet regularly with the summit chiefs. There are bilateral meetings with ministries between summit chiefs and the ministries of government. We meet a lot with the summit. I go to summit meetings probably once or twice a year — to the full chiefs meeting of the summit — to give a progress report, to answer questions and to take back concerns, and I'll continue to do that as long as I think that's a useful process.

           Yes, we do want to listen to what the summit has to say. But I will say this. I think the summit needs to pay attention to what's actually happening. There is a tendency on the part of the First Nations Summit Task Group to globalize and to generalize, but the reality in this process is now very, very specific. It's very targeted. It's table by table: "What do you want? What can we do? How can we get there?"

           There are groups that come together; there are groups that break apart. When first nations groups come together and they break apart, it's hard to make progress in the treaty process with them. That's got nothing to do with whether there are 88 FTEs or 92 FTEs. The First Nations Summit talks about — I don't know what the exact language is — short-term agreements. Let me remind the member again: this is the first time in the history of the treaty process in British Columbia that we are at comprehensive final agreement negotiations at four tables.

           If the people in Snuneymuxw, the Snuneymuxw first nation, decide that they want to support the deal that their negotiators initialled, which is a decision they can make at any time, we'll be at final agreement negotiations at that table. I haven't thought to ask my staff about this lately, but if the people of Sechelt ever decide that they want to get back at the table to negotiate with respect to the AIP that they endorsed, we'd be at that table negotiating comprehensive final agreements.

           And we have done more than that. This last government that we had paid a lot of lip service. We actually came to the table with $26.3 million in economic funding that is really…. It's got nothing to do with aboriginal rights and title. It's simply government trying to make a difference to help the aboriginal communities of British Columbia get access to employment and jobs to build a future for themselves.

[1605]

           What have we done in respect of our constitutional obligations, in addition to the fact that we are at treaty tables? Well, we have a program and policy underway, being implemented by the Ministry of Forests for forestry and range agreements — $95 million committed over three years. The First Nations Summit may not like it, but we can't keep up with the demand for these dollars because so many first nations are coming to the table saying: "Yes, it's time for us to sit down with government and negotiate agreements that will help make a difference in our lives."

           Are they treaties? No. We don't claim that they are treaties. But they are a step along the way to building a relationship in which the parties — far from denying that they exist or have rights or title — are actually trying to negotiate practical, workable accommodations within the spirit of a general recognition that it's time to do that. It's time to make a difference in the lives of aboriginal peoples. It's time for government to sit down and acknowledge that which the courts have been telling us for nearly 20 years. We have constitutional obligations here. We're trying to make a difference there.

           We've explored a whole host of other opportunities. In fact, my recollection is that the former government, the government of which the member opposite was a member, took the position that Treaty 8 had said goodbye and shut the door to the interests of the first nations of Treaty 8 once and for all in 1898, and that was the end of it. We didn't have to deal with their issues anymore. They had ceded, released and surrendered their rights, and that was the end of it.

           Well, you can pretend that issues have gone away, but that doesn't make them go away. What was happening was that oil and gas companies were starting to make under-the-table deals to try to get access to oil and gas territory. That's not a good way to do business. Over time, step by step, we have taken other initiatives with Treaty 8 first nations to try to see if we can come to a table to negotiate what are called set-aside issues, to enter into some understanding that would allow us to provide a measure — admittedly not a massive amount — of value and benefit from the oil and gas activity that takes place in Treaty 8 territory.

           We weren't able to agree on the details of the amounts or to the terms and conditions of that. I think we have, however, been able to conclude a protocol agreement that allows us to continue the good work that's been done, to try to build some sense of shared community understanding among the Treaty 8 first

[ Page 10975 ]

nations and, for our part, to continue to do work — for example, like the work we did in providing $443,000 in funding to hire a wildlife biologist — to provide Treaty 8 first nations with enhanced capacity to participate in government's initiatives, to provide them with GIS training and other projects so that they can do their own traditional use studies.

           It's all good work that's not just about short-term value. It's about building relationships. It's about building a measure of trust. And yes, I know there are first nations who are not there. They don't share our agenda. They don't recognize or don't have the same sense that this is about practical, workable relationships as well as about important issues of rights and title, but we're continuing to work on that. We're continuing to work on that.

           In none of that have we been held back by the fact that over three years we have in fact had, in a disciplined and orderly way, a reduction in the negotiation staff in the ministry. But I think that what we have done shows that sometimes when you reduce things, you've got the opportunity to reinvent how you do business, and we've become very effective at the business that we do.

           J. Kwan: It remains to be seen how effective this government is in the area of treaty negotiations. The reality is this…. And you know what? Any day, I would take the First Nations Summit's word over this government's and this minister's word.

           Is this minister claiming that since they took office, they have never and they have not cut the budget for the treaty negotiations office?

           Interjection.

[1610]

           J. Kwan: Is the minister claiming that? Absolutely not. Over the four years that this government took office, they absolutely slashed the budget for treaty negotiations. The minister might claim otherwise, but the reality doesn't change itself just because the minister wishes it to be different. The minister can claim whatever he wants to claim, but the people of British Columbia know the difference. Most importantly, the aboriginal community knows the difference, for they are at the table with this government. It is this government who launched this ill-conceived referendum on aboriginal people about minority rights — having the majority vote on the issues — that infuriated and insulted the aboriginal community. It's this government and this Attorney General who led that fight. It is this government that has done irreparable harm and has actually damaged the relationship with aboriginal people with some of its so-called principled positions and ideology that it's undertaken.

           Interjection.

           J. Kwan: The Minister of Labour is asking: what language am I speaking? What land am I living in? I live in the land where Canadians….

           Interjections.

           The Chair: Order, please. Order, order, order. Let's have some order here on both sides of the House, please.

           Member for Vancouver–Mount Pleasant, let's get back to the debate for the Attorney General's ministry.

           J. Kwan: I live in the land where Canadians should have the right to be presumed innocent until they are proven guilty, unlike the piece of legislation that was introduced by the member for Vancouver-Burrard this morning.

           The Chair: Member, member. Member, let's get back to the Ministry of Attorney General, please. Keep your comments to that ministry.

           J. Kwan: I would happily do that, Mr. Chair. The land in which I live is the land where constitutional rights are being honoured and not….

           The Chair: Member, member. Member, carry on with questions to the Attorney General, please.

           J. Kwan: Yes, constitutional rights that should be honoured; constitutional rights which the aboriginal community claim and continue to fight for in the courts and around the Legislature; constitutional rights where this government could just rip apart because of their own ideology…. We shall see later on today how the Attorney General is going to vote on those pieces of legislation around our fundamental, basic constitutional rights. I can't wait for that to happen.

           Claiming that somehow the government has met with the aboriginal community lots of times and then proceeding to ignore the question that was put to the minister about meeting with the First Nations Summit, about the budgeting issues with the treaty negotiations office…. That's the request that the First Nations Summit had asked of this minister that I put on record. No wonder aboriginal community leaders and others in British Columbia don't trust this government. They choose to ignore what's brought to their attention, because it doesn't fit their agenda. It doesn't fit their strategic approaches.

           The aboriginal community, through the First Nations Summit, specifically asked to meet with the minister about the reduced budget for the treaty negotiation office, not about treaty negotiations generally. The Attorney General knows very well the question that I put to him, but it doesn't stop him from distorting what I put to him. Then for him to get on some sort of high horse and talk about how he's consulted — from this Attorney General, who admitted on record last week that he and this government did not consult with the aboriginal community on the B.C. Rail deal…. So much for consultation — consultation only when it fits the government's agenda, not when it is necessary to build relations and to build trust with the aboriginal community.

[ Page 10976 ]

           Interjections.

           The Chair: Order, please. Member, order, please.

[1615]

           J. Kwan: The Minister of Labour is saying: "Well, why don't you get out and not just stay in this chamber?" Well, actually, I have gotten out, and members of the community have widespread opinions about the performance of this government and this Minister of Labour. The aboriginal community and many others are saying to this minister and to this government…

           Interjections.

           The Chair: Order, please. Order, please. Let's have some order on both sides of the House here.

           J. Kwan: …that they're not listening to the people. In fact, we have a situation in this House where a piece of legislation could pass without backbench MLAs reading it.

           The Chair: Member, take your seat, please. Member, I've asked you now not to bring up…. Stay on vote 11, please. This is the Ministry of Attorney General. I'd ask you to confine your questions to that ministry, please, without reference to legislation.

           J. Kwan: I apologize. I did digress because of the heckling from the Minister of Labour. I did digress, and I do apologize. You know what? For the Minister of Labour to suggest that I don't listen to the people…. Maybe he should look in the mirror and see for himself who is listening and who is not.

           Maybe this government, including this Attorney General, should stop and reflect for a moment not just on his own point of view and on this government's point of view but, rather, on the points of view of other people and, on the issue around treaty negotiations, most particularly on the aboriginal community's point of view. Maybe that's where things have gone wrong for this government. They refuse to listen. They can only hear their own ideology and the people who sing from their own song sheet. Those who don't are completely swiped aside as though somehow they don't have anything to contribute to the table.

           You can tell by the Attorney General's comment just now. The aboriginal community, the people he claims are not going to bring a result in final treaty negotiation stages, are just cast aside. Then the minister will go on to say that they should reflect and look and see what it is that they are demanding. Maybe this Attorney General and this government should reflect on the history of British Columbia and what has been done to the aboriginal community and the pain and the suffering that still exist today as part of the treaty negotiation process. Maybe the Attorney General and this government should reflect on that before he makes those comments. I dare the minister to say in this House that the government did not, since he took office, reduce the budget for the treaty negotiations office, for it is not true. It's simply not true.

           Hon. G. Plant: I'm not going to pretend that the budget has been static. What I have done is used the actual numbers that lie underneath the global budget figures to point out that over last year to this year, there have in fact been no reductions in the number of full-time-equivalents who support the negotiation work and that the only reduction in salaries taking place last year over this year is about $194,000 out of the $6 million reduction.

           What I'm asking — and it may be too much for the opposition, but I am asking it — is that when we talk about reductions or changes or increases, we get below the global numbers down to what those numbers actually represent. There has definitely been a reduction year over year since the first service plan of this ministry when I took office. The member says it was four years ago. It may feel like four years, but it hasn't, I don't think, yet been four years. It's not even yet been three.

[1620]

           There have been some reductions. They were planned. They were contemplated in the first service plans that we tabled, and we have reorganized the ministry to make the best use of our resources. I think we've become very, very effective in moving from an approach that was a little bit more like trying to be all things to all people everywhere at the same time to trying to respond strategically to the priorities that are not just identified by this government but that I think often are shared priorities. Certainly to some extent, Canada has also worked hard to try to identify lead tables — tables that are very close to final agreement — and they worked hard to try to make AIPs possible at those tables. Those tables happen to be tables where the first nations community was very supportive of the drive towards AIP, and they helped their leadership get to AIP.

           That's the reality. We are now at final agreement negotiations at four tables. We are at treaty negotiations at a number of other tables around the province. We continue to maintain an effective presence at those tables. I do know that the tables themselves occasionally conduct assessments of the progress that they are making or that they are not making. They identify issues that are roadblocks and try to work out ways to deal with those roadblock issues. I think that if you can't have that discussion, then you're just not participating with eyes open in this very challenging process.

           We have, as a government, made a significant number of departures from the policies that we inherited. I referred to some of them in my last answer. I left out, of course, a reference to the throne speech of 2003 and the statement of regret and reconciliation contained in that throne speech, which I think was an unprecedented step forward for a government. We have taken the policy approach that the former government had on the issue of certainty — which was to demand

[ Page 10977 ]

something close to cede, release and surrender — and we have modified that approach.

           We took the policy of the former government, which was to reject any approach or request for revenue-sharing, and we have in fact implemented revenue-sharing policies, which in the case of the Forestry ministry alone represent, so far, a $95 million commitment. We took the former government's rejection of the idea of cooperative management, and we have said that we want to move forward to explore ideas about cooperative management and so on.

           I think the list of things that we have done is a list of progressive and constructive initiatives. We could choose to characterize the list all we want. I think, though, you've got to at least start with the evidence, and the evidence is there. I've referred to some of it over the course of the last two answers. Maybe I'll have the chance to refer to more as we go forward.

           In respect of the letter that gave rise to this series of exchanges, I certainly understand that the summit is concerned about whether or not we are maintaining an adequate presence at negotiation tables. Given the need to ensure that we make the most effective possible use of limited public resources, I think that we are making effective use of resources and that we have adequate resources at the tables to achieve our strategic objectives. That isn't to say I won't continue to ask for more. I will do that, but I think we've got a great opportunity with what we've got. I think the track record of success we've shown is that we can achieve success within a budget framework that involves exercising some measure of discipline.

           J. Kwan: I just want to be clear on record with respect to the budget cuts that the government has brought forward in the TNO office over four years, and that includes the '05-06 budget year for the service plan — so since the government took office until '05-06 in terms of the budget year that the government has put forward.

           Let's be clear. This minister, this Attorney General, knows very well that he could not claim that there have been no cuts in the TNO office. The issue that the first nations take with the minister is that with these cuts there has been, in their view, a compromising of the treaty negotiations in terms of the work that needs to be done.

           You know, the minister will just say: "Hey, you know, everything is fine." This government likes to claim that everything is just fine, and they continually say that — all of their ministers. I know that's their message: "Everything is fine. Don't worry. Be happy. The opposition are just being naysayers. Don't worry about it."

[1625]

           But you know what? The aboriginal communities, on this issue, have been working very hard to try to raise issues with the minister in spite of what this government tries to do, and that is to blindside them with issues related to aboriginal communities' rights and title, like the B.C. Rail issue. Even though the government does this kind of thing, the aboriginal communities continue to say that they remain committed to good-faith negotiations with the provincial and federal governments and that they urge the government to get to the table to resolve these issues and that they are at the table always.

           You know what? I trust the aboriginal communities and their words over this minister and over this government any day, Mr. Chair.

           Hon. G. Plant: With respect to the issue of consultation — not consultation in the constitutional sense, but meetings and so on — I am advised that I have done 36 meetings with treaty groups and chiefs in the last year. It felt like quite a lot of meetings. Thirty-six meetings, I think, represents a significant commitment on my part to the process.

              [H. Long in the chair.]

           With respect to the budget numbers, well, the member just can't help herself. She can't help herself in the desire to avoid dealing with the reality. She mentioned the '05-06 plan. She did quote a number from the '05-06 plan and, I think, the same number for the '06-07 plan. We go down in the estimates for the current year from $28.9 million to $21.8 million.

           What is that gap? Is that a gap that relates to negotiation funding? No, it is not a gap that relates to changes in the budget for negotiations. It reflects the fact that the economic development funding is stopping. As it goes to zero for next year — as that $7 million that was in the budget for this year is not there for next year — then the budget for the treaty negotiations office is reduced from $28.9 million to $21.8 million. I know it's hard to get to the facts. If the member were to look at the negotiations line, the funding number on that for next year goes up.

           J. Kwan: Talk about distorting reality. Talk about it. The minister knows full well what I said and what I put on record. Since this government took office, this minister cannot…

           Interjections.

           The Chair: Order.

           J. Kwan: …claim, by any stretch of the imagination, that they did not reduce significantly the treaty negotiations office budget. Since this government took office, including and up to its service plan to the year 2005-06…. Over those years the minister and this government have cut some 57 percent of the treaty negotiations office budget. That's what this government has done.

           This minister likes to get up and say: "Gee, in the '05-06 year, there have been no cuts. Look how great we are doing." You know what? The cuts have already been made in previous years, Mr. Chair — just like in the area of legal aid, where the cuts have already been

[ Page 10978 ]

made by this government. I'm sure that when we get to that section of the debate, the minister will say: "Gee, there have been no cuts this year."

           Yeah, right. Tell it to people who actually believe him. Give me a break, Mr. Chair. Talk about distorting the facts. Talk about not putting it on record truthfully what really is reality.

           Then the minister got up and, just to avoid the question, said: "Well, gee, I've met with the aboriginal community some 36 times." The letter that I put on record was very specific. It is dated April 20, 2004, from the First Nations Summit, requesting a meeting. Let me just quote that last sentence in this letter: "We wish to meet with you as soon as possible to discuss this serious matter. We look forward to an early response from you." It's specifically related to the reduced budget for the treaty negotiations office. Talk about trying to sidestep accountability and responsibility. Give me a break.

[1630]

           The record will stand on its own. The community knows — British Columbians know — what this government is doing. This government will be judged by the community when the time comes.

           I'd like to now turn to the issue about the representation agreement. The representation agreement was initiated by such organizations as the Alzheimer Society of British Columbia and the B.C. Association for Community Living. It was introduced by the previous NDP government as a planning tool for people that enables self-reliance and reduces the role of the state in the management of personal and private affairs.

           The Attorney General, when he was the AG critic in opposition, recognized the importance of the Representation Agreement Act. Here is what the Attorney General said when he was in opposition: "It seems to me that the introduction of representation agreements as a new planning tool is going to effect a very significant change in the way aging adults and other persons of limited capacity are able to plan, to maintain and to assign authority over decision-making in their lives. Representation agreements are bound to become a widely used planning tool, perhaps as familiar to British Columbians as, if not more so than, a will." This is from Hansard, July 12, 1999.

           Since coming into government, however, the Attorney General has been reviewing and making changes to the Representation Agreement Act. Immediately in 2001 he commissioned the McClean commission and in 2002 accepted the report of Professor McClean, Review of Representation Agreements and Enduring Powers of Attorney.

           In March 2002 the government implemented the principal recommendation of the McClean commission that the legal instrument of "enduring powers of attorney" be used for managing a person's financial affairs in the event that they become mentally incapable but that representation agreements be retained for health care and personal care decision-making.

           The Ministry of Attorney General has since circulated a discussion paper and refers to consultants they have engaged over the years. The discussion paper is entitled Personal Planning Legislation: Government's Response to McClean Report. The consultation period on this latest move, in contrast to the original review, has been very short and involved very little actual consultation. At a meeting with stakeholders the deputy minister circulated a Q and A that states that the government has already decided that the Representation Agreement Act is being repealed.

           We understand that the Attorney General is now planning to eliminate the Representation Agreement Act and that as a result, health and personal care decisions will be taken out of the hands of individuals and their designated trusted representatives and put back in the hands of the legal system and state guardianship. This is opposed by the Community Living Coalition, the B.C. Coalition of People with Disabilities and a wide variety of B.C. families that have been writing the Attorney General and all MLAs to tell this government not to repeal the Representation Agreement Act. We know that the minister and his deputy have met with many of these groups and individuals and have accepted position papers against their declared intention to eliminate the act.

           I'd like to ask the minister a number of questions on this issue. First of all, to the minister: what portion of this year's budget is allocated to the ongoing review of and planned placement for the Representation Agreement Act, including consultations with stakeholders and staff resources?

           Hon. G. Plant: Well, I'll deal with the question the member asks, and presumably her other questions will provide us with an opportunity to discuss some of the issues raised in the document she was reading a minute ago. There is no specific item for consultations, no budget breakdown around the work that's been done over the last few months to examine ways in which we can reform the area of personal planning law.

[1635]

           J. Kwan: The minister says he doesn't know. There is no breakdown. How many staff has he assigned to this task?

           Hon. G. Plant: There are, I think, a couple of people working full-time and perhaps another person that would make it somewhere close to three FTEs, plus a contractor.

           J. Kwan: Who's the contractor, and what's the role of the contractor?

           Hon. G. Plant: The contractor is Prof. Robert Gordon from Simon Fraser University. He is a widely recognized and much-published scholar in the area of adult guardianship and supported decision-making.

           J. Kwan: What has he been contracted for?

           Hon. G. Plant: He has been providing background policy advice, expertise in thinking about ways to en-

[ Page 10979 ]

sure that planning instruments are as effective, efficient and affordable as possible.

           J. Kwan: How much is his contract?

           Hon. G. Plant: I don't have the number here, but I will get the number for the member.

           J. Kwan: Yes, actually, Mr. Chair, I would like the actual contract itself as well: the language of the contract; what the mandate of this contract is; how much is being paid; the term, really — the terms of reference for the contract and the period of time in which Mr. Gordon has been contracted to do this work.

           Have there been other consultants obtained by the government to deal with the Representation Agreement Act?

           Hon. G. Plant: Well, if you go back to the genesis of our work as a government in this, we started off by entering into a contract with Prof. Albert McClean, the former dean of UBC law school. We asked him to do a report pretty soon after the election in 2001. I think he's the only other independent consultant or contractor that we have used in this project.

           J. Kwan: I would also like the amount of dollars for which the government has obtained Mr. McClean for the report that he has produced for the government. Also, I would like to know the process which the government has engaged in. Maybe the minister knows that answer now. What was the process that was engaged by the government to hire Mr. Gordon for his work?

           Hon. G. Plant: I'm advised that there is an exemption in government procurement policies for people retained to provide confidential policy advice to government, and Professor Gordon was retained within that exemption.

           J. Kwan: In other words, there was no tendering in the process.

           Hon. G. Plant: That's correct. The other day, Professor Gordon actually gave me two of his books written on the subject. I was at a meeting about this a day or so ago. It seemed like two or three people in the meeting were all using that book as kind of the definitive source for Canadian law in this area. I think we probably have got the person in British Columbia helping us now who is best able to provide advice to government on these things. But the member is right. There was no tendering. We didn't go look for anybody else.

[1640]

           J. Kwan: What is the total budget for the overall review of the representation agreement? Can the minister provide an estimated cost?

           Hon. G. Plant: The amount has never been broken down as a separate line item anywhere.

           J. Kwan: We can try and add it up in terms of what the government has put towards this task, the number of staff that the minister has outlined, the contracts that the government has retained and the stakeholder consultation costs. I'm sure that one can actually put their mind to putting forward an estimated cost for this project.

           Hon. G. Plant: Well, that was a request…. Then I take it as a request. I will take it under advisement as to whether or not the work could be done in a way that would provide the member with a helpful answer without spending days and days doing it.

           J. Kwan: The minister has capable staff. I'm sure they'll be able to come up with that answer without having to spend days and days and days trying to figure that out. I'll await the minister's answer in writing in that regard.

           Can the minister indicate how the costs of the current review compare to the review commissioned in 2001, which was concluded in 2002? If the minister could actually provide that information, I would appreciate it as well.

           Hon. G. Plant: I have that request, and we'll see whether it's an answer that can be given.

           J. Kwan: Who did the minister meet with in terms of consultation?

           Hon. G. Plant: I have had a number of meetings with people, including representatives of groups that are involved in assisting people to make representation agreements and other groups. But I have had a very, very small number of meetings, I think, compared to the number of meetings that either ministry staff or the contractor has undertaken. I would not say that what I have done has been part of the consultation process so much as I responded to requests, which were made by two or three different community groups, that I have a meeting with them. And I was pleased to have the opportunity to do that.

           J. Kwan: Well, the people that the minister has met with, his staff, or the people that the minister contracted on this project — all of these individuals — who did they meet with? I would like a list of the organizations or individuals that the minister actually met with on this issue.

           Hon. G. Plant: Well, I'll see if a list is available.

           J. Kwan: The minister is asked a question which, through the estimates process, is completely legitimate for the opposition to ask. You know what? I would actually like a little bit more certainty than the answer that the minister has just given about whether or not a list is available. The minister can ensure that a list is available for the opposition and for the public who has written to the opposition, to all the MLAs concerned

[ Page 10980 ]

about this issue. British Columbians have a right to know who the government and its representatives have met with on this issue. So I would like an answer from the minister to confirm that he would actually provide that information to the opposition and to the public.

           Hon. G. Plant: As I said, I'll see if I can provide a list.

           J. Kwan: Well, I'll tell you, Mr. Chair, the minister can keep playing the game of "I'll see what I can do" when questions are put to him. But you know what? His attitude towards the questions that I put to him will not serve him or this government well — this cavalier, arrogant kind of approach to serious questions.

[1645]

           British Columbians, including myself, would like to know what sort of consultation process took place. Who did the government meet with? How long did the consultation process take? Those are legitimate questions, Mr. Chair, and I expect an answer from the minister. I would like the minister's response to the questions that I put to him and confirming that the opposition will be receiving that information.

           Hon. G. Plant: I have actually attempted to be helpful to the member. She has an irresistible temptation to characterize people as arrogant or cavalier. I wonder sometimes why it is that she falls so quickly into the trap of ad hominem debate when we actually have interesting and important public policy questions. I think there are some interesting and important public policy questions at stake here, and I'm certainly interested in the opportunity to discuss some of those issues. Personal attack really doesn't advance anything. It is a strategy that the member uses whenever she seems to want to — which seems to be, frankly, quite often. I regret that, but I'm certainly not in a position to change that approach.

           When we took office, the situation that presented itself was that the hopes and the dreams that some committed advocates had for the use of representation agreements as the planning tool of choice for British Columbians were not being realized. I think in hindsight that I should have seen some of these problems more acutely when I looked at the legislation that was brought forward in 1999 to try to give effect to some of the legislative changes that were enacted back in about 1992. I mean, the first clue that there was a problem with the 1992 legislation was the fact that seven years after it had been enacted, none of it had been proclaimed. In part, that's because there were some, I think, challenges around how the 1992 legislation was put together. Those challenges were identified not just by government but by many of the community groups themselves, when they came to terms with the difficult challenge of how to implement.

           Then in 1999 or thereabouts, the former government implemented part of the regime that had been originally enacted. While the initiative was probably well-intentioned, there were also problems arising from the fact that the initiative was only partly implemented. There are a number of those problems, but let me illustrate just one. The Representation Agreement Act, as it had originally been enacted, contemplated that representation agreements could be made in a certain number of situations. As one of the public safeguards or security measures to ensure that there was some kind of certainty around whether representation agreements were made properly or not, the original legislation contemplated that there would be a registry of representation agreements.

           When the legislation was actually brought into force, the registry was not brought into force. I think there were probably some good reasons for that, including budgetary. I think the registry was going to be too expensive. Certainly, it was too expensive for the former government, and I think it is too expensive now. My point is to say that when the legislation was brought into force in about 2000, it was clear that what was being brought into force was a bit of a hodgepodge of what the then government had been able to make possible as they worked through a very, very long attempt to implement the legislation that had originally been enacted in 1992 or thereabouts. In fact, when they finally got to the point of being able to implement some of it, they had to change some of it in order to implement it. The revised legislation was the legislation that was before the House when I spoke in second reading, in the remarks that were partly extracted by the member a few minutes ago.

           Yeah, I have to say that at the time I was hopeful that the representation agreement would prove to be successful, but I also have to say that in some respects my hopes have not been fulfilled. I think it's good to learn from experience, so what we've tried to do is learn from experience here.

[1650]

           One of the ways that the original plan really pretty well failed right out of the starting gate was around financial planning. The representation agreement for major financial planning never was a success.

           There was in fact a pretty long discussion that took place when the member was in government about whether or not, for all of the fuss around representation agreements, the enduring power of attorney would be a much better tool for major financial planning. That issue was pretty strongly before us as a government when we took office, as were a bunch of questions that were starting to be asked about whether or not the representation agreement model was going to be the best possible model for serving the widest possible number of British Columbians as they were encouraged to think about planning for their incapacity.

           Soon after we took office, we asked Professor McClean to do an examination of the situation. One of his recommendations was that we retain the enduring power of attorney in place of or instead of the representation agreement for financial planning, broadly speaking. We accepted that recommendation. Professor McClean also made a number of other recommenda-

[ Page 10981 ]

tions about how we could improve the representation agreement and refinements to powers of attorney and the ideas about planning for incapacity generally. We looked at those recommendations.

           It seemed to me early on in my review of Professor McClean's recommendations that one of the challenges that needed to be addressed — and this is particularly a challenge that needed to be addressed…. Once the decision had been made to retain the enduring power of attorney as the major financial planning instrument, why don't we try to create one umbrella framework, one piece of omnibus legislation that would have all the planning instruments under one roof so that individuals who wanted to think about planning for incapacity, think about planning generally — whether it's financial planning, health care planning or personal care planning — could look in one place as opposed to having to rummage around in three or four different statutes. They would find in one statute all the instruments they needed for making decisions.

           The companion objectives included the objectives that have been identified by Professor McClean as being things we ought to look at doing — which include things like: could we simplify the execution procedures? — and some of those other things that would make these documents much less complicated, much more accessible to members of the public than they were proving to be.

           We undertook some policy work, and eventually we reached the point where we had the gist of some ideas that we took out to several community groups. It wouldn't surprise me if the number was something like a couple of dozen groups — some groups, in turn, being umbrella groups for other groups. There was a discussion paper that was out there to cause people to think about these things.

           We have learned a bit during this consultation process that, I think, has been very helpful to us. The government has not yet made up its mind about whether it will undertake any legislative reform in this area. I can assure the member and all of those who are interested in this subject that we are certainly not intending to introduce and pass any legislation in the spring session.

           We have looked at one particular set of issues that have been brought to us by a constituency of people who work with and comprise developmentally disabled people around the province. They're people who have a lot to say that needs to be heard about how the developmentally disabled do, in fact, participate in decisions that affect them in their lives.

[1655]

           The challenge for the law is to create planning instruments that are available to the widest number of people — planning instruments that are available to all of the millions of people of British Columbia who may want to sit down and start to think about what it is they would like to have happen if they should become incapacitated either through old age, injury or illness, and whether they want to give direction about specific decisions that should be made in that event, or appoint somebody to act as their representative or attorney or somebody else who can make decisions on their behalf or whether they want to avoid planning. Of course, in the current legal regime, if they avoid making planning decisions, what may happen is that if they become incapable, they may end up being the subject of an order under the Patients Property Act for the appointment of a committee. It's always struck me that the appointment-of-a-committee process is a bit Dickensian. It's sort of nineteenth century in its approach to these things.

           The people who are advocates for the developmentally disabled are pretty helpful in sharing their perspectives on what it means to participate in the decision-making of the developmentally disabled. In fact, in my very limited experience of dealing with this issue up front and face to face with these groups, all of the situations that we're talking about are situations where a developmentally disabled person is surrounded by close family or close personal friendships that have developed over a period of years where the main condition of the relationship is trust.

           What we have here are some people who are close to each other and who trust each other. But when you ask those people, "Tell me how you work at making decisions that affect you in your lives," what you'll hear from those who help the developmentally disabled, who support them, who love them and provide them with care is about how they help that person — their child, their daughter, their sister, their sibling — make decisions. How that person communicates their desires in some ways, but very clearly is also somebody that they work to help make decisions….

           Now, the challenge, again, is for the law to put in place a mechanism or tool that will best give effect to those relationships without opening up the risk of uncertainty and abuse that might exist if you aren't careful about the safeguards that are put into place for planning documents across the entire range of the public.

           I think that when I looked at the representation agreement provisions in 1999, I didn't spend enough time looking at the very, very difficult challenge of trying to read together sections 7 and 8 of the act. They just don't read together well. It's very hard to make sense of them, and I think they were probably drafted almost deliberately to create that ambiguity — that ambiguity about when and how a section 7/section 8 representation agreement would actually be legally made.

           We think the best course is to have enduring powers of attorney as the financial planning instrument; to have representation agreements as to the health care and personal care planning instrument; and to have an assisted decision-maker document as the document that allows people to work with the developmentally disabled — and with others, but it certainly is available for them to help them make decisions in their lives — and advanced care directives to help transform this kind of legal void that exists around living wills, which are made all the time but made in virtually a legal vac-

[ Page 10982 ]

uum, and translate them into an enforceable document; and, finally, to bring into place the guardianship provisions that act as sort of a second tier of all of that, which will get rid of this outdated, very nineteenth-century Patients Property Act.

[1700]

           This is the idea that we have as it's developed now, which we are proposing to take out and to talk about some more with the community of those who are most passionate about these issues and to see if we have captured the spirit of what they are concerned about and to take the initiative forward from there.

           We're not moving forward to pass legislation in the spring. We may not move forward with legislation at all, but I want to continue this public policy discussion because I have some concerns about the status quo. The status quo has too many elements of uncertainty and risk associated with it. I think it's time we looked at reform that would make sure that these instruments are as accessible and available for the broadest class of British Columbians as we can possibly manage.

           J. Kwan: Isn't it interesting how the minister actually changes his point of view — readily, I might add — in the Legislature here about issues? Earlier in the area of the treaty negotiations office, I actually asked the minister whether or not, for the benefits trust that we were discussing, legislation would be brought in to the Legislature and whether or not this minister or the Minister of Transportation would be the minister to sponsor that piece of legislation.

           The minister said that he doesn't know. It could be himself; it could be the Transportation minister. But who knows? Well, lo and behold, on February 17, 2004, the minister himself wrote a letter to the Fort Nelson first nations community saying that the TNO would not actually sponsor this piece of legislation. The minister himself signed this document that says he wouldn't.

           Now we have a situation where, on the representation agreement, the minister says, "Well gee, we might bring in legislation; we might not bring in legislation," save and except that there is this document actually floating out in the community from the deputy minister — a set of Qs and As to community groups. The first question on this document says: "Why is the government getting rid of sections 7 and 8 representation agreements?" Answer: "The representation agreement will be repealed in its entirety as part of a rationalization of the legislation governing various kinds of planning instruments in British Columbia. All planning instruments will be in one statute." It goes on to talk about sections 7 and 8 representation agreements and what would be replacing it.

           Well, the deputy actually gave this out to the community. One community group that I know received it on April 16, 2004. It says clearly that the representation agreement will be repealed in its entirety as part of a rationalization of the legislation governing various kinds of planning instruments in British Columbia.

           If, in fact, the government may not be repealing that piece of legislation and may not be bringing in new legislation on this issue, why would this document be distributed to community members from the deputy minister?

           Hon. G. Plant: At the time that the document was produced, it was our intention to introduce legislation — hopefully, in the spring session — that would achieve what is described in the document that the member refers to. For example, we were proposing to repeal the Representation Agreement Act but to maintain the representation agreement within a new personal planning act, to make some changes to representation agreements. Nonetheless, it was our plan then to retain the representation agreement.

           Now, we did hear some concerns, as part of the process of consultation that was undertaken, when that document was circulated. As a result of that, I don't want to make a mistake here. I want us to take this forward in a way that makes sure that what we have is the best possible answer to the questions that have been raised. So we are not going to advance between now and the end of May, at any rate, with legislation. We know we have more work to do.

[1705]

           I still think the right course would be to make the changes that I have outlined. But in fact we are listening to the people who have expressed concerns. One of their concerns was a concern about process. The argument was made that we were moving too quickly, and I have tried to listen to that concern, also, by slowing down. I think that is my responsibility to do that, and that's why we are doing it.

           The member has a document, but that document was part of the work we were doing with some of the stakeholders, and since then we have heard what some of the stakeholders have to say about the issue. We've slowed down the pace, and we've made some adjustments and some changes to what we're proposing in order to see if we can actually address the questions that have been raised.

           J. Kwan: Let me put on record some facts about the Representation Agreement Act — myths and reality.

           Myth: repeal of the Representation Agreement Act was requested by stakeholders.

           Reality: repeal was not the idea of Professor McClean, who was hired by the Attorney General to review the legislation; the Canadian Bar Association, whose members are largely unaware of these proposals; the B.C. Medical Association, which recently issued a press announcement encouraging the public to make and register representation agreements; and the hundreds of community groups and individuals involved in the development, promotion and use of representation agreements for the past 15 years. Of course, I might add that repealing the Representation Agreement Act was not the stated position of this Attorney General when he accepted Dean McClean's key recommendation.

[ Page 10983 ]

           Myth: repeal of the representation act is necessary because government wants "to ensure that planning is accessible to a wide range of adults."

           Reality: the representation agreement is for all adults in British Columbia. It enables us to get help when we need assistance to manage our affairs now and in the future. Repeal of the Representation Agreement Act means fewer of us will be able to make personal and private arrangements when we need assistance.

           Myth: repeal of the Representation Agreement Act is necessary because the government wants "to ensure that the instruments and processes are clear and simple."

           Reality: a new personal planning act will not make things clearer or simpler, because fewer people will be able to use the new law, and more families and supporters will have to deal with the intrusive and complex guardianship system. Accessible information and support provided now by community groups will no longer be available. The community capacity built up over 11 years in the making and using of representation agreements will be destroyed. Professionals, the community and the public will be confused and frustrated by a change of rules that is unnecessary and that eliminates a working tool and innovative legislation.

           Currently, people only need to deal with one or sometimes two planning instruments, but the new act proposes three or more instruments along with the creation of additional safeguards and procedures required by a new advanced care directive tool. The representation agreement was intended, with the unanimous support of all political parties, to be an all-in-one act. The act could still serve this function if the government chooses to include the enduring power of attorney within the representation agreement. This is cheaper, faster and simpler than producing a new act.

           Myth: repeal of the representation act is necessary because government wants "to ensure that there are appropriate safeguards to avoid inadvertent or intentional misuse of these processes and of planning instruments."

           The representation agreement is a balance between honouring individual autonomy and keeping people safe. The safeguards are appropriate to the broad consensus that created the act. The practice of making and using representation agreements has identified the most useful and appropriate safeguards. Having people in your life remains the most effective safeguard.

           Myth: someone who wants to ensure his or her instructions are honoured, particularly about refusing life support, cannot do this under the current legislation.

           Reality: the Representation Agreement Act specifies advanced care directive legislation. This act ensures that you have the safest and strongest of all possible approaches: a person you trust, who knows you and who has the legal authority and protection to stand up for your wishes in the appropriate situation, despite medical or other interests.

[1710]

           In a new act, the government wants you to trust in the health care system when it comes to your advanced care directive wishes. Only a care provider will be allowed to interpret your advanced directive wishes. Your directive must include a statement that no one else — family, friend or representative — will be involved. This creates an ethical conflict and concern that decisions will be driven by budget considerations, availability of resources or research interests, not your wishes.

            That's from the community that's put out these statements about the current act and what they know to date of what the government is proposing in terms of changes to the Representation Agreement Act. I'd like the minister's comments.

           The Chair: Members, I would like to draw to your attention that legislation is not a proper subject for Committee of Supply. Only the administrative action of the department is open to debate, so when we get into legislation, it's not applicable here. We would like to keep it to Committee of Supply.

           Hon. G. Plant: I hope you won't mind if I answer the question, since it was asked, Mr. Chair.

           I have read the document the member was referring to. I think it was prepared by Christine Gordon of the Representation Agreement Resource Centre. She also has some other organizations that I think she is active in. I've had occasion to meet Ms. Gordon on a number of occasions over the eight years that I have been an elected official. She is certainly a very, very committed long-term advocate for the use of representation agreements. She has worked hard to expand the reach of representation agreements within the general public, and I commend her for that. However, I think it's also fair to say that a lot of her work is directed at the extent to which representation agreements are planning tools that can be used by the developmentally disabled. I don't mean to say that's all of her work, but certainly it's part of it.

           The fact remains that I don't go into a room full of lawyers anywhere in the province without raising an issue or a question about this area. I see hands wring, and I hear questions and concerns that in fact the state of the law produces uncertainty for lawyers' clients. Lawyers are very apprehensive about using these documents. Not all lawyers — there are lawyers who use these documents. I'm not suggesting this is anything like an all-or-nothing world. But the other day, for example, a lawyer told me that the standard fee in their firm for an enduring power of attorney was $25 or $50. He didn't think he'd ever done a representation agreement for less than about $1,500.

           Clearly, we've got some challenges here in terms of actually making sure these instruments are as accessible and available as they ought to be. We're not actually proposing that we eliminate the representation agreement. We are proposing that the act be amended and subsumed within a larger omnibus act so that

[ Page 10984 ]

there is, as I think I said at one point already, a one-stop-shopping approach for all British Columbians who may be interested in planning for their incapacity.

           The document that the member has read from has some statements in it that have been superseded by our subsequent work. In part, we have been informed by the representations that Christine Gordon and other advocates have made on behalf of those they represent. We are undertaking this as a learning exercise, and that work continues. But I don't think I agree with all of the myths, and I'm not certain I agree with all of the facts. I know that these are people who are very, very committed to the idea of personal planning and choice for individuals. What we are trying to do is create a statute that has more tools for individuals to choose from and that gives them more options when they're thinking about planning for their incapacity.

[1715]

           J. Kwan: The myths and facts document that I just put on record is part of the consultation process which the government is embarking on, and these are comments from the community, which the Attorney General himself has acknowledged come from the community.

           The issue is this, which is why I bring the matter up in the estimates process here. There was a document that was issued by the deputy to the community groups about the repealing in its entirety of the Representation Agreement Act. Through this Q and A, there have been a lot of concerns from the community in terms of the work of the ministry and the government in this respect, which is why I also asked the question: in terms of the consultation process, who did the government consult with? When did this consultation start, for example, and how many resources were put towards this consultation process with respect to the Representation Agreement Act? The minister says he doesn't have any of those answers, and he will try and see whether or not he can bring forward the information for the opposition. I will wait to receive that information.

           I do want to put on record, though, that the community has actually come forward with a lot of concerns about the government's public announcement in terms of their intention with respect to the Representation Agreement Act. I also just want to, through the consultation process from the community that the government has embarked on, the information that's come forward from the community regarding this which is relevant to the minister's consultation process, which has not ended to date…. Therefore, I think it makes it relevant in terms of the estimates debate here, Mr. Chair.

           The community has put this forward for the minister's consideration, and I think it is worthwhile to put this information on the record. The representation agreement protects people's right to be treated with respect and dignity, to keep their rights and dignity as a person, to get help and support from those whom they trust in the management of their personal and private affairs, to have their individual preferences, values and beliefs respected. The guardianship document, on the other hand, takes away the person's rights and identity. The person's signature and name are no longer legally recognized when they have a guardian. It gives the guardian the power and authority to evaluate personal relationships, gives the guardian the power to dictate the management of people's private affairs. It gives decision-making power to other authorities such as courts, the state and medical opinions and takes it away from the individual.

           The minister, who has been reminded by members of the community as well as in this Legislature, actually supported the representation agreement when it was tabled. Just by way of background, the representation agreement was actually done by the work of a coalition of people. The Representation Agreement Resource Centre was founded by the organizations and individuals who took part in a community coalition for the implementation of adult guardianship legislation and the project to review adult guardianship. The resource centre is devoted to public education and information on representation agreements and related legislation that enables personal planning and supported or substitute decision-making. The resource centre also established the Nidus registry as a secure, private, centralized on-line registry for legal planning tools.

           The intent of the reform that the government is proposing…. The current proposal by the government to eliminate the Representation Agreement Act ignores the reason that the Alzheimer Society of B.C. and the British Columbia Association for Community Living initiated reform of adult guardianship and personal planning legislation in 1989. Their leadership created a unique legislative package and personal planning tool to enable self-reliance and to reduce the state's need for involvement in managing one's personal and private affairs.

           The use of representation agreements is growing. They are accepted by banks, credit unions, Canada Revenue — formerly Revenue Canada — Canada Post, ICBC, the Ministry of Human Resources, hospitals and many other institutions. Representation agreements are also being promoted by the B.C. Medical Association, as I mentioned earlier, and other health professionals and care facilities. More and more lawyers are also learning about the drafting of representation agreements.

              [G. Trumper in the chair.]

           The community coalition to save the Representation Agreement Act says:

            "It's time to endorse what we know works. It's not the time to turn back the clock 15 years. We have a planning tool that is working well. It is making a significant difference to the lives of seniors, people with disabilities, people with injuries and people with chronic illnesses. The public does not need, nor has it requested, different tools for different situations, nor does it want disruption of this service.

[ Page 10985 ]

           "The issue is about you, your parents, your sons and daughters. The proposed change will once again make us all vulnerable to guardianship and control."

[1720]

           These are the issues and concerns they have raised, and I'm sure that the minister has received this information through the consultation process. Of course, people are in a high state of anxiety in terms of what they have heard so far from government representatives as well as the government itself in terms of what they intend to do with respect to the Representation Agreement Act.

           On the question around consultation, I'm interested in knowing: when did the consultation process by the government on the representation agreement start? When did that actually begin?

           Hon. G. Plant: One of the things that was interesting about what the member read was the reference back to the late 1980s, when there were problems identified with the fact that the law didn't respond very well to the question of capacity. The member was reading from something, so whoever wrote what she was reading, on that occasion, was talking about the development of the idea of guardianship.

           The idea of guardianship is that it's supposed to be an alternative to what exists under the law now, under the Patients Property Act — which, as I've said, is a very nineteenth-century approach. Someone goes off to court and gets a bunch of psychiatric evidence, and they have a conversation about how somebody's completely incapable of managing their affairs, and then a committee is appointed so that this person no longer has any ability to have any control over their affairs.

           What is unfortunate is that although there was a lot of work done from the late 1980s and into 1992 to develop guardianship as an alternative to the Patients Property Act, the Adult Guardianship Act has never been proclaimed. The member was a member of a government that enacted it. It's parts 2 and 3 that have never been proclaimed.

           The member was a member of a government that introduced and passed the legislation. Then when we looked at partial implementation of the package of legislation in about 1999, those basic elements of guardianship were still not implemented. As a result, we still have in British Columbia the prospect that if you become incapable, someone may actually go to court and make an order that there be a committee appointed. That's the reality.

           I think guardianship represents a much better concept than committeeship, particularly the idea that guardianship could actually be a…. You could actually have someone who is known to the individuals operating under what really amounts to a private guardianship arrangement, but we haven't got there yet. As I say, whether we move forward with legislation at this point is…. Government has not decided, but the fact is that I will be disappointed if at the end of this process we still have the Patients Property Act.

           I've already answered the question about consultation in the sense that we started work on this issue, broadly speaking, early in our mandate when we retained Professor McClean. We have been at work on it since then, although not very intensely in the post–McClean report period until earlier this year. We have been at it pretty intensively for at least the last couple of months.

           J. Kwan: No wonder the community is reacting. By the minister's own admission, they have really only begun consultation with the community groups in the last couple of months. The community is very concerned given the documentation that has been issued by the government and the purported intentions of the government.

[1725]

           The minister now says that the legislation may never come to be. Certainly, it will not be before this House before the spring session ends. Perhaps it will come forward in the fall session. Who knows? The community is why I want to put on record their points of view, so the minister can't claim that they actually don't know what the community is saying. The community is hugely concerned about the government's plans with respect to this.

           The government's response to the McClean report — who prepared that? Is it within the Ministry of Attorney General? Was this funded through the ministry's legislative budget?

           Hon. G. Plant: I'm told the document that I assume the member is referring to may well be even a couple of years old, and it was done within the ministry — certainly a long way away from the estimates for the Ministry of Attorney General for the year 2004-05.

           J. Kwan: The document I'm referring to that the minister says may be a couple of years old…. Nonetheless, the consultation process regarding the representation agreement is current, and the government is undertaking that process right now. The ministry actively, right now, may be contemplating new legislation in that regard, to which the minister himself has just cited the McClean report as a backdrop that began this entire process. The minister can try to claim…. I know that this government and the various cabinet ministers try to do this all the time. They say: "Oh well, gee, that was an old report, so it is not relevant to estimates debate today."

           Well, you know what? It ain't gonna wash with that kind of rationale, because the government is using the work that was done previously for the work that the government is engaging in today. It is funded by the government's budget today, and the consultation process continues. The whole process was begun, by the minister's own admission, from the McClean report. Who prepared that response, from the government's side?

           Hon. G. Plant: Someone in the Ministry of Attorney General, I am told, prepared the document to which the member is referring.

[ Page 10986 ]

           J. Kwan: It wasn't someone who was contracted by the ministry. Is it ministry staff?

           Hon. G. Plant: I'm advised that the document in question was prepared by ministry staff.

           J. Kwan: Has the ministry or the government done a projection of what costs will be associated with shifting health and personal decision-making from individuals and their representatives to the public guardian approach?

           Hon. G. Plant: No, because we don't intend to do that.

           J. Kwan: Are there any estimated cost savings to the government as a result of making the changes that have been put on the public record, including the move to enshrine advanced care directives?

           Hon. G. Plant: We do not think there will be any cost savings to government as a result of moving forward in that way.

           J. Kwan: All right. The opposition will wait and see what the government comes up with, with respect to changes in this area. I would urge the minister, though, to listen earnestly to the people who have raised concerns with respect to the government's suggested changes to date and to take their advice with respect to what needs to be done and what should be done and what needs not be done on the issue around the representation agreement.

[1730]

           The community is hugely concerned about it, and the people who have worked hard in this field for many years to lobby for the changes that they now have should be credited for the work they have done. One should respect the expertise from the community in this regard. I would urge the minister to ensure that those views are not forgotten in the process.

           The other issue that I would like to move on with the minister is around pay equity. In the estimates debate for the Ministry of Community, Aboriginal and Women's Services, the Minister of State for Women's and Seniors' Services stated that the pay equity task force report and matters pertaining to pay equity fall under the responsibility of the Attorney General.

           In August 2001 the government scrapped the pay equity legislation and commissioned a report by Nitya Iyer. In February 2002 Nitya Iyer presented her report on pay equity to the government. The government tabled the Iyer report on March 7, 2002. That's two years ago now. Fourteen months later, in last year's estimates process in March of 2003, the then Minister of State for Women's Equality said the government was still working on a response to the Iyer report. The minister also said the government would be making announcements over the next little while. That's actually a direct quote from the former minister.

           The government since then has made no further announcements on the pay equity situation. It is now May 2004, Madam Chair. More than two years have passed since the Iyer report was tabled. What is the status of the government's pay equity policy?

           Hon. G. Plant: I'm not sure that I want to guess what the member means when she uses the phrase "pay equity policy." I know that sometimes that term would be used in a discussion with government where the question has to do with government's human resources policies, and that is not something for which I am responsible.

           In 2003, after the debate that the member quoted from or referred to a minute ago, government did approve a two-part program representing a response to the recommendations of the task force on pay equity. One of those parts was a program to enhance awareness and improve enforcement of the right to equal pay for equal work, which is the right set out in section 12 of the Human Rights Code. The second component was research to select some industry partners to work collaboratively with government in designing industry-specific equity-enhancing measures.

           The education and awareness initiatives component of our response…. That work is embedded in the activities related to the Human Rights Code — that is, activities that are conducted by my ministry and also by the Human Rights Coalition and the Human Rights Tribunal. That work to inform people, to raise awareness about the existence of the right in section 12 of the Human Rights Code, is part of the day-to-day business, really, of the tribunal and the coalition.

           If the member has questions about the industry studies component, they should be directed either to the Ministry of Community, Aboriginal and Women's Services or to the Ministry of Skills Development and Labour.

           J. Kwan: I have questions directly related to the Iyer report, which was the task force on pay equity that this government and this Attorney General have responsibility for. The only things the minister can cite so far that the government has acted on with respect to pay equity are section 12 of the Human Rights Code and, of course, promotion — if you will, awareness — of that section as it applies. Interestingly, the Iyer report actually recommended that the government repeal section 12 of the Human Rights Code and enact an equal-pay-for-equal-work provision in the Employment Standards Act.

           What is the status with respect to the recommendations put forward by the Iyer report? Has the government acted on it?

[1735]

           Hon. G. Plant: We did not accept the recommendation that section 12 of the Human Rights Code be repealed and replaced with the same provision in the Employment Standards Act. The issue that the task force identified was one of characterization of the best

[ Page 10987 ]

way to reach into what was and is fundamentally a workplace issue. The task force thought that the best place to do that work would be through the auspices of the employment standards branch.

           At the time that the report came out, my recollection is that government was engaged in a pretty wide-ranging review of the Employment Standards Act, including a review of the operation of the branch and the tribunal. That work resulted in pretty significant reforms to employment standards legislation and practice. As a result, we thought that the best place to keep the equal-pay-for-equal-work protection was in the Human Rights Code, so that's what we did. It's there in the law in the Human Rights Code. The enforcement mechanism for the Human Rights Code is the tribunal and all of its processes.

           I don't have in front of me the details of the other recommendations that the task force came up with, but I do recall that the general thrust of the task force's second set of recommendations was that there needed to be work done by industry within industry to identify the extent to which pay equity is or is not an issue. That's work that really needed to be done on an industry-by-industry or sector-by-sector basis. That was work that maybe government had a role in helping or helping to coordinate, but fundamentally it had to be work done by those industries.

           As I've said, the response that cabinet made to that was to implement a project of research over time to a select group of industry partners to work collaboratively with government in designing industry-specific, equity-enhancing measures. Really, the first step of that, as I recall, was to spend some time thinking about ways in which there could be work done to identify whether there really is a pay equity problem in particular industries. All of that assignment, all of that implementation of work related to that, is not the responsibility of my ministry and is in fact the responsibility of the ministries I identified in my previous answer.

           J. Kwan: I can't believe what I just heard from this Attorney General. You know what? If you review the Hansard record, the questions I put to the Minister of State for Women's and Seniors' Services said that she is not responsible for pay equity issues — she's not responsible at all — and that in fact these issues fall under the jurisdiction of the Ministry of Attorney General.

           The Iyer report was commissioned by the Attorney General from his ministry with respect to the issue around pay equity. Section 12 of the Human Rights Code does not address the issue of pay equity. Let us be clear about that. I just want to put section 12 on the record so that we know what we're talking about.

"Discrimination in Wages.

           "An employer must not discriminate between employees by employing an employee of one sex for work at a rate of pay that is less than the rate of pay at which an employee of the other sex is employed by that employer for similar or substantially similar work.

           "For the purposes of subsection (1), the concept of skill, effort and responsibility must, subject to factors in respect of pay rates such as seniority systems, merit systems and systems that measure earnings by quantity or quality of production, be used to determine what is similar or substantially similar work.

           "A difference in the rate of pay between employees of different sexes based on a factor other than sex does not constitute a failure to comply with this section if the factor on which the difference is based would reasonably justify the difference.

           "An employer must not reduce the rate of pay of an employee in order to comply with this section.

[1740]

           "If an employee is paid less than the rate of pay to which the employee is entitled under this section, the employee is entitled to recover from the employer by action the difference between the amount paid and the amount to which the employee's entitled, together with the costs, but the action must be commenced no later than 12 months from the termination of the employee's services, and the action applies only to wages of an employee during the 12-month period immediately before the earlier of the date of the employee's termination or commencement of the action."

           That's what section 12 under the Human Rights Code says. That's equal work for equal pay. That's what section 12 protects. Pay equity, on the other hand, is a completely different matter, and I suspect that the Attorney General knows the difference, even though the Minister of State for Women's Services did not. The difference is this. Equal pay for work of equal value is pay equity. Section 12 of the Human Rights Code does not address the issue. It's interesting.

           Finally, we got it on record from the Attorney General that the government does not accept the recommendation from the Iyer report on the repeal of section 12 to enact an equal-pay-for-equal-work provision in the Employment Standards Act. I just heard that from the Attorney General — that the government does not support the recommendation put forward by the Iyer report, a report commissioned by the government.

           I want to actually put this in context, and it does relate to the Iyer report and the rest of the recommendations, including that original recommendation. It is about the wage gap and, historically, how women have been disadvantaged in that process. This historical context is absolutely crucial in our discussion of pay equity in the Iyer report, which this minister has responsibility for.

           Equal pay for work of equal value, or pay equity, is an important part of efforts to guarantee women and men working in female-dominated jobs a fair deal.

           "The wage gap. Equal pay law was introduced because of the large differences between the earnings of men and women. The salaries paid to employees in areas dominated by women — such as clerical work, nursing and retail sales — are often low. In Canada today women working full time still make an average of only 72 cents for every dollar earned by men, and this wage gap has narrowed by just 8 percentage points since the late 1960s.

           "The persistence of the wage gap is more than an interesting statistical footnote. The underpayment of women workers has a direct and tangible effect on the financial well-being of many Canadian women and their families."

[ Page 10988 ]

           I might add that I think Bill 37, which the government has just passed, highlights the issue around pay equity and the impacts for women.

           "Why is there a wage gap between men and women? Low wages for female-dominated jobs are due to several factors. Partly, they reflect differences in education, physical effort, hours of work, time spent in the labour market and so on. But they also reflect discriminatory attitudes toward women and the jobs they have traditionally held. Canadian economists have estimated that 20 to 30 percent of the wage gap is due to this kind of discrimination. It is this portion of the gap that pay equity programs seek to redress.

           "Some of the wage gap is a result of deliberate policies in the past. Wage laws passed in the first decades of this century effectively set women's base salaries about a third lower than men's. As a matter of fact, the legal minimum wage in some parts of Canada was lower for women until the early 1970s.

           "Why was this so? Partly because of prevailing perceptions about family responsibilities. Since men were seen as the breadwinners who supported the family, it was thought they should be paid better than women. Wages earned by women were regarded as little more than pocket money for secondary expenses.

           "A more general tendency to undervalue women's work also played a role. Lower pay rates for female-dominated occupations have become an accepted part of compensation systems. Secretaries may be paid less than warehouse workers and nurses less than electricians not because their jobs are worth less, but because these jobs were traditionally performed by women. Although attitudes toward women and women's roles have changed dramatically, undervaluing of work performed by women persists. In many workplaces men and women doing work of equal value are still paid differently.

[1745]

           "Equal value means equal pay. Pay equity builds on earlier laws which required equal pay for people performing the same work. Comparisons could only be made between jobs that were identical or largely similar. Those laws solved some of those problems, but they did not help people working in female-dominated sectors who had no one with whom to compare themselves.

           "Under pay equity it is no longer necessary to compare a job with another that is exactly the same. Jobs that appear to be different can still be compared if they can be shown to be equal in their overall value, and according to the law, jobs that are equal in total value must receive equal pay. Fairness means that pay must be based on the worth of work, not on the sex of the people who do it."

That's pay equity, Madam Chair, and the historical context in which I want to put this forward is important to the Iyer report, because the Iyer report calls for the repealing of section 12 of the Human Rights Code and for the government to enact pay-equity-for-work provision in the employment standards. Section 12, as I've mentioned, actually does not address pay equity. It addresses the issue of equal pay for the same work.

           So that's one recommendation from the Iyer report. Another recommendation from the Iyer report also asks for the allocation of staff and funds to build awareness of this right, generally ensuring such measures are aimed at vulnerable communities, including publicity, telephone access pamphlets and on-line information. It asks for implementation of systems to ensure prompt responses to inquiries, mediation and settlement of complaints and other mechanisms for expedited dispute resolutions. It asks for the clarification of the scope of the right with appropriate definitions, shifts the onus to employers to justify any gender-based wage difference for similar or substantially similar work.

           I'll just pause there, because these are some of the recommendations, the summary of recommendations from the Iyer report. Has the government implemented any of the Iyer report recommendations?

           Hon. G. Plant: We think we responded, really, to the first pretty fundamental observation that Ms. Iyer recommended or made, which is that legislated pay equity was ineffective and extraordinarily costly. I think it's appropriate to draw a distinction between legislated protections that are designed to achieve equal pay for equal work and pay equity, which is equal pay for work of equal value.

           The Human Rights Code contains strong protection for equal pay for equal work in the section that the member read earlier, the first part of which is a pretty strong principle. An employer must not discriminate between employees by employing an employee of one sex for work at a rate of pay that is less than the rate of pay at which an employee of the other sex is employed by that employer for similar or substantially similar work.

           Ms. Iyer, the task force, recommended against legislating pay equity. She did recommend that this protection in section 12 be moved into the Employment Standards Act. She did not recommend that there be legislated pay equity in the Employment Standards Act.

           What we did when we reformed the Employment Standards Act was…. Among other things, there were reforms that excluded the operation of that act for certain categories of workers. So the Employment Standards Act no longer applies to all workers.

           We wanted the protection for equal pay for equal work to remain available to all employees in British Columbia, so we kept it alive. We kept it in the Human Rights Code. We have done a great deal, as the member knows, to reform human rights institutions.

           As part of that, the tribunal and others as well as government undertake a wide-ranging education campaign to raise awareness about the existence of the remedy in section 12 for people who feel themselves to be discriminated against in their workplace on the basis of the wages they're paid.

[1750]

           So we did actually respond very, very strongly to the advice we received from the task force. Just to put that in context, I want to remind the member of a small piece of history. She was a member of a government that for ten years had the opportunity to legislate in this area. A few weeks before the general election in 2001, they introduced and passed a legislated pay equity provision, but they did not implement it.

[ Page 10989 ]

           We were elected in the ensuing election, and early on in our mandate we commissioned this task force to go and look at the issue of legislated pay equity. Ms. Iyer provided the report. As I said, we accept her advice that legislated pay equity is costly and ineffective. We have maintained the section 12 protection. We did not, however, move it to the Employment Standards Act, because had we done so, in light of our other reforms, protection would no longer have been available to all workers.

           We have responded to her other recommendations with the response that I spoke about earlier. We are doing a great deal through the Human Rights Tribunal, I think, to make the public aware of the existence of section 12 and to try to encourage people who believe they have those complaints to lodge them and pursue them with the Human Rights Tribunal, which has a wide range of dispute resolution techniques available to deal with these issues.

           In terms of the industry-specific research that was part of the task force recommendations, the responsibility for those initiatives was not assigned to my ministry, so I am unable to provide any information about them.

           Noting the hour, I move that the committee recess until 6:35.

           Motion approved.

           The committee recessed from 5:53 p.m. to 6:35 p.m.

              [J. Weisbeck in the chair.]

           On vote 11 (continued).

           J. Kwan: Prior to the dinner break I was asking the minister about the recommendations that have been implemented, if any, by the government from the Iyer report. The minister referred me back to section 13 of the Human Rights Code, which I have identified does not in fact reflect the recommendations put forward by the Iyer report. The Iyer report, in its executive summary, states very clearly the issue around pay equity. In fact, the summary of the recommendations states clearly about the repealing of section 12 of the Human Rights Code — sorry, I think I said 13 earlier, but I meant section 12 — and calls on the government to enact a pay-equity-for-equal-work provision in the Employment Standards Act.

           Interjection.

           J. Kwan: The minister is saying no. I actually have the summary of recommendations before me, which I am holding and which I read into the record as the recommendation states. The recommendation I read into the record earlier stands in terms of what the Iyer report actually says, Mr. Chair. I'm not mistaken in what the Iyer report actually says in the summary of the recommendations, and it is not just the implementation of section 12 of the Human Rights Code. It is much, much, much more than that. I'll give the minister a chance to respond. Maybe he has a different report than what I've got.

           Hon. G. Plant: Let's be clear. When the member uses the term "pay equity," I assume she is using the term to describe legislated pay equity initiatives that are usually about attempting to achieve equal pay for work of equal value. That is an idea that has been legislated in a couple of jurisdictions — I think Ontario and Quebec, maybe also federally.

           Ms. Iyer recommended against legislated pay equity. We'll go and get the report, but I don't want there to be confusion on the record. She went out and looked at the idea of legislating pay equity using the member's sense of pay equity, which is in distinction to section 12 of the Human Rights Code. She said, "Do not do that," at least for now. She did talk about whether…. In exhaustive research over a period of years, you might have to have another look at the question, but she was pretty clear about right now. The member simply cannot confuse the two. I mean, she will if she wants to, but the discussion really needs to take place on a factual footing with respect to what the task force recommended, and she did not recommend legislating pay equity in the Employment Standards Act.

           J. Kwan: Well, I have the executive summary of the report of the task force on pay equity right here before me. The Iyer recommendations in this document read: "Summary of Recommendation: Equal Pay for Equal Work." It says: "Repeal section 12 of the Human Rights Code and enact an equal-pay-for-equal-work provision in the Employment Standards Act." That's what the Iyer report calls on the government to do. It calls on the government to enact equal-pay-for-equal-work provisions in the Employment Standards Act.

           Then it goes on to talk about the allocation of staff and funds to build awareness of this right. It goes on to talk about the implementation of systems to ensure prompt responses to inquiries, mediations and settlement of complaints. It goes on: "…clarify the scope of the right with appropriate definitions; shift the onus to employers to justify any gender-based wage difference for similar or substantially similar work." The Human Rights Code does not do what needs to be done on the issue around pay equity.

[1840]

           The executive summary further goes on to talk about what pay equity is and then highlights some of the historical issues related to pay equity. What we have seen so far, quite frankly, from the government side in terms of the government's action is nothing. The government has done nothing to implement pay equity. In fact, the government has done quite the opposite — that is, to repeal legislation that was in place around pay equity. That's exactly what this Attorney General has done and what this government has done — repealed pay equity legislation that was brought forward by the previous administration.

[ Page 10990 ]

           Interjection.

           J. Kwan: The Attorney General says it was never proclaimed, but you know what? The legislation was introduced, it was passed in the House, the election took place, and British Columbians decided to take a different turn in terms of who formed government. Mr. Chair, let us be clear that it was this Attorney General and this government who repealed the pay equity legislation. This government claimed they were going to be putting something forward, and to date we have seen nothing — no action whatsoever on the issue around pay equity.

           Hon. G. Plant: The member said something a couple of questions ago that excited my attention because she was confusing terminology, I thought, perhaps unintentionally. I thought that we had, earlier in the debate, established some clarity around the use of terminology and that when the member was referring to pay equity, she was referring to initiatives like the initiative her government brought before the Legislature in the last few months before the election — that is, this idea for equal pay for work of equal value. That's different from equal pay for equal work.

           Equal pay for equal work is the concept enshrined in section 12 of the Human Rights Code. Ms. Iyer recommended that we move that concept from section 12 of the Human Rights Code into the Employment Standards Act. I've already explained why we didn't do that, and that was because we were making other changes to the Employment Standards Act that would narrow the scope and the focus of that act and would exclude the application of that act to some groups of employees. We want the protection that is represented by the equal-pay-for-equal-work provision to be available to all workers, so we left it in section 12 of the Human Rights Code where it is available for all workers.

           We have undertaken initiatives — and the Human Rights Tribunal and others have undertaken initiatives — to raise awareness, to increase awareness about the existence of the protections of the Human Rights Code. I think those initiatives are consistent with the spirit of the view expressed by Ms. Iyer, which is that there needed to be more work done to raise awareness about the existence of the right to complain in circumstances where you didn't think that you were being paid an equal amount for equal work. It's been two years since I looked at this report, since it came out. I read it pretty carefully then, but my recollection was that Ms. Iyer was concerned that there weren't that many complaints filed under section 12 of the Human Rights Code. She thought that was perhaps because the existence of the remedy was not well known, and she wanted to raise awareness about the existence of the remedy.

           I wanted to be as clear as we could be about a couple of things. First of all, Ms. Iyer recommended against legislated pay equity. Secondly, she did recommend that we maintain the protection available in the law to get redress in cases of equal-pay-for-equal-work complaints. What we did not do was accept her recommendation that that section of the Human Rights Code be moved into the Employment Standards Act. She wasn't recommending a significant reinvention of that concept. She was recommending that that concept and that remedy be moved into the Employment Standards Act, where its enforcement would be the responsibility of the employment standards branch.

[1845]

           Now, the member goes on to ask about other recommendations that Ms. Iyer made concerning how industry should become more aware of the question of pay equity — whether pay equity is, in fact, a problem in industry; whether, in fact, gender is the reason for differential rates of pay for different kinds of work; whether some other factors play into it. As I've said, those are issues that to the extent that government is undertaking any formal response, the member should ask the questions of the two ministers I indicated earlier, because I simply do not know what those ministers are doing in respect of those issues.

           J. Kwan: Let me put this on the record from Ms. Iyer:

           "Pay equity can be a very useful technique to reduce the greater pay gap in some workforces, but it is not sufficiently effective to justify its imposition across the whole of the private sector. However, it is unacceptable to do nothing, as there is no evidence to suggest that the portion of sex-based wage disparity that derives from past or present discriminatory attitudes and assumptions about women will disappear on its own."

           It goes on to talk about: "A new approach for addressing sex-based wage disparities is necessary, one which focuses on stimulating systemic change." The document then goes on to talk about: "This can best be done by taking steps to increase awareness of the problem in specific contexts and by working in partnership with the private sector to craft concrete initiatives that respond to the contours of sex-based wage disparities in particular industries." What follows is a summary of the report's specific recommendations for implementing this new approach, some of which I have put on the record.

           What the government has done is, quite frankly, the opposite to date. We know that the government has actually weakened the protection for workers in the Employment Standards Act. We know that the employer no longer takes on the responsibility to actually ensure that the workforce is not in violation of the Employment Standards Act or labour codes across the province. In fact — what we know — the government has actively taken that provision away and says that the system now is based on a complaint basis only. That's what's happening, and that's opposite to the recommendations put forward by Ms. Iyer.

           One of the recommendations, in fact, talks about: "Allocate staff and funds to build awareness of this right generally, ensuring such measures are aimed at vulnerable communities, including publicity, telephone access, pamphlets and on-line information. Clarify the

[ Page 10991 ]

scope of the right with appropriate definitions. Shift the onus to employers to justify any gender-based wage difference for similar or substantially similar work" — as an example.

           The government has done exactly the opposite of what the Iyer report calls for. The government has repealed previous legislation on pay equity and then proceeded to gut the Employment Standards Act — so much for a report that the government had commissioned, the Attorney General. The report was written in response to the request of the Attorney General dated August 8, 2001, "to undertake an independent review of pay equity in British Columbia and to advise the extent to which current Canadian models of pay equity legislation are an effective and efficient response to sex-based wage disparity in the private sector."

           I put on record the historical context of the issues that women face around pay equity. So far, in spite of the government's own task force report, in spite of the information around historical inequities that existed for women, the government has done nothing — nothing. If anything, what the government has done is set back the clock on the issue around pay equity.

[1850]

           Hon. G. Plant: Let's be clear about one thing. We went out and commissioned a report, and the result of that report was that we acted on the main thrust and the consistent theme of the report, which was that an attempt to legislate what the member calls pay equity was costly and ineffective. It would result in massive expenditures of money in terms of legal fees and process costs without necessarily producing any improvement or change in the situation of the affected workers.

           We've done some of the things that Ms. Iyer wanted us to do around allocating staff and funds to build awareness of the section 12 right. We've done web-based pamphlets and information sheets and education and information sessions. The Human Rights Tribunal has done some of this work. The Human Rights Coalition has probably done some of this work.

           The member wants to say that that's not enough. That's fair enough. She had an approach, when she was in government, that you could somehow legislate this concept of equal pay for work of equal value. Historical experience and the results of the work that we commissioned prove that that is not effective. We accepted the result. We accepted the lesson that history had shown us and that Ms. Iyer accepted and used as the basis for her recommendations. The member and I may disagree about whether government should do more, but we certainly acted on a major thrust of the report from the task force.

           J. Kwan: Let us be clear. The Iyer report actually said that doing nothing on the issue around pay equity is not acceptable. Government, as I said, has done worse than nothing, because the government has actually turned back the clock on this issue.

           The Iyer report also recommends both legislative and non-legislative actions. The government — what has it done? They brought in an Employment Standards Act that says that instead of the employer being responsible and being proactive in meeting the Employment Standards Act…. The government changed the legislation to say it's only going be dealt with on a complaint basis. Further than that, the government also brought forward an act that instead of requiring the employer to post information at the worksite about what rights workers should have…. They're no longer required to do that.

           Tell me, based on the government's actions to date, how that matches the spirit and the intent and the recommendations of the Iyer report. Quite frankly, I fail to connect the dots that the Attorney General has put forward.

           Since that time there has been another task force report — a Canadian task force report around pay equity. That was reported on May 6, 2004, in the Times Colonist. Let me just put some of this information on the record.

           "Canadian women continue to earn less, on average, in their jobs than men, despite having improved their education and increased their numbers in the workplace in recent decades, a government-sponsored task force reported Wednesday. Members of visible minorities, the disabled and natives also face wage discrimination, the task force added.

           "In issuing the first comprehensive review of pay equity legislation in almost 30 years, the task force said existing complaint-based laws have failed employees and employers alike, leading to costly and acrimonious litigation. 'The current system has not been a happy experience for them,' said chairwoman Beth Bilson, dean of the University of Saskatchewan's College of Law. 'Their view is that it's time for a different approach.' Proactive pay equity legislation has already been introduced in several European countries, Bilson said. In this country, she added, provinces — led by Manitoba, Ontario and Quebec — have taken similar steps, though they have been limited to public sector employees in some cases.

[1855]

           "The task force urged the federal government to introduce a new stand-alone legislative framework and said Ottawa could begin establishing such a framework by affirming that pay equity is a human right. 'Though pay equity is closely related to other labour standards or labour relations issues, it is necessary to consider it in a human rights context,' Bilson said.

           "The task force was appointed in 2001 to review a section of the Canadian Human Rights Act that deals with equal pay provisions. The persisting wage gap between men and women meant full-time working women earned, on average, about 71 cents for every dollar earned by their male counterparts in 2000, the task force said, citing Canadian census data in the findings.

           "Certain occupations remain dominated by women, the task force said. In 2002, according to Statistics Canada, 70 percent of female workers were employed in teaching, health care, sales or administrative work.

           "Existing pay equity legislation lacked clarity, the task force said, and led to frequent challenges of how jobs were evaluated and wages adjusted. Its remedial measures were slow-moving and out of reach for individual and non-unionized employees.

           "The task force made 113 recommendations, including a call for independent oversight agencies with pow-

[ Page 10992 ]

ers to interpret and enforce new legislation and a call for employers, including the federal government, to implement pay equity before they received complaints. Justice minister Irwin Cotler said he would consider the recommendations.

           "The president of the Public Service Alliance of Canada, which launched a pay equity complaint in 1984 on behalf of six female-dominated groups in the federal public service that took 16 years to resolve and resulted in more than $3 billion in adjustments, said all workers and employers would benefit from proactive legislation."

That applies to British Columbia as well, and so far, this government has done nothing to advance pay equity. Well, I have the full report in front of me. As I mentioned, there are many issues which the government has not acted on to address the issue around pay equity. Let me just put on record the recommendations from the report.

           Hon. G. Plant: They're already a matter of record. They are a public document. You don't need to read them in too.

           J. Kwan: The minister goes: "Well, they're already a matter on the public record."

           Hon. G. Plant: Two and a half years ago.

           J. Kwan: Two and a half years ago, and you know what? The minister and this government have done nothing, and a recent task force which looked at all Canadian jurisdictions — all provinces — in terms of what's been done in this area actually shows that there has been nothing done in British Columbia. Maybe only this Attorney General would cheer and say how wonderful everything is. Maybe only this Attorney General would actually rise in this House and claim they have done a good job.

           The minister says he knows all about it, and he doesn't need to hear about the recommendations. Well, then let me just say this. I suspect putting on record what the recommendations are is going to be a waste of time, because this government is not interested in this issue. The government is not interested in what women are faced with in this province. That only explains why the government would actually bring forward legislation that would roll back wages for women in the health care sector — primarily women. That explains the government's actions to date and the attack on women with a variety of their cuts and changes in legislation.

[1900]

           So I suspect the minister is right in this regard. Why waste time putting on the record what the recommendations are? The minister does not care, nor does this government care about historical systemic inequities that exist for women in the area of pay equity. That's been established, as well, through the estimates debate with the Minister of State for Women's and Seniors' Services. That's been established as well.

           The Attorney General is right in this regard. Why waste my breath? But you know what, Mr. Chair? Once again, we'll let British Columbians decide how well this government is doing in addressing women's issues. They will, I think, as many people have identified…. I have seen buttons that actually say: "I am woman. Watch me vote." We will see, come the next election, and let this government be judged on their record on women's issues.

           Frank Paul died alone from exposure on the streets of Vancouver after the Vancouver police dumped him soaking wet and intoxicated in an East Vancouver alley in 1998. Frank Paul was an aboriginal man who died while in police custody.

           The issue that I want to bring to the Attorney General's attention is this. The Attorney General was in charge of the police complaint commissioner's office before, through a quiet OIC, the shifting of that responsibility took place. When did the Attorney General become aware of the new evidence that the police complaint commissioner put forward with respect to the Frank Paul case? Was that before the minister shifted his responsibility over to the So. Gen or after?

           Hon. G. Plant: I'm going to have to start that question over again, because in the course of the question the member implied that at some point the Attorney General was in charge of the police complaint commissioner's office. That is not true — not true then, not true now. So the member can try her question again, but she will have to do so from a correct description of the way in which part 9 of the Police Act operates.

           The Chair: Hon. member, just take a seat for a second. I believe this has been thoroughly canvassed with the Solicitor General, and I don't see any relevance here at all. I think this is out of order for this ministry. The questions must be strictly relevant to this ministry.

           I must tell you that I am having some difficulty relating your issues with the Attorney General. So carry on. Proceed and convince me that it's relevant.

           J. Kwan: The act that applies to the police complaint commissioner was an act that was the responsibility of the Attorney General. The Attorney General and the cabinet then, somewhere along the line, made a decision to pass that responsibility over to the Solicitor General. Questions were put to the Attorney General about the handling of the Frank Paul case. The Attorney General got up and responded in question period and said: "That is no longer my responsibility."

           What I want to know is: when did the Attorney General become aware of new evidence pertaining to the Frank Paul case? Was that before the Attorney General passed the buck over to the Solicitor General, or was it after? And that, I presume, is exactly within the realm and the purview of the estimates debate.

           Hon. G. Plant: I received a letter from the police complaint commissioner in mid-January, and I referred the letter and the accompanying material to the Solicitor General. I think I also referred the…. Sorry, it wasn't a letter; it was a report from the police complaint com-

[ Page 10993 ]

missioner containing a recommendation. I think I referred that to the Solicitor General. I also referred it to my ministry, including the criminal justice branch.

[1905]

           About a month later there was a binder of material that was supposed to support the recommendations in the report that was provided to my ministry, and that also was sent on my behalf to the Solicitor General and to, I think, the criminal justice branch. Those two things are part of the record here. I don't know what date the cabinet order-in-council was. I've got it here. On March 11, 2004, an order-in-council was passed, transferring the responsibility for ordering a commission of inquiry pursuant to the Police Act from the Attorney General to the Solicitor General.

           It was our view pretty much from the outset, I think, that the Solicitor General really was the minister responsible for that and should have been the minister with that responsibility, but the change did not take place until an order-in-council was enacted on March 11.

           J. Kwan: When did Mr. Ryneveld first approach the Attorney General? When was the Attorney General made aware of new evidence, as came forward in the recommendation for a public inquiry to be held on the Frank Paul case? Was it before March 11?

           Hon. G. Plant: Well, I want to be clear. I'm not certain that there is any new evidence. There is a bundle of material that was sent, as I said, in mid-February. I think the report from the police complaint commissioner was in mid-January. February 10 is when I got the package of material. On January 16, 2004, the police complaint commissioner provided an advance copy of a document he called his draft reasons for decision in the Frank Joseph Paul matter, both to the Attorney General and to the chief coroner. I think he may have actually been the one that asked that a copy of these reasons be provided to the Solicitor General. It was January 16 when I got the advance copy of the draft reasons for decision in which the police complaint commissioner recommended that there be an independent inquiry into the death of Frank Paul.

           J. Kwan: Well, then there is the time line. On March 11, 2004, an order-in-council was issued for the Attorney General to hand over the police complaint commissioner's responsibility to the Solicitor General, but prior to that time it was the responsibility of the Attorney General. By the Attorney General's own admission, he received information from the police complaint commissioner on January 16. Then later, on February 10, he received further information in terms of a full package regarding this issue.

           Why was an investigation not initiated by the Attorney General when he first received the information, when he was responsible for this matter?

           Hon. G. Plant: I don't know what the member means by "investigation" in that question.

           J. Kwan: The Attorney General can play his game. He's a lawyer, and he can play his game. I know he plays this game with the media when he says: "Well, gee, if you don't ask me exactly the right question, I ain't going to give you the right answer."

           The minister knows full well what I'm talking about when I talk about an investigation. I'm talking about the inquiry into the death of Frank Paul. The Attorney General had that information prior to the responsibility being shifted over to the Solicitor General, and he did nothing. He did nothing with respect to the death of Frank Paul, even though the police complaint commissioner — who has done a thorough review into the matter, in his report and in his findings — said he had new information and new evidence relating to this issue. It was brought to the Attorney General's attention, and the Attorney General did nothing.

           Why did he not act and call a public inquiry into the death of Frank Paul?

           Hon. G. Plant: In fact, I did quite a bit. Let's see if we can just calm down the volume over there, and I'll try again, and I'll add a few more bits of information.

[1910]

           What I got on January 16 from the police complaint commissioner was an advance copy of draft reasons for decision. That's what the police complaint commissioner called them. I think they were also sent to the chief coroner. I was out of the country on January 16, and I know that by one means or another, these draft reasons were provided to the Solicitor General.

           Then on January 20 the police complaint commissioner issued a press release and published the full reasons for decision — again, that's his term, what he called this document — on his website. On January 20 the Solicitor General wrote to the police complaint commissioner's office responding to that document of January 16 and advising that the Solicitor General was responsible for both the Coroners Act and the Police Act. That position was already clear to the office of the police complaint commissioner on the day that his recommendation became public.

           The Solicitor General also advised in this letter that he and I had discussed this recommendation and that the Solicitor General would be looking into the matter. Two days later the police complaint commissioner replied to the Solicitor General's letter and advised that his office was preparing a comprehensive package of materials to send to the Attorney General for his consideration respecting his recommendation for a public inquiry.

           I want to pause there for a moment. A big part of the reason why the police complaint commissioner thought something needed to be done was his contention, based on statements he'd made about additional work he'd been doing, that he had received additional information. There was more evidence. That was his contention, and that was the evidence that he said informed his recommendation to us. It certainly seems logical that he would want us to have that information. It would also, in my respectful view, seem perfectly

[ Page 10994 ]

appropriate for us not to take any further action until we had received the further information, which on January 22 the police complaint commissioner said he would be sending to us.

           The package of information was then sent on February 10 along with a cover letter to me outlining why he had referred the matter to me, talking about the relevance of the material that he described and referred to as new evidence and about recommendations for options. He did, I believe, send copies of this material to the Solicitor General, to the chief of police of Vancouver and to the chief coroner. I referred this material to my ministry and to the criminal justice branch. I referred it to the criminal justice branch because of the contention made by the police complaint commissioner that there was new evidence into something that was clearly, at the time, a serious incident. I thought that if there were in fact new evidence, the criminal justice branch ought to examine that and determine whether there was any basis for criminal charges.

           I did that pretty early on in this piece. I am advised that the material continues to be before the criminal justice branch, which may continue to be considering whether there is any basis for criminal charges. With respect to the material that I sent to my ministry, the ministry staff have been, presumably, using that as a basis for any advice they've given to the Solicitor General with respect to the substance of the police complaint commissioner's recommendation. That issue — that is, whether or not there should be a public inquiry — has from the outset been a decision for the Solicitor General, in my view, not for the Attorney General.

[1915]

           J. Kwan: What the minister has just done by putting on record the time line of the issues relating to the Frank Paul case just goes to reaffirm the minister's lack of action in this regard. What he has generally done has been to pass the buck, even though the matter was very much within his responsibility. The OIC to change the responsibility from the Attorney General to the Solicitor General did not take place until March 11, 2004.

           In fact, public information regarding the Frank Paul case was released by the police complaint commissioner as early as June 24, 2003. There was a press release by the police complaint commissioner that talked about a videotape relating to the death of Frank Paul. The press release says:

           "Police complaint commissioner Dirk Ryneveld has released a copy of a police videotape depicting the last day in the life of Frank Joseph Paul, the New Brunswick Mi'Kmaq man who died in a Vancouver east end alley in the early morning hours of December 6, 1998. After being removed from the Vancouver police jail in rain-soaked clothing, Paul was placed in an alley by a member of the Vancouver police department. He died shortly afterwards of hypothermia. No public hearing, inquest or public inquiry was held regarding this matter.

           "Paul's death gained public attention last year during the testimony before the legislative special review committee, which was reviewing the police complaint process in British Columbia. A record of those proceedings is accessible through the Hansard government website."

It lists the website. Then it goes on to talk about Mr. Ryneveld's appointment.

           "Ryneveld, who was appointed police complaint commissioner in February, determined that the exceptional circumstances of this case warranted reopening it. He viewed the videotape depicting Paul's physical condition at the time he was brought to the police jail and his apparent inability to care for himself when transported to the alley where he was later found dead. Following a request by Paul's family, Ryneveld released an unedited copy of the videotape to the family's counsel. 'The family deserves to know the facts concerning Mr. Paul's death, in light of conflicting reports his family had received regarding the circumstances of his death,' said Ryneveld.

           "The commissioner recently received new and relevant information regarding Paul's death. Once the commissioner's review concludes, he will determine what further actions are necessary in the public interest."

That was dated June 24, 2003.

           Then on January 20, 2004, a news release came out from the police complaint commissioner's office:

           "Recommendation for Public Inquiry into Death of Frank Joseph Paul. Police complaint commissioner Dirk Ryneveld, QC, has made a recommendation to the B.C. Attorney General for a public inquiry into the circumstances surrounding the death of Frank Joseph Paul, the New Brunswick Mi'Kmaq man who was found dead in a Vancouver downtown east side alley in the early morning hours of December 6, 1998.

           "Citing the Paul case as one of the most prominent of the files awaiting his attention, upon his taking office as police complaint commissioner in February of 2003, Ryneveld has determined that the issues are so serious that an inquiry is necessary in the public interest.

           "'An inquiry under the Inquiry Act at this late date is best suited to arrive at the truth and make recommendations for further conduct. Those recommendations would not necessarily be limited to the policies and practices of the Vancouver police department but may have provincewide or even countrywide benefits,' says Ryneveld.

           "Ryneveld also recommended, as an alternative, that the chief coroner reconsider conducting a coroner's inquest into the circumstances resulting in the death of Frank Paul on the basis that police duty of care continued to make the police responsible for Frank Paul after leaving him in the alley where he was found dead — since Paul was incapable of caring for himself. Indicating that the coroner's inquest option did have limitations in its scope, Ryneveld indicated that the preferable option was for the Attorney General to appoint a commissioner to conduct a public inquiry under the Inquiry Act."

           It goes on to say:

           "The police complaint commissioner's reasons for decision may be found in its entirety on the website of the office of the police complaint commissioner."

Then it lists the website.

[1920]

           By the minister's own admission, the matter was before him before it was officially transferred to the Solicitor General on March 11. "So be it," the minister says: "I was out of town on January 16." Since January 16 the Attorney General got back into town. He still

[ Page 10995 ]

had responsibility of that file before it was officially transferred, and he did nothing.

           One would think that the public outcry over the decision not to hold an inquiry into Frank Paul's case would have been heard by this government. Stewart Phillip and the Union of B.C. Indian Chiefs, the Métis Provincial Council of British Columbia, the United Native Nations, the First Nations Summit and individual bands have all written to this minister requesting his support for an inquiry into the Frank Paul case.

           Let me remind this minister and this government, this House, that these organizations represent aboriginal people across B.C. and Canada. Vancouver city hall recently passed a resolution of not opposing a new inquiry into the Frank Paul case. That was only done on May 4, 2004. The police complaint commissioner and the B.C. Civil Liberties Association have also called for a new inquiry into this case. These groups are calling for a new inquiry because it is needed. One would think this minister would have done the right thing when he first received the information, as far back as January. For him to deny an inquiry into the Frank Paul case is ironic in light of the government's and this minister's promise to build new relationships and partnerships with the first nations community in British Columbia.

           How can this minister talk about reconciliation with first nations while at the same time, when he had the power and the responsibility to act, he failed to act and denied an inquiry into the death of an aboriginal man who died in police custody? It was only last month that we found out that the Attorney General is no longer responsible for the oversight of the police complaint commissioner. That responsibility now lies with the Solicitor General.

           Interjection.

           J. Kwan: No, this information is not tedious, and there is an important time line question here. There was a period of time when the Attorney General was responsible for this issue, and he failed to act. He failed to act, and he is the same Attorney General who is now responsible for negotiating and building partners with the aboriginal community. The list that I put on record…. Substantively, the majority of the aboriginal community leaders and community organizations have called on the government to ensure there is justice done and to ensure that the truth of the facts are reviewed and that lessons be learned about the death of Frank Paul. This Attorney General failed to act.

           Hon. G. Plant: To remind the member of one fact — that is, on the day that the police complaint commissioner's report and recommendations were made public, which was January 20, 2004, the police complaint commissioner was advised that it would be the Solicitor General's responsibility to determine whether or not to act on his recommendations. The view of government from the outset of the formal request by the police complaint commissioner in January was that this would be a decision for the Solicitor General. It has been consistently, since January 20, a matter that is the bailiwick and responsibility of the Solicitor General, except with respect to the fact that there is some material being examined by the criminal justice branch to consider whether there is any basis for criminal charges.

           J. Kwan: You know, Mr. Chair, no matter how the minister tries to shirk his responsibility, the facts remain the same. The OIC to pass the buck from the AG to the Solicitor General did not take place until March 11, 2004. Back in January, January 16, the inquiry results were put to this Attorney General by the police complaint commissioner.

[1925]

           Let me just quote the report from the office of the police complaint commissioner — its conclusions. It lists all the reasons why the matter should actually be referred to a public inquiry. Then it goes on to say:

           "I have concluded that it is much more likely that the public interest would be best served by providing the chief coroner and the Attorney General with the results of our investigation, the new evidence that came to light, along with documentation and video evidence that became available only after the decision by the coroner not to hold a coroner's inquest. It is my sincere hope that the chief coroner and the Attorney General, who each have ongoing jurisdiction to deal with this matter under the various statutes, will be persuaded by the evidence to conduct either a coroner's inquest or a public inquiry. For the reasons given, of these two options, a full public inquiry under the Inquiry Act is preferable and recommended."

              [H. Long in the chair.]

           The Attorney General knew about this case and the new evidence that the police complaint commissioner had uncovered well in advance of the Attorney General passing the buck to the Solicitor General. Still he did nothing. New information has come forward since then. In fact, police chief Jamie Graham has admitted, in an April 28 memo, that his department "did not take all the steps necessary to safeguard the life of Frank Paul." He admitted that officers should have done more to safeguard Mr. Paul from harm.

           In light of this new information, one would have thought that the Attorney General would have acted in the spirit of fairness, in the spirit of truthfulness, in the spirit of addressing aboriginal complaints around discrimination. The Attorney General and the government had an opportunity to act, and they failed to seize that opportunity. They failed to take the leadership that is necessary to demonstrate that they're more than what's behind their words, that in fact they're prepared to take action to get at the truth. At every turn the Attorney General failed British Columbians and, more particularly, failed the aboriginal community with respect to the case of Frank Paul.

           Well, no action on pay equity and no action on the death of Frank Paul with respect to a public inquiry.

[ Page 10996 ]

We have an Attorney General who, like many of the ministers of this Crown, just likes to pass the buck and say: "Hey, don't ask me. I'm not responsible."

           The ministry, on April 30, 2003…. The children's commissioner's office closed its door as a result of cuts. The commissioner, Paul Pallan, and this office were responsible for reviewing all deaths and critical injuries of children in the care of the ministry and ensuring that the ministry established fair and adequate processes for receiving, investigating and responding to complaints, integrating complaint and review processes for children, and ensuring annual reviews of children with continuing care orders.

           The Attorney General was responsible for overseeing the children's commissioner. I understand that the Attorney General is now responsible for overseeing the children and youth officer, who is the person now responsible for investigating deaths of children in the ministry's care. Are investigations automatically conducted following a child's death?

           Hon. G. Plant: I think the member has got the beginning and the middle and the end of her question factually wrong. We undertook a review early in government, which arose out of our observation that oversight for the responsibilities of the Ministry of Children and Family Development was happening in too many places. There was overlap; there was duplication; there was unnecessary expenditure of effort. There were just basically too many folks doing too much out there and getting in each other's way.

[1930]

           We asked Jane Morley to undertake a review. That review resulted in a decision by government to make some changes in the way in which the oversight would take place. Those changes included pointing out that the coroner's office has some responsibilities, I think, and pointing out that the ombudsman's office has responsibilities. There is more. I don't have the details of this in front of me right now, but we also created through legislation the child and youth officer. The responsibilities of that office are found in the statute that created it. I don't have that act in front of me, but I think they do not include a responsibility to investigate deaths. I think that responsibility — and I may be wrong in this — is primarily the responsibility of the coroner's office.

           J. Kwan: The minister claims that I was wrong in the beginning, the middle and the end of what I put forward. No, Mr. Chair, this government and this minister were responsible for closing the doors to the children's commissioner's office. I'm not wrong on that. That's a matter of public record — what this government has done. No longer does the children's commissioner's office exist. That office has now disappeared.

           In its place the government has put in place a children and youth officer. That's what this government has done, noting of course that when the government was in opposition they actually supported the children's commissioner office and the work that it did. Now all that has changed, because there is a thing called the election. The opposition then, the now government has changed the rules again. They no longer want someone overseeing these issues — the children's commissioner's office. That was canned by this government.

           The minister says he's not sure about whether or not investigations are automatic following a child's death. He's not sure exactly who deals with that. Those questions were actually put to the Minister of Children and Family Development, who says it's the Attorney General's responsibility, so I'm asking these questions of the minister now. I'd be interested, as well, in addition to what steps would be taken when a child dies within the care of the ministry…. I'd be interested in knowing what the criteria would be for the government to take action to look into the death of children.

           Hon. G. Plant: I was uncertain about the responsibilities of the office for children and youth because I did not have in front of me the Office for Children and Youth Act, but I now have that in front of me — section 3. This was an act that was thoroughly debated in the Legislature when it was introduced, but I'm happy to have the occasion during the budget estimates for my ministry to review the functions of the child and youth officer as they are set out in Section 3 of the Office for Children and Youth Act:

"3 (1) The functions of the child and youth officer are to provide support to children, youth and their families in obtaining relevant services and to provide independent observations and advice to government about the state of services provided or funded by government to children and youth in British Columbia, including but not limited to the following:

(a) services provided under the Adoption Act and the Child, Family and Community Service Act;

(b) early childhood development and care services;

(c) mental health services for children and youth;

(d) addiction services for children and youth;

(e) youth justice services;

(f) services for youth and young adults during transition to adulthood.

(2) For the purposes of subsection (1), the child and youth officer may do the following:(a) provide information and advice to children, youth and their families about how to effectively access services that meet their needs;

(b) provide information and advice to children, youth and their families about how to become effective self advocates with respect to the rights of children and youth in care under the Child, Family and Community Service Act;

(c) in extraordinary circumstances, advocate on behalf of individual children and youth to ensure that their views are heard and considered;

(d) promote and coordinate in communities the establishment of advocacy services for children, youth and their families;

(e) monitor the delivery of services in relation to the requirements of the Child, Family and Community Service Act and in particular the requirements of sections 2 and 3 of that Act;

(f) monitor the delivery of services referred to in subsection (1) in relation to relevant service delivery standards;

[ Page 10997 ]

(g) provide advice to government and communities about the effectiveness, responsiveness and relevance of services for children, youth and their families;

(h) comment publicly on matters affecting children and youth."

Copyright © 2004: British Columbia Hansard Services, Victoria, British Columbia, Canada
ISSN: 1499-2175