Hansard — Tuesday, October 30, 2007 a.m.

The following electronic version is for informational purposes only.
The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY


CONTENTS

	Routine Proceedings
		Page


Committee of the Whole House		8921
	Tsawwassen First Nation Final Agreement Act (Bill 40) (continued)
	S. Fraser
	Hon. M. de Jong
	J. Horgan
	G. Gentner
	S. Simpson
	M. Sather
	D. MacKay
	M. Karagianis

The House in Committee of the Whole (Section B) on Bill 40; S. Hammell in the chair.

S. Fraser: I just want to lay out for the record some clarification. We seem to be in a fluid situation in this discussion. My understanding is that we're going to try to cover the remainder of what's in chapter 4 and then move through things, but that we're going to try to come back to the ALR issue. Is that the understanding we have with the minister?

Hon. M. de Jong: Yes, that is my understanding. The issue that we began dealing with yesterday is referred to specifically in section 9 of the bill. So as we move through the schedule and then through sections 4, 5, 6, 7, 8….

Most of what I heard in the debate yesterday is more properly covered in section 9 of the bill, which is the instrument by which that decision around the ALR lands is made.

S. Fraser: Thanks to the minister for that. I just wanted to make sure it was clear to all members on all sides here that we will have an opportunity to deal with the agricultural land reserve issues at section 9.

Originally the idea was to deal with it in section 3, as that is an all-encompassing section, but I think this will be more efficient. So I'll just ask a quick question.

I know there was a lot of discussion on subsurface rights, and one question came to mind sitting here listening to that discussion. The wording in Tsawwassen on the subsurface rights issues — is it consistent? I've read it in both other treaties, the coming Maa-nulth treaty and the previous Nisga'a treaty. They're not identical here.

Is there consistency between the three treaties on subsurface rights? If not, can the subtle differences be explained to me, please?

Hon. M. de Jong: In the Tsawwassen case, as the member has pointed out, the subsurface rights beneath the treaty settlement lands are transferred. That is the case in all three treaties.

I am alerted to the possibility that — I'm trying to think back to the Nisga'a — there may have been some privately held subsurface rights that were not part of that. But where there were Crown-held subsurface rights on the treaty settlement lands, in all three cases they were transferred to the settling first nation.

J. Horgan: It's a pleasure to enter the debate at committee stage on the Tsawwassen treaty. I want to also pursue the issue of subsurface rights for a moment with the minister.

In questioning from the member for, I believe, Peace River South last evening…. I haven't had an opportunity to review the Blues, so I'm going by memory, and the minister may well correct me on this. A question was posed with respect to whether an evaluation or an appraisal was done of the potential value of subsurface rights on the lands in question. I'm wondering if the minister, over the course of the evening, has had an opportunity to determine if any evaluation or appraisal was done on the value of those subsurface rights.

Hon. M. de Jong: Thank you to the member for the question. He's correct. That question was posed yesterday. I just wanted to get as much information as I could for the member.

On the almost 400 hectares of Crown land — I think it's about 375 hectares of Crown land that are being transferred — there was no knowledge of any mineral values, so there's no anticipated value there.

The second component, I suppose, of undersurface rights…. I've asked whether there was any seismic testing done to determine oil or natural gas values on that 375 hectares. There was none done, so it's not really possible to value what, if any, value would exist in respect of energy or oil and gas.

J. Horgan: I thank the minister for that second answer to the second question put to him on the issue.

The other point that concerns me is section 24. I'll read a portion of that into the record: "Nothing in this Agreement confers jurisdiction on Tsawwassen Government to make laws in relation to the exploration for, development, production, use or application of nuclear energy or atomic energy or the production, possession or use, for any purpose, of nuclear substances, prescribed substances, prescribed equipment or prescribed information."

That strikes me as an odd clause. If we haven't done an evaluation or an appraisal of the minerals or other elements in and around the 400-odd hectares that are being transferred, why would we focus on uranium, I'm assuming, in this section — if it is in fact uranium that we're trying to get at? Or is it concern that North Korea is going to come calling to another level of government?

Hon. M. de Jong: The section is there to ensure and preserve absolute federal jurisdiction over the development of any atomic energy of any sort. It is less, I think, about exploration than the development, and preserving absolute federal regulatory authority over the development of atomic energy.

J. Horgan: Why, then, was it put in the subsurface resources management and administration section? That leads me and, I think, others who would read the document to conclude that there's some prospect of uranium in this area and that, in an abundance level of caution, the senior level of government has requested this be put in this section. Is it because there was no more appropriate place for it to rest?

Hon. M. de Jong: I'm advised that the member's explanation is probably the likely one. There wasn't a more appropriate place anywhere in the agreement to place it, and that's why it's here. We're not aware of any evidence or likelihood or possibility or interest in or presence of uranium or similar resources in this area. It's there at the insistence of the federal government.

With respect to gravel extraction, in this section there's no explicit reference to gravel. But the member will know that in his constituency, certainly from the valley, gravel is a hot-button issue. What role or relationship will the Tsawwassen government have with respect to gravel, and will it have an impact on the ability of the Minister of Energy, Mines to permit that activity?

Hon. M. de Jong: If there were gravel located on the subsurface treaty settlement lands, the jurisdiction to regulate its development or removal would rest entirely with the Tsawwassen First Nation and their government. We are not aware of any gravel reserves, but if they existed beneath the treaty settlement lands, jurisdiction would rest with the Tsawwassen.

J. Horgan: So the lands referred to as the bluffs, any beachfront that would have sand which would be of some value…. If it was so determined by the Tsawwassen people that they would put that sand or gravel found at the bluffs for sale, that would not be regulated or controlled by the province. It would be exclusively controlled by the Tsawwassen First Nation?

Hon. M. de Jong: Two parts to the answer. Below the high-water mark, I am reminded, the jurisdiction is provincial, not with the Tsawwassen.

Secondly, insofar as the applicable environmental regulations, under the terms of this treaty, where there is any kind of conflict, provincial regulations would prevail. Those are, I think, the two parts of the answer that I wanted to convey.

J. Horgan: We've heard from the minister this morning that there was no appraisal or valuation done of potential mineral or subsurface values. We also heard yesterday a question from the member for Nelson-Creston with respect to an appraisal or an evaluation of the lands that were transferred — whether it's B.C. Assessment's figure on the value of those lands.

I'm wondering. There seems to be a disturbing trend. Certainly in my community in Jordan River, the government appears to have given a private company access to lands that were previously held within a public tree farm licence without any appraisal of the value of those lands.

Is it going to be a trend, as we go through this treaty and other treaties, that the government is not going to have a dollar figure to ascribe in net present value to lands or benefits that are transferred to another level of government?

Hon. M. de Jong: What I do want to try and convey to the member and all members is that we very much regard these negotiations and final agreements as attempts to present a package. The package is comprised of various components, land being one of them. There are fiscal payments from the federal government. There are fish. In many cases there are timber resources.

I think the member knows from his contact with first nations that one of the things we are cautious about and trying to avoid is the notion of valuations on a per-capita basis. The member will know that first nations have reacted very negatively to that and to the suggestion that, as a result of it, unique local circumstances aren't taken into account.

There is, I suppose one could argue, that degree of imprecision associated. But we do very much regard the final agreement as an overall package and lay it before the House, as the Tsawwassen First Nation did before their people, and say, "Here it is," and recommend it as being a reasonable settlement.

G. Gentner: I want to make a preface here so that we understand some of the protocol that the two sides have somewhat agreed to — relative, of course, to the ALR discussion that maybe will be discussed, hopefully in section 9. However, under chapter 4 of the treaty….

Where I'm going with this, hon. Chair, is some discussion on the specified lands, which are in the ALR, but it's not about removal. It's about some procedures which have occurred under specified lands and other lands — lands that could be added to the Tsawwassen First Nation.

There has been a significant challenge by the Corporation of Delta regarding the approach for adding the lands post-treaty. It's somewhat inconsistent with many local governments and, of course, the lower mainland treaty advisory committee. Even the UBCM had much consternation and difficulty with where the treaty has gone relative to this…. It's very much a significant parcel of land on the Sand Heads.

What is particularly troubling is that the Corporation of Delta has felt that it's been treated differently than elsewhere in British Columbia, without the municipal consent as a condition for removal of lands within municipal boundaries post-treaty.

Hon. M. de Jong: I wonder if, for the sake of precision, the member could indicate the specific section or sections that he is referring to so that I know I am answering in an equally precise manner.

G. Gentner: I'm referring mainly to chapter 4, "Addition to or removal from Tsawwassen lands," which discusses, I believe, the specified lands. There's also discussion on other Tsawwassen lands, which is more to do with the parcels of lands up by the Fraser River and of course the Beach Grove and Boundary Bay lands. At this time I want to look at specified lands — namely, that known by many as Brunswick Point.

Hon. M. de Jong: I wonder if, in fleshing this through, I can ask the member or point out to the member that there are at least three different scenarios that arise here. There are certainly lands that, pursuant to this final agreement, would at effective date become part of the treaty settlement lands. There are other lands for which the Tsawwassen First Nation has an option that they can exercise.

Around that, there's significance associated with 50 years because in the first 50 years, if they exercise that option, the lands most certainly can become part of the treaty settlement lands and attract the jurisdiction that is part and parcel of that. But following that 50-year period, there is consent required certainly from the corporation of the city of Delta.

I think I need to get a better sense from the member. Is it all of that or a particular component of it that causes him concern and that he wants to explore in this discussion?

G. Gentner: It's all of it. It's the uncertainty. It's a 50-year period where there will be uncertainty whether or not the TFN is going to move on its option, and there's a whole host of questions about what happens in the interim.

My question was: what type of consultation did the process endure with the Corporation of Delta on the potential removal of this land? I'd just like to know on record if the minister feels secure and good about the process that was in place and the consultation with the municipality which is potentially going to lose this land.

Hon. M. de Jong: I think the short answer to the member is yes, I am. I am satisfied that extraordinary efforts were made and that there was a very strong level of engagement. In making that statement I refer to over 50 meetings that took place with the LMTAC, the Corporation of Delta, GVRD and third parties.

I also note — optimistically and with a degree of pleasure — that whilst the Corporation of Delta, the district of Delta, was very specific in some of the concerns it expressed in the lead-up to the tabling of the legislation we're debating, since the conclusion and ratification by the Tsawwassen First Nation of the final agreement, council has been very supportive.

A number of service agreements have been negotiated or are in the process of negotiating. I know that Chief Kim Baird and the Tsawwassen First Nation were thrilled that Mayor Jackson and the entire council were here on the day the legislation was tabled, extending best wishes and congratulations and really beginning a new era and a new relationship of their own between Delta and the Tsawwassen First Nation.

I think that bodes well, because at the end of the day the ultimate success of this final agreement will be secured on the ground as between neighbours — between the neighbouring communities that Tsawwassen First Nation and Delta represent.

G. Gentner: On the local government side. I suppose we can canvass that another time under intergovernmental relations. It's probably more appropriate there.

Regarding the 50 or so meetings, I understand most of them were probably with the technical committee, sort of the after-the-fact view that the province wasn't going to move. For the record, the municipality's position was very clear in the pre- and post-treaty process: "During negotiations where first nations acquire Crown lands or wish to purchase fee simple land within local government boundaries…."

This is what significantly establishes this treaty somewhat different than the previous, the Nisga'a. It's referred to as an urban treaty for a reason. Just for the record: "Within local government boundaries, those lands shall remain in fee simple and remain subject to local government jurisdiction and taxation unless otherwise agreed to by the local government through a community consultative process."

The Corporation of Delta, of course, has been on record for a number of years that it doesn't believe there was a consulting process in place. Moving along, my question is to the minister. There are two different approaches that have happened before on other lands. Can he explain what the difference is between the traditional approach versus the specified lands approach?

Hon. M. de Jong: I think what the member was driving at, or I hope what he was driving at, is the difference between a land transfer that takes place on an effective date and specific parcels of land that are available for transfer for a specified period of time and can become part of the treaty settlement land package and jurisdiction.

I'm thinking back to the discussion we had yesterday, where there was great concern expressed around the possibility of lands being expropriated for the purpose of settling first nations land claims and signing treaties. In fact, the regime we're talking about here avoids that by creating an option that can only be exercised on the basis of a willing buyer and a willing seller. It seems to me that is a preferable circumstance and one that I am supportive of.

The actual amounts here, I can tell the member, are the product of the negotiation. It won't surprise him to

know that the Tsawwassen First Nation negotiated passionately and vigorously for as large a land package as possible. That, as I say, will come as no surprise.

The last point I want to make at this juncture with respect to the relationship between Delta and the Tsawwassen First Nation is that there has already been tangible evidence of a blossoming relationship, notwithstanding some of the tensions that may have existed during the course of the negotiations.

They have settled and signed off on a comprehensive master agreement. I am reminded that they are working on a comprehensive master agreement and have not signed off on it yet. But there is already evidence of the importance the two parties place in establishing a firm working relationship. I think that bodes well for the future.

G. Gentner: I still don't understand why there's no attempt to go through the traditional approach rather than the specified lands process. Other treaties in the province do not specify an area, but municipal consent is required.

Is it true that perhaps this treaty was the catalyst for the acquisition, or potential acquisition, of the Brunswick lands? Was it based on the view that through the specified lands approach, as opposed to the traditional lands approach, the negotiators — or in this case also the province — didn't have to consent with the host municipality?

Hon. M. de Jong: I'm a bit interested in the member's characterization of an approach as being traditional. This is, after all, the first treaty to emerge from the B.C. Treaty Commission process. I can only assume that the member is harkening back to the only other experience the province has had with a final agreement in the modern era, and that is Nisga'a. Of course, the circumstances there, given the geography and availability of Crown land, were very different.

Both the Lheidli T'enneh treaty and the Maa-nulth treaties include elements, to varying degrees, of a specified lands approach. So I suppose I could argue that that is more traditional or more appropriate to attract the label "traditional" than what the member has suggested.

I want to further emphasize to the committee the fact that following the expiration of the 50-year period, the conventional consents that the member has referred to are required. I take some comfort from that fact.

G. Gentner: Well, it's somewhat heartening to hear that the minister has admitted that there is a difference between the previous treaty approach and today's treaty approach — the modern era, so to speak — and that there's somewhat of a need for some extensive discussion on this specific treaty because it is dealing with municipal government.

The view was that the previous treaty, the Nisga'a, was a template that was going to be used over and over again. If the template had been used, I suppose the language relative to using a traditional approach would have been incorporated throughout the treaty process, and local government would have been at the table, particularly with this parcel of land, the Brunswick lands.

I have to know, since we're on the specified lands…. There is a need to provide, for example, dike maintenance over the 50 years. Whose responsibility will that be? Will it be the province? Will it be the TFN? Will it be the Corporation of Delta?

Hon. M. de Jong: The issue of diking is dealt with specifically in chapter 7.

I should say I was interested and somewhat fascinated to hear the member's application of the term "template." If he is not aware, he will be soon that first nations expend great energy articulating the notion that governments need to be responsive to the unique circumstances that exist across the province.

So the member may take the view that negotiating treaties is simply a matter of applying a template that was designed in the 1990s, but I can assure him that first nations take a significantly different view. But they will be interested to know his view on that matter.

That is quoting the hon. member when he was in the opposition — a discussion relative to a former treaty. So again, it's heartening to hear that the minister has shifted his view that not one glove fits all. Indeed, this is not a template, and therefore, this is a very different treaty.

On the concerns of the Brunswick Point lands, I want to talk about future impacts. The process as outlined does not provide an opportunity to assess the municipal impacts on a case-by-case basis for the 50 years following the effective date. Will it impact the ability of local government to address its adjacent impacts on the municipality?

Hon. M. de Jong: I think, Madam Chair, that exactly the opposite is happening. I think we saw that by virtue of the presence of the mayor and the entire council, who have said: "Look, we expressed our views. Some of our submissions were taken account of; some weren't, to the extent that we would like. But you know what? We're excited about the opportunity to develop a new relationship with our neighbouring community, a new community, following the implementation and effective date on this treaty. That's why we're negotiating a master agreement. That's why we've already negotiated various service agreements."

I think the relationship is proving itself already to be healthy, based around, in large measure, the certainty that accrues from the finalization and ratification of this deal. The member is very pessimistic about the future prospects. I actually am very optimistic.

G. Gentner: The Brunswick lands are to stay in the ALR over the 50 years, and when, of course, the TFN move towards their option, it is anticipated it will remain in the agricultural land reserve. But my concern here is: what type of zoning is anticipated on those lands, if or when the TFN bring them forward into their land base?

Hon. M. de Jong: To the member: he has correctly identified the fact that these lands of which we are speaking, these particular specified lands, remain in the ALR and, therefore, subject to the uses specified within the ALR, which is a rather direct form of zoning. The Tsawwassen First Nation, if they acquired ownership, would, of course, have the same option that any other landowner has of making application to remove them, but that would be subject to the same considerations as any other application to remove land from the ALR.

G. Gentner: I'd like to know what the minister's position is on a loss of taxes in this area to the Corporation of Delta. Will there be any compensation relative to that lost property tax base?

Hon. M. de Jong: The member knows, because he has posed the question in the past — but he has posed it again during the course of this debate — that there is no compensation payable, although Delta has already begun to realize some additional revenues built around the service agreements that are being negotiated with the Tsawwassen. But the type of compensation that the member refers to is not something that is being considered or has been considered.

G. Gentner: We'll pursue this discussion under intergovernmental affairs, because it is one of the reasons why local governments — in this case, Delta, the GVRD, the UBCM — have very grave concerns about ripping their land apart, albeit it may be for a well-meaning intention. But we're talking about budgets that are based on property taxes, and it has great impacts on municipal governments. Again, it is why the municipality of Delta has major, major concerns.

Now, relative to the irrigation and the water levels of the Brunswick Point lands, what incentive does Delta have to maintain the water levels if, chances are, it is no longer going to be in this jurisdiction? What guarantee does the province have from the TFN, upon taking these lands, that the irrigation levels will be kept in order to maintain its agricultural integrity?

Hon. M. de Jong: The important matters that the member has referred to are probably best raised when we talk about access. He's already raised the diking issue, and I think what he is referring to now relates to clearing of ditches and irrigation corridors. We're probably better off confirming the details of that when we get to the access chapter.

G. Gentner: A quick discussion on overlap of jurisdictions or claims. We know that the Musqueam First Nation, the Katzie, have included the Brunswick Point lands within their traditional territory. We know that the Musqueam, just down the street, already have some reserve lands. We know that the Sand Heads have been fished, and there were settlements there for some time by various Salish groups.

The questions I have…. The lands are going to be sold to the TFN, subject to application to B.C. and Canada. Will they be subject to further scrutiny and appeals by other first nations with legitimate claims to those lands?

The point is that we're talking about Brunswick Point — the apex of the mouth of the river of the most significant fishing ground in the province. What is the ministry's position when those claims come forward?

Hon. M. de Jong: I'm going to refer the member to the discussion we had previously on chapter 2. I'm a bit reluctant to go back over ground that we have already canvassed.

We did talk about the processes that are set out in the treaty, the non-derogation provisions and the general provisions of the treaty that exist to deal with situations where challenges are made and substantiated to the extent that they have an impact on the treaty. So a mechanism exists by which the parties can address that.

Suffice to say, the parties believe, by virtue of the signing off or tabling and ratification of this agreement, that we are proceeding on sound legal footing, but there is a mechanism by which the parties, all of them, can respond in the type of scenario that the member has presented.

G. Gentner: I'm still perplexed. I'm a little worried here still. It's the uncertainty regarding this land over the next 50 years.

There's no incentive for the Corporation of Delta to maintain its ditching, its irrigation. There's no need to maintain roads if you know that that jurisdiction is going to move into another area. We know, accordingly, that there's no need to maintain the agricultural integrity of the land if there are no incentives being put in place here.

What assurances, other than that it's going to remain in the ALR…? Of course, land can stay in the ALR and not be farmed and become derelict land, so to speak. What assurances do we have from this government that the Brunswick Point lands will remain in pristine agricultural tradition and also be maintained — all services — through this period of uncertainty?

Hon. M. de Jong: Well, I appreciate the member's question and his interest, but I'm a bit perplexed by the premise. The Corporation of Delta has the same interests today that it had yesterday and will have tomorrow.

The specified lands we are talking about are owned by people. They may or may not be sold to a new owner. A set of rules exists if that happens within the next 50 years, and a set of rules exists if that happens after the expiration of 50 years. The parties are actually quite responsibly engaging in discussions in anticipation of the ratification of this agreement around diking, irrigation, service provision agreements.

All of that is taking place. Again, whilst I don't in any way question the legitimacy of raising the issues, I must say that I have an optimism about this start that Delta and the Tsawwassen First Nation have made that apparently the member does not share.

G. Gentner: I want to make sure I've got this straight. The minister said these lands are owned by people. Could he tell me who owns these lands?

Hon. M. de Jong: I stand corrected. They are leased by individuals who have the same interest today in having them serviced and maintained that they had yesterday.

G. Gentner: They're leased from the Crown — a significant chunk of land that the minister should know is on the hopper. I do want to return to those leased lands and those expropriated victims, who have constantly had legal arguments and challenges on the validity of their lost livelihoods.

Just for the record, I'm glad the minister corrected himself. The significant chunk of land, the Brunswick Point lands, are owned by the Crown.

S. Simpson: I just want to go back for a couple of questions related to the subsurface resources on page 35 of the schedule. I think the minister might have referenced this in answer to a previous question. I was just coming in the door and I'm not sure I heard it all, so I'll put it again.

In the instances where resources are being considered to be extracted, exploited or gathered, are there any changes around the environmental assessments or implications of that from what currently goes on in the province? It's chapter 4, page 35, article 22.

Hon. M. de Jong: The answer really engages a more detailed discussion around chapter 15, which lays out the regime that will be in place and the relationship that will exist between the Tsawwassen First Nation government and the province of British Columbia as it relates to environmental stewardship and regulation. It might be better for us to canvass that in the chapter dealing specifically with the environmental relationship, because I think the member might have additional questions on a broader sphere.

M. Sather: I wanted to get some sense from the minister with regard to these lands — those that are agricultural lands or in the agricultural land reserve, those that are removed and the Brunswick Point lands — with regard to birds and bird conservation. Specifically, I want to talk a little bit about shorebirds, because this is an area of huge significance to shorebirds of western North America.

I'm not clear, and I want to make it clear. It's not a question of me passing any judgments or having any judgments on the ability or the intentions of the Tsawwassen First Nation with regard to conservation. I'm not understanding how conventions that are in place play out with regard to the Tsawwassen law.

For example, we have the Western Hemisphere Shorebird Reserve. I was just looking, while the last couple of members spoke, at what the status is of some of those birds, and it's shocking, quite frankly. The birds that I looked at that are significant to that area that are in decline and are of high conservation concern — that means the decline is not slight — are the American golden plover, the solitary sandpiper, the whimbrel, the dunlin and the short-billed dowitcher. Other birds that are listed as small population are American oystercatcher, sanderling and western sandpiper.

If members have had an opportunity to visit that area, when some of these birds — such as groups of western sandpiper and dunlin — take flight, there's an actual cloud of birds, and it's a real spectacle to see. To hear that the western sandpiper is a small population now is of great concern.

I'm wondering how, for example, the Western Hemisphere Shorebird Reserve and these concerns are going to play out in terms of conservation on Tsawwassen lands. It's difficult to imagine how a first nation could have the resources to deal with that issue. Will they work hand in hand with the Ministry of Environment and Environment Canada?

More importantly, I'm wondering if the statutes, the international agreements with regard to shorebirds will still have effect. If the minister can answer that now, I'd appreciate it. If not, if he wants to come back to it later.

Hon. M. de Jong: Two references. I'm going to suggest to the member that part of the answer lies in chapter 11 that deals specifically with migratory birds. There's an entire chapter of the agreement that we'll get to that deals with migratory birds.

The other reference I'd make to the member is the section that we canvassed — and we did actually talk about this specifically in chapter 2 — dealing with international agreements and obligations, which is contained at section 34 in chapter 2 and lays out specifically the protocols around ensuring that proper respect is given for the type of international agreement that the member has referred to. But we'll certainly be coming to a chapter dedicated specifically to migratory birds.

D. MacKay: Section 36, chapter 4, deals with the addition to or removal from Tsawwassen lands.

I wanted to ask a question about section 37 where it states: "Nothing requires Canada or British Columbia

to assume financial or other obligations associated with any addition to Tsawwassen Lands, including paying any costs arising because the lands added are not contiguous to Tsawwassen Lands."

The question I want clarification on: if the lands are contiguous to Tsawwassen lands, is the province or the federal government financially responsible in any way to see those lands added to the Tsawwassen lands?

Hon. M. de Jong: I'm advised that the legal drafting confirms that in either circumstance, contiguous or non-contiguous, there is no liability and no responsibility for costs.

D. MacKay: My final question under chapter 4 deals with section 96, dealing with mines and minerals under English Bluff. I notice there that for appendix C-5 it states that "the rights and interests that Tsawwassen First Nation or Tsawwassen Members ever had, now have or may have in the future in the mines and minerals referred to in clause 96" are no longer there. I wonder if the minister could tell me what minerals are there.

The fact that Canada is going to pay the Tsawwassen the sum of $2 million to acquire those mines — is this something that the Tsawwassen people themselves have been mining over a period of time? If so, are any environmental encumbrances going to be assumed by the province because they're being taken away from the Tsawwassen with a sum of $2 million attached to them?

Hon. M. de Jong: I apologize for the delay. I wanted to make sure I conveyed accurate information.

In an earlier negotiation related to the residential development that I think the member is familiar with, the surface rights to this land were transferred. The subsurface rights were not. By virtue of this section and the transaction referenced therein, the subsurface rights to that subject parcel of land will be returned to the Crown in the right of the province of British Columbia.

D. MacKay: I needed a bit more clarification on that. The subsurface rights will be returned to the Crown from the Tsawwassen band. I think I saw some nodding, and if that's the answer….

Hon. M. de Jong: I am advised that by virtue of this transaction the Tsawwassen First Nation are releasing their claim to these subsurface rights. Actually, the transfer takes place between the Crown in the right of Canada and the Crown in the right of British Columbia, so it's technically a transfer from Canada to British Columbia.

G. Gentner: I just want to go back to the course of the discussion of specified lands — that being, of course, the Brunswick problem. I say it's a problem for many farming communities and particular families because the land was expropriated under, back then, the harvest board, and today their life is still in flux, not knowing what's going to happen.

There are various degrees of interest in the land, of course. It was expropriated namely for the need of potential industrial development. However, even in the later '70s the government of the day suggested that most of this land will not be used for farmland. This was post-NDP-Dave-Barrett era, and the Delta farm expropriation victims anticipated that their land would come back to them. The families had deep roots in the land and the community. We're talking about pioneer first generations from the 1870s, 1880s, 1890s.

Some of those families have salvaged the land through dike-building. They've also accommodated the wildlife concerns of the past, and they enhanced wildlife through the development of the Delta Farmland and Wildlife Trust.

My question to the minister is: what assurances will this government give that if or when this land is moved over to TFN, this wildlife trust will continue?

Hon. M. de Jong: There is, as I think the member knows, a chapter dedicated to the issue of wildlife management, chapter 10. To the extent that there are questions relating to the overall scheme for wildlife management and the interplay between the Tsawwassen First Nation government and the federal and provincial authorities, we can perhaps canvass that at that time.

The Chair: Just before I recognize you, Member, I was going to ask if are we ready to move on to chapter 5. Is the member's question related to chapter 4?

Returning to the specified lands in chapter 4, on the short-term leases and the high lease costs that dictate the farm operation within the said lands, buildings of such, such as houses and barns, decay. They seem to deteriorate after time.

For 25 years Public Works — of course, that was BCBC — maintained these buildings. When you go through parts of Delta, they're referred to as the red barns. We call it the BCBC red. They've traditionally kept those heritage sites, somewhat tattered but somewhat together.

Again, what is the province's commitment to maintain those types of structures within its Crown lands?

Hon. M. de Jong: Insofar as there may be lands and structures that remain within the provincial jurisdictional orbit, I am not aware of any plans to alter the activity or the efforts that are presently in place to maintain them. It is perhaps something the member…. I may, following the adjournment, make an inquiry of the Ministry of Agriculture and Lands, but I'm not aware of any plans to alter the present management regime.

G. Gentner: It begs a question, therefore. Some of these culturally modified structures, if you will, are seen as heritage sites. What commitment, if or when the TFN take control of these lands…. Will those heritage sites,

barns, etc., be maintained, and will they be understood by the province as provincial heritage interests?

Hon. M. de Jong: If the member has information, I'm happy to receive it, but I'm not actually aware of any circumstances in which a dedicated cultural or archaeological site exists. The member may have some information to that effect.

Beyond that, I should be as clear as I can with the member. If options are exercised in a way that the final agreement provides for and if they are exercised within the 50-year period such that the subject lands become part of the Tsawwassen settlement lands, then all of the Tsawwassen First Nation governmental jurisdictions that this agreement provides for would generally apply. I think the member knows that, and I should confirm that on the record.

G. Gentner: Yeah, it's a valid point that the minister makes, and I know how the chronology is going to work and how it all plays out. It makes perfect sense to me now. The concern is that on the municipal heritage registrar, there are assets that have been identified, and the municipality is, of course, a creature of the province. The province has, in its wisdom, decided to potentially move those assets to the TFN.

Therefore, there's no guarantee by the province, which has made a decision on behalf of Delta to move this land and its assets to the TFN, to maintain the significant historical artifacts — barns and buildings — that have been identified by the municipality.

Hon. M. de Jong: No, I think the member is correct. If an option were exercised and that triggers a series of events and transfers, he's right: there would be no guarantee of further provincial involvement beyond that date.

G. Gentner: It's another reason why Delta has had some problems with the lack of consultation through this process. Although heritage may not be seemingly important to the government of the members opposite, it certainly is part of much of the downloading traditionally from senior governments to local governments to try and maintain these historical assets.

Just a quick question on what the minister feels on these lands. Do the farmers have an unextinguished legal interest in the lands and/or a right to purchase these lands pursuant to applicable expropriation legislation?

Hon. M. de Jong: I appreciate the spirit with which the question is asked, but I am not going to render that opinion in these debates.

G. Gentner: It is a significant question because, of course, all the families who were expropriated years ago — historical families whose lives have been placed on hold and were told that there is a possibility they would get their land back — would have appreciated an answer. We'll see if they have at least some legal interest in these lands they once owned. It's unfortunate the minister doesn't want to go there, so to speak.

I suppose that when you look at the Expropriation Act and how these lands came about. if the farmers have what appears to be a good legal argument that they have unextinguished rights, it makes more sense for government to pull the backup lands off the negotiating table. Does the minister agree?

Hon. M. de Jong: I'm at a loss to know what part of chapter 4 we are now dealing with.

G. Gentner: We are dealing with the specified lands from which the farmers were expropriated and have keen interests in getting back. That's quite relevant to the section we are exploring.

Does the minister or the government have any inkling to assist farmers and longstanding farming families in the loss of their farmland?

Hon. M. de Jong: The member is, I think, aware that the question around what, if any, legal rights may exist is very much before the courts and is being considered. I understand there is a pending date before the courts.

It shouldn't surprise the member to hear that I am not going to involve myself in that discussion, which is taking place in the proper forum.

G. Gentner: Just one quick question, then, if the minister believes that this has potential. It involves some legal decisions before the courts, like the TFN and all first nations. Will the government provide some monies to these affected farmers in the same way as it's provided funding to the treaty process so that they can have a proper day in court?

Hon. M. de Jong: Truly, with the greatest respect to the member, who I know believes in this matter and wants to pursue it, that falls completely outside of the ambit of the chapter and the agreement that we are discussing.

M. Karagianis: I'd like to ask questions specific to sections 52 through 57. They're all chronological.

I would ask, if I may: what is the legal context here for use of subsurface resources in that highway corridor? Could the minister give us some examples of what that might be and how that might occur without in any way affecting the use of Highway 17 corridor?

Hon. M. de Jong: I think the member's question — and it is why I've been talking to the staff here — is essentially: "Why is 52 here?" Particularly, I think the member has been asking: "Why is 52.d here?" I think that was the essence of the member's question.

Three parts to the answer. First of all, it is emphasized to me that it is a permissive section, so there was nothing specific in mind by the inclusion. However, as we have thought about what permissive might entail, I am reminded about the unique circumstances by which the road was built, essentially plowing through a reserve, and I think the member knows this.

There is some potentially archaeological interest in the subsurface area. This would permit that. As the member knows, the highway runs through some lands. It is conceivable, for example, that a utility corridor might need to traverse or intersect through the subsurface through that corridor. So those are two that come to mind, but there was nothing specific in mind that I can point the member to, to say that it is in anticipation of that event that 52.d exists.

M. Karagianis: One of the things that did cross my mind in reading this, understanding that it is a permissive section but knowing that subsurface rights often take unforeseen directions and could in the future…. I know that in the case of acquisition of aggregate, this is one of the pieces of the Mining Act that has given many communities a great deal of concern because, of course, aggregate can be found under agricultural land that's currently growing food.

Aggregate can be found in the midst of urban communities. Aggregate can be found in sensitive ecosystems. And often there is a great deal of tension between government and aggregate companies about acquisition of that.

If I put that into the scenario here and look at the potential of aggregate…. I realize the minister talked about, perhaps, heritage value and archaeological value for first nations communities because the road has gone through traditional lands here.

Let's also take that to the point where aggregate was discovered there, and it was in the economic interest of the Tsawwassen First Nation to pursue that. What kind of tensions and rights does that supersede on the use of the Highway 17 corridor, for its current use?

Hon. M. de Jong: I think the short answer is that, to the extent that the section provides for ownership and the possibility of the kind of activity that the member has speculated about, it would have to be carried out in a way that, first of all, in no way adversely impacted the operation of the highway and then, secondly, is consistent with all of the other environmental regimes provided for in the various parts of the final agreement.

M. Karagianis: I appreciate that there are certainly many restrictions in place, but I also know that often mining interests do take precedence over many, many aspects of other regulation. But that actually then leads very much into the next section, 53: "If British Columbia no longer requires any portion of the Highway 17 Corridor for provincial public highway purposes: a. at the request of Tsawwassen First Nation, Tsawwassen First Nation will take ownership of that portion in fee simple, at no cost…."

Do I read into this, then, that the province sees no value in this highway beyond its current use and that should, for some unforeseeable reason, that corridor no longer be used for public access to, say, the ferry terminal, this road has no dollar value at all?

Hon. M. de Jong: Thanks to the member for the question, because to the layperson reading this, it would elicit precisely the question the member has asked.

Let me emphasize this. There is no expectation on the part of the government of British Columbia that there will come a time, in anywhere approaching the foreseeable future, when this corridor is not required for Highway 17, for that highway — no expectation whatsoever.

However, the section does recognize the unique history of the corridor itself, how it was acquired, and the circumstances under which it was acquired and constructed. It does recognize the fact that if that day were to ever arrive — we don't foresee it — the land upon which it's situate, the corridor, would be returned to the Tsawwassen in the circumstances described here. We don't foresee that day at all at this stage of the game, but it was important for the Tsawwassen to derive the level of recognition of the history that is reflected here.

M. Karagianis: Certainly, no one can foresee the future, and this is a permanent agreement on these lands, with no end date, with no expiry date. So we can't anticipate what may happen ten, 15, 30, 50 years into the future.

But I do want to ask a question at this point. How wide, in fact, is the Highway 17 corridor? It will not be specific to just the blacktop that's there. How wide is that corridor, at this point? Is there potential or an option for the Tsawwassen First Nation to acquire some piece of that corridor that's not currently being used specifically for blacktop?

What I'm basically saying is, is the corridor wide enough that there may be some other aspects of that corridor that would be of interest to Tsawwassen outside of what is blacktopped right now for access to the ferry terminal?

Hon. M. de Jong: I don't have the answer to the first part of the question. I can get it. The corridor is defined by the Highway Act and is, I think, gazetted that way, so I can endeavour to obtain that information for the member.

No, I'm not aware of any parcels that fall into the category or the description that the member has provided. The corridor is dealt with in its entirety through the provisions we have dealt with. But I will endeavour to obtain for the member — I'm not sure a legal description helps — maybe a site plan or something that would define that further.

M. Karagianis: I'd be happy to have that information, because I would anticipate that perhaps this corridor may not be standard in its creation. It was created very specifically to serve a purpose that is slightly unusual in the way highway corridors are established. There may, in fact, be extraordinary circumstances here, so I'd be interested in seeing what that is.

In section 54, then, following this. Again, this addresses the possibility that at some point the province would be devolving this corridor for some reason and talks about consultation, particularly in point b, that the Tsawwassen First Nation would "provide reasonable notice to Canada, British Columbia, the Greater Vancouver Regional District and the Corporation of Delta" in respect of their acquisition of this.

Has any discussion taken place on those surrounding communities having equal opportunity to access that corridor, or is it simply seeing that if the province has no need of that, that it would automatically devolve to Tsawwassen with no other potential stakeholders asking for interest in that?

Hon. M. de Jong: Three things, again. First of all, there have been no discussions of the sort that are contemplated in this section, because no one contemplates the eventuality that it refers to.

Secondly, and I think the member knows this, before any decision on the magnitude of that which would trigger this in the previous section, which is essentially the decommissioning of a major arterial highway, there would be extensive consultations with a variety of stakeholders, communities and people, and there would, presumably, be a great deal of interest in that.

Thirdly — and this might be the most salient point from the section — if that decision was made, if those consultations proceeded and the decision by the provincial government of the day and the ministry of the day was ultimately to decommission the highway in the manner contemplated by the sections, it is fairly clear here that the corridor would revert to the Tsawwassen. It would impose upon them some obligations around consultation as well. So there would be a two-tiered process in that respect.

Following the decommissioning decision, there is then a decision that has to be made by the Tsawwassen around their intent to add the lands to their treaty settlement lands. There's a notice requirement that this provision includes, and then some consultation requirements that this act includes.

Again — I know I've said this five times already — there have been no discussions, because at this point, no one is even contemplating this situation taking place. But the member is correct in pointing out that we are discussing a treaty that we hope will stand the test of time. It is hard enough to look 20 years in the future, let alone 80.

M. Karagianis: I appreciate that we can't anticipate what will happen in the future, but certainly these are important clauses. I think that the potential in the future is unknown to us, but it will be worth watching to see if, at some point, there is devolution of that particular section of highway.

The next section here, section 57, deals with the Deltaport Way corridor. First, I would ask the minister why this particular corridor is not being treated with the same gravity and depth of legal protection as Highway 17. Why is this Deltaport corridor being treated in some different way than Highway 17?

Hon. M. de Jong: I wonder, as I think about the more extensive answer, if the member can help me. There are some obvious differences in terms of the language. What parts of that is she particularly wanting me to focus on in my answer?

M. Karagianis: When I look back at Highway 17, we have clauses 52 through 56 that deal with the rights of Tsawwassen First Nation peoples to subsurface resources. We talk about devolution of the responsibilities of the highway in the future and how that might occur. Yet it would seem to me that the Deltaport corridor is of equal importance and significance as it accesses Deltaport.

I'm curious as to why there is one simple phrase here that simply talks about consultation before any new works in that corridor can occur. It would seem to me that this is a fairly significant aspect of access in and out of the Tsawwassen treaty lands at this point, even more significant in many ways than Highway 17. I'm surprised that there is so little devoted to that particular corridor in the language of this treaty. Certainly, I would ask the minister if he can elaborate, then, on new works that would be anticipated within this corridor.

Frankly, one of the pieces of the treaty negotiation that has concerned me the most is the future, and anticipated future expansion of Deltaport and how, in fact, that will have a bearing on all of the rights of the Tsawwassen people around this treaty. I was actually surprised to find that this particular corridor had so very little language to it in the treaty when I would have expected something more expansive.

We're talking here, as the minister said, Highway 17…. It's highly unlikely that there would be a devolution of this particular corridor to the Tsawwassen people, and yet it warranted at least a page of clauses to deal with that eventuality. Whereas the Deltaport here and this corridor through this treaty land, I think, is of particularly significant and profound interest to everyone involved in this treaty process — the future of this port, the expansion capacity anticipated of this port. So I would like the minister to perhaps just elaborate a little bit more on why the simplicity here. Is there some particular reason why it has been treated in such a simplistic way?

Hon. M. de Jong: There is a difference that the member has correctly identified in what accounts for, in part, the differing circumstances around the corridors themselves. In the case of Highway 17, of course, the Tsawwassen First Nation continues to own the undersurface rights. There was an issue there.

The short answer is that, whilst on the one hand there was a position taken to the negotiating table that in the event of a decommissioning or in the event of a significant change of use — I probably shouldn't use the word decommissioning because I suspect that has some legal connotation and I don't mean it in that way — there would be this automatic right of reversion….

What is contemplated here is where there are new works — and that could be something as straightforward as a new lighting system that, because of where the corridor is located, could have an impact on the Tsawwassen First Nation — there would be consultation between the parties. But it does not, obviously, provide for the automatic reversion to the Tsawwassen First Nation that exists with respect to the Highway 17 corridor. That's a product of the position that was taken at the negotiating table by the province and, I believe, the federal Crown.

M. Karagianis: Is the minister, then, saying that this particular corridor is wholly or partly owned by the Tsawwassen under these treaty rights, or is ownership of this corridor left with the province or the federal government?

M. Karagianis: Again, my question here is: if the province is holding this corridor exclusively and it has not got any of the same devolutionary rights that apply to Highway 17…. I understand that.

It says here that the province "will Consult with Tsawwassen First Nation before authorizing new works…." What kind of new works would that be? In fact, is the corridor currently defined as being adequate? Again, I would ask: how wide is this corridor? In the future, if the port were to expand significantly, would that corridor then need to be widened? Would the highway need to be widened?

What implications are there long term for Tsawwassen First Nation in the province's ownership of that corridor?

Hon. M. de Jong: The member raises a good issue. I want to point out that nothing contained in this section speaks to any rights to widen the corridor or creates any rights on the part of the Crown or any other party. So that is there.

In terms of section 57 and new works, one can imagine the more minor kinds of changes of the sort that I just mentioned in terms of lighting, and one can imagine larger-scale or broader changes that might occur as time passes and the obligation that has been negotiated and which exists within the agreement to consult. But it does not create any automatic right to be able to expand the corridor.

I will endeavour, as I did with the Highway 17 issue, to obtain for the member a site plan of the corridor and its precise dimensions so that she has that information.

Noting the hour, Madam Chair, I would move the committee rise, report progress and seek leave to sit again.

Committee of the Whole (Section B), having reported progress, was granted leave to sit again.

Hansard Services publishes transcripts both in print and on the Internet.
Chamber debates are broadcast on television and webcast on the Internet.
Question Period podcasts are available on the Internet.