Hansard — Thursday, November 1, 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		8995
	Tsawwassen First Nation Final Agreement Act (Bill 40) (continued)
	M. Sather
	Hon. M. de Jong
	D. MacKay
	B. Lekstrom
	G. Gentner
	S. Fraser
	S. Simpson

R. Cantelon: Mr. Speaker, I'd like to note in the House that one of our longest-sitting members is having a birthday today — I would hasten to add that I did not say "most venerable members" of the Legislature; however, if the shoe fits, wear it — the member for North Vancouver–Seymour.

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

The Chair: Good morning, Members. I call the committee to order on Bill 40, section 3, chapter 10.

M. Sather: When we left off last night, we were talking about the Tsawwassen wildlife harvest agreement. I had asked the minister, with regard to the Upper Pitt and the Pitt, where that's part of the Katzie First Nation traditional territory, if there had been consultation with the Katzie.

Madam Chair, oftentimes when a minister has bad news or not agreeable news, it's part of the political game that you don't really get an answer as such. The minister did say some things, and he's an astute politician, so what he said in effect was that there was no consultation.

I would like to ask the minister why. Why was there no consultation? What is the thinking of the negotiators? Was it that if they involve consultations with the Katzie First Nation and other first nations that it would take too long, that it would drag the process out and that they could never come to an agreement?

Was there concern that that would involve additional costs that would balloon the costs of treaty negotiations to such a level that they would be impossible or unsustainable? Or were the negotiators concerned, was the government concerned that if they'd had those consultations, they simply wouldn't have got agreement from those other first nations and, therefore, the treaty wouldn't have happened? I'm curious to know why those consultations did not take place.

Hon. M. de Jong: I am deeply aggrieved that the member interpreted my adherence to the rules of this House, which required us to adjourn last night, as somehow signalling a desire to avoid answering his question. We have engaged in three weeks, now, of detailed discussion and debate, and I am happy to continue doing so. I regret and somewhat resent any insinuation that I have tried to avoid.

I have tried to answer questions as best I can, undoubtedly imperfectly, but I have tried to be as forthcoming as I can about the information and the provisions contained within the agreement. I also disagree with the manner in which the member has characterized my answer, although it was a rushed answer yesterday because we were at the conclusion of business.

I can advise the member that I am advised that there were relatively extensive discussions between the Tsawwassen First Nation and the Katzie First Nation, such that it is my understanding that on the broad issues involving overlapping claims that agreements, understandings, were arrived at. The fact that that took place in discussions directly between the two first nations is, I think, a positive thing as opposed to a negative thing.

There will undoubtedly be ongoing discussions. Within the park, for example, the parks branch will play a central role in coordinating the ongoing discussions. We are creating new relationships here not just between the Tsawwassen First Nation, the government of Canada and the government of British Columbia but also with other first nations. Happily, in this case, that relationship has already taken root, and discussions occurred between the two first nations. I, for one, see that as a very positive feature of the lead-up to this agreement, and it bodes well for its future prospects.

M. Sather: I'm trying to ascertain, then…. Is the minister saying that what took place with regard to consultation with the Katzie First Nation was completely different than what occurred with other first nations in overlapping situations?

If that's the case, then I'd be pleased to know that. As has been outlined before, that clearly is not the opinion of the Semiahmoo, for example, who have launched a court challenge and who have said that there were no meaningful consultations with them. It's the same with the Sencoten Alliance. There's also a challenge by the Cowichan. They're saying quite clearly and unequivocally that there was no meaningful consultation with them.

Is the minister, then, saying that notwithstanding what those other first nations are saying, the consultation with the Katzie First Nation was of a different order entirely — that it was categorically different than what occurred or, in fact, did not occur with those other first nations who have overlapping territories and concerns?

Hon. M. de Jong: I don't think there's any doubt that the nature of the discussions and the points of interest will vary, depending on who is involved. I think ensuring that there is a level of engagement that

is respectful of that fact and is flexible enough to accommodate that reality is very important.

The member has referred to some disagreements — some that have matured into litigation. I want to refer to one of them because I have some good news for the member, and his comments provide me with an opportunity to advise the committee, the House, of this fact.

There was initially litigation commenced by the Cowichan First Nation with respect to this treaty. I'm happy to advise the member and the committee that as of yesterday the parties have re-engaged in discussions and have agreed between themselves to set that litigation aside. I think that's tremendous news.

M. Sather: Thanks to the minister. The minister is saying that there are different agreements and different kinds of consultations that have happened, and that's of interest. But also, we're just beginning the treaty process. This is the first modern-day urban treaty, and there are going to be other treaties.

I think it's really in the public interest to know what the government's view is around court challenges that have been launched. Normally if Joe is selling a house to Tom, and John says, "But wait, I have a legal interest in that sale," and it's proven that he does, then there has to be compensation.

Is the government anticipating, then, that as a result of these challenges there could be additional compensation that taxpayers are going to have to pay out? Or is the government thinking that if there are any court settlements that are adverse to the treaty process, the government will then pass laws that essentially make those rulings null and void?

This is an important question, because we're just beginning this process. What do the people of British Columbia have to look forward to as the government's response to these challenges?

I understand that the minister is saying that the Cowichan have abandoned theirs, and I know that the Katzie have not launched a challenge. But what is the government's response going to be to these ongoing challenges, particularly should some of them be successful?

Hon. M. de Jong: I want to indulge the member to the greatest extent possible. I do, however, want to say that we have had this discussion twice now during these committee hearings, in the parts of the agreement that refer specifically to overlapping claims.

I will oblige the member by summarizing my earlier comments. But this is a weighty, complex, comprehensive document, and if we are going to get through it in anything approaching a timely way, we are going to have to become a little more disciplined about recognizing when we have dealt with an issue in the appropriate spot in the agreement.

Let me say for the final time that the government takes seriously the obligations that exist around consultation. The agreement is structured in a way — and we have gone through those sections of the agreement — that ensures that nothing in this final agreement can adversely impact on the rights of others. It's called a non-derogation clause. The rights we are dealing with in this chapter are not exclusive.

If the member wishes, he can consult my more expansive comments in the earlier chapters of the agreement, but there are important provisions that I know this member and other members of this House want to explore in this agreement. If we keep going back over old ground, we're not going to get there.

M. Sather: I will move on to another issue, but I must say before that that the reason…. I've listened to most of the debate and heard most of what the minister has said — nearly all of it. I'm finding over and over that it's very unclear. His answers are not specific, and I think the people of British Columbia want to know what this treaty is going to look like on the ground in real terms.

I won't ask it again, but I know that the minister didn't answer the question of how they will deal with legal challenges. I think the people of British Columbia really have a right to know. He says, "Oh, we discussed it before," but he has never answered the question.

I want to move on, though, to the other thing that the minister said, and he repeated it again today. This was with regard to the wildlife harvest area. When I questioned him about it, he said that the rights that are exclusive to the Tsawwassen cannot be exercised in a way that detracts from aboriginal rights of other peoples and first nations. He repeated it again today. I've heard this over and over again in this chamber, but I fail to understand in real terms how that works.

Let's look, for example, at the harvest agreement. I mentioned yesterday that there's a band of elk being introduced to the Upper Pitt, and the member for Bulkley Valley–Stikine tells me that elk are very tasty eating. I've eaten a lot of moose and deer, but not elk. So let's say, for example, that the Tsawwassen send a hunting party up there to hunt elk. Let's say, for the sake of argument, that the band of elk is 75 in number. Let's say that the Tsawwassen take 20.

Can the minister explain to me how that does not affect the rights of the Katzie First Nation to harvest wildlife in that area?

Hon. M. de Jong: I think the specific answer to that question relates to the provision set out in section 34.

M. Sather: Section 34. I can go back and read that, I guess. But again, the minister doesn't want to talk about real, on-the-ground questions.

I asked the minister a specific question of how it could be that the hunting and harvest rights in this particular issue would not be negatively affected.

I guess it's legalese and you have to put it in there, saying that the rights of other first nations won't suffer. But in fact, they will. They will suffer. I think that's something we have to recognize, moving on here.

Of course, we went over that with the fisheries agreements, and the member for Yale-Lillooet and the member for Delta North questioned the minister about the fisheries agreements and how that might affect other nations.

The member for Delta North wanted to talk about numbers, which would bring us to an on-the-ground example. The minister didn't want to talk numbers. He doesn't want to be specific. It's giving the people of British Columbia undue cause for concern. I think we all want to have reasonable and honourable settlements with first nations, but they need to be done upfront and straightforwardly.

All right. Section 2 says that the Tsawwassen right to harvest wildlife is "limited by measures necessary for conservation…." I'm going to ask about another on-the-ground example here.

I understand that conservation is coming first. That's important. But for example, if we look at deer-hunting, normally — frequently, at least — there's a male-only season for deer. If, in those harvest areas, it's the case for non-aboriginal people that there's a male-only season for deer, will the season for the Tsawwassen First Nation be male-only, or will it be for either sex? Will the Tsawwassen First Nation be able to hunt both bucks and does, or just bucks?

Hon. M. de Jong: In terms of a designated species for which there is a wildlife harvest plan, I think the specific answer to the question is that I can't answer that today but that there is a mechanism provided for in the agreement which assists the member and me in knowing what that process would be. That is set out at section 43, which lists the criteria that would go into a consideration of whether it's bucks, does or both. That's the best answer I can give today to the question.

M. Sather: In one sense, I suppose, that's fair enough. Still, it does leave the public wondering how this is going to shake down. What kind of agreements…?

That's an issue for hunters. It's very germane. They want to know whether the basic hunting rules are going to be changed for first nations as opposed to them. They will have a lot of interest in seeing how that goes down the road.

In section 5 it talks about how the Tsawwassen First Nation "may sell Wildlife or Wildlife parts, including meat and furs…." The minister will know that there's a lot of concern about the trade in gallbladders of bears, for example. Does the trade in meat include internal organs as well?

Hon. M. de Jong: I'm advised and can advise the member that the section is designed to operate in the following manner. It allows certain activity only if federal and provincial laws allow that activity. For the example the member has given, my information is that there is a strict prohibition provincially against the sale. As long as that remains in effect, the Tsawwassen are captured by it.

The section exists because if there are changes in some of those prohibitions…. I can't actually imagine a change in the prohibition on the item the member has mentioned. But if there are changes in some of the other prohibitions, the Tsawwassen First Nation did not want to be, nor did we want to put them, in a position where they were precluded like other British Columbians from taking advantage of those changes.

On section 7. The right to harvest will be exercised in a manner that does not interfere with uses of provincial parks. I'm not sure if this is the place that this question is most germane to. I couldn't find another area to ask it under, so I'll ask it here.

If we again look at hunting — which is not allowed in Golden Ears Park, so it's not an authorized use — will the Tsawwassen First Nation be permitted to hunt in Golden Ears Park?

Hon. M. de Jong: The Tsawwassen First Nation can now and, subject to the terms and conditions of this agreement, will be able to in the future.

M. Sather: I don't know if they are now. If they are, I'm not aware of it, but it may be the case. Maybe I'll ask the minister some more questions about that when we get to the section on parks.

On section 9. It is disturbing, this talk about the loss of hunting opportunities. I hope that never happens in the wildlife harvest area in the Upper Pitt. But if that happens, the way I'm reading it, it says that the value of the loss is approximately $50,000. I think the minister said yesterday that that was $50,000 a year in total.

My question, though, is: is that a mere $50,000 for the whole band, or is that per member? That seems like an awfully small figure for the loss of your ability to hunt and harvest.

M. Sather: Let's hope they keep having hunting opportunities, then, because that wouldn't be much compensation. That's section 9.

Section 53. "Tsawwassen Laws made under this chapter may be enforced by persons authorized to enforce Federal Law, Provincial Law or Tsawwassen Law…." The minister talked yesterday to the member for Vancouver-Hastings about this.

It was said that this shouldn't be expected — that the Tsawwassen would have the resources to fully implement and devise a wildlife plan, and so on. I'm wondering what role they will have in enforcement. For example, would there be Tsawwassen First Nation conservation officers? Would that be envisioned?

Hon. M. de Jong: Pursuant to this provision, what this allows for and what our expectation is, is that the Tsawwassen First Nation government will come to an understanding with the other levels of government, the other signatories, on a mechanism for enforcement. However, the section does not preclude the possibility that the Tsawwassen may wish to hire an enforcement person.

The jurisdiction that that person or persons would have would be different, depending on whether they are on Tsawwassen lands or somewhere else in the broader wildlife harvest area. The applicable legal regime they would be operating under or the jurisdiction they would have would depend on whether they are in an area of Tsawwassen lands or in the broader wildlife area.

M. Sather: With all the necessity to come up with wildlife harvest plans and the regional wildlife planning and all that, this is going to require a lot of work by Ministry of Environment staff. With the cutbacks to MOE staff now, it's very difficult to get a conservation officer to come out — I know in my community — to investigate infractions. It's even difficult to get them to come out to public meetings that they've committed to.

How is the ministry going to be able to manage with these additional responsibilities with the resources they have now, and in fact, the job that they're trying to do now? Is it not going to suffer as a result of these additional responsibilities?

Hon. M. de Jong: He might have heard me acknowledge in my comments yesterday that this is a big job. As I think one of his colleagues — sorry, former colleagues, for the moment, so I'm to understand — indicated, this is but one part of a large job. The member is right. It's going to impose some obligations on the Tsawwassen, some work on the Tsawwassen, some work on us. We are committed to ensuring, through the initial implementation stage and thereafter, that there are sufficient resources.

Government and officials have learned a great deal from the experience in the Nass Valley with the Nisga'a, so we have the benefit of that. I think it's fair to say that one of the lessons that was learned through that initial period is that it is a big job. Undoubtedly, following what I hope will be the passage of this bill into law and the signing of the formal instrument and the passage of federal legislation, there will be a period of time — I think something in the neighbourhood of a year in advance of the effective date — when there will be a lot of work that needs to be done. The government is committed to ensuring that the resources are there to effectively work with our partners, the Tsawwassen and Canada, to ensure that that work is done.

My final question then: is the minister saying that the government is committed to providing the additional resources? This planning, I assume, is happening now. So is the government committing to hire more ministry staff to complete this process — the Ministry of Environment?

Hon. M. de Jong: In fact, the member may recall from the discussion we had in estimates this spring, additional individuals have been hired.

I'm not in an authoritative enough position to offer specific information about the Ministry of Environment, but I can tell the member that the government is committed to the implementation of the agreement, has identified additional resources and is confident of moving forward but also, as the member has cautioned, aware of the fact that it's going to be a big job. We're talking now about the Tsawwassen treaty, and in a couple of weeks I hope we're going to be talking about a treaty with five additional first nations, with the Maa-nulth. The stresses and the challenges that that poses are going to be very real, but it's, for me at least, a happy challenge and one that I know the government welcomes.

D. MacKay: I'd like to start with section 4 under chapter 10 dealing with the right to trade and barter in wildlife or wildlife parts. It does say that the Tsawwassen members have the right. So that begs the question, given the fact that the aboriginal rights that are protected under section 25 and section 35…. I take it, then, that the right to harvest or trade and barter in wildlife parts is not an aboriginal right that is currently protected under section 35. Is that a correct assumption on my part?

Hon. M. de Jong: I think I indicated earlier to the member that I wasn't going to place myself in a position where I am offering or attempting to offer authoritative interpretations of constitutional law. I am in a position to answer for what is in this agreement and what the impacts and anticipated impacts are of the provisions that have been negotiated in this agreement.

D. MacKay: Well, the reason I asked the question was that on section 8 under chapter 2, it says: "This Agreement does not alter the Constitution of Canada, including: a. the distribution of powers between Canada and British Columbia; b. the identity of Tsawwassen people as aboriginal people of Canada within the meaning of the Constitution Act, 1982; or c. sections 25 and 35 of the Constitution Act, 1982."

The fact that the right to trade and barter is now included in this treaty — I have to assume it was not an

aboriginal right that was protected under section 35. So we are, in fact, in this chapter extending another right to a group of people that is not afforded other people.

I guess I will go with the original response that I got from the minister, but that's the way I read it. We are extending another aboriginal right, to aboriginal people only, to trade and barter in wildlife or wildlife parts.

That carries me next to the powers to make laws, in section 20 in chapter 10, where the "Tsawwassen Government may make laws in respect of…the distribution…of Wildlife harvested under the Tsawwassen Right to Harvest Wildlife; the Trade and Barter of Wildlife harvested by Tsawwassen Members under the Tsawwassen Right to Harvest Wildlife."

Then it goes on to say, under section 21, that a Tsawwassen law made under that section "prevails to the extent of a Conflict with a Federal or Provincial Law."

So the Tsawwassen law will supersede any provincial or federal law as it relates to the trade and barter of wildlife parts. Is that correct?

Hon. M. de Jong: I think the best way to characterize section 20…. If there were a heading, I would probably put "Internal management rules." It does vest in the Tsawwassen government the authorities required to manage internally the harvest of wildlife.

D. MacKay: The bottom line is that it still prevails over any federal or provincial legislation.

I'm going to carry on. I don't want to take a lot more time, but there's another section under the harvest of wildlife that causes me some concern. That's under section 45. I'll just read it for the record.

It says: "The Minister may approve a method of harvesting that differs from those methods permitted under Federal or Provincial Law if the Minister is satisfied that the method is consistent with public safety."

Now, that brings to question…. I don't think it's an extreme suggestion. Are we suggesting that we would allow pit-lamping to take place or perhaps leghold traps to take animals that would normally be shot or hunted with a bow and arrow? Is this what that section 45 is referring to or suggesting?

Hon. M. de Jong: I dealt with that specifically — and the specific example that the member raises — yesterday. Probably the best thing to do is to refer the member to the Hansard that covers that section and that question specifically.

D. MacKay: I apologize for asking the question, but I thought I was in the House most of the day yesterday, and I don't recall — we're just on chapter 10 now — that question being asked before. But if the minister says it's there, I will have a look at Hansard.

The issue I have with the wildlife chapter of this Tsawwassen treaty is the fact that we are creating some more divisions between the aboriginal community and the non-aboriginal community as it relates to the taking of wildlife and the sale and barter.

We've actually expanded, in my view, the aboriginal rights to harvest or to trade and barter in wildlife parts because it's not something that was previously protected under section 35 of the constitution.

With that, I will close my comments and look in Hansard to see if I can find the answer to my last question.

Hon. M. de Jong: For the member's benefit, at page 53 of the Blues is the exchange between the member for Vancouver-Hastings and me on section 45, dealing specifically with that issue.

B. Lekstrom: Following along, I know that some colleagues in the room today have asked some questions. Going back, I heard an answer under section 5 on the sale of wildlife or wildlife parts, including meat and furs harvested. I'm unaware of the ability — and I guess I'm still looking for some clarification — to sell wildlife meat, for instance.

I did hear the minister respond, and I think it cleared it up somewhat for me, but under the existing laws that the Tsawwassen First Nation will have the ability to make on their lands, can you tell me if they would at this point…? Although it would contravene a provincial or federal law to sell wildlife meat, can they do it within their own lands with their own members at this point?

Hon. M. de Jong: The authority to which one would look is the federal Indian Act, which, of course, we are leaving behind by virtue of this instrument. The best information I have is that sale in the manner described by the member on the reserve is prohibited presently. That's the best information I have at the moment.

B. Lekstrom: Back again on that, I believe I heard you say in an answer previously to another member's question that we put this in here because if the laws change, either federally or provincially…. I guess that one somewhat confused me. If we change a law, either federally or provincially, it would still apply to all Canadians, which Tsawwassen First Nation or British Columbians would be. That's my understanding.

Is there a reason beyond…? I guess I'm thinking of why this section even has to be in there. I'm not sure we have to lay it out, and that's why I'm somewhat curious as to why section 5 would be there. If we eventually as a province or as a federal government change our laws existing under this section, it would apply automatically to the Tsawwassen First Nation anyway. So why would we put this overlap into a treaty?

Hon. M. de Jong: I think the short answer to this one is: to ensure that the argument is not raised that, notwithstanding the change in the law of general application, somehow by operation of the provisions of this agreement the Tsawwassen First Nation is excluded from the very application the member has described.

I think the particular concern would be on Tsawwassen settlement lands, Tsawwassen lands, as opposed to the broader wildlife harvest area. But the Tsawwassen would want to make it clear that the benefit of that change could also accrue on the smaller Tsawwassen lands, over which they have the bulk of the jurisdiction and authority.

B. Lekstrom: I'll move now to section 16 under the chapter we're discussing. Again, a clarification from the minister as to why this would be possibly included in this treaty and, I believe, probably a template for other treaties.

It reads: "Neither Canada nor British Columbia will require a Tsawwassen Member to have a licence or to pay a fee or royalty for harvesting Wildlife under the Tsawwassen Right to Harvest…."

I understand that. I understand what we're doing there, but under section 35, unless I've missed something, they have that right now across the country. Is that not correct?

Hon. M. de Jong: As I did with the member for Bulkley Valley–Stikine, I'm not going to offer the benefit of my interpretation of the state of constitutional law across the country. I will say this to the member, however. The purpose of the agreement in the grandest sense is to define with precision what those rights are and to define it substantively and geographically as well. I think that's the significance of the provision.

The member might say: "Well, it's based on his understanding or someone else's understanding of the state of constitutional law. It's unnecessary." But the point of the exercise is to ensure that there is a place, a document that people can look to, which exhaustively, conclusively and — one hopes — understandably defines what the laws are, what the jurisdictions are and where they apply geographically.

B. Lekstrom: Again, thank you to the minister. I guess the reason I bring this up — certainly the minister understands where I stand — is to point out what I consider a huge inequity. I mean, we are not treated equally under the law in this country. We emphasize it here, and it's amplified.

Yes, I have concerns about that, and that's one of the fundamental disagreements I have. As I've indicated earlier, I'm not opposed to fair and equitable treaties — ones that treat people as equal Canadians and equal British Columbians. I don't think this does that.

I do want to go back to section 4, and I know you've had questions on this before: "Tsawwassen Members have the right to Trade and Barter Wildlife or Wildlife parts, including meat and furs, harvested under the Tsawwassen Right to Harvest Wildlife, among themselves or with other aboriginal people of Canada resident in British Columbia."

I can read that. The question to the minister is on the trade and barter system, which to me is really no different than the sale of an object. Could the barter system include cash in return for wildlife parts or meat?

Hon. M. de Jong: I am looking at the defined terms in chapter 1 and would refer the member to the defined term "Trade and Barter," which is defined: "does not include sale."

B. Lekstrom: Okay. Well, I do thank the minister. I believe that's going to conclude the questions I have on chapter 10, not without the concerns I've raised. I think it's important, and for everyone watching or for the members asking questions, I think this is a valuable exercise and that we can all learn from what's in this document. I thank the minister to this point.

G. Gentner: I have very few questions here. Unless I missed it, I'm just trying to know how this treaty interacts with municipal firearms discharge bylaws.

Hon. M. de Jong: To the member: the two relevant provisions that I can point to immediately for determining that issue are sections 2 and 17 within the chapter.

G. Gentner: What oversight, therefore, does the provincial government have over the restricting of discharge of firearms over municipalities that oversee the Tsawwassen traditional territory?

Hon. M. de Jong: I think the regime the member is referring to is addressed fairly clearly in section 17.

G. Gentner: I have no further questions on wildlife, unless someone else does. If not, maybe we're going to move on to chapter 11.

S. Fraser: We are complete on chapter 10 now, and we are willing and excited to move on to chapter 11.

M. Sather: Chapter 11 is on migratory birds. Looking at sections 1 and 2, "Tsawwassen First Nation has the right to harvest Migratory Birds…throughout the year," and section 2 says that the right to harvest is limited by measures necessary for conservation. Also, in section 15, it says: "The Minister retains authority for managing and conserving Migratory Birds…."

And in 29 and 30 it talks about designating what migratory bird populations, how the minister and the parties will share information with respect to conservation, and where the minister is concerned about a conservation risk, a bird population can be designated.

Currently, waterfowl hunting regulations — that is, waterfowl being ducks and geese — are limited, certainly for non-aboriginal persons, to the fall season and sometimes into the winter. I think the minister is probably going to give me an answer somewhat similar to the last one, which I will wait for.

I'll just put the question, first of all, to the minister. We can assume, under this agreement, that the Tsawwassen First Nation will have the right to harvest ducks and geese during their nesting period.

Hon. M. de Jong: I think the technical answer is that they can hunt, subject to conservation measures as determined by the authority. I'm probably not in the best position to say how that will play out or how one might expect that to play out. The right to hunt is subject, amongst other things, to conservation measures, and one can imagine how that might come into play.

M. Sather: As we can see, there's a lot to be determined on how this is actually going to look on the ground.

The minister, to one of my questions earlier, said that right now first nations have the right to hunt in Golden Ears Park. Does the minister have the information…? Is it the case now that first nations have the right to take waterfowl during the nesting period?

Hon. M. de Jong: The member may know more about this than I do. I do not know for certain what the authority is at present, and I do not know, maybe more importantly, what the practice is at present.

M. Sather: What about species, then? I think this becomes part of the harvest agreements, if I'm not mistaken. I'm a little confused, because the minister also talks about how current law with regard to wildlife prevails in these agreements. Then, for example, we have a threatened, almost-extirpated, population of greater sandhill cranes in Pitt Meadows. They're also in Burns Bog. Just to clarify, there would be no hunting permitted of these birds?

Hon. M. de Jong: Hopefully, this will provide the member with the information and assurance he's looking for. If there is an endangered species upon which there is, therefore, a blanket ban on the harvesting, that would apply to the Tsawwassen as well.

M. Sather: When it comes to the greater sandhill crane population in the lower mainland, there used to be thousands of them, and now we're down to about 12 birds in Pitt Meadows and maybe 20 in Burns Bog. There are other greater sandhill cranes in British Columbia, so they're not designated as an endangered species. But under current wildlife hunting laws, in British Columbia, anyway…. I stand to be corrected, but I'm pretty sure I'm correct about this. There's no hunting of cranes allowed in British Columbia. There is in the eastern United States and so on.

That concerns me, then, because they're not an endangered species, but they're certainly…

M. Sather: …in danger of being extirpated locally. They're certainly at risk of that.

Can the minister give me a little more assurance that the hunting of the sandhill crane in the lower mainland will not be permitted under this agreement?

Hon. M. de Jong: I think I can, because under the circumstances the member has described, my expectation is that it would become a designated species and then subject to all of the relevant provisions and decision-making authorities that are covered by that so that it doesn't slip through the cracks, as it were.

The section is on migratory birds; it's not just ducks and geese. Shorebirds are also migratory birds. I spoke earlier in this House about how shorebirds are threatened in the area where the treaty's going to be settled — not so much up my way, as it were, in the Pitt area, but down along the coast.

We don't think of shorebirds, of course. They're little, tiny birds, so you don't think of them as being shot for food purposes. But I'm just concerned that they could be subject to harvest, just insofar as some people — not responsible people, but some folks — will shoot any bird they can. Could it be the case, then, that shorebirds could be shot under this agreement and it couldn't really be prevented?

Hon. M. de Jong: I think I need a little bit more information. I'm not sure if, for example, there's a past practice that the member is aware of that he can point me to, or something with a little more specificity. Otherwise, I'm not sure I'm going to be able to offer a very helpful answer.

M. Sather: I don't know if I'm going to be able to help the minister much in that regard, either. My only concern was…. I don't know of people specifically going out and shooting shorebirds. But it certainly is the case, as I said before, that some people will shoot anything when it comes to birds, so I just was concerned that you might not be able to prevent it under this agreement.

I wanted to ask the minister, though, if…. There would have been a lot of discussions, in this process, with both federal biologists and provincial biologists regarding wildlife — migratory birds in particular, in this case.

Can the minister let me in on any of his discussions now in terms of…? Are the biologists satisfied, in general, that wildlife will be protected at least as well as they are now, if not better? Or were there a lot of concerns expressed that migratory birds might be at more risk as a result of this agreement? Can the minister tell me anything about those discussions?

Hon. M. de Jong: I think I know what the member is driving at. I can tell him this. There was intense engagement and discussion. The unique location of the Tsawwassen First Nation, located where it is…. The member has already properly highlighted the significance of this area along migratory routes. All of that was part and parcel of the discussion. There are international conventions, of course, that are applicable here, which the member has referred to during this debate, that have engaged the attention.

The agreement's presence here in this chamber as part of this legislation is confirmation of the fact that,

within the provincial government, all of the relevant authorities are confident that this properly and responsibly addresses the types of issues that the member is raising and primarily the issue of conservation.

I am advised, and am proceeding on the basis, that a similar level of confidence exists within the departmental authorities at the federal government, but I wouldn't presume to tell the member that I have spoken with all of those various departments federally. We are relying on the assurances provided by our negotiating partner representatives that that is so. At the provincial level, there is sufficient confidence and comfort to allow us to proceed and to commend this document to the Legislature for adoption.

M. Sather: Just a question on hunting, safety and licensing. I think the minister has said that the Tsawwassen First Nation — within their wildlife harvest areas, anyway — are not required to have a licence, as hunters have to now. So do they have to carry some identification, then, that they are members of the TFN? Do they have to have that at all times? What are the sort of regulations around that?

M. Sather: Just one more question on chapter 11. Under section 10, the TFN and the province "…will negotiate and attempt to reach agreement on a process to evaluate uses and Dispositions of provincial Crown land that have the potential to deny to Tsawwassen First Nation the reasonable opportunity to harvest…."

I know we've talked about similar sections in other parts, but I'm still trying to understand what lands might potentially be disposed of here and how that might affect the right of the Tsawwassen First Nation to harvest.

For example, are they thinking that maybe taking a part out of a provincial park could somehow affect their right to harvest? I just wondered if the minister could give me an example of what sort of dispositions of Crown land…. How might they affect the potential of the TFN to harvest?

Hon. M. de Jong: The reason this section exists is to provide confirmation that, in the event of development or devolution of land, if the cumulative effect of that were determined at some point by one of the parties — in that scenario, most likely the Tsawwassen — to be adversely impacting their rights under this chapter as it relates to migratory birds, it provides a triggering mechanism whereby they can say: "Look, British Columbia, we want to sit down with you and talk about this, because we think the following activities, in a cumulative way, are adversely impacting our rights in this chapter, and you have an obligation under section 10 of chapter 11 to sit down and address that with us." That's the rationale for having the section here.

S. Fraser: We are through with the migratory bird section, chapter 11, and we are ready to move on to chapter 12.

S. Fraser: I'll be brief on chapter 12. It's largely federal issues dealing with national parks and national marine conservation areas, which are certainly significant in the traditional territories of the Tsawwassen people. There are quite a few referrals to Canada consulting with the Tsawwassen First Nation in respect to a whole number of issues in this chapter.

I'm just looking at section 31, section 33 and then section 34 and on, dealing with cooperation in planning and management. There are a lot of statements here talking about working cooperatively with Tsawwassen First Nation and federal authorities, and I applaud that. Using traditional knowledge is, I think, an integral part of our future with conservation measures.

I know it's federal, but considering the requirements for consultation here — they're quite significant — are there resources for the Tsawwassen First Nation to help make this happen at the federal level?

Hon. M. de Jong: Ultimately, I think the answer to that lies in reference to the fiscal financing arrangement. I'll take a moment to applaud the member for again highlighting a key point in this agreement. And it was a key point during the negotiations. In assuming jurisdiction in the variety of areas that they are, the Tsawwassen First Nation is assuming a significant level of responsibility. Much of the discussion would have related to: is the capacity and the resource going to be there to allow for the responsible and effective discharge of those responsibilities? The Tsawwassen are satisfied that there are, we are, and Canada is.

Again, we come to a part in the agreement where we are able to say that yes, this is what the relationship is going to be. It's going to take some people power. It's going to take some resources to discharge. That has influenced some of the other discussions around the fiscal financing arrangement.

S. Fraser: Just to finish off the question. Specifically, in dealing with national parks and marine conservation areas, are there any resources from the province that might be made available post-treaty that might go towards these things, or is it all between the federal government and the Tsawwassen First Nation?

Hon. M. de Jong: I think, essentially, it's a tripartite effort, particularly through the implementation stage. I can't identify any specific provisions that would relate to this chapter. Suffice to say, it'll be a tripartite effort throughout.

S. Fraser: That will conclude questioning on chapter 12. I know at least I'll have the critic ready to ask some questions on environment issues with chapter 13 on provincial parks.

S. Simpson: I've just got a few questions in relation to this on chapter 13, which deals largely with provincial parks and plant-gathering. I'll go to gathering plants in article 23.

Just as a comment before that, I see that there are a number of areas before that that look very, very similar to previous chapters around wildlife and migratory, and they seem to be somewhat boilerplate, the same language. I'm assuming that largely the same terms and conditions relate to those as have been enunciated and explained by the minister previously, so I'm not going to spend time on those things that I think are the same.

Going to article 23 under "Gathering plants," it says: "The Tsawwassen Right to Gather Plants will be exercised in accordance with an approved gathering plan." I notice that if we go back and look at the wildlife section, for example, the plan is pretty well enunciated or laid out in the document as to what it might entail. Here that doesn't exist, and I'm wondering why it hasn't been laid out as to what the requirements of a gathering plan would be, whereas it's pretty detailed in previous chapters.

Hon. M. de Jong: The member is right. It is far less prescriptive than on the wildlife side. I do note, however, that it ultimately has to be in a form approved by the minister, so there will undoubtedly be discussions about the relevant substantive provisions that will be included therein. I can't tell the member authoritatively what it will look like, but it will need to cover the logical areas. It is not enunciated in a prescriptive way in this document what the plant-gathering provision is going to look like. Again, the similar limitations around conservation, public health and public safety apply pursuant to section 3 of this chapter.

S. Simpson: Could the minister just give a sense of how that gets developed? I know with the wildlife it's pretty clear. As I said before, there's a list of eight, ten or 12 areas that have to be laid out. Presumably those will be done in a cooperative manner, because a lot of it is pretty detailed information — we discussed that yesterday — and it's going to be a challenge to do that. It's not easy to prepare those plans, and I'm sure they'll be more complex in many ways than these gathering plans.

But they need to be laid out with very detailed information in a number of categories around issues of conservation and amount that can be taken and all of those things. So how is this going to be done? Who's going to do this? Who's going to do this plan in regard to gathering? Is it Tsawwassen that will come up and just lay this out, or will the ministry give Tsawwassen a list at some point, saying: "Here are all the things you have to cover"? How's that going to be handled?

Hon. M. de Jong: Insofar as the applicable geography, I've been reminded of appendix M-2, so that helps define and focus the geography.

Practically speaking, my expectation is that the Tsawwassen would designate someone, either an individual or an individual leading a team, and they would interact cooperatively with the ministry and come to an agreement around the component parts of the harvest plan.

It will probably evolve. It'll be interesting to see if the plan looks the same five years out as it does in the first year. Undoubtedly, both the ministry and the Tsawwassen will learn some things in the initial stages and the plan will evolve to reflect that.

S. Simpson: If there was disagreement around this, would this go through the dispute resolution process as is laid out in the agreement? Would it be available to go through that process?

Hon. M. de Jong: I don't think there's a specific provision dealing with it, but I know and can advise the member that the parties can, by consent, refer a matter such as this to the dispute resolution provisions of the agreement.

S. Simpson: If the parties don't consent to that…. I believe, under the dispute resolution, where it's set up, either party could trigger that. It doesn't require an agreement that we're going to go to dispute resolution. Either party, after they followed through the procedure, could trigger the different steps.

Can either party just trigger this? Could the Tsawwassen trigger this, even if the government didn't want to consent?

Hon. M. de Jong: I am advised that there is on this provision no mandatory arbitration that can be triggered unilaterally by one of the parties. That's why I made the point that they could avail themselves of that by consent. But the provision around unilaterally triggering it doesn't exist, and the authority, ultimately, on this issue is finally vested with the minister.

S. Simpson: On article 25, just down from there, it talks about: "The Minister will consult with the Greater Vancouver Regional District" — or Metro Vancouver now, I guess it is — "before approving a gathering plan that includes provincial Crown land within the Burns Bog…."

"Consult" is an interesting word these days. What does that mean, and what ability does Metro Vancouver, the GVRD, have to influence that decision?

Hon. M. de Jong: I was tempted to stand and immediately refer the member to chapter 1, in the defined terms, where "Consult" is actually a defined term. However, the member may note that in this section "consult" is with a small "c," so it does not attract — purposely, I might add — that legal definition.

What I think we are left with is a more general understanding of an accepted obligation to speak with one another, to engage. It does not bestow powers of veto on any one group. It does obligate them to interact in a reasonable manner, but it also does not attract the formal definition built around that term in chapter 1.

S. Simpson: This leads on to questions we'll get into a little bit around the planning and cooperation and management.

Part of the challenge here is that much of the management around the bog and work on the bog is of a regional nature. They have a significant amount of responsibility around that, and we know that the management plans around the conservation of the bog and that are ongoing. They're not finalized by any means, and that work will be ongoing.

As this consultation goes on, I guess, how does this management issue get resolved in the interim, in terms of the Tsawwassen people being able to use their unique rights around gathering plants? When the conservation plans for the bog haven't been finalized by anybody at this point, who makes the decisions in the interim about what can and can't happen there in terms of gathering plants when we don't have all that information in place?

Hon. M. de Jong: To the member: he's correct. This is a work-in-progress, and that work will continue in advance of the effective date, which, as I indicated, will either be late '08 or early '09 — we hope, if we can get the federal ratification legislation passed.

I'm told that the primary but by no means exclusive interest on the part of the Tsawwassen members, as expressed to us, relates to a Labrador tea that apparently is located in areas like the bog. The corporation of Delta has undertaken, happily, to try and locate an area outside of the conservancy area where the Tsawwassen can focus their gathering activities with respect to Labrador tea and, I guess, any other plant that is of interest to them.

While that work is ongoing, happily there's cooperation to an extent that will allow the Tsawwassen to address that area of interest within the bog under circumstances that are apparently agreeable to all of the involved parties.

S. Simpson: I notice that when you go through the agreement, the agreement in the chapter talks about the right to gather for domestic purposes. It says, I believe, that the right extends to flora and fungi but does not include aquatic plants.

One of the plants in the bog that's quite abundant and, as I understand, quite valuable for a number of people is the sphagnum moss, which makes up a significant amount of the bog. It grows in water. Is it an aquatic plant or a land-based plant for the purposes of this agreement?

Hon. M. de Jong: I don't know for sure. I'm looking at the definition of aquatic plants. It lists the algaes and the phytoplanktons, marine and freshwater flowering plants, ferns — and it says "mosses." I think the member used the term "moss" in describing the substance. To a layperson, that suggests to me that it would be covered by that definition of aquatic plant. I should probably check because I'm not the authority, and I don't think any of us here are.

S. Simpson: Just to be clear here, let's assume for a minute that it's a moss, and it may be aquatic or not. I'm correct that this agreement at this point covers off flora and fauna. It does not cover off aquatic plant life — that's not part of what's agreed to here under this. Am I right or wrong on that?

Hon. M. de Jong: I proceed cautiously on the basis of what we hope is the correct assumption that the moss the member has referred to is captured by the definition of aquatic plants. If that is so, it is our belief that the rights extended in this section do not cover the moss because it would fall under the aquatic plant exception.

S. Simpson: Thanks for that. If it is that, then we'll assume that that's the case — that it's not covered by this agreement. I assume then that if there were to be any adjustments to the agreement in relation to aquatic plants, it would need to be through some subsequent negotiation to adjust the plan between the Tsawwassen people and the minister or the government. I assume that in all these sections, there's always room to tweak this down the road.

That is what would have to occur if there was an interest on the Tsawwassen people's part to incorporate some aquatic plant–gathering in here. They would have to do this through an amendment or an adjustment to the plan?

Hon. M. de Jong: Although these are intended to be living, breathing documents insofar as a relationship between the three governments is concerned, they are not, by virtue of the ratification processes involved, documents that lend themselves easily to legal tweaking. So I don't want to mislead the member.

That is why, as other members have pointed out, the precision around the language is key, because ultimately they are going to be largely interpreted on the basis of what we see here, and I don't want to suggest otherwise. The amendment process is a very complex one, although the agreement does provide at a certain point for a review. That might be the logical time for those kinds of things to be addressed.

S. Simpson: Moving to the section on "Planning and co-operation in management," from 30 on here. In 30 it talks about: "British Columbia and Tsawwassen First Nation may enter into an agreement in respect of the development of a cooperative working relationship in the Fraser River estuary…." Could the minister tell us what's envisioned as to what this cooperative working relationship might look like, both in terms of how it might work and also how it might affect decision-making around the estuary?

Hon. M. de Jong: This is a provision that tries to look forward and capture the interest that the Tsawwassen First Nation and the province of British Columbia have in potentially negotiating an agreement that defines a relationship for the management of that area of the Fraser River Estuary south to the U.S. border.

I'm told there have been various attempts to establish wildlife management areas in the region, and both the Tsawwassen and the province want to ensure that wildlife management in the area proceeds in a way that respects both the treaty rights of the first nation as well as all of the relevant environmental values. So it is very much a section designed to look forward and anticipate that further work.

S. Simpson: The process that is envisioned here…. It goes on in the subsequent sections to talk about where public management is engaged around these areas — so provincial parks and the parks that are part of the broader treaty areas. I'm very curious, particularly around those provincial parks…. We know that in other areas of the province, particularly around some of the protected areas, there have been some agreements reached with the government, with first nations around comanagement of those parks or protected areas, I think up into the Great Bear area. There's been some agreement around comanagement in that.

For the areas of the parks that fall within the treaty lands, what's the thinking about how the parkland, in particular, gets managed? Is there a comanagement strategy for that parkland? In terms of structure, is it going to look like the comanagement systems that have been agreed to in some of the other plans? What's the thinking here?

Hon. M. de Jong: I think it's fair to say, on the basis of the extended discussion we've had, that there is going to be a healthy degree of interaction between the Tsawwassen and the parks branch in a variety of ways and for a variety of reasons to achieve a variety of objectives.

I'm a little hesitant about the term the member used, because that's almost exclusionary of others. I think management regimes are evolving around parks that are designed to be as inclusive as possible of a whole host of interested parties and stakeholders. In addition to the specified areas of interaction that this agreement confirms will take place, the Tsawwassen will be welcome and invited to participate in those planning exercises.

I'm hesitant. When the member or I use the term "co," immediately others rise up and say: "Oh well, that doesn't involve me." The agreement is certainly designed to ensure that the parties understand that there is a wide range of interested parties who the government will want to continue to involve in some of the planning decisions around the parks involved.

S. Simpson: Well, maybe we'll try a slightly different question around the management, then. In the provincial parks where a portion falls within the treaty lands in this agreement, the general public has access to those parks. That's pretty clearly defined about what they can do and can't do in the parks and what access they have and the requirements when you're in a provincial park about what you can and can't do.

Is there any expectation that the requirements will change or that they could be different when you walk 100 yards and walk inside parkland that's inside the treaty lands — that requirements in that part of the park may be different than they are in other parts of the park? Or is it the intention that there's a set of rules for what you can do in a provincial park, and they will be the same whether you're inside or outside treaty lands?

Hon. M. de Jong: I think I understand what the member is driving at, but the terminology here is very clear. Well, there are no provincial parks inside of treaty lands.

S. Simpson: I'll accept that. There are protected areas that fall inside the treaty lands, inside the harvest area.

S. Simpson: Inside the wildlife area. Okay, good enough. So we'll just extend the question there, then, and take that. I accept that. Thanks for the clarification.

Where the Tsawwassen band has rights within the harvest area, where certain parts of the park's protected areas fall within that area, is there any expectation that there will be different rules around public access into those areas than there are in the areas of those parks or protected areas that fall outside the harvest area?

S. Simpson: To finish up here, I just have a question in regard to 34. It says that B.C. will consult with the TFN in respect to the establishment, disposition, modification of boundaries, etc., in parks, protected areas, or changes in use or designation of those areas. As the minister says, the parks and protected areas aren't within the treaty lands; they're within the broader harvest area. So is that to mean within that harvest area?

Hon. M. de Jong: The purpose of the section is to make clear that if the provincial Crown were to take any measures as it relates to any of the areas listed here — we'll take parks as an example — that one could reasonably anticipate would impact on the right of the Tsawwassen First Nation to exercise their rights under this agreement, that would trigger an obligation to consult.

An example I thought of off the top of my head is if the Crown decided…. I don't know all the access roads to the parks involved, but by way of example, if there were a decision to alter or even decommission one of the roads, and that were to impact the ability of the Tsawwassen to get to an area where they have rights to gather, in that case there would be an obligation to speak with the Tsawwassen about that and the impact of that decision.

M. Sather: I have just a small piece that I wanted to ask the minister about, but noting the hour, I'd move that the committee report progress and ask leave to sit again.

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

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