Contents

The House met at 1:01 p.m.

[The Speaker in the chair.]

Routine Business

Tributes

Rob Joyce

Hon. Spencer Chandra Herbert: I rise to notify the House of the passing of an incredible leader in the human rights struggle for gay and lesbian people in British Columbia, a man who I got to know well as the MLA for the West End and, indeed, just out and about in the community, because he was always interested in helping young people make their dreams come true. I’ve known him for over 20 years: Rob Joyce.

Rob was born September 23, 1948, in a small outport of Newfoundland. He arrived in Vancouver in the ’70s with another friend, Don Hann, and others welcoming him. But he stood up from those early ages for equality.

He was kissing his boyfriend at Humphrey’s in the Denman Inn in Vancouver when he was kicked out for kissing, for being in love. He took that through what then existed of the human rights process, and it did not succeed because sexual orientation was not protected.

Later he served as a social worker, serving our province, working with youth. Unfortunately, at the time, homophobia was used against him to force him from his job. He took the government of the day to court again and again, but because employment protections for his sexual orientation, for being gay, did not exist at the time, he was not able to achieve justice.

But what he did do was he helped galvanize a community, that got bigger and bigger, to stand up for human rights; to stand up for love; to stand up for equality in employment, in services, in the human rights code. He achieved that success in the long run that he was not able to achieve for himself. He kept fighting for everyone else.

He passed away May 7. He was an out, proud realtor. Anyone that bought a condo in the West End would have known of him because he served so well as a realtor, as a community builder, as a human rights advocate.

I just want to send my love out to everyone who knew him, everyone whose lives have been improved because of him.

Introduction and
First Reading of Bills

Bill M246 — Small Farms Act

David Williams presented a bill intituled Small Farms Act.

David Williams: I move that the bill intituled Small Farms Act, of which notice has been given in my name on the order paper, be introduced and read for the first time now.

I rise today to introduce the Small Farms Act. Across British Columbia, small farms are family livelihoods, local food producers, community anchors and an important part of our food security. Too often, the rules governing agricultural land do not reflect the realities facing small producers.

[1:05 p.m.]

This bill gives small farms and small farming cooperatives clearer, practical tools to remain viable while keeping the primary use of agricultural land focused on farming. The bill defines a small farm as one with annual growth revenues not exceeding $750,000 derived from primary production or on-site processing. It also recognizes small farming cooperatives, allowing small producers to work together on production, processing and marketing.

A key purpose of this bill is to support value-added agriculture. Many small farms cannot survive on primary production alone. They need the ability to make jam from berries, cheese from milk, cider from apples or other farm-based products that help them earn a sustainable income.

The bill also recognizes limited agritourism as a permitted use, providing that primary use remains farming and the activity is directly connected to the farm’s products or practices. That means farm tours, educational visits, tastings, workshops and similar activities that help connect British Columbians with the people who grow their food.

At the same time, the bill protects agricultural land. For farms, agritourism accommodation would be restricted to three sleeping units and limited for seasonal or short-term use. The intent is farm support, not turning agricultural land into commercial accommodations.

Finally, the bill requires the minister to publish an annual food production report outlining progress towards increasing B.C.-grown food and strategies to strengthen provincial food production capacity.

This bill is about practical support for small farms, stronger local food systems and responsible stewardship of agricultural land. It gives farmers the room to innovate while keeping farming at the centre.

I look forward to the consideration of this bill by the House.

The Speaker: Members, the question is first reading of the bill.

Motion approved.

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

Motion approved.

Sunita Dhir: I seek a leave to make an introduction.

Leave granted.

The Speaker: Proceed.

Introductions by Members

Sunita Dhir: Today we have a very special group in the House. They just hosted us at a beautiful lunch, an all-party lunch. Today I’m delighted to welcome Theresa McCurry, CEO; Brian Davies, board chair; Randy Meszaros, director; Shona Lawson, registrar; and their colleagues. They’re from Applied Science Technologists and Technicians of British Columbia.

ASTTBC plays such an important role in supporting applied science and engineering technology professionals across British Columbia while helping uphold strong professional standards across the sector. Their work also helps internationally trained professionals navigate pathways to meaningful careers and contribute their skills and expertise to communities across our province.

Thank you for your leadership and for the important work you do across British Columbia.

Please join in welcoming the Applied Science Technologists and Technicians of British Columbia board.

Orders of the Day

Hon. Mike Farnworth: In this chamber, I call continued estimates debate for the Ministry of Finance.

In the Douglas Fir Room, Section A, I call continued committee stage on Bill 9, Freedom of Information and Privacy Act.

In the Birch Room, Section C, I call continued committee stage on Bill 20, the K’ómoks treaty.

[1:10 p.m.]

The House in Committee, Section B.

The committee met at 1:11 p.m.

[Mable Elmore in the chair.]

Committee of Supply

Estimates: Ministry of Finance
(continued)

The Chair: I call the committee to order. We are continuing estimates for the Ministry of Finance.

On Vote 26: ministry operations, $381,863,000 (continued).

Peter Milobar: Does the minister feel that this year’s three-year fiscal plan lays out the start of a pathway to a balanced budget? How confident is she, if that’s the case?

Hon. Brenda Bailey: Could I just ask the member to state the last part of the question? I heard: “Does the minister feel that this three-year fiscal plan starts us on the way to balance?” But I didn’t catch the next part.

Peter Milobar: If the minister feels that this three-year fiscal plan is her pathway to a balanced budget, how confident is she in this plan, if that is the case?

Hon. Brittny Anderson: May I seek leave to make an introduction, please.

Leave granted.

The Chair: Proceed.

Introductions by Members

Hon. Brittny Anderson: Today I have the incredible opportunity to introduce to this House Michelle Mungall, of course, the former Minister of Energy and Mines and the former Minister of Jobs. She is here today as we’re celebrating the naming of Site C as the John Horgan dam.

Michelle had that file. She had the very difficult decision to make, alongside Premier John Horgan, at that time to continue on with that dam. It just demonstrates how sometimes we have to make really difficult decisions in government to do the right thing for British Columbians.

Will this House please make Michelle Mungall feel most welcome.

Debate Continued

Hon. Brenda Bailey: Thank you to the member for the question. This three-year fiscal plan does get us moving in the correct direction towards a pathway. In fact, it is a pathway to balance. The reality is that to move more aggressively to reaching a non-deficit circumstance would require very significant cuts that would impact the core services for British Columbians.

[1:15 p.m.]

What Budget 2026 does is balance two things, do two things at once. It approaches the difficult circumstance of reducing deficit gradually by reducing the public service by 15,000 people. It also makes moderate changes to our tax system to increase revenues. There’s $3.5 billion in efficiency savings across the three-year plan.

On one hand, we’re doing that work. On the other hand, we’re ensuring that we’re protecting services for British Columbians by continuing to invest in our health care, continuing to invest in education. You see very specific investments in helping grow the economy — $400 million for a strategic investment fund; $283 million specifically for skills training.

What we know is that in order to address the challenge of debt and the deficit circumstance that we and governments across Canada and across the world, frankly, because of the circumstances of this trade war and deteriorating economic circumstances…. We know that we must also grow the economy.

That is why you see our government being so incredibly focused on ensuring that we are building out major projects. In fact, of the first major projects identified by the federal government to move forward to the major projects office, 40 percent of them are from British Columbia.

In summary, we are taking measures to bring down the deficit over time in a way that will not destroy our valued public health care system, that will protect education. We’re also making changes to ensure that we’re stepping the deficit down. And deeply, deeply importantly, we’re devoted on growing our economy.

Peter Milobar: The minister has presented three budgets to this House, I believe. I believe it was the ’24-25 budget, but maybe I’m incorrect on that.

Two? All right.

What fundamentally has changed in the creation of this budget document, this three-year fiscal plan, to give the minister such confidence that this is now the pathway to a balanced budget as opposed to previous three-year fiscal plans? Has there been a structural change in how things are calculated? Has there been a structural change on projections? Has there been new modelling done that wasn’t previously done?

What exactly leads the minister to have such confidence that this year, this three-year fiscal plan, is the plan that the public can take faith in, that the government has a path to get to a balanced budget?

[1:20 p.m.]

Hon. Brenda Bailey: Budget ’26-27 is really my first budget as Finance Minister. What I mean by that is that I did do a prior budget. I was put in position at the end of November, and the budget got close to lockdown about six to eight weeks later. It was a very truncated timeline on which to make my mark on a budget. This year we had more time to consider how we can accept and deliver on the Premier’s guidance that we need to focus deeply on deficit reduction.

Just to share some numbers with the member, on average, generally, year over year, ministry spending had been growing at about 7 percent. The Premier provided instruction letters to all ministers that they were to work closely with the Minister of Finance on finding efficiencies and bringing down their spending. I’ll share that as opposed to the 7 percent, in 2026 we have budgeted for a 4.1 percent increase, instead of that 7 percent. In ’27, it’s 1.4 percent, and in ’28, it’s 1.8 percent.

We need to continue to do the efficiency work, and that work is ongoing. It’s important to note that by making careful choices and reinvesting savings into protecting core services, new funding in Budget 2026 is at levels more comparable to pre-pandemic Budget 2020.

Peter Milobar: The question, though, was: what structural changes were made in the development of the budget, compared to previous budgets? Has there been a new way of modelling? Has there been a new way to come with revenue projections, expense projections, risk assessment? What, fundamentally, has changed in this year’s budget creation?

I can appreciate the minister maybe wasn’t there, front and centre, with the creation of others, but certainly, the staff — if not in the room, watching on TV and providing answers back into this room — were.

What exactly has changed to provide such confidence for the minister that this year’s three-year fiscal plan is actually an accurate projection of not just this year but of the following two years in this fiscal plan, compared to previous years?

[1:25 p.m.]

Hon. Brenda Bailey: The member is asking specifically about structural changes. The structural changes in Budget 2026 are a reduction of 15,000 people in the workforce over the fiscal; as well as moderate tax changes, which are structured in for year after year; and importantly, the investments and growth that we’re devoted to in the economy, which are reflected in some of the investments that we’re making in Budget 2026.

Peter Milobar: Well, no, I wasn’t asking about specific plans or structural. I was asking about the specifics of how calculations are done, projections are done, revenue projections are created, risk is calculated, and it doesn’t sound like any of that has changed.

It’s not the minister that’s making any of those calculations. It survives from minister to minister because it’s the ministry doing those risk calculations around natural gas royalties, housing starts, expense projections of the cost of the public service, expense projections on capital projects. That sounds like it has not changed.

Why it matters is that this is supposed to be a three-year plan for the public, and the government wraps themselves in. Every time, the government wraps themselves in. When they want to, they talk about some project or some spending and they use the three-year window in the plan, even though the spending is not until year 3. They make it sound like it’s happening in the here and the now for people.

Then they say: “This is our pathway to deficit reduction.” The minister wants us to believe that we’re going to go from $13.3 billion to $12.1 billion to $11.4 billion deficits over the course of this three-year plan. To the average person, that sounds like deficit reduction.

Here’s the problem with that. Plan ’24-25 — the ’26-27 deficit projected for this year was $6.288 billion. Now, revenues projected that year were $86 billion; this year, $85 billion. Revenue hasn’t actually changed that significantly. Spending share has. It has gone from $92 billion projected to $98 billion projected, and we get a $13.3 billion deficit.

Maybe it got caught up in Budget ’25-26 instead. What does this say? Oh, this year we should have seen a deficit of $10.2 billion. So the government had already overshot the runway by $4 billion.

The very next year, in their projection, revenues, $85.715 billion. This year’s budget, $85.523 billion. Revenue doesn’t seem to be the problem for government. They seem to actually estimate that pretty darn accurately.

Let’s look at the expenditure, shall we? So $95.918 billion in the previous projection for this current fiscal. Instead, this government is saying how they’re really finding efficiencies in spending and discipline. They are now spending $98.8 billion in the year that they told us we’re finding efficiencies.

They haven’t stuck to their own plan, and instead of a $10.2 billion deficit, we now see a $13.3 billion deficit. Why that matters is that even next year, on last year’s fiscal plan, we should be projecting a $9.8 billion deficit, but this government is already saying it’s going to be $12.1 billion.

Year after year, this government has not been able to contain its spending. The minister is trying to tell us that this is the year that they have magically done that, even though they’ve increased spending by over $3 billion from what they projected just last year, this same time last year. It has resulted in a deficit $3 billion higher. What a shock. Spending is up $3 billion, and so is the deficit.

[1:30 p.m.]

How can the government claim any certainty or any confidence in next year’s deficit and the following year’s deficit when just two years ago, it was supposed to be $6.288 billion this year, not doubling at $13.3 billion?

Can the minister explain why the projections of spending over the last three fiscal plans have been so wildly off that when we get to this current fiscal plan, it is literally $6 billion more than they were projecting just two years ago?

Hon. Brenda Bailey: Thanks to the member for the question. A couple of things I want to say.

The first is that I’m committed to not re-baselining the numbers in Budget 2026 and the fiscal plan. The measures that we have taken, the structural changes that we have taken…. A reduction by 15,000 of our workforce. Moderate changes to our taxation. The changing of timelines or re-pacing of some of our capital plan and $3.5 billion of efficiency — more efficiency work underway.

[1:35 p.m.]

I do feel confident that the numbers expressed in the fiscal plan ’26 and the following two years will, in fact, be a good representation of where we are going and the numbers we expect to see.

There have been very, very significant pressures on government here in British Columbia but truly across Canada and around the world — not only from the pandemic, the supply chain challenges that happened at that time, but the impact of that. The increase in inflation and interest rates had an impact that has driven up costs to build, and one of the places in Canada where the most building is occurring is here in British Columbia.

We continue to provide the services that British Columbians expect from us. We have expanded health care facilities, for example. And yes, those costs have come in higher because of the circumstances that I’ve described.

We did see growth outside of the fiscal plan, but the structural changes that we’ve made in Budget 2026 and the work that we’re doing with every ministry to reduce spending will be reflected in the fiscal plan, as planned.

Peter Milobar: I cannot believe that we’re standing here debating fiscal plan ’26-27, asking where things have gone off the rails from ’24-25 to ’25-26, leading into ’26-27, and the minister’s deflection answer is COVID. That is shocking to me.

Can the minister, then, explain just how much of the expense line item on page 1 of the summary, budget and fiscal plan ’26-27 to ’28-29, based on that last answer, is tied directly to the cost of project overruns and not operational costs instead?

[1:40 p.m.]

Hon. Brenda Bailey: The member opposite asked a question, whether on page 1 we can see a breakdown of expense growth by operation and capital. That’s not expressed on page 1. I think the member knows that. But on page 166, to use an example, there’s a fairly comprehensive chart that shows the growth that we’re experiencing in some key areas.

I’ll highlight Health. If you look back to actuals in 2020, total Health was at $25.6 billion, whereas moving forward to today we’re at $40 billion, average growth at 6.7 percent. This really does reflect some of the challenges that we’re experiencing, Health being the largest pressure on us.

That’s by and large due to an aging population with increased health demands, as well as a growing population, both of which have added to our challenge of ensuring that we provide quality health services to all British Columbians.

Peter Milobar: My point being, the minister was blaming this deficit, this record deficit, this doubling of a deficit from projections just two years ago, on the increased costs of capital spending. That’s not what it is. It’s operational expense.

When we look at the fiscal plan for this year and we have $85 billion of revenue coming in, and last year we projected $85 billion of revenue coming in, it’s the expense side that the government has a problem with. It’s the spending side that the government has a problem with.

The minister insists that in this year’s fiscal plan, they’ve got their spending under control. They’ve reined everything in. Can the minister explain how going from $95 billion, almost $96 billion, projected last year to almost $99 billion this year is a reining in of spending?

I won’t even go back to the previous plan that should have only been $92.5 billion in this fiscal year. Was the government unaware of contractual obligations last year in their three-year fiscal plan? Were they unaware of what they might have to have for wage settlements and contract settlements as they were projecting forward? How exactly did the government get caught surprised by operational expenses in the span of about a ten-month period, from when the budget would have presented last year and they were developing the next year’s budget?

It’s suddenly a $3 billion cost escalation on what they ought to have known would have been contractual operational commitments for government that they had already made. How was that possible in that short of a time frame, to have that big of a discrepancy of what you were projecting to be spending versus what you then budget for spending?

Let’s remember. We are now standing here in May. This budget would have been created in January at the latest, which means these projections were January, and by the following January, they were completely out of whack.

The minister’s response is to blame COVID. I would point out to the minister that coming out of COVID, this government had a $6 billion surplus until a certain Premier took over in office. So we might want to try different reasoning for why, five years post-COVID, we are running record deficits.

Again, I’m trying to ascertain, and this whole line of questioning has been around, what has fundamentally changed in the modelling the government is using so that their expenditures never match to what they project. Their revenues actually reasonably come close year after year. It’s the expenditures that keep going up faster than they project them to be.

Only the government is in control of those contracts. Only the government is in control of posting jobs and opening up full-time positions and everything else that would grow the cost of operations of government. Is it that the government truly wasn’t paying attention to how many people they were hiring and the operational costs and what contract costs were going to cost them as they’re modelling out future years?

[1:45 p.m.]

It seems to me the only thing this government is not good at projecting, which should be the easiest thing to project in a budget, is what your own expenditures are going to be. What confidence can the public have that next year, when for the first time ever we go to $100 billion of expenditures, that’s actually an accurate number?

We seem to be exceeding projections every single year, so what has fundamentally changed in the development of projecting expenditures for this government in this three-year fiscal plan that didn’t previously exist in the last two fiscal plans?

Bryan Tepper: I seek leave to make an introduction.

Leave granted.

The Chair: Proceed.

Introductions by Members

Bryan Tepper: I’d just like to welcome Boundary Park Elementary School, one of the nicest little schools in the entire province, certainly in Surrey. Some of my favourite kids are up there. I know they don’t get to see me, except on camera, right now, because they are up behind me. But I will come and see them again afterwards.

I hope they enjoy the experience here. As I explained to them just a little earlier, we have our Finance critic asking questions of the Minister of Finance over the budget right now.

If we could all just give them a warm welcome.

[1:50 p.m. - 1:55 p.m.]

Debate Continued

Hon. Brenda Bailey: The member is asking questions in regards to the pressure on spending and the pressure that creates in budget. I will share with the member that on average over ten years, the increase, budget over budget, on the expense side has been 6.8 percent.

In Budget 2026, the work that we’ve done to really focus on bringing down spending within government is reflected in that we’re seeing a growth of 4.1 percent. We have further to go, and I’m the first to acknowledge that. We’re leading that work. You’ll see in Budget ’27-28 that the expected growth rate is 1.4.

We’ve been doing a tremendous amount of work with every ministry, looking at ways to reduce their spending. At the same time, we have to continue to make investments in the priorities of British Columbians, what we refer to as the core services, things that we know matter the most to them.

So even while we’re doing this work, working with every single ministry on reducing their expenditures, we’re still making key investments for British Columbians in areas like $2.3 billion to increase capacity in our health care system; $131 million to support mental health and addictions treatment; $185 million to strengthen seniors care; and $102 million in Budget ’26 for in vitro fertilization, a long-promised and important feature for families who struggle with getting pregnant.

It’s important to do both. We’re devoted to reducing costs and also to continuing to provide these key services for British Columbians.

I will also mention to the member that we are extremely aware that our work here is not finished. We have more to do. There’s work underway in two particular areas: reviews in the health care sector, which are not reflected in this budget — any findings from those reviews; and also in the post-secondary. Those two major reviews are designed to help mitigate the demand and pressures that we experience.

To be clear. Where are these pressures coming from? They’re coming from the fact that we have a growing population. We saw more than 500,000 people move into the province within, I think it was, an 18-month period. Just extraordinary pressure on services. And we’re seeing caseload pressure continue as well as the reality that we have an aging population, which provides a lot of pressure onto our health care system.

We continue to do this work. We’ve got more work that will be reflected in future budgets. I remain committed to ensuring that the numbers reflected in Budget 2026 are, in fact, actionable.

Peter Milobar: Well, the problem that the minister doesn’t seem to want to acknowledge isn’t what they put down in the current fiscal plan and the expense growth they’re projecting to be in the subsequent years. It’s that when we get to the next year’s fiscal plan, that projection is completely blown out of the water. That’s fundamentally, I think, why we’ve seen five credit downgrades over the last little while and repeated warnings by the bond-rating agencies that this government has headed things in the wrong direction.

Is the minister suggesting that the bond-rating agencies do not understand or properly know how to evaluate the expenditures and the projected expenditures and the lack of fiscal restraint shown by this government and that they just simply do not understand how to read fiscal plans? I get that she may not think that I do. But does she believe that, with the bond-rating agencies that have repeatedly downgraded our credit rating based on these budgetary documents?

[2:00 p.m.]

Hon. Brenda Bailey: Thanks to the member for the question. In regards to the credit rating agencies, the first thing I would mention is that we work quite closely with the credit rating agencies. I hold them in high regard and certainly don’t question their expertise in any way.

It’s important to note that as Minister of Finance, I am beholden to a number of different stakeholders — first and foremost, the people of British Columbia. We know that it would be possible for us to get our deficit down very quickly should we decide to make massive cuts to the social services that the people of British Columbia rely on. We’ve decided not to do that.

We are doing this work gradually. I’ve said from the beginning that it is going to take sequential budgets to get us back to balance.

I do want to highlight that the credit rating agencies, despite the credit downgrades, have praised B.C.’s diversified economy and recognized our resilience to U.S. trade shocks and our skilled workforce and that they have noted our extremely strong access to domestic and international capital markets.

These are important things, because our work is deeply focused on taking advantage of the position that British Columbia has in the world, being the west coast of North America, and our access to markets. You see us expanding the Prince Rupert port, for example, and doing work to ensure that we’re bringing British Columbia products to market and products from across Canada to market.

This is deeply important work. We have a list of major projects that we are prioritizing, the timelines that we are prioritizing in order to continue to grow our economy — the economy that the rating agencies have correctly referred to as being diversified and resilient. We’ll continue to do that work.

[2:05 p.m.]

Peter Milobar: When I read through, and the minister touched on this reduction of the B.C. public service and the FTEs, it makes it sound as if the government refuses to make cuts because of a bloating of government that happened, an expansion of government that happened by some other government, and they have now taken over the reins of government.

Can the minister very clearly outline who exactly grew the public service over the last four or five years? Was it this current NDP government, or was it based on some other previous government’s hirings?

Hon. Brenda Bailey: Thank you to the member opposite for the question in regards to growth that we’ve seen in our direct public service here in British Columbia. I want to highlight a couple of important things. The public service workers include folks like wildfire fighters, corrections officers, social workers and sheriffs, who are doing deeply, deeply important work for the people in British Columbia. As we experienced population growth, so too did we experience demand on these critical services.

I do also want to highlight that the pressures on wildfire fighters have been growing, unfortunately, due to the nature of fire season being often ongoing with things like zombie fires. I understand that the fire service has moved many people into full-time positions from part-time positions, which is expressed in growth in that area as well.

I do want to highlight for the member that the work that we’re doing in regards to the public service is, really, about reducing the size of the public service by focusing on protecting those front-line workers and reducing the size of administrative public service workers to ensure that we’re putting our dollars, really, to the front line where people most interface with people.

[2:10 p.m.]

I’ll share with folks that the actual number for ’24-25 was 39,036, whereas the forecast for ’25-26 is 37,500. We are starting to see those reductions, expressed in the numbers now, from the work that we’re doing, and we’ll continue that work.

Peter Milobar: Last year when we talked about contingencies and the need for a $4 billion contingency, a lot of the answers were wrapped around the need to be able to use that for settlement for the mandate of collective agreements. Were all collective agreements finished off and met under that $4 billion amount? If not, how many are still outstanding, for this current fiscal year, for negotiations?

[2:15 p.m.]

Hon. Brenda Bailey: It’s a fairly complicated answer to this question, but I’ll give it my best shot here for you. You asked about ’25 contingencies, the $4 billion. The reality is that there are 182 unions that are in negotiations or have ratified, and some will be reflected in ’25 and some in ’26-27. So it spreads across. It’s not just in one particular fiscal year.

Essentially, the way that it stands right now is that if we looked at the entire head count of everyone who has been in negotiation, there is 28 percent of overall head count that is still outstanding, that is in negotiation or close to a deal to move forward.

In regards to how that shows up, the wage mandate is held in contingencies and moved over into each one of the ministries it’s reflected in after that ratification has occurred.

Peter Milobar: How many were ratified and moved over before this year’s budget? In other words, how many have already been accounted for and moved over out of last year’s contingencies holding account into this year’s ministerial budget so they wouldn’t need to be accounted for in this year’s contingencies?

Hon. Brenda Bailey: I understand that there were so few, in fact, that there were none that were moved over into base funding in time for last budget. What you’ll see reflected is that this is work that’s happening now, and it will show up in Budget 2027, in base budget.

[2:20 p.m.]

Peter Milobar: Can the minister explain why just two budgets ago the projection for contingencies was $1.7 billion for this fiscal year, then the projection for contingencies jumped up to $3.3 billion in last year’s budget and now it’s at $5 billion?

Why the ever-increasing contingency fund escalation in the government’s own budget documents? To go from $1.7 billion and add $3.3 billion to it, which is, ironically enough, about the extra spending that we’re seeing in the budget this year over what was projected…. Why the need to keep hiding everything in contingencies when spending is going up?

Hon. Brenda Bailey: I don’t see the numbers that the member is reflecting in his question, but I’ll share with the member what I have. Contingencies in Budget 2021 were $4.25 billion; in Budget 2022, $4.848 billion; in Budget 2023, $5.5 billion; in Budget 2024, $3.885 billion; in Budget ’25, $4 billion; and in Budget ’26, $5 billion.

[2:25 p.m.]

Contingencies reflect a number of different things, as the member is aware. Included in contingencies is making sure there’s room to address risk. Some of the risk areas in the contingencies that we see reflected in ’25-26 are specific risks around trade and the volatility of the current trade war, specifically captured in some of the contingencies this year.

Also, of course, caseload pressures. We’ve seen pressures due to increased population, and we’ve been able to address that through contingencies.

Risks for wildfire and flooding are contained in contingencies.

Also, as we’ve been discussing, the wage mandate is held in contingencies.

It’s important to make sure that people know that the spending for contingencies are clearly accounted for and they are expressed in the accounts following their spend.

Peter Milobar: Well, they’re fully accounted for. On page 124, it says that the $4 billion is expected to be fully expended from last year, so I have no other expectation than to expect the $5 billion this year to be fully expended.

I’m not sure how the minister doesn’t know which numbers I’m referring to. Maybe she doesn’t have the previous year’s budget documents in front of her, and that’s fair enough. I’m talking about the projections. The minister recited what each individual budget year’s contingencies were. I’m talking about what the three-year fiscal plan said that this fiscal plan’s contingencies would be, which was supposed to be $1.7 billion. Then it was supposed to be $4 billion. Now it’s $5 billion.

Last year we were told we needed the jump to account for the mandate, which makes sense. The government would know mandates are coming up and needing renewal and negotiation, so you would expect the government to actually budget for a larger contingency in a mandate year, a negotiation year.

I think we kind of assumed last year that we would be done with the mandate this coming year when the government said: “Oh, it’s only going to be $4 billion this coming year.” Now it’s $5 billion. Last year they said $4 billion and $4 billion. This year they’re saying $5 billion, $5 billion and $5 billion. Kind of trending in the wrong direction.

The minister can say they’re fully accounted for in contingencies after the fact. Budget estimates are the opposition’s and the public’s chance to understand the spending priorities of government during real time and to scrutinize what it is they’re actually spending — not what is accounting for 5 percent of the budget in a fund that has just said: “Well, for other things. Don’t worry about it. We’ll account for it in the year-end financials.” This is actually a little more than 5 percent of the expenditures. On $98 billion worth of spending, $5 billion is actually more than 5 percent.

It’s not an insignificant number on the overall scheme for a government that continues to spend more money every single year than they projected the previous year that they were going to spend. They can’t even contain contingency spending to what they projected it was going to be.

Is the increase from $4 billion to $5 billion because the government is expecting higher costs of the mandate because of me-too clauses as negotiations wrap up with these final units? Why is there an extra $1 billion added to contingencies this year that wasn’t needed 11 months ago?

[2:30 p.m.]

Ian Paton: I seek leave to make an introduction.

Leave granted.

The Chair: Proceed.

Introductions by Members

Ian Paton: In the gallery this afternoon, I have some friends from Ladner and Tsawwassen area. They’re members of the McKee House Seniors Society, and they came over on the ferry this morning from Tsawwassen. They’re called the Day Trippers. They had a lovely lunch, hopefully, in the dining room. They had a good tour, I think, just in the last hour, of the Legislature. They’ll be heading home tonight, maybe on the same ferry as myself.

Would the House please make them feel very welcome.

I also want to make sure they get on the Hansard. I want to introduce Patricia Castle, Judith Gerbrandt, Lynda Hudon, Betty-Lou Reid, Robert Hudon, Ellen Pearsons and Molly Hicks.

Debate Continued

Hon. Brenda Bailey: In response to the member’s question, it is true that the negotiations took longer than expected and that the cost of the mandate did go up. That is captured in the increase in the contingency fund.

Peter Milobar: Can the minister understand the public confusion with statements of tightening our belts, fiscal control, reining in the cost of government and then the mandates costing us more than we expected and our spending is still outpacing our revenue growth?

[2:35 p.m.]

Hon. Brenda Bailey: I do just want to point out to the member, of course, that over the three-year fiscal plan, spending is not outstripped by revenue growth. In fact, we see a declining deficit, and that’s what’s reflected. Importantly, we continue to make investments into economic growth. That’s a huge component of how we’re going to tackle the debt challenge that we find ourselves in.

Peter Milobar: I don’t mean to be openly laughing, but we started this whole estimates pointing out that the government’s projections for their deficit in three previous fiscal three-year plans — well, two previous ones and this one — never actually match up anyways.

Yet here’s the government now trying to say, with certainty, that this fiscal plan is the one to be trusted, not the one from two years ago that showed that this year should’ve had a $6 billion deficit, not the one from one year ago that showed that this one should’ve had a $10 billion deficit.

No, no. This year, this one is the one you can believe, that three years from now we’ll, actually, save a whopping $2 billion on the deficit and, actually, see spending stay under control even through that whole same time frame I’ve just talked about.

The only line item that has been going up has been spending in that same time frame. It’s like the minister didn’t pay attention to anything that has been happening in the last several hours in this chamber.

Revenue projections over those three fiscal plans that I referenced have been pretty much where the government projected they were going to be. What has changed is spending. It keeps going up higher and higher every year than what the government previously projected, and as a result, the deficit keeps growing higher and higher. These are the government’s documents, and the minister is talking as if they don’t exist.

She has established and agreed that there has been no fundamental structural change to how things are calculated, how risk is assessed, how numbers are collated in the budgets.

But now we’re supposed to magically understand and just accept that the ’27-28 and ’28-29 plans are accurate and that the government will magically make it all come together and happen at a time when the minister has just acknowledged that from last year to this year, they haven’t even been able to keep the cost of the public sector agreements under control because they’re higher than expected.

[2:40 p.m.]

The minister’s answers, not my assumptions, are that the collective agreements are coming in more expensive than the government was projecting them to be.

Was the 15,000 FTE change predicated on the assumption of what the costs of the public service agreements were going to be or what they’re actually going to be now, with that new, recognized, increased cost to the public service agreements? In other words, should it be 15,000, the target, or should it actually be 20,000? Has that been recalculated to account for the ever-increasing cost to the public sector agreements that this government is negotiating at a higher rate than they first anticipated, while saying they’re keeping spending and cost pressure contained and under control?

Hon. Brenda Bailey: I just want to be very clear to the member opposite. The member has said that I have stated that there are no new structural changes. I, in fact, have stated we are making structural changes to respond to a structural deficit. The structural changes that we are making are significant — a reduction of our public service by 15,000 people and modest tax changes and timeline changes in our capital plan. These are structural changes that will have effect year after year.

I’ll let the member know that in my meetings with investors who buy Canadian debt and British Columbia debt, I have committed to no re-baselining, and I’ll make that same commitment here to the people of British Columbia and to the member opposite.

Peter Milobar: Well, the risk profile, the expenditure profile, how things get calculated is what I’ve been asking, not if the government’s doing different policies. The minister has indicated that that has not changed, because she won’t acknowledge it — the point being that the minister says all these changes have been made and they’re finding efficiencies.

She literally just said that the public sector agreements are coming in at a higher cost than they were projecting even just last year at this same time when we were talking about the $4 billion contingencies. At that time, the government repeatedly said it was needed for the mandate.

The minister has now just acknowledged, as I’ve been asking about $5 billion worth of contingencies in this year, that, in fact, the public service agreements are coming in at a higher cost than the government just last year was expecting them to come in at. Well done on that negotiation.

Is the 15,000 FTE target in this budget predicated on last year’s assumption of what the public service agreement was going to cost, or has that now been predicated on a more expensive public service agreement that this government has now acknowledged is well underway as they finalize these bargaining units?

[2:45 p.m.]

Bryan Tepper: I seek leave to make an introduction.

Leave granted.

The Chair: Proceed.

Introductions by Members

Bryan Tepper: I would like to welcome the second group from Boundary Park Elementary School, a great school in our riding, one of the best little schools in the province, I think. A bunch of my friends are there. It was great to see so many of them come in that I could recognize.

Thank you all for being here, and hopefully, we’ll get to see you when you’re done.

Right now we have the Finance Minister answering questions from the critic, our Finance critic as well, just so you know.

I will take it there and sit down because it looks like she’s ready to answer.

Please welcome our Boundary Park Elementary.

Debate Continued

Hon. Brenda Bailey: Hon. Chair, I request that we take a 45-minute recess, please.

The Chair: Okay. We’ll be taking a recess. We will be back at 3:30.

The committee recessed from 2:46 p.m. to 3:32 p.m.

[Lorne Doerkson in the chair.]

The Chair: Thank you, Members. We will bring the chamber back to order now, where we are contemplating Vote 26, “be it resolved that a sum not exceeding $381.863 million be granted to His Majesty to defray the expenses of the Ministry of Finance.”

We are, I think, anticipating an answer from the ministry.

Hon. Brenda Bailey: We did work in the public service to do an efficiency review and to bring those numbers down over time. It was always our intention that we would roll that out into the broader public sector, and that’s the work that we’ve been doing.

We know that sector has grown by 80,000 people since 2020. There are many reasons for that, but through the work that we’re doing, we do think that a reduction of 15,000 people, particularly targeting administrative roles, will help us bring down expenses and still make sure that we’re deeply focused on providing front-line services.

Peter Milobar: What is the dollar value in savings with the 15,000 FTEs?

[3:35 p.m.]

Hon. Brenda Bailey: I’ll direct the hon. member opposite to page 27, table 1. The member will see there that estimated savings in ’26-27 are $1.15 million, ’27-28 are $2.04 million, ’28-29 are $3.17 million. Those are the workforce reduction savings, for a total of $6.36 million.

Peter Milobar: The minister said that the public sector agreements are actually more expensive than the government was anticipating. Does this account for the increased costs that the government was not anticipating, or is that increased cost over and above these savings?

Hon. Brenda Bailey: Just to be clear about the way that the work has been going, the expenditure management review, which really has guided us in moving forward with reductions of staff…. That work has been underway for some time and has informed the work that’s now rolling out through the public sector, kind of parallel with what has been going on in wage mandate. They’re not particularly linked. They’re two pieces of work that exist in parallel.

I do want to just provide a correction. When I responded to the prior question, the numbers that I shared, the $1.1 million, the $2 million and the $3.1 million…. That was total estimated savings that included the workforce reduction targets, not was isolating the workforce reduction targets. It was expenditure management savings and workforce reduction.

For the record, I’ll just read out the correct amounts for workforce reduction targets: $200 million, $800 million, $1.85 billion, for a total of $2.85 billion.

Peter Milobar: I’m just trying to wrap my head around the accounting on 27. I’m glad that the minister corrected, because that would have been my next follow-up — that, in fact, staff savings appear to be a fraction, under half, of what the government is talking about in savings.

Again, is the minister saying that the cumulative savings of the 15,000 members in full implementation is $1.85 billion?

[3:40 p.m.]

Hon. Brenda Bailey: Yes, that’s correct.

Peter Milobar: It’s interesting. We’ve established there’s a spending problem, because the revenues seem to be tracking the same with yearly projections, moving forward, of what the government has projected, but expenditures keep exceeding that.

On that same chart, we have expenditure management savings, so the government touting their savings of $950 million. Can the minister give more clarity to what expenditure management savings means? Workforce reduction targets is a pretty self-explanatory description. That would mean the wages of the workforce, I’m assuming. What exactly are the expenditure management savings?

Just two lines below that, we’re now re-spending half of that money. Instead of just showing the net savings, it’s like: “Well, we saved it. But look at that. We’re spending it again. Look at this bolded number that makes us look really, really good in expenditure management, and don’t look at the number slightly below it that is actually going to expend $525 million of $950 million.”

Now, the one you say is funding reinvested back into core services — that sounds meaningful. I would assume just about everything government does could be considered a core service, especially at $950 million or $1.24 billion or $1.32 billion, which is expenditure management savings.

What exactly is comprising the $950 million in expenditure management savings?

Hon. Brenda Bailey: Savings in ’26-27 — a number of different areas, but I’ll highlight a couple — really focus on consolidation, consolidating, including the creation of Connected Services B.C. and the human resource integration that we’re doing throughout ministries, as well as the discretionary spending reductions in things like travel, offices, business expenses, conferences and events.

[3:45 p.m.]

In regard to the comment about reinvesting, I just wanted to share an example of that. We want to make sure that while we’re reducing areas that we can without having a negative impact on direct services to people, we also want to make sure that we’re investing in economic growth for the province. We know how deeply important that is, and it’s a huge priority for this government.

As an example, in the natural resource sector, when they did their work to find expenditure management savings, we took 40 million of those dollars and reinvested them into permitting because we know that the backlog in permitting has slowed down investment into British Columbia. That would be an example of finding efficiencies but pulling some of that money forward to put it into government priority services.

Peter Milobar: Has there been any change or formal guidance given to members of the executive council, to cabinet, as to the expectation of their discretionary spending, their travel spending — any of that? If so, what does that look like?

[3:50 p.m.]

Hon. Brenda Bailey: I apologize for the delay. We thought we would quickly print off one of the minister’s letters. The reason that we would do that is that every minister’s letter this year, their mandate letter, included very clear directions that they must participate actively in our efficiency management work. This includes reviewing all of their expenditures on programs and also expenditures on things like office use and travel and the type of expenditure management that we’ve described here today.

I think, perhaps, it is the first time that all ministers have been directed in this way. We’ve been happy that each ministry has deeply involved themselves in this important work.

I’ll wait for the next question.

Peter Milobar: Recognizing the time, and I do want to turn it over to my colleague to get on to rural infrastructure, I guess what I’d ask, then, is…. We’ve heard from the Minister of Citizens’ Services the great pride in this government during the FOI bill debate towards my questions the other day about proactive disclosure.

I would ask if the minister could get me a copy of that. We come back again on Monday and Tuesday. I would love to see a direct copy, not about ministerial savings. I want to be clear on this. This is about direction given to the ministers themselves on personal changes they are expected to adhere to on travel, on vehicle use, on all of that, on what exactly the ministers themselves have been directed in writing to change to show restraint on their part, as they are asking ministerial staff and others within their charge to take those types of directions.

That’s, actually, what I am looking for, not ministerial efficiencies and changes to policy but to the ministers themselves. I recognize we can’t get that today, and I am fine with waiting until next week to get that answer.

Then I’ll turn it over to my colleague on her questions as well.

Sharon Hartwell: Thank you for the opportunity to be able to discuss rural infrastructure and rural development in the House today with estimates. I’d like to make a few opening comments if I may, and I’ll get into some questions.

[3:55 p.m.]

It is my pleasure to speak today on behalf of the people of the Bulkley Valley–Stikine and rural British Columbians across this province. I appreciate the minister and their team who are here to assist in helping address some difficult questions regarding this budget as they relate to the rural infrastructure and development in our vast province.

I would be remiss by not stating at the outset that there are many rural British Columbians who are increasingly frustrated that they continue to be treated as an afterthought by this NDP government. Budget 2026 asks rural British Columbians to accept another massive deficit, another dramatic increase in provincial debt and another series of broad promises about future growth and resilience. Yet when rural communities look for concrete investments in highways, bridges, broadband, emergency infrastructure, transportation corridors, resource roads and economic-enabling projects, far too often they find omissions, delays, deferrals and vague language instead of actual delivery.

I did a little bit of research this morning. It was interesting, because I wanted to find out. In our rural area, Bulkley Valley–Stikine district…. It is 20 percent of the total land mass of this province, that district. It remains in Bulkley Valley–Stikine. So 20 percent of the area of the province is in Bulkley Valley–Stikine. There’s an awful lot of roads. There’s an awful lot of infrastructure to take into account, and I understand that.

The government speaks frequently about reconciliation, economic development, climate resilience, public safety, affordability and securing British Columbia’s future. But none of those goals can be achieved if rural British Columbians are left behind.

The people I represent do not measure infrastructure in press releases. They measure it in whether ambulances can get through during winter storms. They measure it in whether highways remain open during wildfire evacuations. They measure it in whether bridges are safe for school buses and heavy trucks. We talked a lot about bridges today. They measure it in whether businesses can move goods efficiently, whether workers can travel safely, whether internet service is reliable enough to run a business or access health care and whether communities can realistically grow and attract investment.

Just thinking about the internet, it wasn’t that long ago, two or three weeks ago, that my colleague from Skeena…. We were very concerned because I think from Burns Lake down, somebody had cut the cable, and there was no internet service. That means no food, no gas, no calling for an ambulance. Nothing. So that is a grave concern about connectivity. That is the reality of rural British Columbia.

Instead, what we continue to see in Budget 2026 is an increasingly urban-centric infrastructure strategy. Billions are allocated toward major metropolitan transit systems and large urban capital projects, while many rural transportation corridors remain underfunded, aging and vulnerable.

One of the clearest examples is Highway 37, which is going to be the gateway to our prosperity in Looking West. For years, northern residents, Indigenous communities, industry leaders, local governments and economic development organizations have called for substantial improvements to Highway 37 as well as other rural roads. This corridor is not merely a regional highway. It’s a strategic economic artery supporting mining, tourism, forestry, Indigenous economic participation, trade, emergency response and northern development opportunities.

This budget also fails to provide sufficient clarity regarding bridge replacement priorities across northern and rural British Columbia. Critical bridges are aging, deteriorating and increasingly vulnerable to climate-related impacts. Communities deserve transparency about what structures are at risk, which projects have been delayed and whether fiscal pressures inside government are quietly pushing vital infrastructure further into the future.

The same concerns apply to broadband infrastructure. Government members often speak as though the connectivity challenge has already been solved. But many rural residents continue struggling with unreliable internet service, cellular dead zones and inadequate telecommunications infrastructure that limit economic opportunity, public safety, health care access and education. For rural communities, broadband is no longer optional infrastructure; it’s essential infrastructure.

We’re also seeing growing concerns regarding emergency preparedness. Recent wildfire seasons demonstrated the vulnerability of many rural communities that rely on single transportation corridors with limited evacuation capacity. Yet this budget provides insufficient detail regarding evacuation route improvements, flood mitigation investment, slope stabilization work or climate resilience upgrades in vulnerable northern regions.

At the same time, the government continues to increase borrowing dramatically. British Columbians are being asked to carry unprecedented debt obligations, yet many rural taxpayers legitimately question where the benefits are flowing. Are they being equally distributed?

[4:00 p.m.]

Rural British Columbia contributes enormously to this province’s prosperity. Northern and rural communities generate revenues through forestry, mining, energy, agriculture, tourism and transportation corridors that support the provincial economy. Rural workers and industries help fund the service and infrastructure enjoyed throughout British Columbia.

The expectation of those communities is not special treatment. The expectation is fairness. Fairness means recognizing that rural infrastructure is not a luxury. Indeed, it is the backbone of economic development, public safety and provincial prosperity.

Over the course of these estimates, I will be asking detailed and serious questions about the government’s infrastructure priorities, project delays, regional inequities, deferred maintenance pressures, capital plan omissions and the long-term consequences of failing to invest adequately in rural British Columbia. These are not abstract policy debates. These are real concerns affecting real people in communities that deserve to know whether this government has a credible plan for their future.

Rural British Columbians are hard-working, resilient and resourceful people. They do not ask for applause from government, but they do expect competence, transparency and meaningful investment in the infrastructure that keeps their communities functioning and their economies alive. I look forward to examining those questions in detail today.

I will now proceed with my questions for these estimates.

Budget 2026 projects taxpayer-supported debt rising towards $189 billion over the fiscal plan, yet many rural highway projects remain absent from the capital plan. Why is this government dramatically increasing debt while failing to identify major rural highway upgrades in northern British Columbia? Can the minister provide a complete list of rural highway expansion projects funded in Budget 2026?

Hon. Brenda Bailey: Government is investing billions to build infrastructure in rural communities throughout British Columbia. Our government has advanced new hospitals in Terrace, in Stuart Lake, in Williams Lake, in Dawson Creek as well as acute care in Prince George.

Specific to the member’s question in regards to highways, we continue to support the Cariboo Road recovery program with projects at Quesnel-Hixon Road, Blackwater Road, Knickerbocker Road, Durrell Road and Highway 97 at Cottonwood Hill.

We also continue to support projects to expand capacity on Highway 1 between Kamloops and the Alberta border with projects in Chase, Salmon Arm, Sicamous and upgrades between Revelstoke and Golden. These are in addition to completed projects like Kicking Horse Canyon, phase 4, and Quartz Creek Bridge.

Sharon Hartwell: I appreciate all that. That’s great, but we’re still talking about rural British Columbia and, for me right now, Bulkley Valley–Stikine.

[4:05 p.m.]

I didn’t hear anything about Highway 37, and when we’re thinking about all the mining development going up in that area…. It was said last year in estimates that there was going to be investing on Highway 37. They were going to do widening. They were going to do some shouldering and some ditching and some brushing. I see none of that in the budget. I would like further clarification on that, please.

Hon. Brenda Bailey: I understand that there is $195 million actually designated in this budget for Highway 37. That represents $120 million from the province and $75 million contributed from the federal government.

This is specifically recognizing what the member has rightly identified — that this is such an important corridor for economic development for British Columbia. I think that Transportation and Transit would have more details for the member, but I understand that engineering and procurement is progressing. Were she to reach out to Transportation, she could get more details on that.

Sharon Hartwell: How much new highway resurfacing funding is specifically directed toward northern highways in 2026?

[4:10 p.m.]

Hon. Brenda Bailey: That level of detail is better directed towards Transportation and Transit.

We’re more sort of the rollup numbers and have broad-level numbers that we’d be happy to provide to the member.

Sharon Hartwell: Thank you for the answer.

I guess my other question is: how can mining investments succeed when supporting transportation infrastructure remains underfunded?

You said $175 million. Part of that came from the federal government. But you said some of that was underway with engineering. When are we going to have a number — what year? My understanding was some of that was going to be started this year, but it’s not.

The only thing I saw in the budget was the finishing of Hanna bridge, which has been ongoing for some time. But I didn’t see anything else identified. If we’re going to progress to extracting minerals and getting the economy going…. I didn’t see any kind of information in the budget that’s leading us to that direction at this time.

Is there a timeline to continue with that work? Where would I find that?

Hon. Brenda Bailey: There is $175 million in this budget specifically for the project we’re discussing. In terms of where the status of it is, the information that we have is that engineering and procurement are underway. But I do refer the member to the ministry, where she can get an update on timelines and specifics.

Sharon Hartwell: In the budget, can the minister identify which rural infrastructure projects were specifically delayed due to fiscal pressures? In my area, closer to home rather than Highway 37, I know that there are a couple. Stewart is having difficulty, and so is the village of Telkwa. I think Smithers is as well.

Which rural infrastructure projects were specifically delayed due to fiscal pressures, if you can provide that information?

Hon. Brenda Bailey: Two things.

First, in follow-up to the last question, I’ve just heard from my colleagues in Transportation that they’re preparing a note for the member.

[4:15 p.m.]

In regard to the question as to whether there has been rural infrastructure, roads and bridges, etc., that has been re-paced…. What we mean by that is changing the timeline to account for fiscal changes. I’ll refer the member to page 64 of the budget, table No. 1.8, capital expenditure projects greater than $50 million. It has a list of those that are experiencing adjusted timelines. In looking at that list, I do not see any rural transportation projects.

Sharon Hartwell: The government is talking about climate change and climate preparedness. The government highlights emergency preparedness. I know that in my area, this has happened twice in the last, well, maybe 12 months, but half of one season and half of the other.

There are evacuation roads that connect communities. I think they’re, probably, old forestry roads or access roads. Why are they not being maintained so that if there’s going to be an evacuation route, we have something that’s in a decent enough state so communities can be evacuated?

I know there’s one in Hazelton, there’s one in Babine, and there’s one in Telkwa. There are a few of them all over the place, but some of them have connecting roads, rural roads, to different areas of the community. If one is washed out — which is what happened, and that road was shut down for 30 days — there has to be another access route because people live in some of these remote areas.

I don’t know how the budgets are for our district offices. If that’s something that has to be considered, then we need to re-evaluate that because it has been an ongoing concern.

Hon. Brenda Bailey: I’m sorry to share this answer with the member, because I really hear the member’s deep concern for their community and I appreciate their advocacy. I certainly don’t mean to, in any way, not be responsive to this member, but the truth is that this is really a question for the Minister of Forests. I would be happy to direct this question to them so that the member can get the answer they’re looking for.

Sharon Hartwell: Northern communities continue operating with aging water and sewer systems. Again, this is a demonstrative double standard. On one hand, we have the North Shore wastewater treatment and then all that cost overrun.

How much direct implementation dollars for rural utility infrastructure funding is contained in the 2026 budget?

[4:20 p.m.]

Hon. Brenda Bailey: I’ll just comment. The member mentioned the North Vancouver sewer and water treatment system. That’s a municipal program, not a provincial program.

The member is asking about rural utility funding, specifically water. It’s a bit of a complicated scenario, which I’ll attempt to explain.

The funding for this program…. It’s a program called ICIP, which is a federal program, and the role of the province is really to be kind of a facilitator of the program to the municipalities. The granting is sort of a flow-through program, but the program is, in fact, federal.

I will share with the member that it has been an area of strong advocacy from multiple members of our government, myself included, to see an increase of investment into infrastructure — rural infrastructure and urban infrastructure. Both are in great need, and we’ll continue that advocacy work.

Sharon Hartwell: I thank the minister for the answer.

Back in my time in local government, if we were going to apply for a grant, it was a third, a third and a third, basically — a third from the province, a third from the feds and a third from the municipality. Am I to understand that this particular program we’re talking about for water or wastewater is 100 percent funded through the federal government, passed down to the province and then set out? That means that there’s no responsibility for the municipalities to put their share in as well?

I was a little confused by the answer. If I could clarify that, that would be helpful.

[4:25 p.m.]

[Mable Elmore in the chair.]

Hon. Brenda Bailey: I’m going to answer this question but also direct the member to the ministry, because at Finance we don’t really have the sort of detailed information on the programs. We’re really just communicating directly to the ministries. I think it would probably be beneficial for the member to have that connection to the ministry directly.

I will share, in regards to the question on the one-third, one-third, one-third model that the member mentioned being familiar with from the member’s time in local government…. I have heard from the ministry that the cost share varies in this program. Sometimes it’s 90 percent, sometimes 100 percent.

I have heard from the ministry. They’d be happy to address the questions with this degree of specificity at the ministry.

Sharon Hartwell: The rural economic diversification and infrastructure program is largely a grant-based program. Then that’s where the competitive piece comes in. If it was actually a designated rural program for funding, that would be a lot more beneficial to rural communities. I guess that’s more of a comment than a question, because I can see where probably you’re not going to be able to comment on that.

Broadband expansion remains incomplete across portions of rural B.C., and it’s a huge gap with ongoing concerns. You spoke a little bit about that, especially going up to remote areas. We’re talking up to Babine Lake. We’re talking up to Highway 37, where there are communities and there are significant gaps. It seems to me that there was a commitment made to increase the broadband coverage up there and the internet on Highway 37.

Can the minister please let us know how many rural households still lack reliable high-speed internet or how far along, maybe, the plan is to increase high-speed internet up in these rural areas?

I guess, bearing in mind and reminding that still a lot of First Nations up there have moderate access to health care, which I’m hearing about in my office quite a bit…. Part of that connectivity is very important to be able to keep the rural health care pieces and virtual ones together. If you could please comment on that.

Hon. Brenda Bailey: I have some numbers I can share with the member in regards to connectivity.

[4:30 p.m.]

Investments in connectivity are unlocking new opportunities for rural and First Nations communities, supporting economic development, education and health services. As of January 2026, 97 percent of homes across the province have access to high-speed internet, with coverage expected to rise to 99 percent once all approved projects are completed. Within that, approximately 80 percent of rural homes and over 87 percent of homes on First Nations reserves are currently connected, and those figures are projected to rise to 93 percent and 96 percent, respectively.

To put it in context, this compares to 57 percent of rural homes and 66 percent of homes in First Nations communities in 2017. Said another way, in 2017, there were 57 percent of rural homes connected, and now the percentage of rural homes is 80. In 2017, there were 66 percent of First Nations homes connected, and today there are 87 percent of First Nations homes. You can see that there is important progress made here.

I will share with the member that I, too, think it’s deeply, deeply important that this work continue. I can tell you that in my connections to the technology sector, there are extraordinary health solutions that can be beneficial, particularly to rural and Indigenous communities that require connectedness.

It’s something that the member has said is important. Certainly, on our side of the House, we agree it’s deeply important, and this work will continue.

Sharon Hartwell: A lot of rural communities rely on transit systems and transportation systems within short areas — a lot for people that are disabled or for seniors to get around, go to appointments and things like that.

It says: “Reports indicate that plans were shelved for several B.C. communities.” I know that part of that has to do with…. There’s a funding model in some of those communities at home. The municipalities also contribute to those functions as well.

Were any rural transit projects reduced during this year’s budget process to minimize those opportunities for these individuals?

[4:35 p.m.]

Hon. Brenda Bailey: It’ll just take a moment for us to get that information from the Ministry of Transportation, if they would like to go to the next question.

Sharon Hartwell: To the minister, can she identify or tell me if the budget for our regional district office has been increased this year and by how much?

As I mentioned earlier in my comments, the Bulkley-Stikine area — which takes in a little bit more than my riding — is 20 percent of the land mass, which staff has to monitor, upgrade, fix, look after, snowplow, sand and the rest of it in the riding. Has that budget been increased this year, and if so, by how much? Is there going to be an ongoing opportunity for them to increase their budget, should that be required in emergencies?

Hon. Brenda Bailey: I just have a clarifying question for the member. When the member refers to “district office,” are they referring to a district transportation office or a regional district office, please.

Sharon Hartwell: I’m sorry. Regional district office, MoTT.

Hon. Brenda Bailey: We will go ahead and refer these two questions, this one and the prior one, to the minister responsible and make sure that the member does get an answer.

Sharon Hartwell: During the budget process, how are rural programs and projects identified and evaluated for the coming season, bearing in mind that we have a very short construction season in parts of the North? How is that identified?

[4:40 p.m.]

Hon. Brenda Bailey: I can really just speak about the capital planning process from the Finance perspective, which is that government implements a capital planning process that ensures the delivery of capital needs in a manner that considers the highest priority areas of need, assesses value and different strategies to achieve the intended outcomes and identifies and mitigates risk.

Treasury Board only typically considers new projects as part of the capital planning process, which starts with the ministry’s budget submission. Prior to the inclusion of a project into a government’s ten-year capital plan, service delivery agencies — T and T, program areas, school districts — identify the highest priorities as part of a submission to the responsible ministry. Once a ministry has received its annual capital plan invitation, it uses this information to determine how to align service delivery agency, ministry and broader cabinet priorities in the form of a budget request.

Sharon Hartwell: Typically, how long would a project be considered or re-evaluated in a coming season or two seasons? How would that be determined — by season, by importance or by emergency? What would determine those projects moving forward if they’ve been in the queue for quite some time?

A lot of northern communities and rural communities on the Island as well, not just northern…. I know that from being from a small community. We’ve waited years and years to have infrastructure projects identified for communities.

I guess I’d like to know how those projects are evaluated, rather than just large projects but community…. Is it by emergency? Is it by size of community? What determines those things so that the community is going to actually plan and start to develop their portion of those funds that might be required to finish those projects?

[4:45 p.m.]

Hon. Brenda Bailey: I regret that the member hasn’t had the opportunity or wasn’t available to meet with the ministry responsible during their estimates, because many of these questions are really for T and T. My understanding is that Transportation does have a highway preservation program as well as a road and bridge program. That ministry is best suited to answer these questions.

Sharon Hartwell: Is there a list of rural infrastructure priority projects that are ongoing in the ministry’s office, or do those go through individual ministry offices? I guess what I’m trying to find out is if rural infrastructure needs to be identified in a budget, are we going to take it to the ministry?

At the end of the day, when we’re going to approve or not approve the budget, I’d like to know where the North fits into this — how many projects are going to be approved, where they are and in what timeline. I guess that’s what I’m trying to determine in these questions.

Maybe it’s a little bit backwards by what you’re…. You’re telling me you’re going to refer these all to the ministries, but this is the only opportunity that I have to do that.

Going forward, I’m not sure how to identify the information that I’m asking for in the budget, to find out how much money is going to be expended on large projects and road upgrades, how much money is going to be identified for municipal communities so that they can carry on. That’s the intent of my questioning today. If there’s anything you can elaborate on that, I would appreciate it.

Hon. Brenda Bailey: I’m going to point to a couple of different spots where we’ve got some of these projects listed that the member can refer to.

The first is within the budget itself on page 64. These are projects that are capital expenditure projects greater than $50 million — what we refer to as our $50 million table. The member can refer to the many number of projects there.

Also in the budget on page 54, table 1.7, is the provincial transportation investments table, which lists out projects there.

[4:50 p.m.]

Neither of those list the projects by rural location. I think that was part of the question that the member had asked. But I have heard from my colleagues that, were one to go to the website for the Ministry of Transportation, they do categorize things by region, and the member might find that helpful as well.

Sharon Hartwell: I appreciate your time today.

I’ll conclude my remarks at this point. I think that I’m maybe not articulating the questions that I want clearly enough, but I do want to thank the minister for her time and respectful answers to the questions that I was posing for the northern areas and small communities in British Columbia, and staff for all the help that they gave and also our position caucus staff for their exemplary contributions in helping me understand some of this.

I think they could have been worded differently. In hindsight, I see that. But I think the result that I was trying to find out is: how much is this government going to be spending on infrastructure in the North to help communities, to help businesses grow and also to help communities get started?

Thinking about Looking West, we’re looking west. We want to have these $8 billion worth of projects that the Premier keeps talking about unfold. We need infrastructure upgrades. We need it done. I’m trying to find timelines and amounts. I have some information, but I was wanting to hear that clearly in this House and on the record.

I want to thank the minister and her staff very much for the time they gave me today, which was a lot more than I got last year, so I really appreciate that. Sincerely, I do.

I will conclude my remarks for the day.

Hon. Brenda Bailey: Thank you for the questions today. There were a number which didn’t specifically show up in our budget because of the way that Finance is really a rollup space, but these are very reasonable questions that we’d like to answer for the member, and we will have follow-up from the direct ministry.

Peter Milobar: Thank you to my colleague for those questions, because yes, rural infrastructure and the like are critically important, especially around the connectivity and the safety that comes with connectivity or the lack of safety that comes with the lack of connectivity.

Recognizing that we’ll probably be stopping shortly for the royal assent, I’ll just do a couple of other questions to follow up with the minister.

There seems to be a fair amount of unpaid stumpage. This is going to sound like a very…. But since we were on rural, I thought: “Why not?”

There seems to be a lot of unpaid stumpage on the books over the last three years. What mechanisms are there to recover the money? There’s one group, the San Group — their piece of property has already been sold. Has the money been recovered? What are the mechanisms, going forward, to be able to recover things like unpaid stumpage?

[4:55 p.m.]

Hon. Brenda Bailey: Mechanisms for recovery of stumpage debt…. When licensed entities fail to pay their stumpage fees, the Ministry of Forests and the Ministry of Finance each have actions that they can take to remedy the situation.

Forests can take the following actions: suspend licences of clients that are deemed not to be at arm’s length; deny export, based on overdue debts; or deny new licences or permits, based on overdue debts. Stumpage is tied to licence holders and others who deal in timber, as determined by Forests. Once licences are issued by Forests, companies engage in logging as permitted.

Finance does not have authority to suspend licences. Finance communicates information to Forests when licence holders are delinquent, and Forests determines the status of the licence. When stumpage debt is not paid, Finance may take the following collection actions.

We can notify clients in writing of the amount owed and government’s intention to take collection action and recover the balance. We can make calls to clients to discuss their outstanding debts, to encourage full payment or establish a payment plan. Payment arrangements may be considered. If the debt remains unpaid, escalated collection actions may include issuing bank demands, third-party demands and/or wage demands for individuals; and, lastly, registering a charge with Land Title and Survey, LTSA, against real property owned by the client.

Peter Milobar: We have unpaid stumpage amounts out there.

We have, based on the ministry’s own internal audit of speculation and vacancy tax, I believe — now, we’re going back a couple of years of what they looked at — 300-some-million dollars of unpaid speculation and vacancy tax in arrears.

What is currently the dollar figure for arrears overall, unpaid taxes that the government is currently carrying on its books?

[5:00 p.m. – 5:05 p.m.]

Hon. Brenda Bailey: The amount, rolling up overdue taxes from all sources, is $1,473,992,424.

Peter Milobar: In the audit around speculation and vacancy tax, it indicated that that would be the largest sum of any outstanding arrears. Is that still the case?

Hon. Brenda Bailey: Yes, it is.

Peter Milobar: A lot of PST changes in this year’s budget, particularly those around construction services, engineering services, design, geotech — all of that. Did the government exempt themselves from those construction-related PST costs, or will those be added to the cost of all public projects, moving forward?

Hon. Brenda Bailey: We did not.

Peter Milobar: If you did not exempt the government from those, and government projects are the ones that are typically in the billions and hundreds of millions of dollars and design services are usually a percentage of the overall cost of a project, how much of the anticipated PST revenue from those construction-related PST revenue sources that we see on the books will be attributable to government capital spending?

In other words, if you’re projecting to collect $50 million off of construction-related PST, how much of that number will actually be attributed to government contracts for government projects?

[5:10 p.m.]

Hon. Brenda Bailey: The question was on how much revenue will be attributable to government capital spending in regard to the PST changes, specifically on design services.

A couple of things I’d like to share with the member on this. First of all, the way that the PST is calculated on design services, it’s on 30 percent of a design service bill — PST at 7 — and once that calculation is made, it’s about a 2 percent increase.

I will also share with the member that PST collected by government taxpayer-supported provincial capital…. That category, government taxpayer-supported provincial capital, is about 9 percent of total investment in a given year. That’s the amount, and that’s what you would expect to see PST charged on at the rate that I described prior.

I move that the committee rise and report progress and ask leave to sit again.

Motion approved.

The Chair: We stand adjourned.

The committee rose at 5:14 p.m.

The House resumed at 5:18 p.m.

[The Speaker in the chair.]

Mable Elmore: Committee of Supply, Section B, reports progress of the estimates of the Ministry of Finance and asks leave to sit again.

Leave granted.

Jennifer Blatherwick: Section A reports progress on Bill 9 and asks leave to sit again.

Leave granted.

Susie Chant: Section C reports progress on Bill 20 and asks leave to sit again.

Leave granted.

The Speaker: Hon. Members, the Hon. Administrator is in the precinct. Please remain seated while we await her arrival.

[5:20 p.m.]

Her Honour the Administrator requested to attend the House, was admitted to the chamber and took her place in the chair.

Royal Assent to Bills

Clerk of the Legislative Assembly:

Forests Statutes Amendment Act, 2026

Miscellaneous Statutes Amendment Act, 2026

Veterans and First Responders Month Act

In His Majesty’s name, Her Honour the Administrator doth assent to these acts.

Her Honour the Administrator retired from the chamber.

[5:25 p.m.]

[The Speaker in the chair.]

Point of Order
(continued)

The Speaker: Government House Leader.

Hon. Mike Farnworth: Thank you, hon. Speaker. Before I move the adjournment, I also rise to respond to the point of order made by the member for Skeena. I know that you are going to be considering that ruling.

I have had a chance to review the Blues regarding the point of order that the MLA for Skeena raised when she said: “The Premier of British Columbia stood and told this House that members on this side of the House oppose LNG.”

However, the Premier did not do that. Instead, he pointed out that opposition MLAs had been silent in terms of celebrating the progress of LNG Canada.

I also think that it is relevant, now that the point has been raised on this issue, to point out that the House Leader for the opposition has, in the past, expressed opposition to the project, back in 2020. I genuinely believe, though, that members’ positions change and evolve, and I would accept that her position has changed similarly with MLAs on our side of the House.

However, the claim that the member for Skeena made that “the Premier knowingly misled the House” is simply not true. He made comments based on information accessible to the public.

Hon. Speaker, I would ask you to take those remarks under advisement when you make your ruling.

The Speaker: Thank you, Member. The Chair will take that under advisement and provide my ruling next week.

Hon. Mike Farnworth moved adjournment of the House.

Motion approved.

The Speaker: This House stands adjourned until ten o’clock Monday, May 25.

The House adjourned at 5:27 p.m.

Proceedings in the
Douglas Fir Room

The House in Committee, Section A.

The committee met at 1:13 p.m.

[Steve Morissette in the chair.]

Committee of the Whole

Bill 9 — Freedom of Information
and Protection of Privacy
Amendment Act, 2026
(continued)

The Chair: Good afternoon, Members. I call Committee of the Whole on Bill 9, Freedom of Information and Protection of Privacy Amendment Act.

On clause 2 as amended (continued).

Rob Botterell: Thank you, Mr. Chair, and welcome to the deliberations.

Just before we broke, the minister kindly provided a bit of an overview of the rationale for the change, which was that the insertion of the phrase “in a reasonable amount of time” would incentivize applicants to consider or narrow the breadth of the request, and the public body can then assist them.

I’d like to just offer some background context for the question I’m going to ask, which is that the average processing days by type of request has dropped from 50 days for FOI requests to 43 days between 2020 and 2024-25.

The pages processed has increased — and this is all the pages processed — from 803,000 to a little over one million, or about 1.1 million.

[1:15 p.m.]

The average number of pages by type of request has increased from 159 pages, on average, to 366 pages. So the number of pages by type of request has increased.

The current approach would be, as I expect — and I welcome it, if the minister wishes to clarify this — that an applicant would make an application to the public body. The public body would review the request to determine if the written request provides enough detail to enable an experienced employee of the public body with a reasonable effort — I’ll deal with the next part separately — to identify the record sought.

My question is: by adding the phrase “and in a reasonable amount of time,” what is the ministry’s goal in terms of the narrowing of the request? Presumably, the narrowing of the request would reduce the average number of pages that are processed under FOI requests and would also presumably reduce the average processing days.

The average processing days is 43. The average number of pages is 366. So what is the ministry’s objective and target in saying “in a reasonable amount of time” in addition to “a reasonable effort”?

Hon. Diana Gibson: I think the confusion is coming from the member opposite mixing up the reasonable amount of time to identify the record being sought with the time to process the record. This isn’t about narrowing requests, reducing size. This is about ensuring that the experienced employee of the public body has a reasonable amount of time to identify the record sought.

Once again, this is about ensuring that the officer responsible can help the applicant get the record they need, and it incentivizes applicants to respond with clarifying details in order to make that possible.

Rob Botterell: As the minister noted, if the purpose of this amendment is to incentivize a discussion around the breadth of the request in order to identify the record sought in a reasonable amount of time — not the processing time but the time to actually identify the record — then what is the ministry’s objective with this change? How will you measure success of this amendment?

[1:20 p.m.]

Hon. Diana Gibson: The change in this clause is meant to improve FOI efficiency and experience, and we will continue to report on this as part of our annual reporting.

Rob Botterell: When I read the appendices to the annual report of the administration of the FOI and privacy act, the statistics are aggregated. Once again, I understand in a general way — we all understand in a general way — what the minister is saying.

[1:25 p.m.]

But what I’m interested in is…. We’re expecting a behaviour change in the way requests are dealt with and that, to quote the minister, this will incentivize applicants to narrow their request or make the request more clear in terms of identification. Does the ministry have no forecast or no estimate of what the impact of this amendment will be?

Hon. Diana Gibson: I need to correct something that the member said. I specifically said that this clause is not about narrowing requests. It is only about clarifying details.

In terms of the question about metrics, as I’ve said, this change is about improving overall FOI efficiency and experience. We will continue to report on this in our annual report, which includes data on timeliness.

Rob Botterell: I’ll try and rephrase this another way. The minister has indicated that this change is intended to increase efficiency and the experience. How do we know if that has been…? When we read the next annual report, what information will be in that report that enables us to understand whether or not the efficiency and applicant experience has improved?

[1:30 p.m.]

Hon. Diana Gibson: Asked and answered.

Rob Botterell: Let it be noted for the record that I disagree that the question has been answered. I respect the fact that the minister has stated that the question is asked and answered, but just for the record, in my view, it hasn’t been asked and answered.

I’ll move on to another question. What is a reasonable amount of time?

Hon. Diana Gibson: As we’ve canvassed already in this House, “reasonable” is a test that is well established in the jurisprudence. This continues to be under the oversight of the independent Office of the Privacy Commissioner, which maintains a high threshold.

Rob Botterell: What is an unreasonable amount of time? For example, if an applicant provides information in a request, is it one hour, two hours, five hours or ten hours? What is an unreasonable amount of time for the purposes of this clause?

Recognizing that the commissioner oversees the act but it is actually the hard-working public servants throughout the public bodies that are dealing with this on a day-to-day basis, how will they approach it under the oversight of your ministry in terms of defining what an unreasonable amount of time is for the purposes of this section?

[1:35 p.m.]

Will each public servant decide on their own what an unreasonable amount of time is? That is the conversation that will happen. The conversation that will happen is the public body, the hard-working public servants that are administering this act, will be looking at a request and communicating that, in some instances, this will be an unreasonable amount of time.

My question is: what is an unreasonable amount of time?

Hon. Diana Gibson: As has been already canvassed quite thoroughly, this sits under the independent Office of the Privacy Commissioner for determination of thresholds.

A reminder, also, that this clause sits in the broader act and needs to be read in conjunction with the duty to assist and timelines.

Rob Botterell: I don’t mean this as a facetious comment, but at times, I feel that the commissioner is actually the administrator of this act rather than the minister because we keep getting referred to the commissioner for answers.

My final question, and then I’ll turn over to my colleague. Can you confirm there was no consultation with applicants on this amendment?

[1:40 p.m. - 1:45 p.m.]

Hon. Diana Gibson: I appreciate the question.

The special committee spent extensive time engaging and consulting, including with the broader public, and recommended changing section 5 of the act, which this clause supports.

Jody Toor: My question. What is the standard? Is enough detail left entirely to the head of the public body’s judgment? Isn’t the public body then a player and a referee on the same playing field?

Hon. Diana Gibson: Thank you, member opposite, for the metaphor.

The public bodies do not set the standard. As per section 42 of the act, the Privacy Commissioner’s office maintains the oversight. In your metaphor, that makes the Privacy Commissioner’s office the referee for anybody who has recourse under this, in terms of determinations of the standards.

Jody Toor: Does clause 2 create new grounds for government to deny and delay embarrassing requests? Journalists and advocates often file broad requests because narrow ones miss important details. How does this interact with the current fee provision or 30-day response clock? And then what guidelines or trainings will ensure consistency, preventing narrow understandings that frustrate legitimate requests?

[1:50 p.m.]

Hon. Diana Gibson: It’s really important to clarify for the record that none of the proposed amendments allow a public body to refuse to respond to an FOI request.

Once again, in this clause 2, it is not about narrowing the request but about clarifying the detail to help find the record for the applicant. This clause does not change the legislative timelines under the act or introduce new fees.

Jody Toor: I know my colleague has been asking some questions around timelines, so I’m just going to dig a little bit more just to get some more clarity on this.

How will reasonable effort and reasonable amount of time be measured, and what is the max timeline so applicants know what to expect when they file?

[1:55 p.m.]

Hon. Diana Gibson: The determination of “reasonable” has already been quite thoroughly canvassed here as to be sitting under the determination of the Privacy Commissioner’s office.

As to the second part of your question, the officers will always engage with the applicant transparently so that the applicant knows what to expect.

The Chair: Shall clause 2 as amended pass?

Division has been called.

[2:00 p.m. - 2:05 p.m.]

The Chair: Is there agreement to waive the time?

Leave granted.

The Chair: Before putting the question, I remind all members that only the members of Section A or their duly appointed substitutes are authorized to vote.

The question is: shall clause 2 as amended pass?

Clause 2 as amended approved on the following division:

YEAS — 5
Routledge	Neill	Choi
Gibson		Shah
NAYS — 5
Botterell	Maahs	Williams
Bird		Luck

The Chair: Members, there being an equal number of votes for and against, the Chair must make a casting vote. The Chair votes in favour of clause 2 as amended to keep the bill intact. Clause 2 as amended passes.

We have dealt with clauses 3 through 6, so we’re on clause 7 next. We’ll give staff a minute to get in place.

On clause 7.

Rob Botterell: For the benefit of the members opposite, when we were dealing with clause 7 and finished, we were in the middle of a question that I’d asked the minister. So I was kind of anticipating that we could move back to the question.

I would ask if we could have the answer to the question I asked.

Hon. Diana Gibson: Would the member opposite please remind us of the question?

Rob Botterell: What other jurisdictions in Canada have the exemption that is covered off in clause 7? It reads: “In this section, ‘judicial officer’ means a judge, associate judge or justice of the peace referred to in section 3(3)(b).” Sub (2) of this exemption: “The head of a public body may refuse to disclose to an applicant information that would reveal the substance of a communication of a judicial officer, or a communication made on behalf of a judicial officer, to a public body respecting a proposed or existing policy, program or enactment.”

[2:10 p.m.]

Hon. Diana Gibson: A reminder to the member opposite that FOIPPA already does not apply to court records, records of judicial officers and judicial administrative records as specified in section 3. Almost all records are excluded, all judicial records.

This is simply about areas of potential ambiguity in order to protect the independent courts, which is a cornerstone of our democracy, and to allow public bodies to have full and frank discussion. And this was developed in-house.

Rob Botterell: Just to confirm, I’ll describe it this way. This provision was developed in-house, and there is no other jurisdiction in Canada, and we’re all in Canada, that has this provision.

By way of context, for the past 34 years, we’ve operated with the legislation in its current form, and now a class-based exemption is being added to the act which has not been added to any other act in Canada.

My question. Well, actually, I’ll make a further observation. There seems to be heavy reliance on the commissioner. When the commissioner takes the view that there’s been no regression of right of access with these amendments, he’s clearly wrong, because this is the introduction of a new exemption.

What additional categories and types of information regarding judicial comment on legislation and policy will now be protected from disclosure that are not already protected by one or more of the existing exemptions in the act?

[2:15 p.m. - 2:20 p.m.]

Hon. Diana Gibson: The clause, 16.1(2), outlines very clearly the records being discussed or the information being discussed here. This is not a regression but a clarification which is needed in order to maintain the independence of the judiciary.

Jody Toor: Proposed changes to clause 7 create a new exemption allowing public bodies to refuse disclosure of communications made by or on behalf of the judicial officers regarding proposed or existing policies, programs.

I understand the importance of protecting judicial independence. However, I believe this committee should take a careful look at how broad this new exemption may become and whether it could limit public transparency around discussions connected to laws, policies or government programs.

Some of my concerns that I have…. I believe that this shift creates a new category of secrecy. I’m also concerned that the broad language may shield important policy influence from public scrutiny. I’m unclear around the boundaries regarding what communications qualify. I question the limited transparency around the judicial involvement in policy discussions.

So my question is: why was it necessary to create a new disclosure exemption for judicial communications?

[2:25 p.m.]

Hon. Diana Gibson: I want to affirm that this is not about limiting public transparency or about secrecy. This is about maintaining the independence of the courts, which is a cornerstone of our democracy.

Again, to remind the member opposite, almost all judicial records are already excluded under section 3. This is just about areas where there is potential ambiguity, and it makes that clarification.

Jody Toor: How does this new exemption in section 16.1 relate to the existing judicial independence protection already in section 3(3) of the act? Why is the additional exemption even necessary then?

[2:30 p.m.]

Hon. Diana Gibson: This is about clarifying areas of potential ambiguity.

Jody Toor: What problem, particularly, is the government attempting to solve with this new proposed clause and change?

Hon. Diana Gibson: With all due respect to the member opposite, this has been thoroughly canvassed already.

Rob Botterell: What we’ve established so far on this section is that this is a new class-based exemption and that for the past 34 years, the independence of the judiciary has not been compromised by dealing with requests for information through the existing exemptions.

We’ve confirmed that this type of exemption exists nowhere else in Canada, and we have no evidence, other than the assertion of the minister, that this is purely a clarification and that not one additional word or part of a document that is withheld by this exemption…. In other words, there will be no change. There will be no regression to access to information. This is a distinction without a difference. This is unnecessary because it’s not protecting any information that is going out now.

What we have here is an amendment that, we are assured by the minister, will in no way regress access to information, so it’s unnecessary.

The part that I find particularly noteworthy is that throughout the last couple of days, every time we ask a question, or many times when we ask a question, it’s in the hands of the commissioner. But in this case, we’re not needing the commissioner because the minister is clear and has formed the minister’s view of what’s needed. So here we are.

So the question is: has there been an order of the commissioner or a decision of the courts that has resulted in the release of information that is not protected by the current act that necessitates this amendment, or are we purely dealing with hypotheticals?

[2:35 p.m.]

Hon. Diana Gibson: I want it, for the record, noted that I disagree with the statement made by the member opposite.

But with regard to the actual question asked, this is about an area of potential ambiguity that was identified, that is necessary in order to protect the independence of the courts, which is a cornerstone of our democracy.

The member opposite also mentioned, somewhat sarcastically, reference to the Privacy Commissioner’s office. Of course, as per section 42, the Privacy Commissioner also retains oversight of this clause.

The Chair: We will now take a ten-minute break and reconvene at 2:50.

The committee recessed from 2:40 p.m. to 2:52 p.m.

[Steve Morissette in the chair.]

The Chair: I will call the Committee of the Whole back to order.

Rob Botterell: How many FOI requests in 2024-25 involved records containing judicial comments on legislation or policy, and what other metrics are available in relation to this category of requests for 2024-25?

[2:55 p.m. - 3:00 p.m.]

Hon. Diana Gibson: The clarification provided under this clause will help us to have that data.

Rob Botterell: I’d note for the record that the answer to the question previously raised involved no information that’s relevant or responsive to the question.

Were applicants or members of the public consulted with respect to this amendment?

[3:05 p.m.]

Hon. Diana Gibson: As this clause pertains to the independence of our courts and judiciary, our engagement was appropriate to that, with appropriate ministries and the Privacy Commissioner’s office.

Jody Toor: How broadly will communication respecting a proposed or existing policy program be interpreted? Could this exemption apply to informal communications?

Hon. Diana Gibson: The language of the clause is quite clear as to what this pertains to. It is the substance of a communication of a judicial officer or a communication made on behalf of a judicial officer to a public body.

Jody Toor: Could communications influencing public policy now become inaccessible through FOI? Does the government acknowledge that this creates a new category of protected communications?

[3:10 p.m.]

Hon. Diana Gibson: It’s important to note that the policy, program or enactment is not subject to this clause, just the communication of the judicial officer or the communication made on behalf of the judicial officer.

Jody Toor: How does this exemption balance the protection of judicial independence with the act’s overall purpose of promoting disclosure and government accountability? Could the minister answer that, as well as: could this provision shield policy and intergovernmental discussions because a judicial officer provided input?

Hon. Diana Gibson: Thank you, member opposite, for the opportunity to clarify that this does not shield a policy. It is clearly and tightly scoped to apply only to the substance of a communication of a judicial officer or a communication made on behalf of a judicial officer to a public body.

[3:15 p.m.]

Rob Botterell: A simple question. Given that there has been no consultation with the public on this amendment — or on many of the other amendments, but let’s focus on this one — is it the view of the minister that the public has no role to play in providing input on amendments?

[3:20 p.m.]

Hon. Diana Gibson: The consultation with regards to this clause has already been asked and answered. However, with regards to broader consultation on Bill 9, it’s important to note that there’s a regularly scheduled special committee of the Legislature to review FOIPPA, and public consultation happens over the course of that review. The last special committee report was issued in 2022, which involved extensive public engagement.

The proposed amendments in Bill 9 include incorporation of feedback from the special committee as well as from the Information and Privacy Commissioner.

Rob Botterell: I’ll just note for the record that the special committee report in 2022 dealt with very few of the amendments in front of us now, and the input of the public was not sought during those deliberations on these specific amendments.

The Chair: Shall clause 7 pass?

Division has been called.

[3:25 p.m.]

[Jennifer Blatherwick in the chair.]

The Chair: Good afternoon, Members. I bring us back to order. I ask for the consent of all members to waive time.

Leave granted.

The Chair: Before putting the question, I remind all members that only members of Section A and their duly appointed representatives are authorized to vote.

The question is: shall clause 7 pass?

Clause 7 approved on the following division:

YEAS — 5
Routledge	Neill	Choi
Gibson		Shah
NAYS — 5
Botterell	Paton	Maahs
Williams		Luck

The Chair: Members, there being an equal number of votes for and against, the Chair must make a casting vote. The Chair votes in favour of clause 7 to keep the bill intact in the original form and as adopted at second reading. Clause 7 is passed.

On clause 8.

Jody Toor: Before I begin my questions on this clause, I want to be very clear that my concerns are not about opposing modernization or digital government services. The responsibility of this committee is to carefully examine how government intends to protect privacy, accountability and the public trust as more personal information moves between connected government services and systems.

I want to state clearly that the questions regarding privacy protections, oversight, data sharing and the scope of government authority should not be dismissed or characterized. These are some serious public policy questions involving the personal information of British Columbians, and I believe that they deserve clear, transparent answers from the government.

My concerns that I have that I’ll get into with my questions…. My concern is that this clause appears to broaden government authority to collect personal information beyond what many citizens may reasonably expect. I’m also concerned that this creates a foundation for increasingly centralized information-sharing systems across ministries and public bodies. I’m also concerned that the long-term scope of these powers remains unclear and may expand over time through regulation or operational practice.

[3:30 p.m.]

I believe many citizens may not fully understand how widely their personal information could circulate within connected government systems. I’m concerned that this framework may lead to greater sensitivity of personal information across multiple government platforms and institutions.

My question. Why is an FOI bill being used to create expanded personal information collection authority rather than introducing a stand-alone bill particularly focused on digital governance and privacy protection? Was separate public consultation considered? Did the government receive legal or privacy advice recommending this framework be embedded within the FOI bill?

[3:35 p.m.]

Hon. Diana Gibson: It’s important to start with saying that we do take privacy very, very seriously. This isn’t just the FOI Act. It’s the Freedom of Information and Protection of Privacy Act, which means this is exactly the place to be talking about and covering the protection of privacy.

I want to talk a little bit about what Connected Services is. Connected Services is being designed to help improve how government services are delivered to British Columbians. It’s about modernizing and better coordinating digital service delivery across government and is part of a broader effort to align with how people experience government services and to ensure connected services are provided in a privacy-enhancing and secure manner. This is really about putting people at the centre of better service delivery.

Jody Toor: Thank you to the minister for that answer.

What categories of personal information may ultimately be collected under this framework? Is there a defined limit on the types of information that may be included, and where exactly are those limits written in this bill?

[3:40 p.m. - 3:45 p.m.]

Hon. Diana Gibson: It’s important to recognize that there is a general principle in public sector privacy that you only collect what you need and that it has to be and is narrowly determined to be collectible if it relates directly to and is necessary for the activity.

When we get to clause 20, we can discuss more specifics around the operations of Connected Services.

Jody Toor: Could highly sensitive information such as health, education, housing, disability, income assistance or mental-health-related information eventually fall within this authority? Has the government ruled out any categories of information entirely? If not, why not?

[3:50 p.m.]

Hon. Diana Gibson: It’s really important to correct a misconception. This is not about creating a centralized data system with large amounts of personal information. This is about modernizing service access for individuals. It’s about ensuring information is appropriately shared across program areas using existing information sets and ministry data.

This is about secure information-sharing between public bodies to ensure access to services. It is only about a situation where an individual is looking to access a program or a service and only about the data needed to ensure they can access that program or service.

Jody Toor: Who, ultimately, determines what information may be collected, shared or coordinated through Connected Services systems? Is that authority led by ministers, ministries, Connected Services providers or regulation? What independent oversight exists over those determinations?

[3:55 p.m.]

Hon. Diana Gibson: I want to reiterate something that I think is the root of some of the confusion here.

[4:00 p.m.]

It’s that this, again, isn’t about creating a new, centralized data system. It is about the secure sharing of information between public bodies in order to improve service access for citizens.

Jody Toor: Will citizens always know when their information is being collected indirectly through Connected Services systems, and will individuals receive notification when information moves between ministries or public bodies? Can citizens request a record showing where their information has circulated?

Hon. Diana Gibson: These are good questions, but they do deal with the content of other clauses. For example, the indirect data collection is dealt with in the next clause.

Jody Toor: Is meaningful consent required for all forms of collection and sharing under this framework? If consent is not always required, under what authority may information still be collected or shared, and how will citizens meaningfully opt out?

[4:05 p.m. - 4:10 p.m.]

Hon. Diana Gibson: There are multiple ways that a person, a citizen, can access services — by phone, online, in person. The intent is to ensure transparency around how that information is shared.

Jody Toor: My question actually was: was consent required for all forms of collection and sharing under this framework? And if consent is not always required under the authority, may information still be collected or shared, and how will citizens meaningfully opt out? So that didn’t really answer my question that I had.

[4:15 p.m.]

Hon. Diana Gibson: Elsewhere in FOIPPA and other statutes govern the collection of and privacy protection of information. What this clause is doing is enabling where a citizen wants a service — for us to be able to deliver it to them.

Jody Toor: So if a citizen has not given consent, and if consent is not always required, how can the citizen meaningfully opt out?

[4:20 p.m.]

Hon. Diana Gibson: As I said earlier, there are multiple avenues for an individual to access services. For an individual who doesn’t want to access through the online Connected Services, they have the option of going to a Service B.C. office.

The Chair: The Chair will now call a five-minute recess. This is now 4:21, and we’ll return at 4:26.

The House recessed from 4:21 p.m. to 4:28 p.m.

[Jennifer Blatherwick in the chair.]

The Chair: Thank you, Members. I call us back to order.

Jody Toor: Has the government conducted a formal privacy impact on privacy risk analysis regarding centralized information coordination? Will those findings be made public if there was? And did the Privacy Commissioner raise any concerns or recommendations?

[4:30 p.m.]

Hon. Diana Gibson: First, I want to reaffirm that this is not about creating a centralized data system. But the question with regards to the Privacy Commissioner and privacy impact assessment is a good question, and it’s dealt with in clause 20.

Jody Toor: What independent oversight exists over Connected Services providers and their handling of personal information?

Hon. Diana Gibson: Thank you, member opposite. It is an important question. As per clause 42, “General Powers of the Commissioner”, this applies to any provision of this act or regulation.

Oversight remains a core safeguard in this legislation. The commissioner will continue to oversee the Connected Services provider and ensure that its operations comply fully with the law.

Further details will be again discussed more in clause 20.

Jody Toor: Can Connected Services providers be audited independently?

Hon. Diana Gibson: We are starting to stray pretty far away from the clause under discussion. But again, affirming that this does remain under the independent oversight of the Privacy Commissioner.

Jody Toor: Does government acknowledge concerns that this framework creates legal and technical framework for centralized intergovernmental data coordination across public bodies?

[4:35 p.m.]

Hon. Diana Gibson: The answer is no, because we are not creating a centralized data set and because the data continues to be under the protection it always has been.

Clause 8 approved.

On clause 9.

Jody Toor: The proposed changes for clause 9 expand the authority for public bodies to collect personal information indirectly for Connected Services purposes under section 69.3. My concern with this indirect collection authority is that citizens may gradually lose visibility over where their personal information is going and who is accessing it and how broadly it may circulate between connected government systems and public bodies.

I also want to state clearly before beginning my questions that these are legitimate concerns regarding privacy and oversight, transparency and the movement of personal information between government systems that shouldn’t be dismissed. These are serious public policy and accountability questions involving the personal information of British Columbians. I believe they deserve clear answers from the government.

So I will ask: why is the government expanding authority for indirect collection of personal information?

[4:40 p.m.]

Hon. Diana Gibson: I thank the member opposite.

This clause is about ensuring that an individual who’s entered all their information in one place and comes for a different service that uses all that same information doesn’t have to enter it all again. It’s about making it easier for people to access services. If they choose not to, they can still go to a Service B.C. office and enter that information separately if they choose.

Jody Toor: Knowing what the minister just said, so once the information is collected and the citizen has given their information, will citizens always know when their information is collected indirectly rather than directly from them? And will individuals receive notice when information is shared between public bodies or Connected Services providers?

[4:45 p.m. - 4:50 p.m.]

Hon. Diana Gibson: Just a reminder to go back to the general principle. What we’re talking about here is strictly data that relates directly to or is necessary for a program or service. That’s the general principle of public sector privacy. So there are a fair bit of boundaries around the data.

People will be able to know what data is being shared, because they would be opting in. They would be the ones accessing the service, and they could choose, if they didn’t want to access it through Connected Services, to go as they would today to receive service.

Jody Toor: Just to clarify, will the individual receive a notification when information is being shared between the public bodies or Connected Services providers?

Hon. Diana Gibson: The citizen will know, because they will be the ones choosing to access Connected Services or to use the pathways they have today.

Sheldon Clare: Thank you to the minister for her response.

But, I think, to take this a little bit more to the point, when someone receives a FOIPPA response, will they be told that their information has been shared between Connected Services providers or other public bodies? Will that come back as part of the information when they’ve made a request? Will they be told what areas have had their information to be able to respond to it? Is that going to be part of what comes back, or do they have to specifically make another request for that?

[4:55 p.m. - 5:00 p.m.]

Hon. Diana Gibson: I want to clarify…. It might be helpful to remind the member opposite that this is about an individual whose information has been entered already and is held for a program or service that is eligible — for another one to be offered access to that one without having to re-enter their information. If they choose not to, they can choose to use the existing pathway.

Sheldon Clare: Thank you for the response to the question.

The next question that we have on this clause is about enabling. When the government uses the phrase “for the purpose of enabling,” how broadly does the government intend to interpret that authority in practice? What specific activities or functions does government believe would be covered under the phrase “for the purpose of enabling”?

When we’re looking at this particular phrase, I think it’s also important to understand what limits would exist on how broadly the phrase “for the purpose of enabling” may be interpreted operationally across ministries and connected systems. I would be very interested in the minister’s response to that.

[5:05 p.m.]

Hon. Diana Gibson: The purpose of this is to enable an individual to access multiple programs or services without having to enter the same information multiple times, if they so choose.

Sheldon Clare: Thank you to the minister for her response.

Again, what does the government see the meaning of the word “enable” as being? What do you see the meaning of the word “enabling” to be? What is its legal status? What is its legal meaning in regards to this clause?

[5:10 p.m.]

Hon. Diana Gibson: Read in conjunction with clause 20, enabling is about creating a framework to support the delivery of trusted, affordable, connected services that meet the needs and expectations of people.

Sheldon Clare: Thank you for the response to the question.

I think one of the concerns people have when we look at the clause is about the collection and circulation of personal information across multiple systems.

In terms of the purpose of the clause, which added “authority for the indirect collection of personal information for the purposes of services provided under section 69.3 of the act, as added by this bill,” could the authority granted eventually permit widespread circulation of personal information across multiple systems? I’d be very interested in the minister’s response to that.

Hon. Diana Gibson: No, to the issue of widespread circulation across multiple systems, because it is limited by the language in clause 20 and by the principles of collection and sharing of information by the public service.

I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The Chair: This committee stands adjourned.

The committee rose at 5:14 p.m.

Proceedings in the
Birch Room

The House in Committee, Section C.

The committee met at 1:09 p.m.

[Debra Toporowski / Qwulti’stunaat in the chair.]

Committee of the Whole

Bill 20 — K’ómoks Treaty Act
(continued)

The Chair: Good afternoon, Members. I call Committee of the Whole on Bill 20, K’ómoks Treaty Act, to order.

On clause 1 (continued).

[1:10 p.m.]

Scott McInnis: Thank you, Madam Chair, and to the minister and the staff, for the opportunity to dig into Bill 20, the K’ómoks Treaty Act, 2026.

As I stated in my second reading debate speech, this has been a really interesting process for me and one that I have found to be very informative. Whether it’s learning about the treaty process or some of the histories involved, not only of the K’ómoks but of their neighbours, it has just been a tremendous learning opportunity all around. That doesn’t get lost on me in this process here today.

I think, generally speaking…. We’re looking at clause 1 here, and I do have a bit of a preamble to my first question. I think all members can agree that at the end of the day, the treaty, enabling legislation and the treaty document itself — one of the goals of that, certainly, is to provide more answers than it does questions.

I hope that as we work through this process together, we can leave here with a set of answers that in our opinion remain unanswered at this point. Again, this is a very consequential document which will surely lead as a roadmap for further treaties to come. It’s crucially important for the K’ómoks and for the rest of British Columbia that we have those answers in the most fulsome way that we can, because it’s going to be quite difficult to go back and say that we missed this and we need to erase it and change it.

It is a pretty consequential debate here that we’re going to be having for the next number of hours. I know there are many people watching outside of here to take note of how these questions are brought forward and the corresponding answers to those questions.

I know we’re on clause 1, to begin here. I don’t have a lot of detailed questions around clause 1. I know my friend from West Vancouver–Sea to Sky will have some time, as well, for that.

I want to thank the Clerk’s office, especially, for supporting me, specifically in how to interpret a treaty document using a portal of enabling legislation, because it’s quite different than just a regular bill that we see passed through this House. I certainly had a lot of questions about how to approach that properly, and I really thank the Clerk’s office for their direction in that.

Just looking at…. In clause 1(2), my first question for the minister…. I’m assuming it’s a fairly straightforward one, but it’s just something I had noted. It reads: “Words and expressions used in this act have the same meanings as they have in the K’ómoks treaty, unless the context requires otherwise.”

I’m just hoping the minister can expand on that second half of that statement, “unless the context requires otherwise.” What context would that be? Just a little bit more explanation around that.

[1:15 p.m.]

Hon. Spencer Chandra Herbert: For us non-lawyers, this may seem confusing, but I would say that…. My understanding is, basically, that if the term is defined in the treaty, it doesn’t need to be defined in the bill, and the exception that the member refers to is for words that are in common parlance. We don’t have a definition for the word “section,” for example. There’s a common use of that word. That’s what, I think, might be the easiest way to explain that.

Jeremy Valeriote: I have a large number of questions on clause 1, starting with some pretty general ones. I think they can be justified under clause 1. If I have to move them to clause 3, I’ll take the Chair’s instruction, but we’ll get started and see where we land.

Just generally, can the minister explain why modern treaties in British Columbia exist and how they’re shaped by the unique colonial history of our province?

Hon. Spencer Chandra Herbert: Well, I believe treaties are one of the most comprehensive forms of reconciliation between First Nations, B.C. and Canada. As the member knows, they’re negotiated. They’re constitutionally protected agreements, which really provide a framework for reconciling Crown title and the inherent title of First Nations.

As the member will know, unlike in other provinces, our responsibilities historically, in relation to Aboriginal rights and titles, were not addressed, except for the Douglas treaties and Treaty 8. So when the early Europeans first began to settle, the British recognized that treaties needed to happen. There needed to be settlement. That’s what they did in the eastern part of North America, and the treaties would help with that.

The British recognized that the people who were already here had title to land. In fact, I think it was the Royal Proclamation of 1763 that declared that only the British Crown could acquire lands from First Nations and only by treaty. In most of Canada, that’s what happened.

The member knows that things happened a little differently here in B.C. Of course, there were the Douglas treaties between 1850 and 1854, with Gov. James Douglas. Then after B.C. was made a colony, there were no further treaties entered into, aside from the Treaty 8 that I mentioned earlier.

The member will also know the colonial governments of the day took away the right of Indigenous Peoples to acquire land, reduced the size of any existing reserves that had been set up, denied they’d ever owned the land and paid no compensation for the loss of those traditional lands and resources. We know those actions were wrong. The courts have said the same. Those colonial decisions did not uphold the Crown’s obligations to First Nations.

Out of all of that and the refusal for many, many decades to enter into the treaty process to have those discussions, B.C.’s treaty process began, first discussed in the late ’80s and set up during the early 1990s, overseen by the B.C. Treaty Commission, which is an independent, neutral body that helps facilitate those conversations and negotiations.

It’s up to First Nations to decide how they want to organize themselves for the purpose of treaty negotiations or not choosing to enter into treaty negotiations. At some tables, there’s a single First Nation represented. At others, there may be two or more.

Really, the courts have been very clear that B.C. and Canada have an obligation to show up in a good way at those tables, that Aboriginal rights and title exist and that we have obligations to work through those issues on a nation-to-nation basis. Of course, I prefer negotiations, but we know that sometimes those end up in court discussions or in other processes to get to understanding.

Jeremy Valeriote: Thank you to the minister for setting the stage for an important discussion and probably a lot of time and effort in this committee.

We know that there are concerns being raised by neighbouring First Nations regarding territory overlap, governing and harvesting rights and non-derogation, and these concerns have made their way to this Legislature.

[1:20 p.m.]

We also know that colonial and later Crown governance and legislation attempted to strip Indigenous self-determination by outlawing governance practices that First Nations had used for millennia to resolve territory disputes, such as the one being raised today. This was done through disrupting family and hereditary systems, stealing children from communities, outlawing community and governance gatherings and more.

The first question is: how is this interference and harm taken into account and addressed in the province’s approach to treaty-making?

Hon. Spencer Chandra Herbert: To be clear on the question, the treaty process itself and the work that the Ministry of Indigenous Relations and Reconciliation does, really, respond to the desires of the individual nations in the sense of how they want to represent themselves and organize themselves. The treaty process itself was a response to many of these disruptions, beginning with the B.C. Claims Task Force report in 1991 and the establishment of the Treaty Commission.

Key aspects that B.C. brings to negotiations include recognition that outcomes can’t be imposed. Negotiations are voluntary, and they have to respond to the circumstances of the individual nations. Effective approaches can be modified or shifted. They’re not fixed. We continue to learn as the process of negotiation continues.

I think one way to explain that would be the 2019 Recognition and Reconciliation of Rights Policy, which, like the original Claims Task Force, was a collaborative tripartite effort with Canada, with First Nations Summit and B.C. and provides a specific vision of new options to address the past in the interest of a just and a prosperous future for this province.

Each process is different. Each process is unique, based on who’s in the room and who has interest in an area. So that’s a…. I’m sure the member will have other questions.

The Chair: I’m going to stop and recognize the member for Columbia River–Revelstoke.

Scott McInnis: I know this is a unique situation, but I seek leave to make an introduction.

Leave granted.

Introductions by Members

Scott McInnis: I looked over to my left, and I see Chief Roberts from the Wei Wai Kum First Nation here.

I know we bumped into each other randomly last night while we were having dinner and had a nice casual conversation. We’ve spoken many times over the last few weeks.

It’s an honour to have you here during the committee stage debate.

Would the House please welcome Chief Roberts.

Debate Continued

Jeremy Valeriote: Thank you to the member for the introduction.

Following up on the previous question, can the minister describe specific actions that he and the ministry are taking to ensure that Indigenous governance structures, as they’re determined by First Nations, are not impeded but are, in fact, supported by the province’s participation in treaty development and implementation?

[1:25 p.m.]

Hon. Spencer Chandra Herbert: Treaties, in their very language, are clear in their approach to supporting the principles of First Nations self-determination and self-government. They, of course, confirm the right of self-governance and the authority and jurisdiction to govern. Treaty nations have their own constitutions developed with and ratified by their members to frame how they do governance.

Just an example, t̓uk̓ʷaaʔatḥ Nation, one of the signatories of the Maa-nulth treaty, has a government structure that blends hereditary and elected leaders and is based on three pillars: the people’s assembly, which includes the people who make up the community; t̓uk̓ʷaaʔatḥ council, which includes two hereditary leaders and three elected leaders; and the executive, which is a council who are appointed to hold a specific portfolio.

Very much in the creation of treaties, the recognition of self-governments and the forms of self-governments are inherent in how we do that work.

Jeremy Valeriote: Recommendation 8 of the British Columbia Claims Task Force of 1991 addressed the need to address overlapping traditional territories.

To the minister, how is that work being supported, and how has he used their recommendations and work in the development of this treaty?

Hon. Spencer Chandra Herbert: Recommendation 8 of the B.C. Claims Task Force of 1991 stated the following, that “First Nations are to resolve issues related to overlapping traditional territories among themselves,” which was recommendation 8.

Certainly, in this work, we’ve repeatedly worked with K’ómoks, encouraged K’ómoks to work to resolve issues arising with neighbouring nations. We’ve offered capacity funding to support the negotiation of protocols between the K’ómoks Nation and overlapping nations to supplement funding that’s coming through the B.C. Treaty Commission.

In fact, of course, the member will know the development of the B.C. Treaty Commission was another of the recommendations from that task force. The legal landscape has changed since that 1991 task force report.

In particular, there are now recognized constitutional obligations that the Crown owes when undertaking any conduct that may adversely impact or affect asserted or established rights of First Nations. Consistent with that, B.C. and Canada have consulted with overlapping nations as the K’ómoks treaty has been negotiated.

As part of that consultation, the Crown has made changes to the treaty during treaty negotiations to avoid impacts. We included provisions to minimize or address impacts, including when section 35 rights are established at a future point by any overlapping nation, as well as offered accommodations to offset potential impacts of the treaty.

This includes, as well, provisions in the treaty that speak to the development of protocol agreements between the K’ómoks Nation and overlapping nations, and it also sets out that when K’ómoks enters into a protocol, they will make laws to ensure that the exercise of any K’ómoks exercisable section 35 rights addressed in a protocol is in accordance with the terms of that protocol.

We’ve encouraged K’ómoks to enter into protocol agreements with neighbouring nations, and K’ómoks has been in protocol discussions with Wei Wai Kai, Wei Wai Kum, Kwiakah, Xwémalhkwu and Qualicum Nations.

Jeremy Valeriote: How do the ministry and minister balance their obligations to treaty nations as compared with nations that have chosen other forms of self-determination?

Hon. Spencer Chandra Herbert: B.C. has obligations to all First Nations, whether they’re expressed through a treaty or not.

[1:30 p.m.]

There’s no way, nor would we want to avoid obligations to one First Nation by entering into a treaty with another First Nation. It’s not what we would intend to do, and it’s not what the law would support.

We’ve addressed the responsibility during negotiations by looking at the context into which we are negotiating, consulting with neighbouring First Nations when there is a potential for a treaty to affect the rights of another, much as we would in any other process involving Crown decision-making. We always seek to avoid or, if unavoidable, to mitigate potential effects that are identified. We also provide accommodation offers to First Nations in recognition that section 35 rights may be impacted by the signing of a treaty.

Specifically for the K’ómoks treaty, B.C. has successfully drafted an interim treaty agreement with Wei Wai Kai that we hope to initial shortly that captures the accommodations being provided. Discussions of accommodation packages are ongoing with Wei Wai Kum and Kwiakah.

As the question notes, as the member has noted, I know that in the past we entered into different types of agreements with neighbouring nations that, like treaties, are interest-based and designed to meet the needs of the nations. We have an active negotiating table between B.C. and Wei Wai Kum around a different form of an agreement — similar to treaty but not treaty in that sense, more of a self-governing agreement.

We, also, as the B.C. Treaty Commission process calls for, certainly, encourage and expect our negotiation partners to engage and seek resolution to any conflict or competing interests.

That same consideration applies to all negotiations with First Nations outside of treaty process as well. We’re clear that we have obligations to reconcile in all contexts. It’s right there in the treaties themselves, the provisions respecting other Aboriginal Peoples and the constraints on the treaty if it is proven to have an adverse impact on another nation’s rights. There are concrete actions that occur during the negotiations, and they build them into the treaty themselves, as I mentioned earlier, including shifts and land packages and those kinds of discussions.

Jeremy Valeriote: I appreciate the minister’s summary of obligations, and I’ll just follow up.

There were some concrete steps mentioned, maybe specific to some of the pieces, such as accommodation and shifts mentioned. What tangible steps is the ministry taking to ensure that First Nations who have ratified treaties or are further along in the treaty process are not gaining at the expense of First Nations that are further behind in the process or who have chosen not to pursue treaty?

Hon. Spencer Chandra Herbert: I’d mentioned the Wei Wai Kai interim treaty agreement that we’re working on and hope to initial soon.

With Wei Wai Kum, we’ve had 13 or more on-the-record consultation meetings. With Wei Wai Kum, at least two meetings now with myself and Chief, and I appreciate that he’s here today. Five without-prejudice meetings to brainstorm accommodation lands, 29 letters back and forth or as part of a larger group from Crown, over 50 emails. On May 13, the Premier and I also met with Wei Wai Kum to discuss their concerns. Subsequently, staff met to further explore their proposal regarding an Indigenous law summit, facilitated protocol discussions with K’ómoks.

Our consultation with Kwiakah has included eight meetings with my ministry, 14 letters back and forth as part of a larger group. I’ve met with Kwiakah Chiefs, as well, and ten letters from them back to us, 33 emails back and forth. Then, of course, we also take concrete actions to ensure neighbouring nations are heard.

We initialed — B.C., Canada and K’ómoks — what’s called the Salmon River land use and access agreement. The intent of that side agreement is really to respond to concerns raised by neighbouring nations to provide time and space for discussions to be undertaken between K’ómoks and the neighbouring nations in respect of the treaty and other matters of mutual interest.

[1:35 p.m.]

Under that agreement, for five years after the effective date of the treaty, it provides that K’ómoks will not develop or significantly alter or dispose of any interest in the Salmon River treaty lands. That’s the Salmon River Indian Reserve, Salmon River parcel.

During those five years, K’ómoks agrees to provide reasonable access to Ligʷiłdaxʷ Nations members through the Salmon River treaty lands to exercise their section 35 rights. I’ve continued to make good-faith efforts to negotiate protocols with the Ligʷiłdaxʷ Nations.

Indeed, that area of the Salmon River was identified by Wei Wai Kum as one of their highest priorities. Now, I’ve heard that from K’ómoks. I’ve heard that from Wei Wai Kai as well. They all have family members in the cemetery that is on that parcel of the land. There are family connections there amongst all members, so we understand the intent and the interest in finding a path to recognize what is currently known as the K’ómoks Indian Reserve, but it has, of course, a much broader connection and interest to the Ligʷiłdaxʷ Nations, as well as K’ómoks.

Jeremy Valeriote: Thank you to the minister for that thorough summary, and it takes care of my next question, except I think I just need to ask…. I heard a number of neighbouring First Nations, a thorough list of meetings and emails and letters sent. Are there any other neighbouring First Nations that weren’t mentioned that have been heard, in terms of perspectives, before introducing this legislation?

Hon. Spencer Chandra Herbert: Other nations that have some traditional territory overlap that have participated in consultations on the treaty, including sharing their perspective and concerns, include ɬəʔamɛn, Tseshaht, Xwémalhkwu, Mowachaht/Muchalaht and Qualicum.

A number of other First Nations have traditional territory that overlaps with the K’ómoks treaty area, but they have not raised significant concerns in response to the consultation correspondence, including Cowichan, Halalt, Lyackson, Penelakut, Ts’uubaa-asatx, Snuneymuxw, ʕaaḥuusʔatḥ, diitiidʔaaʔtx̣, Hupačasath, Klahoose, Stz’uminus, ʼNa̱mǥis, Snaw-naw-as, Kwakiutl and Ławit’sis.

Jeremy Valeriote: I’ll admit I’m only a year and a half into this role, and I’m learning. I’m asking this question for my edification and also to make sure we’re all working from common understanding.

Can the minister please explain the difference between traditional territory and treaty land?

Hon. Spencer Chandra Herbert: Yes, this, indeed, is an area where we can learn a lot. Treaty lands are the specific parcels of land identified in the treaty that the treaty nation will own and over which it has law-making authority. Nation laws apply to treaty lands in addition to provincial and federal law.

These lands are generally owned in fee simple by the treaty First Nation or its corporate entities. These lands are a smaller proportion of the broader treaty territory. For K’ómoks, treaty lands make up less than 0.5 percent of their traditional territory.

The treaty area…. I’ll provide a little bit more. I know it wasn’t the question, but it’ll help explain. It generally refers to the broader area or areas identified in the treaty within which the nation may exercise non-exclusive harvesting rights in accordance with the treaty, subject, of course, to private property rights and some other limitations.

In the K’ómoks treaty, this includes the K’ómoks harvest area, K’ómoks fishing area. These areas are not exclusive. Other nations may also assert and exercise rights in these areas. Treaty nation laws do not apply to lands in the broader territory outside of their treaty lands.

Traditional territory is a similar concept to treaty area, which reflects the geographic area the nation has identified as having been inhabited, used and stewarded by their people since time immemorial, encompassing ancestral and contemporary connections.

[1:40 p.m.]

Other nations could negotiate their own treaties or other agreements that include lands within a traditional territory.

Jeremy Valeriote: Following up on that, how is treaty land delineated when it’s located on the traditional territories of multiple nations? The minister mentioned fee simple. I’m guessing there are some other delineations.

Hon. Spencer Chandra Herbert: How is the treaty land delineated? I understand that is the question.

The B.C. Claims Task Force recommended, these being political negotiations — negotiations at a table that are interest-based, where the parties negotiate based on an interest area — the process is based on the statement of intent at the outset of negotiations.

However, the land for this treaty was selected through negotiations based on several other factors, including availability, existing interests on the land — the member mentioned one of those — interests of neighbouring First Nations, cultural and economic significance to the First Nations as well as input from local governments and the broader public.

Another factor, specific more so to Vancouver Island than elsewhere, are the E&N lands grants, which were issued in the past, as the member may know. This means that most lands in the Comox Valley are privately owned, and parcels of Crown land available for transfer were limited.

Now, where other nations have asserted rights or title claims that may be potentially impacted by a treaty, and nations have not been able to resolve disagreements amongst themselves, of course it’s our obligation to ensure that those other nations are consulted and where appropriate accommodated for potential impact to their rights as well.

As I mentioned during these negotiations for the K’ómoks treaty, changes were made with the agreement of K’ómoks to address concerns expressed through consultation with neighbouring nations. For example, lands on Sonora Island were removed in an earlier discussion because of objections of the Ligʷiłdaxʷ Nations. Additionally, language regarding the horse camp and K’ómoks gravel interests in Salmon River was significantly changed to reflect concerns raised by Wei Wai Kum and Wei Wai Kai.

Jeremy Valeriote: For the record, can the minister state the amount of land, in square kilometres, that is covered by the K’ómoks treaty?

Sorry, I’ll add a question. Can the minister offer a comparison that would allow us to have a sense of the size relative to some known geography?

Hon. Spencer Chandra Herbert: The treaty provides that K’ómoks lands would be approximately 33 square kilometres of treaty land. Now, that includes approximately 2.898 square kilometres of former Indian reserves and approximately 30.386 kilometres of former provincial Crown land and 0.093 kilometres of former federal Crown land.

Then, as well, in addition, if the member is doing some math, that comes out to more, but there are 10.41 kilometres of K’ómoks private lands which will also be part of that. Then there are an additional 18.32 square kilometres identified as pre-approved additions to treaty lands. There are approximately another….

That’s those treaty lands, and then the broader treaty area, of course, is much bigger. K’ómoks treaty lands, to which they have exclusive rights, are less than 0.5 percent of the overall treaty territory.

In terms of the comparison the member asks for, a local comparison in that valley would be that the size of the Comox Valley regional district covers an area of approximately 1,683 square kilometres. K’ómoks lands would be about 1.7 percent of the size of the CVRD, with treaty territory covering an area about six times that size of the CVRD.

[1:45 p.m.]

Jeremy Valeriote: I think I could probably dig it out through Hansard, in terms of the number of mentions, but can I just have the number of how many neighbouring First Nations overlap with the K’ómoks treaty area?

Hon. Spencer Chandra Herbert: Going through my notes — I’m doing some quick addition — 23 nations have territories which are overlapping to some extent with that broader treaty area that K’ómoks treaty includes.

Jeremy Valeriote: Just to be thorough, and I should have lumped it together, but how many neighbouring First Nations overlap up with the treaty land?

Hon. Spencer Chandra Herbert: The largest overlaps with the treaty lands are with the Ligʷiłdaxʷ group of nations — Wei Wai Kai, Wei Wai Kum and Kwiakah — and that’s why we spent such extensive consultations and have focused in those areas. Qualicum, as well, certainly has territory in that area and has participated in some of those consultations on the treaty.

I’ve mentioned the others earlier that have traditional territory but have not raised significant concerns.

Jeremy Valeriote: I think I was quick enough. Sorry, 23 overlapping with the treaty area and four overlapping with the treaty lands? Is that correct?

Hon. Spencer Chandra Herbert: That’s correct.

Jeremy Valeriote: Will the K’ómoks treaty prevent any other nation from negotiating hunting, fishing or harvesting areas in agreements within the treaty area?

Hon. Spencer Chandra Herbert: The treaty harvesting rights are non-exclusive. They do not take priority over asserted or established harvesting rights of other nations. They do not prevent other nations from also exercising harvesting rights. That means explicitly that other Indigenous Peoples may also exercise their rights in those areas.

The only lands identified in the K’ómoks treaty that K’ómoks will have exclusive rights to are those identified as K’ómoks lands, which is less than 0.5 percent of broader treaty area, which K’ómoks will own in fee simple. But, really, that land is intended more for housing, businesses and would not be likely areas that hunting or fishing might occur, in terms of the sense of at least most of that private land.

Jeremy Valeriote: Including what the minister just said, what assurances have been made to First Nations who have argued that this treaty limits their section 35 rights?

[1:50 p.m.]

Hon. Spencer Chandra Herbert: I mentioned earlier the Salmon River land use plan, which is one part of the response to the issue the member has raised.

Of course, the treaty itself includes a clause stating, “Nothing in this agreement will affect, recognize or provide any rights under section 35 of the Constitution Act, 1982, for any Aboriginal People other than K’ómoks,” but subsequent clauses set out a process that addresses where an overlapping First Nation establishes section 35 rights, through a court process or through the negotiating of a treaty, to ensure that those section 35 rights are not adversely impacted by this treaty.

This is called the non-derogation clause. It’s important for situations where First Nations can demonstrate, through a court process, that a treaty has impacted the exercise of their rights. The non-derogation provisions state that nothing in the agreement affects the section 35 rights of any Aboriginal People other than the K’ómoks, so there’s no taking away of the section 35 rights of other nations.

They further provide that where another Aboriginal People establishes section 35 rights that are adversely affected by the treaty, the treaty will operate and have effect in a way that does not adversely affect the section 35 rights. Or if that is not possible, then K’ómoks, Canada and B.C. will make best efforts to amend the K’ómoks treaty to remedy or replace the provisions so that there is no adverse effect.

The B.C. Court of Appeal has described the operation of Nisg̱a’a non-derogation clause, which is equivalent to paragraph 64 in the general provisions of K’ómoks. I’ll just quote, to be clear and on the record, the B.C. Court of Appeal:

“The effect of these provisions is to ensure that the Nisg̱a’a treaty does not affect the section 35 rights of other Indigenous groups. If an Indigenous group does establish section 35 rights, either by final judicial determination or by negotiation with the Crown, and those rights are adversely affected by the provisions of the Nisg̱a’a treaty, the other rights will prevail and appropriate measures will be negotiated to address the diminished Nisg̱a’a rights.

“These provisions provide significant protection for Indigenous groups, such as the Gitanyow, that have not yet established the nation’s scope of their section 35 rights in a way that could permit enforcement. In my view, however, they are neutral in respect of the Crown’s obligation to consult the Gitanyow and, if appropriate, accommodate their concerns.

“They do not stand in the way of consultation by the Crown, nor do they require it. It is when an Indigenous group’s section 35 rights have been established by treaty or land claims agreement with the Crown or, if necessary, by judicial determination, that these provisions become operative.

“We interpret that provision, that instruction, to mean, in the case of treaty lands over which a final declaration of Aboriginal title has been made, that the lands will no longer be treaty lands as of the final declaration of Aboriginal title. It is then the work of treaty partners to address the loss of the treaty nation’s lands and interests in those lands.

“In the case of harvesting rights, treaty harvesting rights and harvesting areas over which Aboriginal title have been declared, any treaty harvesting rights that would continue to apply to those lands would require the consent of the Aboriginal title holder. If a treaty provision in respect of harvesting rights cannot operate so as to not adversely affect the newly established section 35 right, it would be the work of the treaty parties to address the reduction to that treaty nation’s harvesting right.”

[1:55 p.m.]

Jeremy Valeriote: Thank you for the example of the Nisg̱a’a.

Can the minister elaborate? In what other boundary dispute situations have non-derogation clauses been drawn upon? Who paid the costs of pursuing this, and have they been effective in protecting the rights of neighbouring First Nations?

Hon. Spencer Chandra Herbert: In the answer I previously provided, of course, I mentioned Gitanyow and Nisg̱a’a in the context of that boundary dispute. The Gitanyow initiated a judicial review of a provincial wildlife decision in the Nass wildlife area. Gitanyow were unsuccessful in their challenge, as the court found that in relation to one of the provincial decisions, total allowable hunt, the province was found to have met the duty to consult.

On the second provincial decision, the annual management plan, the duty to consult was not triggered as there were no adverse effects to Gitanyow section 35 rights, and these conclusions were upheld by the B.C. Court of Appeal.

I’m getting some more information for the other part of the member’s question, but if he wants to continue, certainly, we can.

Jeremy Valeriote: Yeah, it would be helpful to know what other examples we can draw on, but I’ll carry on while that’s being compiled.

Are there any protocol agreements with neighbouring First Nations located within the treaty lands?

The Chair: Can you repeat the question?

Jeremy Valeriote: Are there any protocol agreements with neighbouring First Nations located within the treaty lands?

Hon. Spencer Chandra Herbert: There is an existing protocol agreement with the ɬəʔamɛn Nation that both nations agree needs to be updated, and they are working on that. K’ómoks has nearly completed protocol agreements with Wei Wai Kai and Xwémalhkwu. K’ómoks has met with Wei Wai Kum, shíshálh and Qualicum and has made an on-the-record proposal to Kwiakah.

These agreements are still under development. Given that the expected treaty effective date is at least two years away, that provides plenty of time for K’ómoks to finalize agreements with neighbouring nations before the treaty would come into effect.

Of course, treaty effective dates are agreed upon by all parties once an assessment of what’s needed for implementation is complete. The successful negotiation of protocol agreements can be factored into the decision on treaty effective date.

Jeremy Valeriote: Just to add a note to the compilation of other boundary dispute situations, particularly interested in the length of these cases and the cost of them and who paid for that non-derogation protection as it’s being compiled.

What avenues other than expensive legal cases are available to First Nations to bring claims forward under these provisions and have them meaningfully considered and actioned?

[2:00 p.m.]

The Chair: Okay, Members, I’m going to call us back to order. The minister is going to be answering the question.

Hon. Spencer Chandra Herbert: Thank you to the member for the question. I do not have the legal bill for the Gitanyow and Nisg̱a’a discussion. That was quite some time ago, so I’m not able to access those dollar figures for the member.

But certainly the non-derogation clause speaks to either action through courts or actions through treaty processes or treaty-like processes negotiated between government and neighbouring nations. As I mentioned, there is interest from neighbouring nations in terms of treaty discussions, and we’re continuing to go in that path, whether by treaty or self-government agreements, which could have an impact.

I would note that in terms of the question around section 35 rights and the rights of other nations, neighbouring nations, I found it useful that Wei Wai Kai put…. The treaty society made a post to their membership to give them what they call clear and factual information in response to what members may be hearing. They say:

“What you may be hearing: territories are being taken, access will be lost, other nations will gain control, projects will be blocked. These claims are based on a misunderstanding of how treaties work.

“The treaty confirms existing rights. It does not create new control. The treaty does not transfer Wei Wai Kai lands; has no impact on access to cultural or historical sites; does not give other nations authority over Wei Wai Kai lands, decisions or governance; does not impact Wei Wai Kai’s own treaty negotiations or land selections. Your rights remain. Your access remains. Wei Wai Kai remains in control of our land.

“What this work does. Through the protocol agreement with K’ómoks, it defines roles in shared areas, supports coordination and planning, protects Wei Wai Kai’s interests, strengthens long-term outcomes.

“What this work does not do: does not restrict economic opportunities, does not give other nations control over decisions, does not limit Wei Wai Kai governance. This work is about protection and clarity, not restriction.”

That’s just, I think, a helpful note to bring into the conversation so members have a bit of notice of what one other nation says about this process.

Jeremy Valeriote: Apologies. I’m not sure if…. I’m just going to restate the question. I appreciate maybe the costs…. We’re mixing two different things here, and I’ll try and keep them segregated so I don’t have to stand up twice.

I appreciate the costs can’t be produced at this time, but I’m hoping the trial length could be produced for the Nisg̱a’a-Gitanyow.

Then just to restate the question: what avenues other than legal cases are available to First Nations to bring claims forward under the non-derogation provisions and have them meaningfully acted upon?

[2:05 p.m.]

Hon. Spencer Chandra Herbert: I think I largely answered this question earlier, but really, there’s the non-derogation the member knows about.

What I haven’t addressed are the civil litigation directives, which really are about trying to reduce court costs — minimizing the cost, the complexity and the length of processes. That’s new. Of course, that’s come about more recently, long since Nisg̱a’a-Gitanyow, which really is meant to…. If you’re going to go through a court process, keep it as tight to the question at hand and don’t extend it or add extra cost or challenge to it.

I’m not sure that the Nisg̱a’a-Gitanyow discussion will really provide much illustration for the member in terms of this issue, because the court process has changed considerably since that period in terms of how the province approaches these things.

I also mentioned, of course, protocol agreements and the treaty pathway or similar agreements to treaty pathway, like the self-governing agreement that I mentioned.

Jeremy Valeriote: I’m nearing the end, and I’m aware I’m not making this easy. I’m trying to channel my colleague, who has 25 years of experience in this area of law. That’s 25 more years than I do.

I would just ask…. I asked about protocol agreements within the treaty lands. I’m just wondering: are there protocol agreements that exist with neighbouring First Nations in direct relation to this treaty? If so, what’s their status and purpose?

Hon. Spencer Chandra Herbert: As I stated earlier, they are very close to initialing with Wei Wai Kai, Xwémalhkwu as well. My understanding is they are also very close with ɬəʔamɛn at this stage.

Jeremy Valeriote: My understanding is that it’s a key aspect of the judicial process, that the uncertainty of how a court might decide an issue encourages the parties to resolve the matters amongst themselves. I’m open to being corrected on that, but that’s the way my non-legal brain understands it.

What impact does the ability to seek court resolution of issues related to treaty have on the negotiations, from the minister’s perspective?

Hon. Spencer Chandra Herbert: Yes, the member is correct. As noted in the civil litigation directives: “A negotiated outcome is always the preferred path forward for the Crown. Meaningful reconciliation is rarely, if ever, achieved in courtrooms.” And “a strong and sophisticated government-to-government relationship between the province and Indigenous Peoples is not achieved through prolonged litigation, but through hard work, changes in perspectives and actions and compromise and good faith by all.”

We believe, and we’ve seen, that negotiated outcomes provide certainty and predictability of implementation for all parties, whereas court-imposed outcomes are uncertain and can exacerbate divisions. Where appropriate, B.C. may negotiate with First Nations engaged in litigation with the aim of resolving disputes and reaching a more comprehensive and predictable negotiated outcome as quickly as possible.

As mentioned in an earlier answer, we’ve certainly offered support for facilitated dialogue, discussion, to find a negotiated pathway between the nations involved.

[2:10 p.m.]

Jeremy Valeriote: It’s our assumption that there is a role for treaties in, if you will, solidifying the history of the lands. Would the passing of this treaty legislation legitimize the relationship to the Crown of one nation’s history of the land over that of another?

Hon. Spencer Chandra Herbert: While treaties do provide certainty on current land ownership, they’re not comments on the history of the lands. The member will know, of course, that the history of this province, of these lands, goes back long before the province of B.C., as we now know it, existed, so the passing of the treaty does not legitimize the history of one nation over another.

Through the B.C. Claims Task Force, of course, we recognize that treaty negotiations are recognized as political activities. They’re about government to government.

The history and culture of the nation negotiating the treaty and other overlapping nations are taken into account when determining what lands are selected and their potential uses, of course. These factors are also considered when determining where harvesting rights exist. Non-exclusive rights take historical use patterns into account as well.

Jeremy Valeriote: What impacts has the province been preparing for in the case of passing this treaty legislation at a time when overlap issues are outstanding and ongoing?

Hon. Spencer Chandra Herbert: The member may know that previous treaties have had not the same issues but similar issues of overlap and concerns from neighbouring nations. Indeed, that’s why we’ve worked hard to try and evolve our process to get to these issues earlier than they were addressed in the past.

That’s why extensive consultation has gone on. That’s why modifications to treaty and treaty lands have occurred. That’s why ongoing efforts to support nation-to-nation discussions and protocol agreements continue.

We understand that there are concerns about overlaps — very much. We get that. That’s why we put in the work. That’s why we’ll continue to put in the work for continuing consultation and accommodation processes, which we’ll continue following should the treaty pass. This is consistent with previous processes. In fact, we’re getting at it earlier than previous governments did.

The treaty…. I should note that it won’t become effective for another two years at least. There’s quite a bit of process still. Should the treaty pass here, it has to go to the federal government, has to pass through their processes, and there has to be ongoing discussion around treaty effective date as well, which I mentioned. Where protocol agreements are at, how nations have come together are considerations at that point as well.

We’ll continue to support protocol discussions between K’ómoks and neighbours. We have offered, as I mentioned, capacity funding to support those discussions. The B.C. Treaty Commission is also very much involved in supporting those conversations.

[2:15 p.m.]

Jeremy Valeriote: Last one on this topic.

I mean, it’s obvious from my questions and from the discussion that there’s a significant amount of dissent from neighbours. These are really important agreements, as the minister will know and agree.

What steps is the minister taking to ensure that when they’re brought in future, they’re not brought forward in this state of disagreement and discord from neighbouring nations?

Hon. Spencer Chandra Herbert: I think there’s always room to learn and there’s always room to improve processes. I know the B.C. Treaty Commission has expressed interest, as has the First Nations Summit, in looking at how we do more treaties in this province, how we can accelerate treaty-making in the province. Also, how do we make sure that, through the processes, we are bringing people together as opposed to creating concern and division?

That work is underway. I guess it’s not really a committee-stage question in the sense of this bill itself, but I understand where the member is coming from, and certainly through this treaty itself and the work ahead, we are endeavouring to do that work.

There’s been quite an improvement and change over previous treaties in terms of how quickly we’ve got in there and responded, but I think I hear the member, and I hear chiefs and councils about their desire to find a better way to address these issues earlier.

Of course, this is on a case-by-case basis. Each nation brings a different set of interests and neighbours as well, and a different set of histories, so they may be addressed differently based on the circumstance.

Jeremy Valeriote: I appreciate the thoughtful response.

Last one on clause 1, and it’s similar but worded, framed, differently.

As we mentioned at the beginning, the process developed as a response to colonial harm, and I know there are some people who don’t agree with that. To me and to our caucus, it’s self-evident. I understand the response about neighbouring nations, but just on the whole, can the minister describe a little bit what actions are being taken to assure that colonial harm isn’t recreated or repeated through these treaty processes?

[2:20 p.m.]

Hon. Spencer Chandra Herbert: I appreciate the question from the member.

Of course, the act of treaty itself is supporting the K’ómoks Nation to come out under what I’ve heard many chiefs and councils describe as the yoke or the oppressive arm of the Indian Act, an act which is clearly racist in terms of how it was created. In that sense, it’s lifting off that colonial harm.

I think the member’s getting at: how do we ensure that the self-determination, that the interests of the neighbouring nations are not impacted through colonial harm of introducing a treaty? I think that’s where we have to lean into both the processes and also the continued work with those neighbouring nations to ensure that their self-interest, their self-governing goals, their self-determination are respected too, working to create that community that network, that mesh that lifts us all up through that protocol agreement, through self-determination agreements, through treaties and other means.

That’s really built right into the treaty itself and also through our other processes beyond treaty. Of course, it’s not just…. We’re talking about the K’ómoks Nation treaty right now, but we could, as well, in future be talking about other nations’ treaties right around what is the K’ómoks treaty area, or enmeshed in other ways.

John Rustad: I want to thank my colleague from the Green Party for thoughtful questions on section 1.

We have some additional questions to be asked, both myself as well as my colleague from Columbia River–Revelstoke.

Prior to our lunch break we were discussing how the treaty has defined section 35 rights under the modern treaties that have come forward, and this one maintains section 35 rights. I’m just wondering.

I want to give the minister, if I may, the opportunity to explain the difference between the modern treaties and defining those section 35 rights versus this current treaty, which seems to be a model of defining treaty rights but maintaining section 35 rights. What’s the difference between those two?

Hon. Spencer Chandra Herbert: To clarify that earlier answer, which was very short and could have led to, certainly, more questions, the modification model for treaties that I mentioned was developed in the Nisg̱a’a negotiations. It was intended as a way of achieving certainty without requiring Nisg̱a’a to accept the cede, release and surrender model of the historic numbered treaties.

Modification was an innovation that worked for Nisg̱a’a and subsequent treaties with Tsawwassen, Maa-nulth and ɬəʔamɛn, but it was not universally accepted by all nations. Many First Nations, including First Nations in the B.C. Treaty Commission process, argued that despite the intentions that modification was not an extinguishment model, it still accomplished extinguishment in effect.

Although this was not B.C.’s understanding of or intent with modification, the perceptions became a barrier to further progress in treaty negotiations for many of the participating First Nations, along with the perception of the modification model changes in the common law, and specifically the declaration of title for the Tŝilhqot’in created growing interest from First Nations for a new legal framework for treaties that was rooted in a recognition of rights, including title.

Working with First Nations, Canada and B.C., our government explored new options for a certainty model that responded to the changing context for reconciliation. With the significant involvement of B.C. and federal legal counsel, the model included in this treaty, commonly described as the recognition and predictability model, was developed.

[2:25 p.m.]

This model does recognize that First Nations come into treaty with rights and title, and it does continue those rights. The model also creates certainty by setting out the parties’ relationship to those rights and, in particular, providing agreement on how those rights will be exercised in practice.

The practical outcomes are the same, although the legal mechanism has changed. This treaty, like previous modern treaties, provides a clear understanding of the rights that will be exercised by the treaty nation and the rights that won’t. The Crown’s responsibilities to those rights…. The treaty similarly confirmed the Crown’s jurisdiction and ability to make decisions about Crown lands and resources.

In summary, why this change was made…. It was made to address the changing context we’re negotiating in, the ongoing evolution of our understanding as assisted by the courts of the realities of Aboriginal rights and title. Certainty, of course, is still the objective, just as it was in the past, but reaching new agreements requires new approaches that respond to realities of today and the concerns of First Nations while still being legally sound.

In order to get to agreement, nations wanted to be recognized that they do have rights, that they do have title, and we found a way to do that in a way that they feel is more appropriate while still achieving the same outcomes that we had worked for in the other modern treaties that I know the member was involved in and I supported.

John Rustad: I do appreciate the answer, and I actually appreciate the thoroughness of the minister’s responses, both to the previous member’s questions as well as to that.

Although, I would like, if I could push a little bit further on this, just an example. I understand what the ministry has said is that they are they same but they’re different. I don’t understand quite where that difference lies other than just in word — so in terms of practicality, in terms of legality, how those two models may differ.

Hon. Spencer Chandra Herbert: Practically speaking, what this change means is the nation agrees to only exercise and assert section 35 rights as set out in the treaty. Within the treaty statements, recognizing a nation’s general Aboriginal rights, they’re paired with provisions regarding which section 35 rights may be exercised, their attributes, the geographic extent of those rights and the limitation of those rights. The treaty does not extinguish or modify any section 35 Aboriginal rights of a nation.

However, to the extent that the right is not set out in the treaty, the treaty nation agrees not to assert that right. The Crown also has no obligation in relation to that right, including no obligation to consult. So this new approach no longer includes provisions describing the treaty as a full and final settlement or that the treaty exhaustively sets out the rights of the treaty nation. It’s very much what is included is explicit, what is not included is not in the treaty and thus not actionable.

John Rustad: The reason for asking these questions, the reason for asking this sort of question, is if there are legal challenges that come forward — and these things happen, as we’ve seen in previous treaties — it’s important to have an understanding of the intent, which is what the discussion often in committee is referred to by the courts in terms of looking at treaties and the process. That’s why I wanted to ask the difference.

Maybe I’ll make a statement here and see if the minister agrees with this. Essentially, what’s he’s saying is that the section 35 rights are suspended. They’re not replaced. They’re not eliminated, but they’re suspended, and only the treaty rights remain — unless at some point in the future there’s a change, because this is a living document, of course. Ten years from now there’s a reopening, and some of those other section 35 rights could be brought in, should something change in the future.

[2:30 p.m.]

It doesn’t make sense to me that you’ve got rights but you don’t have rights. It’s one of the two. You can’t have both rights because one is existing and the nation has agreed to not exercise other rights, which is equivalent to suspending those rights. I just want to be clear that that is the intent of what the minister is saying here.

Hon. Spencer Chandra Herbert: We’ve worked hard to ensure that section 35 rights of the nation are reflected in the treaty. But where they are not, they cannot assert those rights or exercise those rights, so, practically, they cannot action them during this period.

Really, if a provincial government never wanted to reopen a treaty, that would be their right — or the federal government or the nation. To get to any sort of future ten-year discussion would require agreement from all three parties.

But yes, this is very much about saying the rights that are acknowledged explicitly in the treaty are the ones that are exercisable. If they are not explicitly recognized in the treaty, then they are not exercisable.

John Rustad: It’s interesting. It basically is the equivalent. It’s just worded differently from the previous treaties. I get there’s some sensitivity with the nations, because I remember having those discussions with the nations myself back a number of years ago. I think that clears that up as best as can be, from my perspective, in any case, on that issue.

For the record, I think it’s important we get this and have the minister explain this, because we are talking about section 35 rights. I just need to understand the difference between title and rights in terms of the context of this treaty.

Hon. Spencer Chandra Herbert: If I might ask the member a clarifying question — if he’s able explain a little bit more clearly, because it’s a very broad question. Can he clarify what exactly he’s looking to find?

John Rustad: The reason for asking the question…. Obviously, title infers certain rights that rights alone may not have.

[2:35 p.m.]

As people ask me questions about the treaty, or if they’re looking and wondering about the treaty and they want to know what sorts of rights extend across the entire treaty area, not just in terms of the private land…. It’s just important for people to be able to understand that difference between title and rights as it’s been defined through the courts in section 35 and also as it’s being considered as part of the treaty.

The intent of asking this question is just to have some of that clarity there so when people are listening at home, playing along with the game, they get to understand a little bit about what we’re talking about when we’re dealing with these issues.

Hon. Spencer Chandra Herbert: In the case of treaty, Aboriginal title lands are expressed through treaty lands, I’d say, in the sense that treaty lands are the lands negotiated by the First Nations, B.C. and Canada to reconcile a First Nations claim to Aboriginal title lands.

In the treaty, the treaty lands are owned by the nation in fee simple — a form of title that creates clarity of ownership, flexibility for the treaty nation to use the land in the way it chooses, to support the nation’s economic and community objectives.

The Aboriginal title is expressed through the treaty lands, not outside of those treaty lands in specific. That’s separate. That’s different. I was expressing to the House Leader of the Green Party the difference between treaty area and treaty lands specifically, just to be clear that there is a clear difference in terms of how the impacts are felt in terms of the private K’ómoks-held lands versus the broader treaty area, where non-exclusive harvesting could occur, those kinds of things.

John Rustad: I think I understand what the minister is describing with this. Just to be clear, for title existing within this treaty, that applies to the private land component as laid out in the maps and components. Rights would apply to the rest of the treaty land.

I just want to make sure. My understanding is that’s what it means, between the two. I, obviously, won’t bother asking you to go into the court definitions, the difference between them and all that kind of stuff. People can look that up if they’d like.

Hon. Spencer Chandra Herbert: Right. The member is correct. The treaty area lands are broader where non-exclusive section 35 rights would apply, just as they do to other nations. The treaty lands themselves are what, I guess, could be termed the Aboriginal title lands or the expression of the Aboriginal title lands.

John Rustad: Okay. That’s good just for clarity, because it’s important to know, especially when we get to section 3. There are some questions that come up with regards to that. So I thank the minister for that.

Of course, as a colleague had raised, this issue of overlap is a big issue from various nations. We’ve seen this over and over again throughout all the nations.

[2:40 p.m.]

We’ve seen it more prominently with Nisg̱a’a than the other treaties, but there have been some overlap questions that have been raised with other modern treaties. So in the context, things have advanced. Obviously, court cases and things have advanced and changed. There are still significant overlap issues, especially on Vancouver Island, because there are so many nations. It’s so tight. There’s so much overlapping between the various nations that are there on the Island.

I guess the first question I’ve got with regards to that is the overlap in terms of rights. Now, you said treaty is non-exclusive rights, which means other nations…. I’m assuming that would mean that other nations, then, would have the rights to exercise their Indigenous section 35 rights within the broader treaty area, not necessarily within the title or the treaty land, I guess you could say.

I’m struggling because I am not quite sure which is…. I always just call it title versus rights, but obviously, that’s not the way it is defined in the treaty. I want to make sure that I am using the right language associated with it.

With regards to the overlaps, if the minister can just confirm that any other nation that might have an overlapping territory still has non-exclusive rights to be able to harvest and carry on their activities of section 35 — under their rights, I should say.

I guess it’s a two-part question. First, they have the right to do that, obviously. I’ll just ask the minister to confirm that. Then is there some requirement in terms of how, or is there some approval required from the K’ómoks Nation, given that it is now defined as a treaty territory?

Hon. Spencer Chandra Herbert: The only land areas identified in the K’ómoks treaty that K’ómoks will be able to prevent other nations from exercising their rights on are those identified very clearly as K’ómoks lands, which K’ómoks will own in fee simple. Of course, any Crown lands in the K’ómoks traditional territory or the broader treaty area could be considered for inclusion in a Wei Wai Kai treaty, for example.

John Rustad: The reason I’m asking is…. I’m drawing on experience from my own riding. There were always protocol agreements between various nations on their rights to go and hunt and fish, and there would be requests to come in into a particular area that was maybe in dispute or an overlap and those sort of things.

Are those kinds of provisions created in this treaty, or are they expected in this treaty? Or is that just left up to the K’ómoks Nation to negotiate with its neighbours in terms of how they would jointly utilize treaty lands?

Hon. Spencer Chandra Herbert: If possible, the member might want to check the Hansard, because we did go through the protocol and overlap issue quite a bit with the Green House Leader prior to the member’s arrival here. In case he wants more detail on some of those areas, I think that would be of interest.

Indeed, there is consistent and steady work with K’ómoks and neighbouring nations around the issues of protocol agreements, finding a path together.

The member was asking around section 35 rights and other rights, and I just thought I might draw his attention to what a neighbouring nation, Wei Wai Kai, has said around this treaty in particular, in terms of questions around their rights. They say:

[2:45 p.m.]

“What you may be hearing: territory has been taken, access will be lost, other nations will be in control, projects will be blocked. These claims are based on misunderstandings of how treaties work. The treaty confirms existing rights. It does not create new control.

“The treaty does not transfer Wei Wai Kai lands; has no impact on access to cultural or historical sites; does not give other nations authority over Wei Wai Kai lands, decisions or governance; does not impact Wei Wai Kai’s own treaty negotiations or land selections.

“Your rights remain. Your access remains. Wei Wai Kai remains in control of our lands.”

They’re working on a protocol agreement with K’ómoks. They’re very close on that — Xwémalhkwu as well, ɬəʔamɛn as well.

Through the protocol agreement with K’ómoks, Wei Wai Kai hopes to define roles in the shared areas, supports coordination and planning, protects Wei Wai Kai’s interests, strengthens long-term outcomes.

What the work does not do…. It does not restrict economic opportunities, does not give other nations control over decisions, does not limit Wei Wai Kai governance. Really, our efforts have been to support those conversations. We worked, prior to, of course, the introduction of treaty, very much, to consult and then to accommodate and to develop solutions that responded to concerns of neighbouring nations.

For example, on Sonora Island, there were lands identified, potentially, for the K’ómoks treaty. There were concerns from the Ligʷiłdaxʷ Nations. Those lands were not included in the package.

One area that has had considerable interest from the Ligʷiłdaxʷ Nations, of course, is the Salmon River watershed. It’s important to note that there’s currently a K’ómoks Indian reserve in the Salmon River watershed, but as the K’ómoks will tell you and Wei Wai Kai and Wei Wai Kum will tell you, they all have relatives that are buried in that cemetery. They all have connections to that area.

That’s why the Salmon River land use plan has been put forward as, basically, a five-year pause on any change to that area, to ensure that the Ligʷiłdaxʷ Nations and K’ómoks, which has Ligʷiłdaxʷ descendants, have a path on how to use that area properly, have a path on how to respect each other in the use of that area.

I’ve heard it referred to as a potential common-use area, a tribal park, a way that each one of the nations can find their space there and that respect for their common heritage in that area.

John Rustad: I was here to hear that from the minister, but I appreciate the minister sharing that a second time in terms of all that.

Now, the reason I was asking specifically about it in terms of whether permission or whether there’s some sort of process…. Through various discussions I’ve heard, for example, from the current leader of the BCAFN, who talks about this co-governance model that’s created in the province….

I’m wondering — in terms of treaty land, not, obviously, the area that I’m going to keep defining sort of as title but the broader treaty territory — whether that is a true co-governance model between the province and the nation or a governance model between the province and multiple nations. How does that governance model work in terms of the structure? What I mean by co-governance is joint decision-making between the province and the various nations involved.

[2:50 p.m.]

Hon. Spencer Chandra Herbert: I’m trying to understand where the member is going here. I think if he’s referring to the treaty area and in terms of if that gives some sort of exclusive right or co-governance just with the one nation over, say, elk harvesting or something like that, the answer is no. There are no exclusive rights in that broader treaty area for K’ómoks.

I think, in terms of the treaty land itself, there is an agreement, the estuary management agreement, that the member might be referring to, which is very clearly in the K’ómoks territory in the sense that they surround it in terms of where their homes, where their village sites are and have been. That would be one that I could take more questions on, but that’s a side agreement to the treaty.

John Rustad: No, the reason for asking the question is I’m trying to understand the role that government plays in making decisions, the provincial government, on the broader treaty territory. Obviously, it’s different from the treaty lands, I think, as the minister calls them. I would call them title lands but that’s fine — treaty lands. I’m trying to understand the broader role that the provincial government plays in decision-making on those lands.

For example, if there is a decision around harvest levels for elk or if there are decisions around a road going through or if there are decisions around some other activity happening within the area…. Who has those responsibilities to make those decisions? Whether the province is the ultimate decision-maker, whether it’s the nation, or whether it is any nation that may have a traditional territory overlapping, I’m trying to understand the nature of how overlaps will be addressed when decisions come up and what role the province plays.

Hon. Spencer Chandra Herbert: I realize there are many different rabbit holes we could go down or elk ruts or whatever you want to make the case for. But in terms of the example the member gave, nothing changes, in the sense that B.C. will continue in a role in decision-making, of course, with obligations to the nations in and around the areas that we would be making decisions in. That hasn’t changed, and I guess, depending on where in the treaty area you are, there’ll be different nations with different interests.

John Rustad: I’m asking this from a practical perspective because I’ve run into many cases where we’ve had issues around the province where harvest levels of a particular thing…. For example, elk, on the Island, obviously, is a very prestigious animal. There are levels that are set, the harvest levels, and there may be disagreement between who gets how many or how many should be harvested in a particular area.

[2:55 p.m.]

Ultimately, these decisions are going to carry on. I mean, they’ve had these decisions historically up to now. Does anything change in terms of it? For example, if the treaty nation says, “No, we should be able to harvest 12 animals in this particular area,” and the province says, “Okay, we’re going to allow this,” but another nation comes and says, “No, it should be 15,” or however the portion….

Is the burden of making those decisions on the province, where there may not be agreement between overlapping non-exclusive rights with the treaty territory, or how is that structured?

What I’m trying to understand is really the difference between Crown land without the burden or without a treaty decision being made versus the Crown land that’s within the treaty territory. What is the difference in terms of how these decisions will be made and how the rights of the treaty are respected in terms of the decision-making process?

Hon. Spencer Chandra Herbert: I think the gist of the question is: is the province still the decision-maker? The answer to that question would be yes.

John Rustad: I appreciate that, and that’s good to know, in terms of that. I’m assuming that — or maybe I shouldn’t assume. I’ll ask the minister to clarify. That’s on all decision-making, or that’s just wildlife decisions? Obviously, there’s a difference between environmental and land-based decisions or subsurface decisions or these types of things, so perhaps the minister could clarify that.

The next question…. Well, maybe I’ll let him clarify that, and then I’ll jump into the next one.

Hon. Spencer Chandra Herbert: Aside from the estuary protocol, which I mentioned, everything will continue as it is currently.

John Rustad: I’m a little confused, and I apologize for this. But if I’m wondering about this, I’m sure those following along at home might be wondering about this as well. So I should ask the question, which is: if nothing has changed in terms of managing the treaty territory, why have we signed a treaty that’s covering the treaty territory? What is the benefit that goes to the K’ómoks People and the difference between having the treaty versus not having the treaty, in terms of their territory?

[3:00 p.m.]

Hon. Spencer Chandra Herbert: Well, of course, there’s the broad treaty area the member’s referring to. I think many of the members of the nation will speak to the much more focused treaty lands and what opportunities that gives for governance, for one, but two, the ownership of those lands and what you can choose to do with those lands — economic development, housing, the financial benefits, a stable and enduring ongoing fiscal relationship, clarity around law-making authorities within the specific treaty lands in terms of the broader treaty area.

If somebody was elk harvesting within their elk allocation and somebody questioned: “Do you have the right to harvest here…?” “Well, yes, I do. I’m a treaty member in this broader area.” That could be an example of how that might play out. But very much, I think, when I speak with nation members, most have the interest in the treaty lands themselves in terms of what they will be able to do in the broader region.

John Rustad: I agree with the minister. Obviously, the treaty lands are where lots of the activity and hope for building the future and prosperity are at. But like I say, it just sort of begs the question. Why are we…? Let me just take a step back.

We’re talking about this in the context of overlaps, right? There are overlaps with other nations. I think the concern may not be with what I call title and the minister calls treaty land, but the concern is around the treaty area, because that’s where the tremendous amount of overlap is.

There might be some overlap over treaty land, and that has to be addressed, obviously, in terms of the concerns. But if nothing has changed, why is there concern with regards to the overlap? If nothing has changed, why is there the need to have a defined treaty territory?

Today, for example — the example the minister gave — if I’m going out hunting an elk in my traditional territory or if I’m going out and hunting an elk in my treaty territory, there’s no difference. I’m just trying to understand that structure, because quite frankly, if I don’t understand it, the broader public is going to be asking all these questions as well, and they’ll need to understand it as well.

That’s why I’m asking about the differences that are there and I’m trying to understand. Certainly, there must be some difference between what’s currently happening today on broader treaty territory…. Treaty land, I get. That’s according to title. That’s a title case, or that’s the Tŝilhqot’in case or whatever that may be. But it’s that broader area that is applied for and the rights that are defined under here in terms of their treaty rights that are applied to it that I’m trying to understand what the differences are, in terms of decision-making and process.

Hon. Spencer Chandra Herbert: I guess, probably, the easiest way to explain it would be that it provides the legal clarity. If somebody was to argue or dispute that a K’ómoks Nation member had rights in the territory, in that broader area, they would have clear treaty rights that are explicit that yes, they do have rights here.

Another nation member would be able to make the same claim if they had the same heritage and connection to the land. The only issue that might come up would be that in some cases, as the member knows, depending on what the issue was, there may be somebody requiring or pushing that that person has to prove it.

[3:05 p.m.]

I don’t think that would be the case in most cases, because it’s pretty clear what the history of that area is. But in this case, it just puts clarity around, at least, that the one nation, K’ómoks, we understand, has treaty rights here. We also understand, of course, as I’ve mentioned, that other nations have their section 35 rights, and they may well be defined in future agreements as well.

John Rustad: It’s curious, because that wasn’t sort of how I understood other treaties, particularly treaties like Nisg̱a’a. That’s my fault. I guess I’ll have to go and look at them, but I find that just curious in terms of it.

I don’t want to be running out hypothetical scenarios and this kind of stuff, but I need to understand whether this sort of thing is possible, because it’s a treaty territory that has non-exclusive rights. It’s, really, no different than current rights under section 35 except it’s defined in terms of those components, the other rights are not going to be exercised, according to the minister, within those territories, because it’s defined what those rights are.

I may be…. Okay, the minister looks….

Hon. Spencer Chandra Herbert: You’re confusing two things.

John Rustad: No, no, I’m not, because I’m talking about the rights for the K’ómoks Nation, under section 35 rights, which would apply, I’m assuming, to the treaty territory, not just to the treaty lands. That is defined, those rights, under here. Section 35 is…. They said any other rights that they may have under section 35, defined or undefined at this point, they will not exercise. So that’s….

The minister is agreeing, so okay, we’re good.

This is what I’m curious about in terms of those treaty territories. Yeah, it’s given now a defined territory as opposed to one that may have been in dispute for that.

The minister is still nodding, so this is good. I’m starting to be able to draw a picture here.

It’s not really different from how anything is managed, but it’s a defined area in terms of those rights, and those rights are defined in terms of what they can and can’t do within those territories.

Is it possible, then, and I would assume it would be possible, that another nation could have a treaty that could have overlapping treaty territory within this territory because they would also have those non-exclusive rights? Is that correct?

Hon. Spencer Chandra Herbert: Yes.

John Rustad: I never thought of that, treaties as being mutually overlapping potentially. Obviously, treaty land and what I call title wouldn’t be. Or maybe a question mark. Maybe it could be.

Obviously, if there’s a title claim that goes forward saying that somebody has title to a particular area that is already defined under a treaty in terms of a title land or treaty land….

Maybe I’ll frame this in a different way. We understand that there could be overlap in terms of rights. We get that. It’s not exclusive rights. There could be overlap in terms of treaties.

The question, I guess, to the minister is: is it possible to have overlap of title or treaty land, or does treaty land extinguish section 35 rights claimed by any other nation?

Hon. Spencer Chandra Herbert: I’d refer the member back to my earlier answers around the non-derogation clauses. I think that will provide a fulsome answer to the question.

The question is: what happens if a nation establishes title over treaty lands that have already been treaty lands? Well, the exact operation, of course, of the clauses would depend on the circumstances in the lands in question and, of course, what a court judgment was, so I can’t get into the hypotheticals too far.

[3:10 p.m.]

But as mentioned in the earlier comment around the non-derogation clause, there could be a finding, for example, that would require the government to go back into negotiation around either accommodating that need or that new title land and then having to replace the land for the other nation if it was found that that title land should have gone to one nation over another. That’s consistent, I believe, with other approaches we’ve taken in the past.

John Rustad: That makes sense, in terms of…. So if there’s a case or something that comes forward, there are, obviously, going to have to be adjustments. In other words, it is exclusive, but it could potentially change if there is evidence or if there’s a case that came forward that may force an alteration to it. So, essentially, unless there is a negotiated agreement of some kind, it is exclusive use in the title land, either through some sort of shared agreement or through some sort of court action.

I’m just trying to make sure that I’ve got that right. I just want to make sure that your staff are in agreement to that.

Hon. Spencer Chandra Herbert: If the member wants, I’ll state again that, yes, if it’s the title land as he refers to it, the treaty land explicitly, that is an exclusive use unless the nation decided to use it in a different form. That’s correct.

John Rustad: I think I’m through most in terms of this, and this has been very helpful just in terms of setting the context, because obviously, when we get into the treaty itself there are a ton of questions.

One of the ones that stands out, obviously, is in the treaty itself. It states that rights and title exist throughout their traditional territory as opposed to within their traditional territory. I’m curious in terms of what we’ve discussed here versus what’s actually in the agreement. But we’ll get that when we get under section 3 of the treaty — or clause 3, I guess we’re supposed to call it — of Bill 20, that is.

I also need to understand, because there are not a lot of rights that really haven’t been defined. I mean we’ve got fishing rights. We’ve got access. We’ve got hunting. We’ve got traditional use things like spiritual use, these types of things.

We haven’t really defined in the province the subsurface rights or air rights — these types of things. Those really haven’t been defined so much. So I’m wondering does this treaty address any of those types of issues, both within the treaty territory as well as within the treaty land? I’m trying to use the same language the minister has provided.

[3:15 p.m.]

Hon. Spencer Chandra Herbert: Well, there certainly are more details within the treaty as we get further along. The treaty does address subsurface rights. It does not currently address air rights.

John Rustad: We will get into the subsurface rights and what that means and components. One I did forget to talk about was foreshore, because I do believe in the previous agreements, foreshore was not included in any of the other modern treaties. I may be wrong about that. I just don’t remember them being there. Foreshore’s inclusion in this agreement, I believe, potentially, has marked something new.

So if the minister could just confirm that this is something that is new in terms of an added right that has been put into the K’ómoks treaty.

Hon. Spencer Chandra Herbert: The member can be forgiven. It has been a few years.

But yes, there were side agreements, and this is a side agreement around foreshore in both ɬəʔamɛn and Maa-nulth. We’re staying with the same process as was negotiated in those treaties.

John Rustad: One of the things…. I remember talking with most nations years ago and they, of course…. Part of the treaty, and we’ll get to this in the treaty as well, is allotment of water, subsurface as well as surface water — having the rights and access to it. One of the questions that was raised by one of the nations many years ago, or more than a decade ago, to me was: what if they wanted to export that?

Obviously, there are trade agreements between Canada and the United States in terms of water. Water is one of the things specifically mentioned in that.

So I’m just wondering. How does a nation’s treaty rights…? How are they exercised in terms of other trade agreements that Canada has with other jurisdictions, whether it’s international or domestic?

Hon. Spencer Chandra Herbert: So, yes, the treaty must be in compliance with federal trade agreements. None of the modern treaty nation agreements, for example, allow the large-scale export of water, to the member’s question.

John Rustad: If I remember my reading of…. Obviously, reading through all of those agreements many, many years ago now, I don’t remember it all. But I actually think the previous treaties were silent on it, which is why I’m asking. I don’t recall the previous agreements actually talking about conforming to Canadian trade agreements, whether domestic or international. That’s why I’m asking the question because I don’t recall that.

I’m just wondering if there has been a difference here or what it would mean in terms of absence. When I’m reading through this…. I may have missed it here. I don’t recall seeing it in this agreement either.

[3:20 p.m.]

[The bells were rung.]

Hon. Spencer Chandra Herbert: In the water chapter of the treaty, clause 3 speaks specifically to water and speaks to the obligation of K’ómoks to follow provincial and federal law when it comes to water, and federal law does not allow bulk export of water.

John Rustad: It’s actually not federal law that does require it. It’s the trade agreement that doesn’t allow for it. I’m not sure if that’s locked into federal law or not. But regardless of that, it’s fine to know. That’s all interesting in terms of the trade agreements.

I’m just trying to think if there was something else. I apologize. The ringing bells have got me a little off track as I….

Interjection.

John Rustad: For whom the bell tolls.

Interjection.

John Rustad: We haven’t called division yet. We’re okay. We might just do it on division. Anyway, sorry. It gets a little late in the afternoon.

With that, Madam Chair, if I may request a brief recess before we move on to the next section.

The Chair: Okay, Members. You’ve heard that we’re going to be taking a recess till 3:30.

The committee recessed from 3:23 p.m. to 3:32 p.m.

[Susie Chant in the chair.]

The Chair: I call Committee of the Whole on Bill 20, K’ómoks Treaty Act, back to order. We are on clause 1.

Clause 1 approved.

On clause 2.

Scott McInnis: For clause 2, I just wanted to get a little clarification. We’ve had some back-and-forth around some of the overlap challenges and how that would be dealt with and some of the protocol around dealing with some of the overlap issues.

Clause 2 states: “The K’ómoks treaty is a treaty and land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982.”

Within appendix A, there’s an area identified as the K’ómoks traditional territory, and that highlighted traditional territory includes, according to the Wei Wai Kum, 80 percent of their asserted traditional territory.

The treaty and this bill…. It’s specifically related to clause 2, around this being a land claims agreement. It obviously creates rights for the K’ómoks in the area that the Wei Wai Kum say the K’ómoks didn’t have that historical presence in, specifically areas such as Heydon Bay and Loughborough Inlet. So I have a couple of questions around that.

Just for clarification, what strength of claim did B.C. do for the K’ómoks territory claim before the government decided to have this part of the K’ómoks treaty area encircled within the map on appendix A?

[3:35 p.m.]

Hon. Spencer Chandra Herbert: Just to clarify, there are no treaty lands in those two areas the member mentioned. That’s very much in the broader non-exclusive rights section of the treaty.

Clause 2 approved.

On clause 3.

John Rustad: I think all three of us will have many questions on clause 3. Obviously, clause 3 is the actual treaty itself with the appendixes, so there’s a tremendous amount of material to go through there.

Actually, just a point of clarity. When we started this off, I actually started asking questions about the preamble. I was told the preamble needs to be discussed after the rest of this is done. So I’m just wondering. Now that we’re going into No. 3 and we’re going to talk about this, there’s that preamble that’s embedded within the treaty itself.

Is it appropriate that we have to go through the whole treaty before we start talking about preamble, or can we talk about that just in the context of section 3 now?

Sorry. That’s a question to you, Chair.

The Chair: Thank you. I shall take it under discussion and be right back with an answer.

The Chair’s response, in conjunction with our wondrous staff, is that as long as the discussion is around clause 3, okay? The preamble is to the bill itself, and if you are discussing it within the context of clause 3, I’m going to be able to go with that. If it starts getting outside of clause 3, I will remind you that we are staying within clause 3.

Very good. Thank you so much.

John Rustad: Just before I turn it over to my colleagues, now that I know what I can say, we’ll have many questions on this clause 3.

Part (1) is: “The K’ómoks treaty is approved, given effect and declared valid and has the force of law.” So that is this agreement here, to my understanding.

In the preamble, it says, “We the K’ómoks People envision a prosperous and healthy nation,” something I think everybody in this chamber would love to see and support, “in which we exercise our rights and title throughout our territory, honouring our people, lands, waters, culture and language.”

I guess the question I’ve got, to start with is…. It’s recognizing title throughout the territory, which, obviously, is different from rights. I’m just wondering why it says “throughout the territory” as opposed to title within the territory, because the two have very different legal meanings.

[3:40 p.m.]

Hon. Spencer Chandra Herbert: I think the addition to the quote the member referred to, which is important, is “whereas K’ómoks defines its vision as set out below,” and then the quote follows from there. That’s their vision of where they want to see things go.

Obviously, when you’re entering into a negotiation, a party will set out a vision. Then you do the hard work of trying to figure out how that vision might be expressed. That’s where the treaty comes in, in terms of the defined areas, the defined lands and the operations, which is set out in sections 31 and 32 under those general provisions, in terms of how those rights are expressed.

John Rustad: Let me just see if I’ve got this right then. What the minister has just said is that the preamble here are the goals and objectives of the K’ómoks, not necessarily what was agreed upon within the treaty.

Hon. Spencer Chandra Herbert: Yes. The preamble sets out the vision, in this case K’ómoks’ vision. The rest of the treaty chapters define how we have come to agreement in terms of making a treaty together around defined rights and responsibilities, etc.

John Rustad: I wasn’t able to ask this as part of Bill 20, but it’s, of course, being repeated here in the preamble for the treaty, which is: “This agreement advances the objectives of the United Nations declaration on the rights of Indigenous People.”

Perhaps I could ask the minister. With regards to advancing that, is that in its entirety? Is that part of it? How is that being implemented in the treaty? Obviously, there’ll be lots of questions, because it is in other places within the treaty. But in general, what, actually, is meant by the advancement of the declaration on the rights of Indigenous People?

[3:45 p.m.]

Hon. Spencer Chandra Herbert: I was trying to answer what will become further questions from the member before he gets to them, but I was reminded that I should make sure to leave the member time to ask his own questions, as opposed to answering them all at once.

Really, in terms of the preamble, it’s set out as a kind of goal document, similar to what we referred to in my previous answer. In the sense of the treaty, the treaty is fulfilling more than a few of the UN declaration’s rights — in the sense of self-determination, lands, treaties as an agreement — but really, it’s a broad guide of what to aim for, as referenced in the preamble.

John Rustad: Further in that, it says: “implementing the United Nations declaration on the rights of Indigenous People in accordance with the Constitution of Canada.” This is why I’m trying to wonder. We’re talking about advancing in one, and we’re talking about implementing in another. I’m just trying to get a sense of what is to be achieved with regards to a piece of a document that was not founded here in Canada but brought in from the United Nations.

Hon. Spencer Chandra Herbert: I know I’ve heard many speeches talking about how UNDRIP is hard-wired or incorporated or is going to rule the treaty. That’s not how it works. It doesn’t incorporate UNDRIP in terms of the legal mechanisms. What it does do is it identifies as the UN declaration — which, I might add, was developed with the advocacy of B.C. Chief Ed John, just to reference that it’s not some out-there agreement, and it has been endorsed by 194 countries….

It identifies in the preamble that the treaty advances the objectives. It identifies in the preamble the implementation of the UN declaration as a common objective of the parties for the agreement. That should be noted. Common objectives are expressly non-binding. It identifies implementation of the UN declaration as a basis upon which certain side agreements to the treaty could be negotiated.

It does not give legal independent force to any particular article in the context of the treaty, nor does it commit the province to anything related to the UN declaration outside of the treaty relationship with K’ómoks.

John Rustad: It’s interesting in that, further into the agreement, it says: “The United Nations declaration on the rights of Indigenous Peoples is an authoritative source for the interpretation of this agreement.”

I wonder if, for clarity, the minister could describe just what is “an authoritative source.” For example, section 35 of the constitution is also an authoritative source.

[3:50 p.m.]

Hon. Spencer Chandra Herbert: Of course, the member is correct. Section 35 is the source above any of these other sources that we’re talking about in terms of interpretation of treaties.

The UN declaration is used as one lens through which the treaty can be interpreted. Other lenses that the treaty would be interpreted through — beyond, of course, section 35 and then the UN declaration — would be modern treaty interpretation principles, including that the text is to be interpreted in light of this agreement as a whole and that this agreement’s objective is consistent with the honour of the Crown and having regard to the shared objective of advancing reconciliation between the parties.

It’s very much similar, in that sense, to other treaties in terms of what the interpretive tools are, but with previous treaties, of course, the UN declaration was not endorsed by 194 countries at the time as an international legal instrument, and that’s why they wouldn’t have appeared in earlier treaties.

John Rustad: I believe it was endorsed at the time. It just wasn’t implemented by governments of the day. But I may stand corrected on that.

I want to pass it over to my colleague here. He’s got a number of questions that he wants to start in on with regards to this. Obviously, there’ll be many hours of discussion with regards to this in general.

Just for the record, if there is some future court challenge…. Obviously, they come back and look at what is said during committee stage and debates as part of it.

So could the minister just clearly say for the record that the UN declaration on the rights of Indigenous Peoples, as laid out and described in this treaty, is not legally binding in terms of any potential court action that may be happening within British Columbia or certainly within the treaty territory?

Hon. Spencer Chandra Herbert: I’ll say it again. It’s an interpretive tool along with a number of other interpretive tools, but they do not give this…. The references to the UN declaration in the treaty do not give independent legal force to any particular article of UNDRIP in the context of the treaty, nor do they commit the province to anything related to the UN declaration on the rights of Indigenous Peoples outside of the treaty relationships with K’ómoks.

Scott McInnis: Just wondering if the minister could share with us, in relation to the treaty, since we’re on clause 3 here, what legal analysis or opinion was relied upon to conclude that UNDRIP is an authoritative source for interpretation of the treaty. How does that differ from merely being an interpretive aid?

[3:55 p.m.]

Hon. Spencer Chandra Herbert: Well, the use of the UN declaration and other international instruments as interpretive tools is not new. It’s not a unique concept.

In fact, Canada’s collaborative modern treaty implementation policy does provide: “Canada and Indigenous modern treaty partners acknowledge that the UN declaration on the rights of Indigenous Peoples — which the federal United Nations Declaration on the Rights of Indigenous Peoples Act affirms as a universal, international human rights instrument with application in Canadian law — is an authoritative interpretive source for Canadian law and informs the implementation of modern treaties. The rights and principles affirmed therein constitute minimum standards.” That’s section 3.7.

Really, having this referred to in the treaty is responsive to Canadian law and legal changes at the federal level. Courts have been clear that international instruments, including the UN declaration on the rights of Indigenous Peoples, are sources for the interpretation of laws in Canada. This is true regardless of whether any laws were introduced within our province. International legal instruments can be relied on in courts in Canada, but of course, Canada has introduced its own law around the UN Declaration on the Rights of Indigenous Peoples Act.

Scott McInnis: I think it’s just important that we analyze this as deeply as possible. Not to go too far down memory lane here, but when the Declaration Act was brought in — I know it’s not referenced in this treaty — it was sold as a guide and a framework or a banner in the room, if you will, to refer to.

It has become very clear that it is not, so I think it’s very important that we dig into, specifically, the language around here so that in future years, as the law evolves, as the treaty potentially evolves itself, we’ve covered off this important information and asked the right questions here today.

My question to the minister is: why was the term “authoritative” selected specifically, instead of terms such as “guiding” or “informative” being considered?

Hon. Spencer Chandra Herbert: Well, that language comes directly from Canada’s policy for collaborative modern treaty implementation. That’s where the reference comes from.

Scott McInnis: Was it, then, the federal government that proposed the wording during negotiations of this treaty?

[4:00 p.m.]

Hon. Spencer Chandra Herbert: It was a tripartite negotiation, so I’m unable to go into what happened in the negotiation room. But it was agreed upon by all parties, and that’s why it’s here today.

Scott McInnis: Just to conclude on that, we’re not able to say whose idea it was to have it as an authoritative source in the treaty itself. I want to make note of that.

Could the minister confirm that UNDRIP principles won’t be prioritized over the negotiated treaty text, in cases by the courts?

Hon. Spencer Chandra Herbert: Legally, it’s been very clear. Canada is clear. B.C. is clear that the text of the treaty is what we hold up as the highest guide to how to interpret the text. Indeed, Canada and courts have been very clear that the serious work that goes into drafting, developing, consulting, accommodating and pulling together treaty text means that it’s the paramount source for interpretation — obviously, I would say.

There are other guides if there are concerns or questions about what’s in the text. But the text has been found to be the authoritative source, more so than any other, in terms of the interpretation of how a treaty is meant to be played out.

Scott McInnis: Unless I missed something within the treaty document itself, I didn’t see any specific relation of UNDRIP articles expressed in the treaty. But could UNDRIP articles not expressly referenced in the treaty still influence interpretation?

Hon. Spencer Chandra Herbert: Just to make the point again, the courts have been very clear. Modern treaties are drafted and negotiated by well-resourced, professionally represented parties, and courts should therefore pay close attention to the actual terms and provisions in order to respect the hard work of the parties.

I know I look forward to getting through the actual interpretation of the treaty itself and the provisions in terms of how we are doing that work, because I think that will help better define for the public and for the member in terms of how the treaty is meant to work and has been negotiated to work.

The member’s reference to the UN declaration…. Again, as I’ve said, it’s an interpretive lens. But the references to the UN declaration as a whole, including the preamble…. Really, it’s contextual. How it might be used would depend entirely on the context.

[4:05 p.m.]

As I mentioned, it’s but one interpretive tool for the treaties that must be considered, including others, which…. The modern treaty interpretation principles, of course, are paramount. The text is to be interpreted in the light of the agreement as a whole.

Really, our work is to do the best we can to define the treaty and how it’s to work in the treaty itself, because ideally, on the face of it, looking at it through it and side agreements that you make, you know how it’s supposed to work, so you don’t have to use another interpretive aid to understand what you are trying to do. In the end, the text is what’s paramount.

Scott McInnis: My colleague from Nechako Lakes briefly touched on this. When we’re talking about UNDRIP and the quote of “advancing the objectives of UNDRIP,” it’s important to note that UNDRIP doesn’t contain “objectives” within the document itself, so it’s not extremely clear how that phrase will be interpreted or what it will encompass.

I’m wondering if the minister could just clarify which specific articles of UNDRIP are contemplated by the phrase “advances the objectives of UNDRIP” within the treaty.

Hon. Spencer Chandra Herbert: Of course, the document refers to the UN declaration on the rights of Indigenous Peoples as a whole, so it’s looking at all of those rights. But very specifically, to be clear around what this is forwarding, section 37 speaks very directly to treaty-making with nations. Clearly, a treaty fulfils that section.

Scott McInnis: I’m curious here. Were there any provincial or federal constitutional experts who were consulted with on whether the wording in the preamble could alter future section 35 jurisprudence?

Hon. Spencer Chandra Herbert: If I might ask a clarifying question: is the member suggesting the treaty could change the Constitution of Canada in section 35? Is that his question? It does not.

Scott McInnis: That’s a good question, and the answer is no. I’m just wondering whether the minister had consulted any experts in the field as to whether that wording could alter future section 35 jurisprudence itself.

[4:10 p.m.]

Hon. Spencer Chandra Herbert: To be clear. This is very explicit to this treaty. We talked about clause 2, but clause 2 very clearly says that section 35 rights are the rights that are expressed through this treaty. They are the rights. The reference to the UN declaration, again, as I stated earlier, refers to it and other interpretive aids.

Again, it will not impact section 35 rights of other nations, as I mentioned. It does not change the constitution. It does not impact that broader question, because the treaty is about expressing the section 35 rights defined in the treaty for the K’ómoks Nation specifically.

Scott McInnis: During the negotiation process, were there any written constitutional opinions submitted to the commission about the use of UNDRIP?

Hon. Spencer Chandra Herbert: Obviously, the member will know we can’t share legal opinions in terms of client-solicitor privilege, but what I can say is that just as Canada has done their legal work and K’ómoks has done theirs, we’ve done ours to ensure that what we are bringing to you fulfils our legal obligations and does the work of ensuring this is a good treaty.

[4:15 p.m.]

Scott McInnis: No, I want to understand that…. The province has their intention just to create a good treaty, and in our position, that’s what we want to see as well. I think I’m just struggling because we’re a little bit out of balance here, with UNDRIP being an authoritative source but really inconsequential within the treaty itself.

I’m still trying to square that circle a little bit. I think it’s just really important that we get a really, really clear understanding here, as we’re going through clause 3, if, in fact, UNDRIP does not have any legal force and effect within the treaty, that it just be made very clear here today. That would lead me into a series of questions later about, well: why is it there? I think if there are any question marks around whether it can be used to have legal force and effect, that raises a lot of questions because it’s a very vague document.

During the negotiation process here, did the province invite or did any individuals that are legal experts present any dissenting legal views to negotiators as to why UNDRIP could be a problem in this treaty?

Hon. Spencer Chandra Herbert: Again, I won’t get into the legal referrals and decisions, but I can say very clearly that Canada, B.C., K’ómoks…. We all looked at these issues. We all looked at how the courts have interpreted things, how internationally these things have been interpreted. What’s expressed in the treaty, in terms of recognizing the UN declaration on the rights of Indigenous Peoples, is recognizing the legal reality that already exists.

This is not a new thing. It recognizes that courts are using and have used, in Canada and internationally, the UN declaration as an interpretive source. The treaty just expresses what courts are already doing.

Scott McInnis: I think what I gathered from the minister’s answer was that, yes, there was a broad spectrum of legal opinions that were provided during the negotiation process to the K’ómoks and to the province to fully understand any potential legal implications around the interpretation of UNDRIP in the treaty. That broad spectrum would have included those with concerns, those who raised no concerns and everywhere in between. Is that accurate to assume from the minister’s answer?

[4:20 p.m.]

Hon. Spencer Chandra Herbert: I’ll just reiterate. We listen to opinions from all points of view. We listen to opinions and work through them, debate them, discuss them. The member knows there are lots of legal opinions in the world. I think the job is to assess those, assess those based on court actions, assess those based on jurisprudence and then find a path to agreement.

Certainly, Canada, the federal government lawyers, did that work, and that’s why they signed off on it. B.C., we did our work. K’ómoks did as well.

Scott McInnis: I think perhaps where we’re getting to is that regardless of whether it’s an authoritative source for the interpretation of the agreement or not, UNDRIP has, essentially, no legal force and effect within this treaty?

Hon. Spencer Chandra Herbert: I think I’ll need to repeat this again. The references to the UN declaration on the rights of Indigenous Peoples in the treaty do not give independent legal force to any particular article of UNDRIP in the context of the treaty, nor do they commit the province to anything related to the UN declaration on the rights of Indigenous Peoples outside of the treaty relationships with K’ómoks.

John Rustad: It’s of great interest, of course, listening to this. The minister obviously must understand the sensitivity and why these questions are being asked about UNDRIP, given the situation we’re in, in the province with DRIPA and the court cases, the challenges, the Supreme Court of Canada. Of course, DRIPA is the implementation of UNDRIP, so there is sensitivity in terms of how this is interpreted and used as part of the treaty, which is why these questions are being asked.

We need to have some clarity with this, and people need to understand. Obviously, there’s a lot of fear in the province, given what is happening in British Columbia through DRIPA, which is, once again, the implementation of UNDRIP.

To that extent, there are a number of articles in DRIPA. I know the minister did talk about article 37. One of the articles in here which is of particular interest — and it doesn’t necessarily apply to K’ómoks because K’ómoks, obviously, is not a band associated directly with an international border — is article 36, which gives rights to nations across international borders. International borders are, obviously, drawn long after nations had established their traditional territories.

One of the sensitivities of asking about this is that this can’t be used to further some band’s case for their rights across international borders. The minister, I think, has been very clear in saying that this isn’t an effective law. But I just want to give the minister an opportunity to say clearly that with situations like that, the treaty and the implementation of UNDRIP as an authoritative source would not add any strength to any of these types of claims.

[4:25 p.m.]

This will be more prevalent when we get closer up into the northwest, whether we’re closer to Alaska, and these types of things may occur. I just want to understand and to make sure the minister has a chance to get it on record.

Hon. Spencer Chandra Herbert: The text of the treaty is very clear that this treaty applies to the K’ómoks Nation members, the K’ómoks Nation treaty lands. Inasmuch as the UN declaration would be an interpretive tool, we cannot foresee how article 36 the member mentions could be in any way used in relation to this treaty, specifically when it relates to the law and the treaty lands and the members of the K’ómoks Nation to which this treaty applies.

John Rustad: I recognize that. Obviously, not in this particular scenario. This is why…. It’s the question around an authoritative source and how much legal weight that potentially has, because it could get drawn on by other cases to use as an example, which is why I’m asking the question so that there’s some clarity. You never know how these things will go. The unintended consequences we saw from implementation of DRIPA and the Interpretation Act have had significant impacts on British Columbia and where things are at.

I just want to ask one other — well, at least one other — question associated with this. In particular, I think about…. The intent of this treaty is to improve the lives of the K’ómoks People as well as the people in the whole valley and the province in general through creating these opportunities and stuff.

One of the articles in DRIPA talks about the right to develop other economic activities. That, obviously, could include trade. That could include investments in types of activities, maybe even power sources — for that matter, nuclear or natural gas — these types of things.

I’m wondering, as this clause is looked at, clause 20, how that is implemented in terms of the treaty, in terms of giving the nations the rights to pursue other economic activities or economic activities within the province of British Columbia. What kinds of restrictions would be on that from, say, British Columbia or Canadian jurisdiction? In other words, how far can they go? How far can they push to do things potentially outside of our laws?

I’m thinking about that in particular when I think about Tsawwassen. When it came forward, there was lots of controversy because it was a lot of farmland that became treaty land, which of course then was removed from ALR, and they went and they built warehouses and shopping malls and the other types of things on that.

That’s not necessarily the case here, but where are the limits for the nation to be able to pursue things? For example, we have restrictions in terms of CO2 emissions, these types of things. How much of that applies versus section 20, which gives them the right to be able to pursue other economic activities?

Hon. Spencer Chandra Herbert: I don’t think the member intended to do it, but using the UN declaration to try to suggest it’s a legal instrument, that we have to follow clause 20 because of…. That’s not how the treaty is set up. That’s not how the legislation is set up.

Again, to be clear, the UN declaration is an interpretive tool, but it doesn’t have that legal force to say we have to allow anything under the sun. That’s not how that particular part of the agreement works. It’s the interpretive tool.

In terms of the economic development opportunities the member is talking about, of course we want economic opportunity in the Comox Valley for the K’ómoks Nation. That is referenced in the treaty elsewhere, so maybe I can draw the member’s attention to some of those areas.

[4:30 p.m.]

I’d say — we talked about this earlier — that K’ómoks must follow Canadian law, must follow British Columbia law. That’s how the treaty is set out in terms of what legal obligations the nation has, in terms of what they might want to achieve economically.

John Rustad: I appreciate that answer from the minister.

I know we’ll get into, in a short bit, I suspect, some of what you talked about in terms of the legal obligations, because those are, obviously, laid out in the treaty as we go further in.

I just look at it, and like I say, I’m just trying to clearly understand the authoritative source versus the intention of the treaty and why it would be defined as that authoritative source if it isn’t an authoritative source, in terms of their ability for these actions. It seems to be that it’s more of a guiding principle than it is an authoritative source. So I’m trying to….

This is why I’m grasping with these questions, because there are things that are in the articles of the UN declaration which may be contradictory to what’s necessarily laid out in the treaty, and if it’s used as an authoritative source for interpretation, does that then create the window for more flexibility than perhaps was intended as part of the treaty?

Hon. Spencer Chandra Herbert: To be absolutely clear, and I know I’ve stated it a few times now, the text of the treaty is paramount. Interpretive tools cannot be used to rewrite the text.

In the example the member gave, Canadian law applies and British Columbia laws apply. The UN declaration could not be used to rewrite that obligation to such to say they don’t apply. In the end, the text of the treaty is paramount. Interpretive tools interpret text, but the text is what applies.

Scott McInnis: There are references in the treaty to free, prior and informed consent, which is UNDRIP language, and these are written directly into the text of the treaty itself. So it’s essentially writing the UNDRIP principles into the treaty as the treaty language, not just an interpretive clause.

For example, paragraph 141, talking about lands, the Memekay horse camp and Salmon River gravel area. And 142, prior to issuing any authorization that may adversely affect K’ómoks interests under paragraph 141, British Columbia will consult with K’ómoks, with the aim of securing the free, prior and informed consent of the K’ómoks.

Further to that, the provincial Interpretation Act standard legal principles require every clause in a law or treaty to be given legal effect. Court would say that the parties would not have inserted the UNDRIP reference into the treaty if they did not intend to be relied on.

Can the minister confirm for me, then, that seeking the free prior informed consent of the K’ómoks First Nation throughout this treaty would not have impacts on the section 35 rights of any neighbouring First Nations who may be impacted?

[4:35 p.m.]

Hon. Spencer Chandra Herbert: The member referenced the horse camp and the Salmon River gravel area. He should note that where it says, “discussion of free, prior and informed consent,” it says: “with the aim of securing the free, prior and informed consent.” In B.C., we seek consent. We don’t always get it, and that doesn’t necessarily mean we won’t still proceed, but we generally seek consent first before just barrelling ahead. Generally, that works out much better and leads to better resolution for all considered.

To be clear. It’s about seeking.

To reference the member’s other question around: does that impact or could that impact another nation’s section 35 rights? No, it does not.

John Rustad: Just before we go further into this, I’ve just got a couple little questions that have been bugging me, and I forgot to ask them as part of the initial questions, so I figured I’ll just throw them in right now.

There was a statement that was made by the B.C. Treaty Commission when they did a presentation to us, and I believe the statement to be false, but I just want to confirm that there isn’t any validity to it. The statement they said is that any of the three parties has the ability to be able to give a notice to withdraw from the treaty. That doesn’t make any sense to me at all, so I just want to make sure that that is not the case, just so that I can have that clarity — in case, at my next opportunity to meet with the B.C. Treaty Commission.

Hon. Spencer Chandra Herbert: I won’t comment on what the member may or may not have heard from another source, but I can confirm for the member that once the treaty is effective, there’s no withdrawal provision.

John Rustad: That’s how I interpreted it when I read through the treaty. So it seemed to be odd that I heard that. Maybe I misheard what the chair of the B.C. Treaty Commission said. That’s why I thought it’d be worth clarifying, just to make sure when I read and understood this that there wasn’t something going on here that I didn’t understand.

The second thing, actually…. This was a point I was going to ask right at the beginning and forgot, but no time like the present to ask.

Obviously, the minister laid out the amount of land — the 33 square kilometres, plus the 10.4, the potential 18 square kilometres of pre-approved additions, I believe, is what the minister said. Obviously, there’s a cash component to this all as well.

Could the minister give a breakdown of the value that is being settled as part of this treaty — the value of the Crown land; the value of any private land associated with the treaty; value of any potential land that would be what I think the minister described as pre-approved additions; as well as cash that would be applied up front; as well as, separately, any cash that would be paid out ongoing, to support through the implementation of the treaty?

[4:40 p.m.]

Hon. Spencer Chandra Herbert: There is a bunch of numbers here, and I’ll get into them.

K’ómoks, I’ve identified the land. One thing I should be clear about. The pre-approved lands that I referred to — those are if K’ómoks chooses to purchase them. They’re not purchased, ready to just go. That’s something that if they choose to, they can in future.

Interjection.

The Chair: If you could have the minister finish, and then if you want to clarify, we’ll do that.

Recognizing the minister.

Hon. Spencer Chandra Herbert: Yes, Member, the pre-approved would be purchased from the Crown, down the road.

When, what? I can’t tell. But in terms of the cash benefits, K’ómoks will receive a total of $89.8 million in one-time funding, which includes a capital transfer of approximately $56.5 million; a fish fund of $5.7 million; self-government funding of $7.6 million from Canada; approximately $20 million from British Columbia towards forestry interests, sewer services, economic development and community priorities.

In terms of the question around ongoing self-government funding, that will be approximately $6.8 million in federal funding and approximately $400,000 per year in interim annual provincial funding for K’ómoks lands and resource management activities; approximately $1.6 million in provincial funding to K’ómoks over 20 years towards park management for Sandy Island, Seal Islets and Wood Mountain.

I can go through how it breaks down for Canada and B.C., if the member would like. I’ll ask and leave it there.

John Rustad: I appreciate the numbers. Being a bit of a number guy, I like to know what is being included as part of this.

One of the questions I asked, though, is the value in terms of the land component that is being assigned. I’m asking that for a reason, because if I remember correctly, 60 percent of the value of a treaty is covered by the federal side and 40 percent is covered by the provincial side. I’m just kind of wondering how that’s playing off and whether there’s money coming from the federal government to the provincial government for the land or how those things accumulate.

In addition to that, as to what the minister had just provided in terms of the ongoing funding, is there an end date to that? Does it go on for ten years, 20 years? Are there some triggers that bring that to an end, or is that just going on sort of forever?

[4:45 p.m.]

Hon. Spencer Chandra Herbert: I think the member might remember that in his time, the land valuation…. It’s the same policy as existed when he was minister in terms of how that land value is not shared in terms of that.

In terms of the question of 60-40, 50-50, 70-30 with Canada, this treaty is continuing under the policy of agreement we have with Canada in terms of sharing these costs.

The member might remember that the costs are not balanced on a singular treaty, but as has been the agreement since 1993, I believe, it’s more of an agreement over time with Canada to find the balance of: we provide land; they provide cash. That has been, generally, the approach, as long as we’re getting to relative evenness over those different policies and different agreements. That’s how that policy continues to work, as it did when he was minister.

In terms of the other part of his question. I apologize. There were a lot of different pieces to it. In terms of the cash, was it one time, was it many times, was it forever? Obviously, the federal government support will continue. That’s federal.

I talked about the 20 years for parks support, which was defined as 20 years. I talked about one-time funding, which is one-time funding. In terms of forestry revenues, those will continue as provincial policy.

John Rustad: Okay, so we won’t know the value of the land. I guess we can figure that out through B.C. Assessment or whatever the case may be, because I’m sure that information can be publicly available. But that’s one thing.

I might be wrong about this, but I seem to remember the Nisg̱a’a treaty…. That was before my time in being elected, but I remember looking back at it. There was a provision where the money was…. There was support that was ongoing until they achieved a certain amount of own-source revenue, and then it would be replaced or it would be dropped or lowered or whatever the case may be.

That’s why I’m asking the question here as to whether these resources that are being provided, the support that’s being provided, are ongoing or whether there are some sort of triggers that change that financial commitment.

[4:50 p.m.]

Hon. Spencer Chandra Herbert: If the member has another question, as well, while we’re working to get the financial question responded to for him, around own-source revenue and triggers as in Nisg̱a’a, I certainly would be happy to take another one.

John Rustad: I’ll present the minister with a real oddball, off-the-beaten-path question, which is actually the intent, off the beaten path, because one of the things…. I live on the lake, so I’m well aware that the public has access to the high-water mark as you walk along a shoreline. Typically, the public doesn’t do that, but I think, legally, there’s an access. That’s part of the foreshore and how that’s managed.

I’m wondering, in terms of the treaty lands, particularly along the ocean but along any waterways, whether or not there’s provision still there for public access along the waterways or whether that is now considered to be K’ómoks land. Whether or not there’s any provision in there or whether it’s up to K’ómoks as to whether or not there can be any access for the public to these types of things that they would normally have access to, even including with private land.

Hon. Spencer Chandra Herbert: Well, I’m quite happy to take a question, maybe not from an oddball off the beaten path. But you know….

Interjections.

Hon. Spencer Chandra Herbert: Certainly didn’t mean to refer that way. But no, I don’t think it’s an oddball question or off the beaten path too much anyways.

Under the high tide line or the natural water mark division, that continues. People can continue to walk on those lines.

John Rustad: It was actually an interesting question that came up once when I ran across some prospectors that were gold panning along the riverway. Somebody had a claim in the area and said: “No, you can’t do that.” They said: “Yes, you can, because we’ve got public….” Anyway, it’s one of those questions that is just important to know in terms of if anything has changed on the ground in terms of where things are at.

One other question I’d like to ask while we’re waiting on the financial side — because the Chief is here, and I know this is an important issue for him to address. We talked earlier about the section 35 rights versus treaty rights and how it isn’t really a change or difference.

I’m wondering. In the case that the Chief described, where they’ve got a wind project that’s moving forward, obviously, it overlaps into the traditional territory or the treaty territory. There’s stuff there. Of course, the K’ómoks People are saying they’ve got treaty rights.

Well, is there a difference, then, between those treaty rights versus section 35 rights, which is what I was trying to get to earlier, in terms of it, or is it just the normal process of consultation and the engagement that’s required in terms of moving forward a project such as wind power generation or run of the river or any other type of project like that?

[4:55 p.m.]

Hon. Spencer Chandra Herbert: To respond to the first question, we now have that. Just to confirm what I thought was the case, the forestry revenue I mentioned — that continues. The $400,000 from the province, which is to support governance work and the relation of implementing the treaty — that will continue. There isn’t a chapter, as in Nisg̱a’a, in terms of own-source revenue and, all of a sudden, everything changes.

In terms of the federal side, I guess they’ll answer those questions there. But in terms of provincial support, the 20-year support for looking after the parks finishes after those 20 years.

Certainly, in response, the section 35 rights or treaty rights, which are section 35 rights as expressed through treaty…. One is not above another.

In terms of the current state of that project the member referred to, as this treaty is not law, the current state applies, which is that both nations have section 35 rights and have made their assertions and are going through a process. But I won’t get into that because that’s outside of this room.

In terms of if this treaty should pass and become effective at a future date two or more years from now, then there would be section 35 as expressed through treaty rights, and then there would be section 35 rights for the nations that have those rights in those areas.

Scott McInnis: We did have some communication our way which I just want to try and get some clarification around for some of the locals in the region.

I know recreation…. We’re lucky here in British Columbia to have just tremendous recreation opportunities, and it’s enjoyed by all British Columbians. But there were some questions brought forward to us around Sandy Island and Seal Islets being provincial parks that are now part of the treaty settlement lands. Individuals were concerned about the future public access to those parks and what that looks like.

[5:00 p.m.]

I’m just wondering if the minister could shed any light on what that public access may look like in the future, once the treaty is fully implemented, just so individuals who are local will have an understanding of what that impact may be on them to access the park.

Hon. Spencer Chandra Herbert: Certainly, Sandy Island and Seal Islets Marine Park will continue with public access. It will be called a tribal park, but it will continue with public access. Indeed, in speaking with K’ómoks Nation chief and council, they’re keen to continue to have public access, of course, as long as it’s done well, which, of course, we want for all our provincial parks. Take care of them, and they’ll take care of us.

Scott McInnis: I think I know the answer to this, but just on the public record…. Now that the tribal parks, as they will be called, within the treaty settlement lands…. All that maintenance and restoration work and everything else will fall under the jurisdiction of the K’ómoks First Nation, and that responsibility will not be the province’s anymore? I just want some clarification around that.

Hon. Spencer Chandra Herbert: That is correct.

The Chair: Recognizing the member for Nechako Lakes.

John Rustad: We just want to keep you on your toes, Madam Chair, jumping back and forth.

Obviously, certainly, the intent has been very clear from the K’ómoks Nation in terms of these parks, which will be tribal parks, and the continued access. Is there provision, or is there ability, for a future K’ómoks government to change that status?

Hon. Spencer Chandra Herbert: There is no way that a future K’ómoks government, should they wish, would be able to unilaterally stop public access to Sandy Island or Seal Islets.

John Rustad: We’re getting a little too careful, a little too casual, I guess, through this. We’re going to continue to remember to be formal. What we’ve got to do is return to some question-period-type style so we can get conflict going, and then it will all be very formal.

Interjection.

John Rustad: I’m just joking. It’s not my intention to go there. I’m sorry, Madam Speaker.

I know it’s defined in terms of public access in its current state, but things could evolve. There could be a change. For example, maybe they want to put an amusement park in there. I don’t know. I’m just wondering. Is that something that has to then be negotiated between the three parties, or is it within the K’ómoks Nation’s ability to sort of change the terms of use or change the terms of how the land is considered within what will become those tribal parks?

[5:05 p.m.]

Hon. Spencer Chandra Herbert: In the treaty, which has been online for, I think, almost 2½ years now, for anyone to see or read, under section 28 here, under the “Lands” chapter: “K’ómoks will manage K’ómoks tribal parks in a manner which (a) protects and maintains the biological diversity and natural environment in the area; and (b) prohibits commercial logging, mineral activities or any other activity that is inconsistent with the temporary recreational and non-commercial purposes allowed under paragraph 21 of the access chapter.”

Scott McInnis: I’m assuming it’s the same answer, but again, it’s just on behalf of local residents who enjoy recreating in this area, specifically the Wildwood Forest, which will be part of the treaty settlement lands. Access to that recreational area for everybody to enjoy…. Nothing will essentially change under the treaty for this specific area as well, similar to the other parks that we’ve talked about?

Hon. Spencer Chandra Herbert: The Wildwood Forest will become a K’ómoks tribal park, and the public will be able to continue accessing the forest for 49 years or more from the effective date. And when I say “or more,” what I mean is that after 49 years have passed, the lands become K’ómoks public land, but the public still can have access. K’ómoks will manage the forest park to protect and maintain the diversity and natural environment in the area.

Scott McInnis: Just kind of sticking with the theme, I suppose you could say, a little bit, but in a little bit of a different scope….

There is — I’ve just seen pictures of it — a Scout camp as well. A tremendous opportunity for young people to learn the outdoors at this camp. I know there is some infrastructure there. Again, it is becoming treaty settlement lands as well. Just wondering if the minister could confirm that that Scout camp will continue to maintain its operation.

Perhaps, if he could touch on if there’s an agreement with Scouts Canada to maintain the operation as fit or not or if that is now under the jurisdiction of the K’ómoks First Nation. Just a little bit of understanding for those youth that do enjoy that camp.

Hon. Spencer Chandra Herbert: I don’t know if I have to dyb dyb dyb, dob dob dob. Scouts, you know — Cub Scouts. I was a member. We just chased a ball around and bashed into each other. Didn’t get to go outside very much. We were city boys. But anyways. The idea of a camp-out for Cub Scouts when I grew up was going to B.C. Place, and you could all camp in B.C. Place. So I’m jealous of this Scout camp.

[5:10 p.m.]

The answer is that B.C. did enter into a long-term agreement with the Scouts organization that K’ómoks has agreed to take on and continue to honour. So, little Scouts will continue to be able to access the great outdoors.

Scott McInnis: That’s wonderful, and that’s just very reassuring, I think, for some residents who did reach out with questions about it. I think that’s great that those opportunities will continue, and I’m not surprised. I think that’s just fantastic.

I know, on the noted…. The minister brought it up, but the late evening the other night kind of reminded me of a Beaver sleepover, because everybody runs around all excited for about, you know, two hours, and then everybody is ready to hit the deck. At least I was.

For the sake of time, sticking to the theme of some access to some of these public areas — great answers around that.

Kind of pivoting 180 degrees a little bit back to some different topics…. I anticipated we wouldn’t be doing this, just in the interest of time, but we do have a little bit more time.

Switching back to some specifics in the preamble, I do want to get a couple of things on the record just to help us all understand the difference with final agreements versus the living agreements. I’m just curious if the minister could identify, because we are seeing a shift…. This is a different model. If the minister could help us and the public understand what some of the deficiencies were that they identified in earlier treaty models, which is why we’ve shifted to more of a living agreement, flexible model that we see here with the K’ómoks treaty.

Hon. Spencer Chandra Herbert: I think it kind of comes down to the language and, certainly, in response to K’ómoks interests and the other interests which led to the agreement around the triple-R policy in 2019.

Really, the question…. The member referenced final agreement versus living agreement. I think there was a perception that a final agreement meant that you had to have everything solved forever and that even if things changed, you could never look to respond, or if part of the agreement didn’t quite meet the test because it wasn’t as explicit in determining one need or another, there’d never be a way to fix it. So the living agreement approach really reflects that in that modifications can be made at a ten-year window if all parties agree to it, similar to the discussion we had around the perception of extinguishment versus having rights expressed through the treaty.

[5:15 p.m.]

I think that’s really how that evolved into being more of the living as opposed to final. I think some folks, as they’ve expressed it to me…. It’s like, “I’m not seeking a divorce from B.C. I’m not seeking a divorce from Canada. I’m seeking an ongoing, living relationship with our nation, with the K’ómoks Nation, B.C. and Canada.” So instead of a final “we’re done, goodbye,” it’s a “we have a relationship, and here’s how it’s defined.” And if anyone in that relationship feels the need to modify that relationship, there is an opportunity to do that at that ten-year frame.

I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The Chair: Thank you very much for your attention and time today, ladies and gentlemen of this committee. This committee stands adjourned.

The committee rose at 5:16 p.m.