1998/99 Legislative Session: 3rd Session, 36th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

WEDNESDAY, JANUARY 20, 1999

Afternoon

Volume 13, Number 8

[ Page 11175 ]

The House met at 2:06 p.m.

Prayers.

Hon. I. Waddell: Members will be aware that the B.C. Festival of the Arts had a

hugely successful festival last year in Prince George. They'll be in Victoria this year,

and in the millennium year they'll be in Nelson. I'm pleased to introduce to the House --

and I hope the House will make them very welcome -- Paul Winn, the acting president of the

B.C. Festival of the Arts, and Gabrielle Levin, the executive director.

F. Randall: In the precinct today, we have approximately 60 grade 6 and 7

students from St. Michael's School in Burnaby-Edmonds. They're accompanied by five adults

and a teacher, Mr. P. Roder. Would the House please make them welcome.

Oral Questions

FAST FERRY PROGRAM COST OVERRUNS

G. Campbell: Yesterday the minister responsible for the fast ferry debacle said he

knew that the ferries were being built under open-ended, cost-plus contracts. But on May

25, 1998, in this House, the minister said: "It's not like a cost-plus [contract,

where you] just keep working and send us the bill."

Will the minister tell the House whether he was misleading the House on May 25 or

misleading the public yesterday?

Hon. D. Miller: I have not misled anyone. I also said yesterday, Madam Speaker,

that the yards were unable to take the risks which would normally have taken place if we

were simply building a conventional vessel and they put in a bid for that vessel. In this

case . . .

Interjections.

The Speaker: Members, the minister's not finished.

Hon. D. Miller: . . . I have explained that B.C. Ferries, after

consultation, after an attempt to bring the yards together to try to get one yard to take

the lead, was unable to do that and, as a result, formed Catamaran Ferries International,

which took the risk. They then put in place a system with the yards which, while it has

all of the characteristics of cost-plus, had methods control, because the primary

cost-driver was labour and the aluminum that was used in the fabrication. So I have not

misled the House in any respect.

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

G. Campbell: The minister's explanation simply avoids the question. This

minister was asked directly about this question in 1998. He was fully cognizant of the

fact that these ferry contracts were being built on a cost-plus basis, yet in May of 1998,

in this House, where every minister is duty-bound to tell the truth, this minister said:

"It's not like a cost-plus [contract, where you] just keeping working and send us the

bill." They are not my words; they are this minister's words. How can the minister

possibly reconcile these totally contradictory statements?

Interjections.

The Speaker: Members . . . .

Hon. D. Miller: They are not contradictory. I have explained . . . .

Interjections.

Hon. D. Miller: Whether the members want to listen or not, I have explained that

the risk was . . . .

The Speaker: Minister, one moment, please. I'm sorry to interrupt.

Members will come to order. It's very difficult to hear the answer to the question when

so much other language and other words are being spoken.

Hon. D. Miller: The risk was assumed by CFI because this was new technology and

there was a steep learning curve for employees. That's why the decision was taken to form

CFI and then consequently to work with the yards under a system of control, which has .

. . .

Interjections.

The Speaker: Members . . . .

Hon. D. Miller: Hon. Speaker, I'm speaking to the point of what I said and

explaining that it is not inconsistent with what I said yesterday. There was a system of

control. Clearly there are significant problems with that, and we have taken steps -- the

appointment of Mr. Halkett and other steps -- to find out why those controls were not

there. When we get that information, that will be made public.

The Speaker: I recognize now, for a second supplementary, the Leader of the

Official Opposition.

G. Campbell: The minister has said that these are cost-plus contracts. They are

unequivocally cost-plus contracts. The minister knew they were cost-plus contracts, and

yet in May of 1998, he stood in this House and said they were not cost-plus contracts.

That is why the public does not believe this minister. It's why the public calls for this

minister to resign. I ask the question of the minister again: will he not do what's right?

Will he not perform his duty, and will he not resign today?

Interjections.

The Speaker: Order, members.

Hon. D. Miller: When the information came to me in early January that the costs

had risen dramatically, I took immediate steps to try to get to the bottom of this.

Interjections.

[ Page 11176 ]

The Speaker: Members . . . .

Hon. D. Miller: I was given a report on January 14 which indicated that the cost

had risen to $113 million and perhaps more. I made that information public on Monday. I

stated then and I'll state it again: I was relaying information that was given to me. I

now have an obligation to continue to do two things: get to the bottom of this mess to

find out why this happened and try to take some steps to bring costs down. And, hon.

Speaker, that is what I intend to do.

D. Symons: On something very similar to what was going on . . . .

Every year since 1996, I've asked the minister responsible for B.C. Ferries for the fast

ferry business plan, and every year I've been promised that I'll be getting that

information. But you know what? I'm still waiting. So I want to ask today: will the

minister tell us whether he won't release that business plan because it doesn't exist or

because he doesn't want the public to know the truth about his boondoggle? Release it

today or admit there never was one.

[2:15]

Hon. D. Miller: Again, I will explain that we have put some people in place to get

to the bottom of this issue. All of that information . . . .

Interjections.

The Speaker: Minister, just a minute. Members will come to order.

Hon. D. Miller: We have put the process in place to get to the bottom of this

question. When the information is assembled, we will make that information public.

Interjections.

The Speaker: Members, come to order. I recognize, for the first supplementary .

. . .

Interjections.

The Speaker: The member for Richmond Centre would like to ask a question, if the

members on both sides of the House would pay attention.

D. Symons: I asked a question about a business plan. There was no answer

whatsoever to that question in the minister's answer. So I take it, as an obvious answer

to my question, that there never was a business plan. The minister said he "could

care less" about the total budget for the fast ferry program. This is the same

minister who said he knows how to run a business better than the banks -- just before he

got fleeced for $300 million at Skeena Cellulose. Will the minister admit to us today that

he is an incompetent -- a complete incompetent -- as manager of taxpayers' money, and will

he agree to quit now, before his wasteful spending gets any worse?

Hon. D. Miller: Far be it from me to comment too much on the banks, although

they certainly have helped a lot of businesses shut down. I was struck by an opposition

that rose yesterday to demand an emergency debate on Highland Valley Copper, but when

7,000 jobs at Skeena Cellulose were at stake, did they get up and ask for an emergency

debate? No, they didn't; they said: "Shut it down."

C. Clark: Let's get this straight. For over a year, everyone has been telling

this government that the Premier's pet project was dangerously over budget. It was just

last March that the company itself came out and said that the first ferry was already $16

million over budget. And the Deputy Premier wants British Columbians to believe that he

wasn't even a little curious about any of this information that was being raised -- not a

bit. How could that be? Would it be because (

a) the Deputy Premier was so busy spending

his way out of the boondoggle at Skeena Cellulose, or would it be that (

b) this is the

Premier's boondoggle, and the Deputy Premier didn't really care? Or is it that (

c) the

Deputy Premier knew that this government's credibility is so low that even if he told

British Columbians the truth, they still wouldn't believe him?

Hon. D. Miller: At the risk of sounding somewhat critical, I thought the

question was a bit rhetorical. Notwithstanding that, I relied on the information that was

given to me by people in positions of authority. I relayed that information to the public.

When those numbers changed, I relayed that information to the public. We've now outlined

steps we've taken to get to the bottom of this.

The Speaker: First supplementary, member for Port Moody-Burnaby Mountain.

C. Clark: We can try another tack with this question, then. It was November 1997

when the chief financial officer of the fast ferries said that the project was being

regularly audited not just by B.C. Ferries but also by an outside auditing firm. Now, no

one in British Columbia believes the minister when he says he didn't know what was going

on. But they do want to get to the bottom of this cover-up. Will the minister stand today

and table every single one of those audits, so British Columbians can determine for

themselves who's telling the truth?

Hon. D. Miller: We have people, I think, with impeccable credentials. We put

them in place to determine what the problem was with respect to this project, in its

reporting. All of that information will be made public.

Interjections.

The Speaker: Members, come to order.

B.C. HYDRO RATES FOR INDUSTRIAL CUSTOMERS

K. Krueger: In an internal B.C. Hydro memo, ex-CEO John Sheehan admitted that the

NDP government has been secretly gouging its B.C. industrial customers for years: "I

think our prices for a number of our customers are out of line . . . but we

should be able to use those customers to our advantage." Can the minister responsible

for B.C. Hydro explain to the workers at Highland Valley Copper and workers in mines and

mills all across British Columbia why his government insists on exporting their jobs by

selling power to B.C. firms at double the rate of American industrials?

[ Page 11177 ]

Hon. M. Farnworth: Well, it appears that the hon. member isn't aware that B.C.

Hydro has amongst the lowest power rates in all of North America. In fact, they are

significantly lower than almost any other jurisdiction in all of the continent of North

America. In fact, it's B.C. Hydro's policy to keep them at the lowest rate possible.

That's why they've been frozen since 1992. And when you take inflation into account, they

have actually gone down.

The Speaker: First supplementary, the member for Kamloops-North Thompson.

K. Krueger: They might be frozen for us, but they're not frozen for the

Americans. We understand that B.C. Hydro has sold power to Longview Fiber of Washington

State for roughly 1.8 cents per kilowatt-hour. B.C. companies like Highland Valley Copper

pay twice that rate for their power. Can the minister tell us why his government has

directed Hydro to pursue a secret strategy of gouging B.C. workers, while subsidizing

American jobs by selling cut-rate, bargain-basement power to companies like Longview

Fiber? Tell us why.

Hon. M. Farnworth: I think what the hon. member might be interested in is a

comparison of power rates that B.C. Hydro charges industrial consumers in British Columbia

with the ones that are charged south of the border. Let's look at what happens in the

copper-producing states of the United States: in Arizona, 8 cents per kilowatt-hour,

compared to 3.4 cents here in British Columbia; in New Mexico, 7.8 cents per kilowatt-hour

for producers down there, compared to 3.4 cents per kilowatt-hour here in British

Columbia; in Nevada, 7.1 cents per kilowatt-hour, compared to 3.4 cents per kilowatt-hour

in this province. Hon. Speaker, we have the lowest power rates in North America. They are

better than any other state and jurisdiction in the United States. And B.C. Hydro is

committed it to that; that will continue into the future.

The Speaker: The bell ends question period.

I recognize the member for Richmond Centre -- who rises on what point?

D. Symons: I rise, hon. Speaker, to reserve my right to raise a matter of

personal privilege against the minister responsible for B.C. Ferries.

The Speaker: Note taken, thank you -- you reserved the right. The right has been

reserved; we recognize that.

Hon. D. Miller: I rise to respond to questions taken on notice for the member

for Powell River-Sunshine Coast yesterday.

The Speaker: Proceed.

REGULAR B.C. FERRIES FLEET UPKEEP

Hon. D. Miller: The hon. member had questions with respect to B.C. Ferries vessel Queen

of Chilliwack , specifically regarding information suggesting that 5,000 litres of

bilge oil-water were pumped through the sewage system on the vessel. Hon. Speaker, I have

looked into this matter and would like to report that the issue has been subject to two

investigations, the first done by Nanaimo-based Transport Canada staff and the second by

an internal investigation that was conducted on October 16, 1998. These investigations

have found no conclusive evidence that the bilge water had gone over the side in an

inappropriate manner.

Interjections.

The Speaker: Members will come to order. The question was asked; the answer is

now appropriate.

Hon. D. Miller: In addition, an initial informal review by the senior chief

engineer on the vessel determined that nothing had gone amiss with bilge oil-water on that

day. In fact, the internal study concluded that misinformation had been given to the

engineer on the vessel, who in turn reported it for investigation.

The hon. member for Powell River-Sunshine Coast also had a question about repairs

required on the Queen of Sidney . Hon. Speaker, the B.C. Ferry Corporation has

already taken steps to correct this situation. The oil mist that the member referred to

was caused by oil leaks from the generators, which are old and obsolete. These generators

will be replaced during the current refit. In addition, the funnels on the ship will be

extended, which will improve the ventilation in the engine room.

Lastly, the hon. member for Powell River-Sunshine Coast asked if the B.C. Ferry

Corporation would rethink the refit currently being conducted on the Spirit of

Vancouver Island . The capital cost currently planned for the Spirit of Vancouver

Island to increase the size of the retail sales area gift shops, expand the video

arcades and conduct minor . . . .

Interjections.

The Speaker: It makes it very difficult . . . .

Hon. D. Miller: Hon. Speaker, the purpose of question period and the purpose of

taking questions on notice . . . .

Interjections.

The Speaker: Minister, take your seat for just a moment.

Members will come to order. This question was put and was taken on notice. There are

answers coming forth. I wish the members to come to order while we hear the rest of the

answer. I'm sure the minister will be brief in completing his . . . .

Hon. D. Miller: Perhaps the rights of the member for Powell River-Sunshine Coast

ought to be respected, at least. He is, I am sure, interested in the response.

Hon. Speaker, the capital costs currently planned for the Spirit of Vancouver Island ,

to increase the size of the retail sales area gift shops, expand the video arcades and

conduct minor upgrades to the Lantern Coffee Bar are $1.1 million, not $9 million as

reported by the member yesterday.

The objective of this project is not to make cosmetic improvements, as the hon. member

has said, but to increase on-board revenues from the most profitable areas on the vessel.

Presently, the Spirit of Vancouver Island generates over $1.8 million in revenue

from the retail shops and video arcades, but sales are constrained by limited capacity. A

review of the

[ Page 11178 ]

financial analysis indicates a positive revenue return of $1.2 million per year and a

positive net present value. The normal operational maintenance being done to this vessel

is about $1.5 million.

Interjections.

The Speaker: Members will come to order before we proceed. The Minister of

Forests has a report to table.

Tabling Documents

Hon. D. Zirnhelt: I have the honour to present the 1996-97 annual report of the

Ministry of Forests.

Interjections.

The Speaker: Members . . . .

[2:30]

Ministerial Statement

ROBERTS BANK BACKUP LANDS

Hon. C. Evans: Thirty years ago the government of W.A.C. Bennett expropriated 4,056

acres of prime farmland in Delta on Roberts Bank. Back then, in '68 and '69, the

government of the day told farmers that the land would be used for an industrial park and

a superport. Then in 1974, shortly after the expropriation, the land was also included in

the agricultural land reserve.

At the time of the expropriation, landowners were paid full market value for the land,

and those who chose to lease the land back were offered reasonable leasehold terms. But we

in this chamber all know what happened to that land in the last 30 years. There was no

industrial development. Worse, there were no long-term leases, and that farmland was

farmed for 30 years on a short-term cash basis -- essentially mined. Some buildings and

land suffered because of the absence of the long-term security of tenure.

Then on February 20, 1997, I met with farmers and municipal councillors in Delta and

promised to attempt to fix the Roberts Bank problem once and for all. At that time I said

that it was time to move from debating polarized positions, which has gone on for three

decades, to a meaningful discussion of how we were going to make this work for everyone. I

promised then to attempt to find a workable solution and get the land back into full

agricultural production.

Today I am announcing that we are in the final stages of addressing this 30-year

concern. Letters will go out today to seven of the farmers who are farming that land,

offering them the opportunity to purchase that land, so that we can fulfil our commitment

to them and they can begin to farm the land as well as only they know how. Letters to the

remaining leaseholders will go out within the next few weeks.

The land is being offered at very fair prices for agricultural purposes; the land is

not being priced at its speculative value, its development value or an industrial value.

About 60 percent of the properties, known as Roberts Bank backup lands, will be offered

over the course of the next few weeks to the farmers who are currently working them.

Twelve parcels of land are being offered to seven potential buyers today, who are the

lessees. The letters seek expressions of interest for specific properties at specific

prices -- as I said, prices that are fair agricultural value -- and we expect the first

sale of this land to be finalized soon.

It's been a tough and longstanding issue, and I know it's one that some members on both

sides, actually, may continue to have concerns about. It has been my position, however,

that we can't go back 30 years and fix everything and turn the clock back; but what we

need to do is go forward, get this land and these farmers out of limbo and start working

the land for the future.

I personally think it's great news, and I want to say here and now that this change is

not due to my work. Thanks belong to the farmers of the land themselves, the Tsawwassen

first nation, Delta municipal council, the Delta Farmers Institute and all the rest of you

who've worked so hard and for so long on this. I think it's an excellent solution, aiming

us toward the future. The best part of it, hon. Speaker, is that now the folks can go farm

the land, make a living, make the whole thing work and move forward.

The Speaker: In response, I recognize the hon. member for Okanagan-Boundary.

B. Barisoff: Many farm families were seriously uprooted because of unnecessary

expropriation in 1969. It's a credit to the farmers on this land that their perseverance

and their love for the soil has kept them there. This land has been underfarmed because of

uncertainty and insecurity of tenure. Farmland that is farmed on a short-term basis

suffers over time. The necessary crop rotation and soil management does not take place,

leading to long-term loss of soil productivity.

I just want to read a quote here: "The agricultural sustainability of these lands

has diminished substantially over the past 30 years. This is a result of the refusal of

provincial governments to enter into long-term leases that recognize the need for

reinvestment in good soil enhancement practices." I understand that Mr. Noel Roddick,

who has been taking soil samples from this land for many years, has made the results

available. He is the appraiser working for the government.

The MLA for Delta South, who is not here today, would speak to this. He has a lot of

concern for the tenants living in houses on these properties, who also need to be treated

fairly. Some of these people have lived on these lands for a number of years and have also

developed some attachment to the land. The minister says that the sales will be at prices

that are very fair agricultural value. We hope that the pricing of this farmland is more

realistic than the proposals recently announced for the pricing of the shellfish leases. I

hope this is not just an exercise to raise quick money by the government because it's

facing serious, ongoing deficits. Unless resource industries like farmers and shellfish

growers get realistic pricing from government for land, they will not be able to function

in a competitive market. Provision must also be made so that family farmers who, for

financial reasons, are unable to reacquire the farmland at this time are offered long-term

leases with options to purchase the land.

Another item: is the government also willing to look at the situation in the category C

lands for repatriation? In closing, since the member for Delta South isn't here today --

and he has worked on this issue since 1991 -- I'd like to ask the House whether the member

for Delta South, who comes back tomorrow, would be entitled to speak to this issue.

[ Page 11179 ]

Petitions

W. Hartley: I have a petition from the Catholic Women's League of Canada, from

St. Patrick's Parish in Maple Ridge. It's a petition in regard to their 1998 white-ribbon

campaign against pornography.

Standing Order 35 Motion

(Speaker's Ruling)

The Speaker: Hon. members, I would now like to respond to the question raised

yesterday: a request for special debate under standing order 35. On January 19, the Leader

of the Official Opposition sought to move adjournment of the House to discuss a definite

matter of urgent public importance under standing order 35 -- namely, the closing of the

Highland Valley Copper Mine and the effect that it would have on the economy of Kamloops

and of British Columbia.

Before dealing with the merits of the hon. member's application, I wish to make one or

two observations related to the procedures that were followed. The appropriate time to

make the application is after routine business has been concluded and before orders of the

day are embarked upon -- that is, after question period. In this instance, the application

was made before routine business had been concluded and, as such, will not be used as a

precedent.

Second, the member making the application states the matter briefly and tenders the

Chair a motion with supporting statement. The motion is not read or moved until the Chair

has determined that it qualifies under standing order 35.

Third, the member making the application makes a brief submission, and the Chair will

allow a brief reply. Both the submission and the reply are intended to deal with the

question of whether the issue qualifies under standing order 35 and are not to be a debate

on the merits. The member for Kamloops-North Thompson sought the floor on what the Speaker

assumed would be a technical submission relating to the application. The hon. member,

however, launched into a debate on the matter.

From submissions made, then, the Chair is aware that an announcement has been made by

Highland Valley Copper that the mine will be closed as of May 15, 1999 -- some four months

from now. The Deputy Premier, the Minister of Energy and Mines and Minister Responsible

for Northern Development, advised the House that he had had discussions with

representatives of the company with respect to the mine situation and that the discussions

were ongoing.

On numerous occasions, Speakers of this House have ruled that an ongoing matter did not

qualify under the test of urgency of debate required under standing order 35. It is

evident to the Chair that while the issue at hand is a most serious issue, with

repercussions for the economy in the Kamloops area and throughout British Columbia, the

test of urgency is not met under standing order 35.

Orders of the Day

Hon. D. Lovick: I call committee on Bill 51.

NIS G A'A FINAL AGREEMENT ACT

(continued)

The House in committee on Bill 51; W. Hartley in the chair.

On the schedule,

chapter 2 (continued).

[2:45]

G. Plant: There was an issue that was canvassed for a few minutes yesterday between

the member for Powell River-Sunshine Coast and the Minister for Aboriginal Affairs. It

left me a bit confused at the time. I've gone back to reread the Hansard Blues ,

and I'm still a little bit confused about it. Before we pick up more or less where we left

off yesterday, I want to go back to it. That had to do with . . . . I believe

that the member for Powell River-Sunshine Coast made the point, looking at sections 10,

11, 12 and so on of

chapter 2, that there was an issue with respect to the province's

jurisdiction over aboriginal land. Of course, we are going to get to some of this later,

but I just want to make sure that I have correct what I think are some fairly basic

points.

There are, roughly speaking, two categories of land within Nis g a'a lands, as set

out in the "Lands" chapter, which we'll get to. The first is a parcel described

as being 1,930 square kilometres, more or less, and the second is 62 square kilometres,

more or less. I understand the latter description to refer to lands within the external

boundary of Nis g a'a lands which are currently Indian reserves within the meaning of

the Indian Act;

whereas the 1,930 square kilometres is land that is now provincial Crown

land, land held by the Crown in right of the province, over which the Crown does in fact

have jurisdiction, subject to whatever restraints or restrictions may arise if and to the

extent that those lands are subject to aboriginal rights or title. Have I got that

generally right?

Hon. D. Lovick: Yes.

G. Plant: Outside Nis g a'a lands . . . . There are a lot of

things, but one of the things there is is a couple of groups of what are called fee simple

parcels. Some of those are currently Indian reserves, and others, I believe, are

generally, if not entirely, provincial Crown lands. Again, as to the latter, the province

would say that it has jurisdiction in respect to those parcels of fee simple land that are

going to be transferred to the Nis g a'a, if you will, as part of the agreement. Is

that correct?

Hon. D. Lovick: Yes, that is correct.

G. Plant: Dealing with the lands that are currently Indian reserve lands, this

may be . . . . I'm sure it is at least esoteric, if not obscure. But the

member's questions talked about allodial title. Allodial title is a special sort of thing.

I know that there has been a long history of arguments among the federal and provincial

governments and aboriginal communities as to who has the allodial title to Indian reserve

lands. Of course, we know that the vast majority of Indian reserves in British Columbia

were transferred to the federal government in 1938. But is it not the case that even in

respect of Indian reserve lands, the provincial Crown would take the position that the

allodial title to those lands nonetheless remains with the province?

Hon. D. Lovick: I'm going to read a paragraph in a background note of legal

advice from the AG, because this is technical material in terms that I'm not familiar

with. I understand that there is a distinction in law -- the member opposite may be more

familiar with it than I am -- between what's called radical title and Crown ownership of

land. It goes back

[ Page 11180 ]

to colonial times. The former, apparently, is a concept of international law, while the

latter is a common-law concept. We are talking about the latter in this case.

G. Plant: So that I keep up with the latters and the formers, we're talking

about radical title, then? If that is so, what is the provincial government's position

with respect to which Crown has radical title to the lands that are currently set apart

for the use and benefit of Indian bands, as Indian reserves in British Columbia under the

Indian Act?

Hon. D. Lovick: My apologies for the delay. This is obviously a question that

resonates with legal counsel. I understand that the province has taken the position in

various court cases -- typically those involving OIC 1036, which is the regulation

governing highways, access and all of that -- that the title is indeed conferred in the

provincial Crown, and it is radical title. That is the terminology we use.

M. de Jong: I wonder if I could direct the ministers to

section 19 of the

general provisions. We have heard much from various sources -- aboriginal and governmental

sources --- about the potential chaos that may result in the event that this treaty or a

portion of this treaty were somehow found to be invalid or otherwise inoperable. I just

want to confirm that despite what we have heard from people like the Premier in that vein

-- of the chaos that will result -- this

section actually contemplates and anticipates the

possibility that a portion of the agreement might be severed. It might be necessary to

sever it, in the event that it was found to be invalid. So a mechanism does exist by which

to deal with that eventuality.

Hon. U. Dosanjh: Yes.

M. de Jong: I'm sure that at the time this was drafted, that was a purely

hypothetical matter. The fact of the matter is that today there are actually a couple of

challenges to the agreement that are working their way through the courts. By way of

example, I wonder if I could use one of those cases, in which an order, a declaration, is

being sought as follows: " . . . that the provisions of the agreement

which purport to vest in Nis g a'a government authority to make laws, and . . . authority

to make laws which prevail over federal or provincial laws are inconsistent with the

constitution . . . and the exhaustive distribution of legislative

authority" contained in the constitution. A declaration is sought to that effect.

I know what the position of the government is. They take a different view of that

matter. I'm wondering to what extent, however, the government has planned for the

contingency that this declaration is granted by the courts.

Hon. U. Dosanjh: I don't want to make even an indirect comment on what's before

the court. I would say, without meaning to comment on what's before the court, that this

section or paragraph is designed to protect the balance of the treaty if a provision or

provisions of the treaty are struck down in whatever action there might be, whenever it

might be.

M. de Jong: The hypothetical . . . . Recognizing that much of what

we've been discussing, especially in these general provisions, touches indirectly on

matters that will, I suspect, be argued before the courts, the way this provision of the

treaty would operate in the example I've just given would be to sever those provisions of

the agreement that vest that paramount legislative authority in Nis g a'a government.

Is it the government's view that the balance of this agreement can live, by virtue of how

section 19 operates?

Hon. U. Dosanjh: I'm not making a specific reference to the self-government

provisions. Whatever provisions we're dealing with, if they are struck down, we believe

that the treaty remains whole. Then we have the obligation to make best efforts to arrive

at a settlement with respect to whatever provisions might be struck down.

M. de Jong: Can I ask the Attorney whether he believes that it would be prudent

-- as a matter of public policy, recognizing the fact that the agreement is met with a

very specific challenge that is working its way through the courts -- for the government

to undertake some work to plan for the event, to plan for the possibility that the

self-government provisions would be deemed to violate certain constitutional provisions?

Would it be wise to plan for that possibility? Have they done so?

Hon. U. Dosanjh: It is important that we remember that I have said I don't want

to make even an indirect comment on what's before the court or on what might be the

outcome of what's before the court, even by way of saying to the member that we may have

anticipated the outcome. That would be an indirect comment on what's before the court.

Let me say this, however. The government has gone through long negotiations on behalf

of the Crown in right of the province. That's why you would see this treaty replete with

provisions that take into account the need for readjustments or for renegotiations if

things are struck down or we face new challenges. That's why I think it's important to

simply say that this paragraph takes into account any court challenges that might be faced

by this treaty in whatever the outcome might be.

M. de Jong: I don't want to belabour the point. I'm mindful of comments that the

Premier has made, where he anticipates to this extent: if the courts were to rule the

document or a portion of it to be unconstitutional, that would, he said, leave him in a

very difficult position. I do think there is a certain obligation on government not to

leave itself vulnerable to being in that difficult position -- to have a contingency and

to understand how it would respond.

We're not dealing with a purely hypothetical situation any longer; we're dealing with a

challenge. Let's not kid ourselves; my colleague and I are part of that. We have an

opinion that we have asked the courts to rule on, and the government takes a different

position. But I would suggest that it would be irresponsible for the government to find

itself in a position where, the moment after that decision is tabled, it asks, "Where

do we go from here?" when it certainly has notice of those proceedings.

[3:00]

Hon. U. Dosanjh: Obviously government is always prepared to deal with those issues

that may arise from time to time. I think there are many checks and balances in this

treaty and many provisions that provide for many eventualities, one of which may be that a

particular challenge or a particular application by one plaintiff or the other might or

might not succeed.

[ Page 11181 ]

M. de Jong: Let me move off that to the next section.

We spent some time last day, I think, discussing the interplay between the Charter and

the rights that are incorporated into this treaty. I guess one of the issues that arises

for me with respect to

section 20 of the general provisions is when I think about the

possibility of an individual Nis g a'a person who brings that challenge to a Nis g a'a

government provision, and we get into that discussion about individual rights versus the

rights of Nis g a'a government and all that implies for how the Charter is going to

operate here.

In observing that transaction taking place before the courts, other levels of

government, for genuine reasons of public policy, genuinely believe that the interests of

the individual should be paramount and that this is a matter that should be resolved in

favour of the individual as against the interests being expressed by Nis g a'a

central government and, in other circumstances separate and apart from the aboriginal

component of this, would want to intervene in the matter that's before the courts. Does

section 20 operate in a way that would preclude either the federal or the provincial

government from acquiring that status as an intervener on the side of that mythical and

hypothetical individual?

Hon. U. Dosanjh: I think it's very clear that parties have agreed that they will

not support a challenge or, of course, mount a challenge themselves to the validity of any

provisions of this agreement. If the hon. member is speaking about the exercise of some of

these rights that Nis g a'a citizens might have within this treaty, and if we believe

that Nis g a'a citizens are being denied Charter rights that they should be entitled

to by Nis g a'a government in the exercise of the authority vested in them in this

treaty, we are free to intervene at that point. That's a different issue.

We're talking about two different issues. One is whether or not we would support a

challenge or challenge a provision of the treaty. We will not. The other is whether or not

we would have the right to intervene in the unlawful exercise of power -- violating the

Charter of Rights -- by Nis g a'a government that's vested in Nis g a'a

government in this treaty.

M. de Jong: I can think of different situations in which this might arise. I

will try, at this point, to restrict my comment to the example we've been using regarding

the individual. I presume the response from Nis g a'a government would be that this

challenge that we are facing relates specifically to the powers and the validity of those

powers, as granted to us by this treaty. I'm not saying that would be the correct

argument, necessarily. I think I understand where the Attorney is going with his response

as to the distinction between the exercise and the

interpretation of those powers versus

their validity. But that is the argument that undoubtedly Nis g a'a government would

bring. What I'm hearing the Attorney say is that he believes there is nothing in this

provision that would preclude government -- federal or provincial -- from intervening on

behalf of the individual in the example I've given to him.

Hon. U. Dosanjh: In the matter dealing with the exercise of that authority,

there is nothing to prevent federal or provincial Crown from intervening. We may have, at

that point, a different

interpretation of what's happening from the Nis g a'a

government itself. If we don't, obviously we would not intervene; but if we do, we have

the right to.

M. de Jong: Let me change the example slightly and determine whether or not the

Attorney General's answer changes at all. The other scenario that I thought likely to

occur relates to the possibility of a jurisdictional dispute as between levels of

government or governments -- perhaps most likely Nis g a'a government and regional

government in the area. I don't think there's any doubt, with all of the areas of

jurisdiction that are dealt with in this particular document, that there are going to be

times when the courts are resorted to. I hope not often; I fear otherwise -- that the

courts will be resorted to, to work out those jurisdictional overlaps. Again, the

resolution of a particular question along those lines may have implications for what the

provincial government is doing elsewhere in the province -- or other regional governments.

They may also, therefore, seek to intervene and articulate a particular point of view.

Has anything that the Attorney General said with respect to the former example

involving the individual . . . ? Does anything change when we substitute that

example with the example I've just given, involving levels of government?

Hon. U. Dosanjh: No.

M. de Jong: I'm going to turn my attention to

section 23 unless members have .

. . .

Interjection.

G. Plant: I thought we were going to spend a moment or two on

section 22, which

says: "This Agreement constitutes the full and final settlement in respect of the

aboriginal rights, including aboriginal title, in Canada of the Nis g a'a

Nation." There are three points of interest here that I'm hoping the government will

clarify or explain.

The first has to do with the question: what does it mean to settle rights? Lawyers, for

example, are accustomed to talking about the settlement of a claim, the settlement of an

action, the settlement of a dispute. Less often, at least in my recollection, do we hear

people talking about the full and final settlement of rights. I'm wondering if the

government can explain or give some sense of why it is that that particular language has

been chosen.

That question takes me to the second issue, which is in the

preamble. For example,

settlement is talked about in the context of the land question. That is, the

preamble

speaks about the Nis g a'a nation having sought a just and equitable settlement of

the land question. Of course, paragraph 22 of

chapter 2 doesn't refer to the land

question, so perhaps the minister could shed some light on the reasons for that omission.

Thirdly, this is one of those places where I'm wondering why there are the qualifying

words "in Canada." I guess when I see those words, I get nervous for a moment

that there may be some people who are Nis g a'a who are not in Canada who will look

at that and say that this doesn't apply to them in some way. I suspect that the answer to

that is: no, it does. Those are really not significant objections or concerns, but rather

points of clarification that I'm hoping one of the ministers here -- there seems to be a

growing group -- can shed some light on.

Hon. U. Dosanjh: I think that when one looks at

section 35 of the Charter of

Rights in the Constitution Act, that

[ Page 11182 ]

answers the question adequately -- in fact, more than adequately. In

section 35(1) --

answering the third question first -- there's a reference to the aboriginal peoples of

Canada. So we're only talking about the rights of the aboriginal peoples in Canada, people

who are in Canada.

Secondly, with respect to the land claims, again that's a reference to the same in

section 35. Aboriginal title is obviously part of the entire issue. That's why, in fact,

those matters have been exhaustively taken into account in the two provisions that the

hon. member referred to.

G. Plant: I appreciate the answer.

What does it mean to settle rights? I guess that was the first question, and I'm sure I

didn't put it clearly enough. I know what it means to settle a dispute, but what does it

mean to settle aboriginal rights? I can think of other things that we can do with

aboriginal rights, or argue about doing: we can recognize them, affirm them, modify them,

extinguish them -- all of those other things. But why has the government said that what

we're doing here is settling rights? What does that mean?

Hon. U. Dosanjh: The treaty refers to settlement legislation: what we're doing

here and what the federal government is going to do. Obviously this is about the

settlement of aboriginal rights and land claims and aboriginal title. If the hon. member

is asking me to define what settle means, we can go back to the Oxford dictionary. Whether

you settle or you conclusively determine amongst yourselves, it amounts to the same thing.

I'm not going to get into semantics here. It's pretty clear on the face of it what

settling rights means. This is a treaty, part of which is a land claims settlement,

aboriginal rights and settlement of other issues involved.

M. de Jong: Going to

section 23 of the general provisions, I find it to be a

difficult

section to read and a very important section. Of course, the heading is

"Nis g a'a

Section 35 Rights." We've had a pretty exhaustive and exhausting

discussion around the whole issue of

section 35 rights. But let me read this back to the

minister in abbreviated form, in a way that I hope will demonstrate that what the

section

refers to are three groups of rights. Here's how I read it. This agreement exhaustively

sets out Nis g a'a

section 35 rights, and those rights are (

a) the aboriginal rights,

as modified by this agreement of the Nis g a'a nation and its people, (

b) the rights

of Nis g a'a government, and (

c) the other Nis g a'a

section 35 rights.

So it subdivides into three distinctive areas, and I'd like the minister to explain, to

the extent that he's prepared to, the difference between those three groupings of rights.

[3:15]

Hon. U. Dosanjh: There is really no difference. They're all

section 35 rights.

M. de Jong: I recognize that we've had the discussion. I didn't draft this

agreement. I didn't presume to take

section 35 rights as referred to in the first

paragraph of the

section and then further define them in three very distinctive ways.

That, I'm sure the minister will be advised, has some relevance. If it doesn't, then the

question that begs asking is: why do it? But the drafters of this agreement have decided

that it does have relevance, and part of the exercise we're engaged in here is to discover

what that relevance is.

Hon. U. Dosanjh: If one was drafting it to suit the hon. member's desire to have

it simpler, one could have simply had this provision continue and not have (a), (

b) and

(

c) as the subparts of it. If you read (

a) and (b), then there is "the other Nis g a'a

section 35 rights." Previous rights are also

section 35 rights. They obviously relate

to different endeavours in life, but they are all

section 35 rights.

G. Plant: I guess someone reading this, perhaps from a different perspective

than the Attorney General has, might wonder if what was really happening here was that the

government wanted to say something different about self-government. The government wanted

to say something different about self-government rights than about other aboriginal

rights, and that's why they went to the trouble of creating clause (b). Then the

government wanted to cover off the possibility that there might be something in

section 35

other than the aboriginal rights and title which are recognized to date and

self-government, which has not been but is being recognized here in this agreement, and

therefore drafted (c).

I understand that the minister may not have any interest in explaining to British

Columbians why this clause is written this way. That's what we're asking here. So far,

frankly, there hasn't been an answer. So far the first answer is that they're all

section

35 rights -- which is cute but, frankly, totally unresponsive.

The question is: why has someone written this in a way that separates out three

different kinds of rights? What's the logic or the rationale? I'm not suggesting for a

moment that I feel like redrafting it. I didn't draft it; the government drafted it. Why

did you draft it this way?

Hon. U. Dosanjh: I have no intention of entering into a debate on drafting; far

be it from me to do that. In fact, I totally despise drafting, if I might say that. But

it's very clear . . . .

Interjections.

Hon. U. Dosanjh: Drafters are wonderful people. I love the drafters.

Interjection.

Hon. U. Dosanjh: They are, actually. Some of my best friends are drafters.

But it's very clear that there is no hidden motive behind this. You essentially have a

grouping of rights. You have the aboriginal rights, including aboriginal title. You read

(a). Then (

b) is somewhat in addition to that. It talks about Nis g a'a government:

the authority, jurisdiction, rights of Nis g a'a government. Then whatever else is

left is caught by the catch-all phrase in subsection (c). There's no magic to it; there is

nothing hidden behind it.

This is the same sort of debate that we just had a moment ago, about settling rights.

People prefer different language sometimes and a different technique for doing things. If

the hon. members think that there is a hidden design behind what we did . . . .

This, I understand, was the AIP language. But if they think there is a hidden design, I'd

like to know. Perhaps they can expand upon that.

G. Plant: It's hard to say whether there is a hidden design, when the government

won't even say what the design

[ Page 11183 ]

is. Let's try this -- and let me pause for a moment. I don't want to engage

inappropriately in a debate about the use of language, but there is something like half a

billion dollars at stake here. In fact, something like half a billion dollars is at stake,

really, right on the page that we're looking at now.

Let me ask this: are there some other Nis g a'a

section 35 rights that are not

aboriginal rights, including aboriginal title?

Hon. G. Clark: I thought I would simply enter the debate, because these debates

between lawyers need to be interrupted from time to time. I thought that I would try to

give a lay

interpretation of this section.

This

section is pretty straightforward. It is an attempt to state unequivocally that

section 35 rights in the Nis g a'a treaty are all contained in the agreement. There

are no other rights that are not contained in the agreement. So subsection (

a) is a

limiting clause with respect to

section 35 rights. The first subsection is a broad,

general definition. Frankly, as is the wont of legislative counsel, I think -- and I'm not

blaming them -- perhaps subsection (

a) would have been sufficient, because it says that

everything is exhaustive: "This Agreement exhaustively sets out Nis g a'a

section 35 rights, the geographic extent of those rights, and the limitations to those

rights . . . . "

For greater certainty, there is some repetitiveness. There is some concern that the

broad definition is not inclusive enough to ensure that all

section 35 rights are included

in this treaty. That is an

interpretation that we find repeatedly, in my experience, with

legislative counsel -- to make sure that we have canvassed the turf. So there's a general

clause. Then, for greater certainty, there's a subsequent one referring to Nis g a'a

government. Finally there is a further limitation where it's saying "the other Nis g a'a

section 35 rights" -- again, just to give complete comfort and certainty that all of

the Nis g a'a

section 35 rights are contained exhaustively and inclusively in this

treaty.

M. de Jong: The first thing I would say is that (

c) doesn't say "any other

Nis g a'a

section 35 rights." It says "the other Nis g a'a

section 35

rights," and I presume it says that purposely.

I understand that the government doesn't want -- and I think it's wrong -- to get into

an exhaustive listing or categorization of rights. But maybe the Premier could help us to

this extent: give us an example of a right that falls within subsection (

a) in this

section, and give us one example -- not an exhaustive list -- of a right that falls within

subsection (c), in order to demonstrate the difference.

Hon. G. Clark: Well, we can't do that, quite simply, because . . . .

I know the member would like us to list all

section 35 rights. What we have done is

resolve that dilemma by saying that the treaty is the full, exhaustive list of the rights.

So we have resolved the inability or the undesirability of listing aboriginal rights in

the abstract, by saying that those rights are exchanged or modified -- modified is the

language here -- by the treaty itself.

My contention would be that subsection (

a) probably does cover all the exhaustive

rights, and I don't believe there's any distinction between "the other Nis g a'a

section 35 rights" or "any other Nis g a'a

section 35 rights." It's a

catch-all, if you will -- legalese -- to try to ensure that we have captured all of the

section 35 rights in this clause. I think the concern was that if we had not so limited

the

section 35 rights, someone may make an argument that this clause was not

all-inclusive. So it was simply an attempt to further and further refine, limit and box in

section 35 rights as contained in the treaty.

M. de Jong: I don't want to dwell on that point. I think we've exhausted the

debate, and it will be apparent to anyone following these debates that the

section has

been drafted in a particular way and that there isn't, apparently, an answer to a pretty

basic question, which is . . . . Having decided to categorize rights in a

certain way or describe rights differently, the government is unable or unwilling to even

provide one example of the differences between those rights.

I have to say this. I think that the people who drafted this document have probably, to

the greatest extent possible, been very careful about the language they have chosen and

have tried to follow the instructions they received from the negotiators. So when the

Premier says, "Any rights; the rights -- let's not get caught up in the

language," I think the people who put this deal together or drafted this deal did get

caught up in the language . . . .

G. Plant: And rightly so.

M. de Jong: And rightly so, as my friend points out. There's a lot at stake --

not just money, but certainly money; and in the case of the "Release" language,

particularly money.

Let me, though, ask the Premier or the Attorney or the minister . . . . As

a means of explaining to me how all of these sections, from about 22 to 27, operate

together, explain to me how this treaty would function to preclude an individual Nis g a'a

from coming along at some point in the future and relying upon a subsequent court decision

that ruled that there is an inherent aboriginal right to tax exemptions. How would this

treaty and these provisions in particular operate to preclude that individual Nis g a'a

from bringing that future claim?

Hon. G. Clark: Let me start, because I want to try again to answer that question

because of the way you phrased the last question with respect to

section 23. It strikes me

that

section 23, in a way, is a limiting clause, as are sections 24, 25, 26 and 27. It's

not an expansive clause; it's actually attempting to define and limit to the agreement the

section 35 rights. And to the extent that a future court could rule that self-government

is a

section 35 right . . . . What this means is that if that were ruled to be

the case, then they are as listed in the treaty -- and no more. It is a limiting right

with respect to

section 35.

Similarly -- just for the purposes of anybody watching -- 24, 25, 26 and 27 are very

key clauses, perhaps amongst the most significant. If I could give a generic answer for a

second, traditionally the 1890s treaties had what was called "extinguishment

language" -- aboriginal rights were extinguished as a result of treaties that were

entered into. In subsequent treaties there was an attempt to alter that language, which

changed it to . . . or, at least, at the same time it was called "cede,

release and surrender." So aboriginal people, in exchange for a treaty, had to cede,

release and surrender all aboriginal rights.

What we grappled with here is quite simple and on the public record. That is to say, is

there a way with which we could guarantee certainty -- which "cede, release and

surrender" does -- without asking aboriginal people to extinguish their Indian-ness?

This is a key question which we

[ Page 11184 ]

grappled with, and it was a difficult legal question. For me, as a layperson, it seemed

self-evident that we could find language which gave the requisite certainty but which did

not ask aboriginal people to, if you will, extinguish permanently their Indian-ness or

their rights. However, having said that it seems easy to a layperson . . . .

It was an extremely difficult legal construct and concept, because of the track record, if

you will, or the court decisions with respect to the existing language on "cede,

release and surrender." Everybody knew what that meant; and therefore, by definition,

people were concerned that anything different from that must not be as certain. That is

what we struggled with.

[3:30]

The resolution contained here has met, I think it's fair to say, broad support in legal

communities, including from critics of treaties, who felt it was difficult -- in fact,

impossible -- to come up with language other than "cede, release and surrender,"

which captured the essence of the matter, the certainty question. What we have done here

is very simple. We have used the term "modification" of rights to import, to

define and, in

section 35, to take in its totality that these are the aboriginal rights

that the Nis g a'a have -- no more, no less -- and that we are to . . . .

"Notwithstanding the common law" -- notwithstanding the issues with respect to

the court -- "as a result of this Agreement and the settlement legislation, the

aboriginal rights, including the aboriginal title, of the Nis g a'a Nation, as they

existed anywhere in Canada before the effective date, including their attributes and

geographic extent, are modified, and continue as modified, as set out in this

Agreement." So we have imported into this a very important concept -- that these are

the

definitions and that therefore we have defined them exhaustively and descriptively, in

totality.

Then a further section, the "Release"

section -- which is common language by

lawyers, I'm led to believe -- with respect to releasing obligations on parties as a

result of settlement, says that we're not asking the Nis g a'a nation to extinguish

their aboriginal-ness; we're not asking them to surrender their rights. We are asking

them, in effect, to exchange those undefined rights for treaty rights and to release us --

Canada and British Columbia -- from any future obligation of any future court which might

decide that there are rights that exist somewhat beyond those which were in the treaty.

I'm trying to give a broad definition of these three critical sections that I think

have accomplished, broadly, what we've tried to do. These are what we call -- at least

around here -- the certainty provisions. Fundamentally, the concern people had, and have,

is that the settlement of aboriginal treaties will be a full and final settlement. There

will not be recourse to the courts at some future date by anybody to try to achieve

something which is not in this treaty, which would therefore render the treaty a work in

progress. Therefore we would not have the kind of certainty for investors and others that

we are desirous of.

So there's the attempt to exhaustively say that these are the

section 35 rights --

that's in

section 23 . . . . These are the Nis g a'a

section 35 rights.

There is the modification

section that says that notwithstanding the common law, their

rights are modified now by this treaty. Then finally, if there is anything at any future

date, the Nis g a'a release us from any obligation with respect to pursuing those

section 35 rights.

M. de Jong: Well, I think it is useful for the Premier to provide that very

broad and general description of the philosophies that were at work in the government's

mind, in seizing upon language that it thought would best achieve the objectives of

certainty that I think most people brought to this whole exercise. To a certain extent,

that is the nature of the discussion that we have had to this point. I think the Premier

has correctly identified that there has been widespread interest and a notably muted

criticism of the language.

But now we're at that point in the discussion where I hope the Premier will agree that

it is legitimate for us to move beyond the abstract and the general and to deal with the

question of how these provisions will actually operate to establish and maintain that

certainty -- create that certainty that is everyone's objective. It was with that in mind

that I tried to provide a specific example. These are all hypothetical examples, but I

would say respectfully that this is not something fanciful. During this debate we will try

not to merely stand here and create examples that have no prospect of ever arising.

But the possibility that someone elsewhere in this country, an aboriginal person would

bring that claim and have it established that tax exemption is an inherent right and that

a member of the Nis g a'a nation would then want to rely upon that decision to avail

themselves of all of the benefits that would follow . . . . The question I've

asked is . . . . Walk us through these provisions that the Premier has just

described in general. Tell us how they operate in that specific example to prevent us from

achieving the kind of certainty that I think the Premier and all of us want.

Hon. G. Clark: Let me try. I appreciate the member's question. I hope we can --

I'll try to -- answer it perhaps more specifically.

The member's concern -- and I think everybody on British Columbia's side and the Canada

side has been concerned -- is this: how do we ensure that undefined rights aren't defined

by a court in a way different than that which is specified in the treaty? Of course, at

the end of the day, we are not guaranteed that a court would not find inherent aboriginal

rights that are not in the treaty.

The member makes a point, perhaps, about tax exemption. That's not likely to be the

case, but let's say for the sake of argument that it's the case. We have protected the

people of British Columbia and Canada from that eventuality by this language; or a better,

more honest answer is that we have attempted to do that. We believe we have done it

exhaustively. We have done it, really, through a series of things. First, we have done it

by taking these undefined rights -- inherent or otherwise -- and saying that they are

modified. So whatever Nis g a'a a or aboriginal rights may exist or may be decided

are now modified in the form of this agreement, this treaty. That is very clearly spelled

out. We have at the same time stated that Nis g a'a

section 35 rights have a series

of belts and suspenders, to try to ensure that they are completely defined within this

treaty. Perhaps, again, to the member's earlier point, why is it that it says "the

other Nis g a'a

section 35 rights"? It is surely there to capture anything else

that might come up with respect to

section 35 rights and import them into this treaty.

Finally, there is a release. So for any rights that are not listed or are different

from those listed, and that some future court might rule on, we are released from the

obligation to pursue those rights. This is a release of any claim of infringement of a Nis g a'a

aboriginal right prior to the effective date. So we are released from any claims.

[ Page 11185 ]

Then, finally, on the next page there is an indemnity, which I think also goes further

to the point: "The Nis g a'a Nation will indemnify and save harmless Canada or

British Columbia, as the case may be . . . " -- from anything. So if

there's any remote possibility . . . . We think we've protected it, because

it's completely exhausted and limited here. But if there were a court case down the road

where there was some possibility that they could still attempt to assert aboriginal

rights, and the modification language was not sufficient and the release was not

sufficient, then we're completely indemnified. If the modification and the releases don't

work, the Nis g a'a indemnify the province and Canada for any losses suffered as a

result of that.

That is the package which we've put together so that it is impossible for an aboriginal

person to go to court to try to assert aboriginal rights which are different from this. We

are released from that by the Nis g a'a people.

M. de Jong: We're getting there.

Let me say first off that I'm not sure I understand how these indemnification

provisions would operate in the example I've given, where we're talking about tax-exempt

status. I mean, I think I know how they would operate theoretically; I'm not sure I know

how they would operate in practicality. I think the Premier was drawing my attention to

section 26 of the general provisions, and I think he was making the argument that by

operation of

section 26, the kind of claim or the kind of argument that I have referred to

in my example would be precluded from carrying the day or having any sort of detrimental

effect on the province.

If I go to

section 26, however, and if I'm incorrect in my assumption that that's what

the Premier was referring to, then I ask myself the question . . . . One

appears to be able to make the argument that those release provisions, by virtue of how

they're drafted, are restricted to non-section 35 rights. If that is the case and that

argument prevails, then there continues to be a difficulty -- again, referring back to the

example that I've offered.

Hon. G. Clark: I just don't think that it's possible. I want to read, for the

record,

section 26. It's absolutely unequivocal, at least to those of us who aren't

lawyers:

"If, despite this Agreement and the settlement legislation, the Nis g a'a

Nation has an aboriginal right" -- in other words, as founded by a court --

"including aboriginal title, in Canada, that is other than, or different in

attributes or geographical extent from, the Nis g a'a

section 35 rights as set out in

this Agreement" -- in other words, if they have rights which are not in this

agreement -- "the Nis g a'a Nation releases that aboriginal right to Canada to

the extent that the aboriginal right is other than, or different in attributes or

geographical extent from, the Nis g a'a

section 35 rights as set out in this

Agreement."

It is just unequivocal. And, for those who are watching, the reason that it's released

to Canada and not British Columbia is because that's the only place that they can release

those rights to, because it is a national question.

The next section:

"The Nis g a'a Nation releases Canada, British Columbia and all other persons

from all claims, demands, actions, or proceedings, of whatever kind, and whether known or

unknown, that the Nis g a'a Nation ever had, now has or may have in the future,

relating to or arising from any act, or omission, before the effective date that may have

affected or infringed any aboriginal rights, including aboriginal title, in Canada of the

Nis g a'a Nation."

My goodness! How much stronger can you get than that? It completely releases us from

any obligations in every respect by anybody who seeks to go to court to assert something

different from what is in the treaty. I think it is unequivocal, which is why, I remind

the member -- you're right -- the critics who were so loud on this very question have been

very muted on it: because it is, I think, an absolutely unequivocal statement from the Nis g a'a

people with respect to their rights.

I apologize for reading that for the record, but it just seems so transparent. The

question was, I think, that this didn't refer to

section 35 rights. I'm sorry, but it

seems so unequivocal to me that I don't know how you can make that case.

M. de Jong: There's a couple of ways, and I will deal with only one of them. I'm

going to read the

section back to the Premier, deleting some of . . . . Well,

I'm going to read it back in this way, and he can follow along or not: "If . . . the

Nis g a'a Nation has an aboriginal right . . . that is . . . different .

. . from the Nis g a'a

section 35 rights as set out in this agreement, the Nis g a'a

Nation releases that aboriginal right to Canada to the extent that the aboriginal right is .

. . different . . . from the Nis g a'a

section 35 rights . . .

. " When I read it . . . .

Interjection.

M. de Jong: As set out in the agreement.

I have deleted some of the words, and the Premier might want to say that I've deleted

significant words. I don't think I have. When I read it in that way, it's nowhere near as

clear as when the Premier reads it in its entirety -- by virtue of how it's drafted. Look,

I agree. When the Premier reads out the paragraph in its entirety, the first thing that

comes to my mind is that that's exactly what we're dealing with:

section 35 rights. When I

read it in the way that I just have, I'm less certain.

[3:45]

We're not going to settle this here, and the Premier has his view. But the one thing I

have learned, and I have not practised law anywhere near as long as anyone else in the

room, is that until something has been tested by the courts -- and I think my friend from

Richmond-Steveston will have some submissions on that point -- I'm awfully reluctant to

make the kinds of blanket and unequivocal statements that the Premier has. We all hope .

. . but I have taken one example of one paragraph and read it back to the Premier in

a way that I think could be taken to change its meaning.

Hon. U. Dosanjh: The Premier has made the case very, very strongly. Obviously we

will simply agree to disagree, but the hon. member should pay heed to the remarks of his

colleague sitting next to him, the hon. member for Richmond-Steveston, who made a

statement at the University of British Columbia that there is no question about the

certainty of this agreement. There is no question whatsoever.

G. Plant: What I want to add, firstly, to this discussion is a bit more about

the context, partly because I think we are at a fairly important point in the discussion

of the agreement. This is going to be a long discussion, and when we're at a point that I

think is important, it might just be useful for a minute or two to expand on the context a

little bit. When he began his general discussion about this question of certainty, the

Pre-

[ Page 11186 ]

mier made the point that in the 1890s, treaties used the language of "cede,

release and surrender."

That's true, but so too have the treaties of the 1990s -- that is, even up until just

five or six years ago, treaties in Canada have been using that language. The Gwich'in

comprehensive land claim agreement in 1992 was an agreement in which the Gwich'in ceded,

released and surrendered all of their aboriginal claims, rights, titles and interests. In

the Nunavut agreement of 1992, the Inuit ceded, released and surrendered all of their

aboriginal claims, rights, titles and interests. In the umbrella final agreement of the

Council for Yukon Indians in 1993, there was a provision that each of the Yukon first

nations which signed its own final agreement would cede, release and surrender all of

their aboriginal claims, rights, titles and interests.

This concept of ceding, releasing and surrendering is not simply an antique historical

relic. It is in fact very much part of the history of treaty-making in Canada up to this

agreement. This agreement marks the first example of a treaty -- of a land claim agreement

-- in Canada, that I'm aware of, that does not contain language of "cede, release and

surrender." Over time the political dynamic around treaty negotiations changes, and

that's to be expected. The aboriginal people of Canada have indeed formed the view, which

I think the Premier accurately summarized a few minutes ago, that there is something about

ceding, releasing and surrendering aboriginal rights and title that strikes at their sense

of identity in a way that is objectionable. Both Canada and the provincial government have

here sought to find a way to achieve the objective of certainty through a means other than

traditional means, in order, in part, to accommodate that very real expression of concern

by aboriginal people.

Let me suggest -- although I don't know for a moment how we could pursue the point --

that when a party, like a first nation to a first nation treaty negotiation, says,

"Well, yes. In the past other aboriginal groups that have been prepared to cede,

release and surrender were not prepared to give you that kind of certainty," some

could suggest that governments might say: "Well, if we're not going to get that level

of certainty, then in some respects the agreement may not be 'as rich' " -- that is,

we're trading to some extent on the risk. It may be that that happened here.

Given the lack of success that we've had to date in understanding the principles

motivating the provincial negotiators, I don't expect for a minute that we would have much

success trying to probe that issue here. In concrete terms, for example, did the province

say: "You can't have as much land, because you the Nis g a'a are not prepared to

make the same concession that treaty claimants before have made"? Or did the province

simply say: "This is not a factor, in terms of the negotiation of lands, resources

and other benefits"? The answer to that may come in due course from the ministers or

the Premier. That seems to me, though, an important part of this discussion.

Let me then say this. The governments, including the provincial government, have said

from the outset that they are committed to the objective of certainty. The AIP stated that

objective and then left open the technique for achieving it. What we have before us,

including clauses like 23, 24, 25, 26, 27, 30, 31 and 32 -- that's not an exhaustive list,

but that's probably the heart of it -- represents the legal technique that the province

and the other parties are choosing to achieve the objective of certainty. I will say, for

my part, that while I have a lot of questions around what it means to attempt to modify

rights, and while I have a lot of questions around the certainty that could be achieved by

that objective, the fact that the parties here have, if you will, insulated or surrounded

the concept of modification with releases and indemnities provides a kind of collateral

level of assurance that goes a very long way down the road.

It may be that the governments will end up in court some day, arguing about the

effectiveness of the modification concept. My view is that even if the governments lose

that argument, they should be in a position to rely on the release and indemnity

provisions. That is why I think I probably fall into the camp of the people the Premier

has described as having "muted voices" around the issue of certainty,

recognizing nonetheless that this is also a brand-new attempt to solve a problem, and

there is always some higher level of uncertainty -- immeasurable, perhaps, in the sense of

being incapable of measuring. There's no doubt in my mind that there would be a different

kind of certainty achieved if the time-honoured language of "cede, release and

surrender" was used. We're going to live with this model; we're going to see how it

works. In that context, one of things I am particularly interested in is: how and by what

means, in practical terms, would the province in effect be able to exercise and make

meaningful the indemnity from the Nis g a'a nation?

Hon. G. Clark: First of all, that was a very long

preamble to the question and,

I think, very well said. I want to go on the record, though, because I want to clarify on

the earlier points that you made.

It is true that aboriginal people in British Columbia have stated unequivocally that

they would not sign a treaty that contained language like "cede, release and

surrender," because they found the surrender language particularly offensive -- and I

have canvassed that. I want to also say, however, that I agree with them, that I think

they have a point. What we are doing here is . . . . They are not

surrendering; we are giving effect to their rights in the treaty. So I agree, and the

government agreed with aboriginal people that we would not insist on language which is not

only insulting, not only offensive to them but, I think, not the appropriate language in

seeking reconciliation or giving effect to rights. This is not just a demand from

aboriginal people; it was a decision made by the government that we would not require that

language, because we had some large measure of agreement with their concerns.

[E. Walsh in the chair.]

Having said that, we also said, as you pointed out, that we had to find language that

replaced this language, which gained us the required certainty. I think it is a fair point

to make that we know the certainty of "cede, release and surrender" because it

has been tested for years and because it was clear. Therefore we have to be extremely

careful of any different language which has not been tested. I accept that criticism, if

you will, that this is the first treaty to come up with different language and therefore

it will likely be tested. We are confident, as the member sort of carefully supported,

that we have done enough here to protect ourselves from any eventuality.

The specific question is this: how would the indemnity work? First, we would argue that

the modification of the rights is included, in total, in the treaty. So the first hurdle

is that we have to argue, of course, that the rights are modified

[ Page 11187 ]

as set out by the treaty. If we are to lose that -- an unlikely eventuality but a

possibility -- then the Nis g a'a have released us. The next hurdle, then, is that if

that is unsuccessful -- again, which one cannot envision at the moment; we cannot envision

a case where those first two steps would be unsuccessful -- the question would be, and the

question from the member is: how would the Nis g a'a indemnify us and save harmless

Canada?

I think we have to look to the clause specifically to say how that would be. It says

very clearly in

section 30 that the Nis g a'a nation will "indemnify and save

harmless" Canada or British Columbia, as the case may be, from any costs, damages,

losses, or liabilities. Then it goes on in further detail. In

section 31 . . . .

We could go on; I won't bore the House by reading it.

So the question would be: how would it work in practice? It seems to me that it is

highly theoretical and difficult to answer, because the possibility of the first two steps

failing is so remote. Then we have tried to specify how they would indemnify us with

respect to any subsequent case. Perhaps, if we want to try some hypotheticals . . . .

I think we would have to try to take some specific examples through the various steps and

then see how we would likely argue the remedy that would flow from the indemnity section.

J. Weisgerber: As the members across the way will know, I've long been a

supporter of "cede, release and surrender" language, and I suppose one of the

most vigorous criticisms I had of the agreement-in-principle was its failure, at that

point at least, to deal with this question of certainty language. I know that there's a

huge resistance among aboriginal people to that language. I also know that it's not so

huge that it prevented the McLeod Lake people from agreeing to that language in the

adhesion to Treaty 8, which we expect will be signed almost anytime now.

Having said those things, I want to commend the negotiators and the government on the

work they've done with respect to certainty language. I do believe, having read through

these sections, that the debate that has gone on today is useful, not only in clarifying

where the government has come from but in identifying any possible concerns with it.

[4:00]

But I don't believe that anybody looking reasonably at this could believe that the

language contained in sections 22 through 31 would be inferior to the simple words

"cede, release and surrender." While we're going to be critical of elements of

this agreement -- and I certainly will be over time -- I think that this is one example,

and probably one of a good number, where the negotiators and the government have basically

got it right. I feel obliged to stand up and say that at this juncture, because I do

believe very much that this is superior to those words.

As much as I like the words and the history behind "cede, release and

surrender," I think that before we're much further down the road, we'll see

challenges to that language. When I listen to what's going on within Treaty 8, I know that

they're looking at their treaty and believing either that their treaty is flawed or that

their treaty hasn't been properly implemented. Whether or not they will succeed -- that's

a question. But I do believe, and I simply want to go on record as saying it, that we've

got it right in these sections. I commend the government for the work they've done in this

area.

G. Plant: I want to take up the Premier's invitation of a moment ago with

respect to seeing how the indemnities might work. I recognize that certain other things

have to go against the government before the issue of the enforceability of the

indemnities arises. One of the reasons that the indemnities are here is because you can't

foresee all things, and someday we may be met with an argument that does cause the

indemnity to come into play.

The argument may be that the assertion of a right that is hitherto unforeseen, which

makes it almost impossible for me to give an example of it . . . . But if it

were a right that perhaps could be asserted in a way that would give rise to an injunction

proceeding to restrain a resource company from carrying on its activities, the resource

company would say: "Hold it; wait a minute. We thought that we weren't going to be

met with these arguments. We thought that the treaty had solved all these problems. In

fact we've now incurred losses, because a claim has been made that the court has said is

not caught by the modification and for some reason falls outside the terms of the

release." So the third party has suffered losses. Presumably the third party in this

case has some claim against the Crown.

The basic theory of the indemnity is that the province would then have a claim against

the Nis g a'a nation. How would that work? For example, are there assets of the Nis g a'a

nation that the province would be able to seize in order to enforce the indemnity? Or

would Nis g a'a nation assets which are immune from seizure in some circumstances be

immune from seizure in this circumstance? Do we know the answers to those questions?

Hon. U. Dosanjh: Those are obviously complex questions.

The Nis g a'a have committed themselves to indemnify Canada and/or British

Columbia with respect to costs, damages, losses or liabilities that might flow. With

respect to the hypothetical issue about an injunction, it is my view that if there is ever

a claim made by any Nis g a'a citizen outside of the Nis g a'a territory or what

rights are contained in this, this treaty would be a full defence to any application for

an injunction outside of the rights that are contained in this treaty.

G. Plant: Just so that no one's unclear about what just happened -- and I'm

quite prepared to try to keep this going in an objective way -- the Premier said:

"Well, let's see how it works. Give me an example." So taking the Premier on

faith, I gave an example, and the Attorney General stood up and refused to answer the

question. The Attorney General stood up and said: "Don't worry. The agreement would

be a complete answer to your hypothetical example, because presumably the government would

say: 'Well you can't make the argument that this is a new

section 35 right.' "

Let's assume that the Premier, the Attorney General, the Minister of Aboriginal Affairs

and all of the good people who have worked so hard to write this are wrong. I'm sorry. I

would like to have this debate, but it's so hard to . . . . Let's see. Maybe

I'm overreacting, because I'm certain that deep in his heart, the Attorney General would

in fact like to answer the question -- or the Premier. Then I'll be able to understand how

the government sees the enforceability of these indemnities.

Hon. G. Clark: Obviously the Attorney answered in such a way because -- and I

say this with respect, and I know the

[ Page 11188 ]

member agrees with this . . . . It's important to point out that it is so

inconceivable, because of the nature of the modification and the release, that you have to

carry it through to the final possibility -- the indemnification.

The indemnification is quite simple, it seems to me. This would be my

interpretation.

First of all, the Nis g a'a nation would honour their indemnity -- that's the first

premise -- by making the province or the federal government whole with respect to any

losses of revenue or income, etc. If, of course, they did not honour it, then I assume we

would have to sue them to live up to the indemnity with respect to costs, damages, losses

or liabilities as stated here. It's simple.

G. Plant: Then there's nothing in the treaty that would make the Nis g a'a

nation immune from any such claim. In fact, the assets of the Nis g a'a nation would

theoretically be available for execution purposes in the entirely unlikely event that such

a claim would ever have to be made. Is that correct?

Hon. U. Dosanjh: There are some limitations with respect to suing or seizing

assets of the Nis g a'a, but Nis g a'a Lisims government would be a legal

entity, and of course there is a whole dispute resolution

chapter that one can deal with.

At the end of it, if things don't work out, courts are always available for the Crown to

sue a legal entity such as Nis g a'a Lisims government.

G. Plant: If such a claim had to be made, then the immunities that do exist in

respect of some matters would not apply. That is part of my question. I recognize that

there are in fact immunities. I also recognize and acknowledge that the Nis g a'a

Lisims government will be a legal entity and therefore something that would ordinarily be

capable of being sued. What I want to be sure of is that the immunities that Nis g a'a

government will have won't bar an attempt to recover under the indemnity. That's the point

I was seeking assurance on.

Hon. U. Dosanjh: The provincial Crown would have the right to sue and recover

damages, except as limited by this treaty. There are some limitations. But there is access

to the courts and to all of the mechanisms that are available to the Crown to deal with

that issue. We can deal with them as we come to them.

G. Plant: We're dealing with the one that we've come to, which is the indemnity.

I understand that the question may be overbroad, in the sense that I'm asking in effect

for an opinion about the cumulative effect of all of the little individual immunities that

exist. But what I want to be sure of is that this effect has been thought about and

provided for in a way that ensures that the province will in fact be able to enforce a

judgment against some Nis g a'a assets, if it should ever have to do so.

Hon. G. Clark: The answer is yes, it's certainly been considered. There are some

caveats with respect to property, which we'll get to in the treaty. But I think we can

give you some comfort that there is income coming in -- for example, the revenue that the

province could withhold. There are fiscal transfers in negotiations that come up. So there

are ways of enforcing the indemnity, should the unlikely event arise and should other

dispute resolutions not work.

M. de Jong: As the temperature in this room rises and drops during the course of

this debate, it occurred to me . . . .

Interjections.

M. de Jong: The Attorney General didn't extend his arm far enough to encompass

the Minister of Aboriginal Affairs, whose looks of consternation from that side of the

House are quite telling.

In any event, let me say this to the Attorney General and government benches: as this

debate has unfolded . . . .

Interjection.

M. de Jong: Gee, you could just about have a cabinet meeting in here right now,

couldn't you?

You know, part of what I think this debate is about is challenging some of the

philosophical approaches that government has taken and written into this treaty. But we're

under no illusion that we're going to change the government's mind about that now, and

hopefully, we won't dwell on that for too long. But another function is to accept what the

government has done, for the purposes of this argument, and to make sure that they're

going to reach their objectives. So if we present those hypotheticals, if we challenge

some of the arguments, I mean, that's our job. I think the Premier, at least, accepts

that; I hope he does, and I think he does.

Let's go back to the question of release, because if . . . . As we all hope

that the indemnification provisions of this agreement need not be relied upon frequently,

surely the release provisions will be. In terms of any challenge, it will arise and focus

around the issue of rights and the fact that this release is there and covers, presumably,

anyone that might bring a claim. That's what I want to talk about.

I want to say this at the outset: I don't challenge the result of the referendum that

the Nis g a'a people had. They had the vote. I don't challenge the process by which

it took place. The people who voted spoke very clearly about their desire to adopt this

agreement, and that is a fact.

But I want to run some other numbers past the Premier as a means of confirming that

this release and the people who have participated in this process indeed speak for all and

that we can rely upon this provision of the agreement. We are told by the federal minister

that there are about 5,500 Nis g a'a, 60 percent of whom -- or about 3,300 -- are of

eligible voting age. The numbers that I have indicate that the Nis g a'a ratified

their treaty by a referendum that had 2,376 eligible voters, which tells me that about

1,000 eligible Nis g a'a voters, for one reason or another, weren't registered to

vote. So of the 2,376 Nis g a'a who did vote, I'm told that 1,451 voted in favour.

But that only represents 44 percent of the 3,300 Nis g a'a adults that the federal

Minister of Indian Affairs believes exist and might have been eligible to vote. I'm not

challenging the result.

But what I am asking and what I think is relevant is: what legal assurance does the

government have that the number of Nis g a'a who voted in favour of this treaty is

sufficient to legally bind the entire Nis g a'a nation, given that if you accept the

federal minister's numbers, it wasn't an absolute majority?

[4:15]

Hon. G. Clark: I'm just checking to see if there are any legal opinions, because I

think that was the question. I'm getting legal advice here that, legally, everything is

fine. But I don't know if that's a legal opinion or not; it's an opinion from legal people

sitting here in the front benches.

[ Page 11189 ]

I think it is an interesting question. There's an estimate of the number of Nis g a'a,

based, I think, on status cards, etc. Then there was an enrolment for this vote. The vote

was set up and prescribed in such a fashion for ratification, which you'll see set out in

the treaty. So it had to be prescribed this way, because another option would have been,

to the layperson, well, let's have every status Nis g a'a just vote. But there's an

enrolment provision. I hate to give these sort of tautological answers all the time. But

the treaty itself sets out the enrolment and ratification provisions and therefore gives

legal support to the way in which it was ratified.

I think one can get some comfort from the fact that it was a significant majority,

albeit, I grant, not everybody was enrolled. I believe that enrolment should grow over

time, quite simply because to take advantage of this treaty and treaty rights, one has to

be enrolled in the Nis g a'a nation. But clearly, because of the dispersed nature of

Nis g a'a people -- a whole bunch of reasons -- and the time frame, not everybody

enrolled. But the treaty requires, I think, reasonable opportunities, etc. All of those,

we are advised, were fulfilled -- mind you, by the federal government and also our legal

advice.

M. de Jong: I think there are two groups of people that you distinguish here.

You distinguish that group of Nis g a'a who were enrolled, who voted and who voted

against. I think that includes many of the people that we were referring to earlier as

part of the Kincolith group, who were opposed. We explored that in terms of what status

they may have, to oppose. Quite frankly, I would think that the strength of their argument

would be much diminished, as a group of people who would presume to argue: "You can't

release our rights. I voted against this deal." Well, they lost.

But the group of people that we're talking about now is a group of upwards of 1,000

people. I'm accepting all of these numbers at face value, as provided by the federal

minister. I presume that it's based on the counting of status cards, and I'm accepting

that.

I guess what we're left with is to confirm that the minister is of the view that for

those 1,000 Nis g a'a who weren't identified or registered to vote, this process is

such that it can effectively release them and modify their rights, notwithstanding the

fact that they may come along later and say: "Not only was I not supportive of the

deal, I didn't know about the deal, and I never had an opportunity to vote against

it." That, presumably, is the argument and the advice that the Attorney General has.

Hon. U. Dosanjh: The answer is yes. It is the view of the Attorney General and

the government that there has been sufficient care taken to deal with these issues, and

they've been dealt with satisfactorily. And once the province, the federal government and

the Nis g a'a have ratified this treaty, it is a legally binding document. I take

that very seriously.

In a similar vein, one should also think about the fact that when elections take place

in British Columbia or Canada, not all the voters are ever registered in those elections.

We make decisions on behalf of British Columbians and parliamentarians make decisions on

behalf of Canadians that may bind them for centuries to come. That's part of the process.

I think due diligence has been done. Appropriate steps have been taken, and the provisions

that have been set out in the treaty, after due deliberation with respect to this matter .

. . . I think those standards have been met.

M. de Jong: Just one or two further points on this. Is it the government's

position, then, that the threshold by which an aboriginal nation can bind its members is a

majority of eligible voters or, as is the case here, a majority of eligible enrolled

members?

The Chair: Attorney General?

M. de Jong: With respect, it was an either-or question -- and a very clever

answer by the Attorney.

Hon. U. Dosanjh: Sorry. I missed the "or." The appropriate steps have

been taken, and it's our view that yes, a majority of the voters . . . . When

they're signing treaties, majority voter assent can bind other Nis g a'a citizens. I

think I wouldn't be wrong in saying that the courts have held that treaties signed in a

process that's significantly representative can bind individual members of tribes or bands

or nations.

M. de Jong: It's unclear to me from the Attorney's response -- and I don't think

he meant this to be ambiguous, but it was to me, at least -- that the government actually

took a position to these negotiations with respect to that ratification issue. Or was it

purely a function of saying to the Nis g a'a: "You provide us with your view of

what it is that is required to ratify and bind and release your members from subsequent

claims"? Is this something that the government intends to take from this treaty and

apply elsewhere? Or will it be more a function of what the next aboriginal group we're

negotiating with proffers as their preferred mechanism?

Hon. U. Dosanjh: Firstly, I think that each treaty, as I've said before, may be

different. It may have similar provisions, and parties may agree to the same or a higher

standard of consent from other first nation members than we did in this. I'm not aware of

what went on in the negotiations. I don't think that's relevant. I think what's relevant

is that we were satisfied that there was a high threshold to meet, and that threshold was

met. It may be different for other treaties that may be signed.

J. Weisbeck: I seek leave to make an introduction.

Leave granted.

J. Weisbeck: In the gallery, watching the proceedings, is a friend, Greg

Spievak. Would the House please make him welcome.

M. de Jong: I don't want to belabour this, in spite of doing just that. The

government, then, doesn't have a preferred position -- or does it? -- as to whether or not

this should be a question of the majority of people who are eligible to vote or the

majority of people who are registered and eligible to vote? Or should it be a higher

threshold, like societies . . . ? Does the government have a position that it

will take to subsequent negotiations?

Hon. U. Dosanjh: I think that I have answered in the best possible way that I'm

going to. I'll repeat the answer. I think a high threshold was established by the

agreement of all of the parties. We were satisfied, Canada was satisfied, and the Nis g a'a

were satisfied that that is the threshold that needs to be met. That was that you

enrolled, and 75 percent of those

[ Page 11190 ]

who vote should support or approve the treaty. That has happened in this particular

case. The requirements might be different for a different treaty down the road.

Interjection.

Hon. U. Dosanjh: Well, 70 percent, I believe. That's for the constitution, yeah.

M. de Jong: The Attorney General talked about a high threshold. It was my

understanding that the threshold was 50 percent plus one. I'm not sure I understand.

Interjection.

M. de Jong: Of those eligible, as the Aboriginal Affairs minister . . . .

The Chair: Through the Chair, please.

Hon. U. Dosanjh: First of all, let me just give you the figures. Let me put on

the record that 85 percent of the eligible Nis g a'a voters cast a ballot, which is

probably the highest in my memory here. I'm an immigrant to this country, and no more than

70 to 72 percent of the people ever vote in federal or provincial elections.

M. de Jong: Eligible meaning enrolled?

Hon. U. Dosanjh: Yes.

And of those who voted, 72 percent voted in favour. Overall, 61 percent of the eligible

voters supported the treaty. We are satisfied with that: that this binds, for good, the

Nis g a'a citizens.

M. de Jong: Just two things arise from that. The Attorney General will, I'm

sure, recognize that of those eligible, enrolled voters, there were as many as 1,000

additional Nis g a'a, and he will accept that those were people who, had they been

enrolled, would have been eligible to vote. That's the first thing. The second thing,

which I think the Attorney General still hasn't answered as clearly as I would like, is:

does the province have a position with respect to what is required . . . ?

What is its preferred position with respect to ratification? Is it 50 percent? Is it 75

percent? Is it 50 percent of enrolled? Is it 50 percent of actual? That's what we're

trying to establish here.

Hon. U. Dosanjh: I'm quite mindful of what the hon. member is trying to

establish. The hon. member is not going to be able to establish that, because I will not

give an answer that binds the government to a particular issue in the next set of

negotiations. Governments make treaties; we arrive at compromises. There might be a higher

threshold than was expected in this particular situation. There might be a different

process. We are satisfied with the mechanisms established for the approval of the Nis g a'a

treaty by the Nis g a'a people, and we are satisfied that the kind of vote that took

place permanently binds the members of the Nis g a'a nation.

G. Plant: Part of the challenge here is to understand this agreement in terms of

what it might mean for other agreements, so we can sort out if in fact this agreement is

the right agreement. When the Attorney General says that he doesn't want to bind the

province in terms of the position it might take in other negotiations, I understand that.

I'm not sure that I would quarrel with that. I suppose the question, though, is: what is

the policy the government is taking forward? It's one thing to say: "Well, we want to

keep our options open." But does the government, in fact, have a principle or

position or policy around this issue that it will use as a guide for what comes after so

that we can examine that in the context of what was done here?

Hon. U. Dosanjh: A fundamental principle is the majority assent to any treaty,

and the majority of those that voted, who were eligible to vote, supported this.

G. Plant: I want to go back to two things that have already been canvassed to

some extent. When I was reflecting on the discussion that we had about sections 22 and 23

and the challenge that we faced in terms of getting some understanding around what might

have been meant by the addition of 23(c) -- that is, the thing called "the other Nis g a'a

section 35 rights" -- what I had forgotten to do then was draw the government's

attention to the fact that those words are not in

section 22, for example. I understand

that those two provisions were probably intended to achieve slightly different purposes.

Really, it was an attempt to understand what those different purposes where that was

underlying our questions.

[4:30]

But someone reading 22 and 23, without the benefit of the explanation that I'm sure the

minister is about to give, might wonder why it is that this phrase, "other Nis g a'a

section 35 rights," isn't there in

section 22, because they might be led to worry

that the agreement, as

section 22 says, constitutes the full and final settlement in

respect of only those matters which are dealt with in 23(

a) and leaves out 23(

b) and

23(c). If that's helpful in terms of one more attempt to explain where we were going with

those questions, can the minister shed any further light on that issue?

Hon. D. Lovick: I'm advised that the principal reason for the difference is

simply that in paragraph 22 we're talking about the concept, and what we're talking about

in paragraph 23 is the defined term within the treaty. As you know, it is a defined term.

I think that probably explains it.

G. Plant: That's a bit more helpful, and I appreciate the answer.

The other thing I want to canvass for a moment to sort of play catch-up, if you will,

goes back to the extinguishment issue. When the Premier and I had our exchange about

"cede, release and surrender," the Premier made the point and I made the point

that aboriginal Canadians have a lot of hesitation around ceding, releasing and

surrendering their rights, because they consider it demeaning to their sense of identity.

The Premier took the trouble to stand up and say that not only did he respect the fact

that this was the view of aboriginal Canadians, but that it was also his view. He also

considered that to be unnecessarily intrusive or offensive or violative, I suppose, of the

sense of identity of aboriginal people.

That leads me to ask this question, then: did the government ever take the position in

its negotiations with the Nis g a'a that it would require the aboriginal rights and

title of the Nis g a'a to be ceded, released and surrendered?

[ Page 11191 ]

Hon. D. Lovick: I don't wish to be less than cooperative, but as I've said before

in this debate, it seems to me that . . . . I don't think we're serving the

process of treaty-making well -- and subsequent treaties that we might make in this

province -- by talking about the ins and outs and who said what. The phrase I used before

-- and believe me, I didn't mean to be frivolous -- was: let's wait for the memoirs of

those who were involved. I say that only with an abundance of caution -- that we're

talking now about negotiating other treaties with other first nations. I think that to

display to the world what we went in with and what we agreed to give up, frankly,

undermines our negotiating position. I'm not saying that in this instance particularly,

but as a general rule. We wouldn't be fettered as negotiators, but it seems to me that our

abilities to do so would be somewhat limited if, at the end of the day after debating this

treaty and all the intricacies thereof, we said: "Well, these are all the positions

we started with, and these are all the things we retreated from." That's why I am

reluctant to talk about what we went in with in terms of this particular section, and I'll

say the same thing about other sections as well.

M. de Jong: I have some questions relating to

section 28, but I think the member

for Powell River-Sunshine Coast had some questions relating to the release-and-certainty

language in sections 22 to 27.

G. Wilson: On listening to the debate, I think what I would prefer to do,

actually, is pick up those questions with respect to the

section on lands, because they

relate specifically to rights on lands. Maybe I could do it under

chapter 3 -- if we ever

get there before the summer.

M. de Jong: We have just come through a discussion, broadly speaking, that deals

with the issue of certainty and finality. We have talked about the legal mechanisms by

which that may or may not be established, and the government has indicated its preference,

obviously, for what appears here.

There's another function, though -- another aspect -- of certainty that is associated

with any agreement of this sort, and that is the substantive provisions that relate to

questions of consultation -- the interaction between the various boards and agencies and

panels. As this debate has unfolded, not just in this House but in the public at large,

the opposition has at times tried to argue that that certainty doesn't exist, necessarily.

The government has pointed to provisions of the deal that say it does. But lost in that

whole discussion has been the degree to which . . . . I think a false

impression has been left with many members of the public about the degree to which there

will be ongoing interaction between governments at a number of different levels by virtue

of the substantive provisions of this deal which are referred to generally by

section 28.

So the question I want to put to the minister is for him to give us and the people

observing these debates a sense of the degree to which that actually exists. There will be

many results, many things, flow from this agreement that lead to uncertainty, that create

uncertainty. Now, some of that is a natural function of how any treaty would operate; some

of it isn't. We'll talk about that, and we'll get to the specific provisions. But I want

to give the minister an opportunity now to acknowledge that much about this treaty is

cloaked in uncertainty by virtue of the obligation that exists for local, provincial and

federal governments to consult with and to manage, in a dual way, the Nis g a'a

government. That's something I want to talk about as part of this section.

Hon. D. Lovick: Let me be very blunt, politely blunt: I disagree with the

member. I do not think that at the end of the day we will look at this treaty and say:

"This leads to more uncertainty." I just don't think that's a proposition that's

supportable.

It seems to me that certainty is achieved in two ways, pre-eminently. One is about the

land base, so that we know precisely who owns the land base and what the boundaries are.

The second has to do, ultimately, with a much clearer definition of that hitherto

undefined thing called aboriginal rights. Those are the two broad explications, if you

will, of what certainty means. I think the member's question refers specifically to

self-government and those provisions, suggesting that that's perhaps where the uncertainty

is to be found.

I see that the member is saying that that's not the case, so rather than my going on in

anticipation of what I think he means, why don't I give him the opportunity to tell me,

then, where the uncertainty that he apprehends is to be found.

M. de Jong: I think what I'm getting at . . . . Part of what we're

talking about appears in the self-government sections of the agreement, but a lot of it

relates to other aspects of the agreement.

This treaty imposes on the provincial government -- and the federal government, but

let's deal with the provincial government -- an obligation in a whole range of areas, be

it wildlife management or resource allocation, to consult, for example, or to engage in

further negotiations. Some of those negotiations have taken place and side agreements have

been reached; most of them haven't. I think it's important that people have some

appreciation of the work that this treaty leaves undone or that it anticipates will be

done. Whenever those negotiations and those consultations are called for, the result of

the negotiations and consultations is far from certain, so there is uncertainty to that

extent.

Hon. D. Lovick: I think the short answer is to say that . . . . Two

points. Number one, I think we need to be a little bit careful about taking terminology

like "uncertainty" or "certainty" and shifting it into a different

context. When we talk about certainty in the treaty, it has a very particular set of

references and meanings.

Interjection.

Hon. D. Lovick: Yeah, exactly. We've done so, and I think the member agrees with

me.

I think it's a little dangerous, dare I say, if we start saying that because there are

other things that happen, people will be uncertain about them. We shouldn't confuse that

with the certainty argument.

Interjection.

Hon. D. Lovick: Well, call it equivocation, if the member wants. But I don't

think we ought to do that.

More to the point, though -- and I think the more particular and specific answer -- is

that governments are subject every day of the week to particular regimes and systems that

they set up, involving them in negotiations and discussions with others -- ongoing

establishments of how they function and fit together. So, too, with this agreement.

Because those

[ Page 11192 ]

new arrangements haven't yet been tried, therefore one can argue: "Well, we're not

quite sure how that's going to work . . . . " Insofar as that may lead to

uncertainty, I guess the member is correct. But to say -- and I don't think he meant to --

that because we're setting up a new system of connecting between first nations culture and

the rest of us, that is creating a situation that is in some way uncomfortable or awkward .

. . . Rather, I think it's that life goes on, and we're working out a new

relationship and the details of the relationship, guided, essentially, by the very

explicit terms of this treaty.

M. de Jong: All right. Well, let me try to establish a level of comfort with the

Aboriginal Affairs minister. Let's call it unpredictability, then. Let's relegate the term

"uncertainty" to those legal provisions of the agreement that we've been talking

about.

[4:45]

But if we do that, let's not underestimate the significance of how that new

relationship is going to play out. Let's not underestimate the numbers of boards,

tribunals, joint commissions, consultations and negotiations, and let's not underestimate

the cost associated with that on an ongoing basis. That's something, quite frankly, that

no one has talked about a lot as part of these negotiations: the -- I was going to use the

word "burden," but that's unnecessarily negative, perhaps -- obligation, and the

cost associated with that obligation, that is created within the pages of this treaty. I'm

interested to know the government's thoughts about the cost that it will assume on an

ongoing basis -- or maybe the government takes the view that there are no costs. Quite

frankly, having reviewed the document, I would find that difficult to believe.

Hon. D. Lovick: I wouldn't for a moment pretend that there are no costs; clearly

there are. I would point out, however, that (

a) we know where those costs come from -- we

know what particular obligations to consult are conferred upon us -- and (

b) we also know

what those costs are. Those costs are spelled out in some detail in the fiscal financing

agreements.

I would also, in the broader terms, just point out to the member something that I know

he's already familiar with. The world of dealing with aboriginal communities has been

changed pretty radically since December 11, 1997. We have obligations conferred on us now

in terms of consultation with first nations that, frankly, governments never before

anticipated. That too has then called into question a number of things that we take for

granted and, if you will, has produced arguably a greater uncertainty and a greater

unpredictability than anything in this agreement.

M. de Jong: All right, that's helpful. The government identifies that judicial

obligation that has been imposed on it -- and fair enough. And I think it says that this,

in part, is our response to that and that we intend to go on responding through subsequent

negotiations. The minister says: "We know where those costs are and we know what they

are." Then he says they are reflected in the fiscal framework documents.

I can ask the question: okay, where are they? What is the government's understanding of

where those costs are? I can ask the second question -- what are they? -- because I'd have

to say, in fairness, that I don't see where they are reflected in the part of the

agreement that the minister referred to.

Hon. G. Clark: First of all, yes, there are obligations to consult, and that

does cost money. But in general it's absorbed by the government in its day-to-day

business. It's part of doing business in British Columbia, particularly in light of the

Delgamuukw decision.

Secondly, the consultation costs with respect to this treaty will be dramatically less,

I believe, than the costs we now incur -- which are significant and growing -- as a result

of legal requirements to consult aboriginal people with respect to, particularly, land use

decisions. So we can't give you, nor do we worry too much about, a quantification of the

costs. They're quite minimal here. But there are routine costs of government, in terms of

consultation, required as a result of this treaty.

I must say -- and this is a bigger question -- that there are enormous costs now

associated with government, which are really challenging, as a result of the new

obligations, if you will -- or at least the codification of those obligations under

Delgamuukw.

M. de Jong: I think the Premier wants to . . .

G. Plant: Have it both ways.

M. de Jong: . . . have it both ways. We can quantify them now under

Delgamuukw.

G. Plant: And they're enormous.

M. de Jong: And they're enormous. But under this agreement, they're modest. We

can't really quantify them -- because they're so modest, I presume. That is the agreement.

I don't think the Premier can . . . . I mean, in fairness . . . .

Interjections.

M. de Jong: You know, if it's difficult to quantify, then say that. But

apparently, they're enormous now. Okay, how enormous? Tell me how much they are under the

Delgamuukw regime.

Hon. G. Clark: In the current . . . Perhaps my choice of words was

incorrect. It's difficult to quantify for both. But right now, under Delgamuukw, we have

some real challenges in implementation, which we're working through and which are the

subject, I think, of another debate or discussion around the consultation required by the

courts before, say, permits or licences are granted. There are confusion and challenges

with respect to who we consult and how and how often and what brings closure to the day.

That's an expensive proposition, and it's one we live with every day and which it is

difficult to quantify. But it is rather a large number.

With respect to this treaty, it's absolutely clear who we must consult at what time.

That both improves dramatically the efficiency of consultation and minimizes the costs of

the consultation. I don't know if you're listening, but in the Delgamuukw case we have a

vast array of people to consult. It is a costly endeavour. We haven't quantified it; it's

hard to quantify it. But it's a large amount. Here it should be modest, because it's clear

and concise, and we know who we're required to consult at what stage and what time.

[ Page 11193 ]

M. de Jong: Here's the difficulty I'm having. The government, I think, wants to

minimize its obligations, in terms of its discussion of this. On the one hand, we have the

very onerous obligations that exist under Delgamuukw, and yet we have resolved that in

this treaty, and minimized them to the extent that we know precisely what those

obligations are. When they exist, they are minimal. They are much more affordable this

way.

Interjection.

M. de Jong: Well, okay. The Premier said he couldn't have said it better

himself.

I'm going to take a moment here -- actually, more than a moment. I went through the

agreement, because I have heard this argument before from some of the people associated

with the implementation committee, and I've asked the question: all right, where do these

obligations exist in the treaty? I would be told: "Well, there are four or five. Try

chapter 3; there's a couple there." So we went through the agreement, and I want

there to be, somewhere on the record, a compilation of where those obligations exist. The

Premier or the minister . . . . It will take a second, and they can dispute my

analysis. Some of these have been dealt with. I'll go through them as quickly as I can.

Chapter 2, paragraph 19. If any provision of the agreement is struck down by a superior

court, the parties are required to get together to remedy those provisions. Makes sense.

Interjection.

M. de Jong: Yes.

Chapter 2, paragraph 34. If any provision of the agreement adversely affects

section 35

rights, the parties are required to make best efforts to remedy that.

Paragraph 35. If any other land claim agreement or treaty adversely affects the

section

35 rights of the Nis g a'a nation, the parties must attempt to reach agreement on

replacement rights or other remedies -- not so hypothetical, I might add.

Chapter 3, paragraph 77. The federal government must consult with the Nis g a'a

and respond to all questions regarding the expropriation of Nis g a'a lands.

Paragraph 84. If there is expropriation of Nis g a'a lands, Nis g a'a and

Canada must negotiate the terms of the transfer of that expropriated land.

Chapter 6, paragraph 9. Nis g a'a will consult with Canada and B.C. in respect of

any proposed Nis g a'a laws that would significantly affect the regulation of public

access to Nis g a'a public lands.

Chapter 7, paragraph 42. At the Nis g a'a's request, B.C. will consult with the

Nis g a'a with respect to regulation of traffic and transportation on provincial

roads adjacent to settled areas.

Paragraph 45 of

chapter 7. The Nis g a'a will consult with B.C. in regards to

development decisions on Nis g a'a lands adjacent to the Nis g a'a Highway.

Chapter 8, paragraph 20. B.C. and the Nis g a'a will