Proceedings in the

Birch Room

The House in Committee,

Section C.

The committee met at 1:55 p.m.

[Rohini Arora in the chair.]

Committee of the Whole

Bill 20 — K’ómoks Treaty Act

(continued)

The Chair : Good afternoon, Members. I call Committee of the Whole on Bill 20, K’ómoks Treaty Act, to order. We are on clause 3.

On clause 3 (continued) .

John Rustad : Just before the break, the minister corrected some numbers that he had provided earlier.

In particular, that the total treaty area was 34.4 square kilometres, not 33.4 square

kilometres, in terms of the treaty territory, and that the treaty land, or the equivalent

of title or private land as other people may consider it, was 1.04 square kilometres.

I just want to make sure the minister restates that clearly.

Also there’s a statement of 18 square kilometres of pre-approved additions. Can the

minister confirm that number is accurate or whether that number needs to be revised

as well?

Hon. Spencer Chandra Herbert : Yes, it’s 1.04 kilometres squared of K’ómoks private lands, and an additional 18.32 square kilometres have been identified as

pre-approved additions to treaty lands. But those lands are not owned by K’ómoks. Those are private or in other ways held lands that would have to be purchased at

a later date should K’ómoks want to do that.

John Rustad : That means more than half, about 55 percent, of K’ómoks treaty lands could ultimately end up becoming.... Or treaty territory, I should say,

ultimately becomes treaty land, to use the same language that the minister uses. That’s

an interesting number.

Obviously, that would have to be purchased. That’s right. It’s not there, but that’s

a pretty significant amount of land that has, also, significant overlap issues with

other nations, in terms of potential title claims from other nations. So I just want

to....

I know we’ve been over this information before but given the change of numbers, I

just need to understand the legal ramifications of that, particularly the pre-approved

additions to treaty, and whether that land may be available to other nations should

they have a claim within that area and what would happen.

Obviously, with 80 percent or more of the K’ómoks area being under potential claims from other nations in terms of their territory,

particularly, that added area could be very significant.

I don’t understand the legal status of that area. I understand what the legal status

is of treaty land. I believe I understand what it is of treaty territory, but I don’t

understand what it is for those potential additions to treaty.

[2:00 p.m.]

Hon. Spencer Chandra Herbert : The work done to identify areas that could be pre-approved to add to the treaty, should

the nation purchase them, the process to identify those lands is the same as the process

to identify what we are calling the treaty lands, that land base that we were just

discussing. So in terms of consultation, accommodation requirements, looking at potential

impacts on

section 35 rights of other neighbouring nations — all that work is done

in the same way as it was done with the treaty lands.

It’s the same for the additional lands to add into the treaty lands. That work had

to be done for that land too. So it would be very much tied to the K’ómoks treaty.

I think there may be further questions as we go around, legal questions of what should

happen if a court made a ruling, what the allowances are in the treaty to deal with

issues like that. But I’ll wait for further questions because that’s a different section.

John Rustad : I thank the minister for that. I’ll try not to go into hypotheticals at this point.

I do want to jump into this and drill into this just a little bit. As we get into

the other components of the treaty, and we start trying to understand the rights,

environmental assessments and all these types of things that go on…. I’m just wondering.

Maybe I’ll ask it in a different way, just for clarity. The areas that are additions

to treaty land, once the treaty is implemented, are they treated the same as treaty

territory? Are they treated the same as treaty land? Or is there some different way

that they are treated in comparison to the rest of the treaty?

Hon. Spencer Chandra Herbert : If they are still outside of the treaty lands themselves, in the sense that they haven’t

been purchased, then they continue in their present status in terms of rights and

responsibilities that currently exist under the law. I won’t be as definitive because

some of it is Crown and some of it is Island Corridor Foundation, for example. So

slightly different impacts, but the current status of how those lands can be used

continues unless the nation purchases them and then has them become treaty lands.

John Rustad : Thanks, Minister, for that. That’s the way I would have interpreted it when I was

reading through, but I just wanted to make sure. It’s clarity and on record in terms

of it.

Could the minister provide a breakdown in terms of those 18 square kilometres — 18.32,

I guess it is? Roughly 18 square kilometres, what’s the breakdown of that that is

private land, that is Island Corridor land, that is Crown land?

Obviously, there is a difference if somebody is looking to develop land or to utilize

land that might be Crown land versus private land and how they might consider that

as possible treaty land. When we considered the land package, the stage 4 treaty for

the NStQ, there was a lot of discussion around that. Obviously, if there’s an identification

of land that might have been considered, then somebody may have wanted to try to access

that because they could see how they could potentially make a profit from it.

[2:05 p.m.]

So I’m concerned. I’ve got a question, I guess, in terms of how these lands are going

to be treated as these potential additions to treaty and, like I say, the difference

in the various categories.

If we can start off with just how much is in each of those categories, and then we

can go on there for questions.

Hon. Spencer Chandra Herbert : We’re just getting the member the breakdown on those numbers.

While we’re waiting for that, is there another question we might be able to get into?

John Rustad : I appreciate that that might not be right at the fingertips, so thank you for taking

the time to bring the right people in to give you those numbers.

The reason why I’m asking, particularly when it comes to the Crown land or even some

of the other land…. If somebody were, say, to go after a woodlot licence or want to

be harvesting trees or some sort of activity that could potentially impact those lands,

typically, lands that are considered for additions to treaty or that are considered

as part of a treaty negotiation would basically have a freeze on them. It wouldn’t

allow any sort of other activity to happen, because you wouldn’t want it necessarily

to degrade or upgrade — or whatever the case may be — a piece of land in terms of

where the value is.

How are these lands now going to be treated, the Crown land in particular, but also

the other components, going forward, until such time as the nation may make a decision

as to buy it or not?

[2:10 p.m.]

Hon. Spencer Chandra Herbert : I might have to ask the member to pull out his calculator to move from hectares to

kilometres, square kilometres and so forth, but I’m sure he can do it. We can work

to have that translated as well.

What I’ve got is 1,592 Crown hectares as the pre-approved additions to treaty lands.

There are 3.4 hectares which…. The 1,592 Crown currently are operating as woodlots.

One woodlot is being operated by K’ómoks Nation themselves. Three other woodlots are part of that package as well, which we

discussed yesterday and how that is to work. They would continue to be able to operate

those woodlots for an additional 25 years post–treaty effective date, at which point

they could then transfer over to K’ómoks for how they would choose to use them.

In terms of the 3.4 hectares, that’s currently held…. My understanding is the city

of Courtenay is doing remediation work on that property, but it would transfer and

become a tribal park, or I think that would become open-use land for that 3.4 hectares.

John Rustad : Okay. It’s good to know those areas. Thank you for that.

I didn’t hear a number for what was in the Island Corridor, that side of it. I’m sure

the staff will be busy rushing to fill in the rest of the numbers in terms of the

total 18 square kilometres.

So 18 square kilometres is about 4,500 acres. The numbers…. We’ll work through. I

can work it through on the calculator. You don’t have to worry about that.

While the staff is trying to get the breakdown in terms of what’s on the Island Corridor….

One of the questions I will have on that is should a rail line go through, obviously

that changes the status of that land in terms of availability. Like I say, it becomes

the….

My understanding of the woodlots — after 25 years, K’ómoks will then make a decision as to what to do to utilize that land. I’m assuming that

would mean no compensation to the current woodlot owners after that 25-year period.

I’d want the minister to try to confirm that and also the number on the Island Corridor,

if I could.

[2:15 p.m.]

Hon. Spencer Chandra Herbert : In the agreement in the treaty, it talks about the woodlots and that, during the 25-year

period, the woodlot licensees, certainly, could seek either replacement lands or compensation.

As discussed with the member from Comox yesterday, we discussed that, certainly, my

ministry is happy to support efforts with the Ministry of Forests to look at that issue. Obviously, we understand that woodlots provide good employment,

good opportunity and good-quality wood products that we know communities need.

In terms of the Island Corridor, it would be 4.6 hectares approximately.

John Rustad : I’m assuming that there is no private land that was included as those potential additions

to treaty, but I wonder if the minister could just confirm that.

In addition to that, while staff is looking at that question…. Obviously, that’s a

significant amount of Crown land in terms of what its potential could be. How will

that land be assessed in terms of value for an opportunity for sale or for addition

to K’ómoks Nation? My understanding was the additions to treaty, as the minister described it,

were to be purchased by the nation, so there’s a question mark in terms of that.

While that’s going on…. I’ve just got to step out for a second, but I do want to restate

some numbers that I said yesterday, with the minister restating the number in terms

of the total area. I’d said that the value, roughly, of that land was around $13 million

per individual or about $4.5 billion. That’s about $450 million and $1.3 million per

person, given the factor of ten that was out, in terms of what the minister had said.

I just want to make sure I state those numbers clearly so that…. This is why it’s

good to have the numbers out in the public so that the public can hear it and they

don’t end up hearing information that might be wrong or that might be based on inaccurate

numbers.

[2:20 p.m.]

Hon. Spencer Chandra Herbert : The additional private lands that could be purchased for a pre-approved addition to

the treaty lands…. There’s 253.6 hectares. My understanding is it’s Mosaic. That’s

a private, willing-seller, willing-buyer approach. Certainly, any values would be

decided between the two negotiating parties.

In terms of the other lands the member mentioned, there is a negotiated protocol within

the treaty around how that kind of purchase would take place.

I’m happy to take further questions.

Scott McInnis : Interesting line of questioning here that my friend from Nechako Lakes started. While

he steps out, I just want to pick up on a couple of bits here as we chat.

Just in relation…. This is probably a very quick answer from the ministry. Just going

back to the 1,592 Crown hectares that are available to be purchased and added to treaty

settlement lands, I believe the minister said there were three woodlots there. The

biggest one, actually, is owned by ​K’ómoks.

Could the minister just confirm for me the size of the K’ómoks woodlot within that 1,592 hectares, please?

Hon. Spencer Chandra Herbert : I don’t think I said the K’ómoks one was the biggest, but if I did, I’ll correct the record.

There are four total woodlots. One is the K’ómoks woodlot, which is 353 hectares, approximately. The other three are 415, 429 and 388

hectares, approximately.

Scott McInnis: Thank you to the minister for clarifying the sizes of those individual woodlots. Actually,

that would make…. According to the numbers, I think the K’ómoks would have the smallest one currently. I guess I was hearing things.

Interesting. So with the 253.6 hectares of privately owned land that would be potentially

added to treaty settlement lands in the future, I’m just curious if the minister could

outline for us on the public record just how that consultation went with Mosaic.

I’m really interested to understand how a private land owner would be subject to additional

lands being purchased and added into treaty settlement lands — how that process took

place with that private land owner in order to have them come on board, I suppose.

Or is it a choice to come on board? I’m just hoping for some clarification around

that process.

[2:25 p.m.]

Hon. Spencer Chandra Herbert : My understanding is that conversations between K’ómoks Nation and Mosaic are theirs. They’re having private discussions, but there was strong

interest in that parcel being part of the treaty package. I won’t speak to how those

negotiations are going because, obviously, they’re not mine. My understanding is there

are conversations, and that is why this is in the package as a possibility. It doesn’t

mean it will become a reality, but it is there, should there be a willing seller and

a willing buyer.

Just to clarify one other point, the member’s colleague earlier talked about the cost

of treaty per person using figures that he typed up himself. I wouldn’t use those

figures. I don’t think they’re accurate. I can understand why he’s seeking a ballpark,

but I wouldn’t use those numbers, because there are a couple of factors that put them,

I’d say, not within the realm of what is reality. We can talk about that at another

time.

Scott McInnis : I appreciate the minister clarifying that process.

Just to clarify there…. I don’t know if it’s appropriate for the minister just to

shake his head and say yes. The province is not involved whatsoever in those conversations

to facilitate that land transfer between Mosaic and K’ómoks, potentially as being added to treaty settlement lands?

Hon. Spencer Chandra Herbert : We are not involved in those conversations about the K’ómoks desire to purchase those lands.

Scott McInnis : I do understand the minister wanting to correct the record around the value of the

land on a per-person, per-member basis for each member of the K’ómoks Nation. That’s the challenge we sort of litigated yesterday, with not having the

ability to understand the value of the land package. It’s why I firmly believe that

in this treaty and future treaties, that should absolutely be something that is disclosed

to the public as to the total value of the land that is being transferred in treaty

settlement lands.

This is what happens. We’re forced to kind of type in some numbers and do some rough

calculations ourselves, based on various assessment models and things of that nature.

I just want to be on record saying that it would be just tremendously helpful. It

would put that conversation to rest if there weren’t the cabinet confidentiality matter

around the total value of the land package that’s being offered here in this K’ómoks treaty.

I’m wondering if the minister could just give us a sense and walk us through a little

bit with…. We did do a rough estimation of 4,300 to 4,500 acres, which would equate

to that 18 square kilometres of potential future land to be purchased by the K’ómoks Nation and added as treaty settlement lands into the treaty.

When it comes to the Crown land component…. Obviously, the minister can’t speak for

any private land owners there. I’m just wondering if the minister could give us a

sense of what sort of modelling, tools, criteria or rubric, whatever you want to call

it, the government would use to actually value that land, assess that land, given

a fair market value in order to actually put it up for sale to the K’ómoks Nation so they could purchase it and add it to their treaty settlement lands.

If the minister would just take a few minutes and perhaps walk us through what kinds

of criteria are used to value that land.

[2:30 p.m.]

Hon. Spencer Chandra Herbert : It’s quite a bit, but I’ll reference. In the treaty, under the lands chapter, paragraphs

83 to 84, it says: “The purchase price of land, inclusive of timber, identified as

‘H’kusam expansion lands’ in appendix E-1,

part 1, will be calculated by applying

$15,500 per hectare, Q2 2022 dollars, adjusted by the B.C. FDDIPI.” It continues on,

but I just thought the member might want the reference number so he can go to the

chapter. That is for the H’kusam expansion lands.

Then in terms of the purchase price of land identified as WL0026, WL0085 and WL1677

in appendix E-1,

part 1…. That, again, is paragraph 81 in the lands chapter, page

99. It will be “the number of hectares of land purchased multiplied by the amount

per hectare set out in appendix T, as adjusted for inflation by the B.C. FDDIPI, plus

the value of the timber on that land as determined by….” Then it continues with further

explanation.

If the member would like, I can read through around “jointly engaging a qualified

professional to conduct a timber cruise in accordance with the applicable provincial

policies.”

Is it useful? Maybe I can ask the member. No? Okay. But the member knows it’s identified

in the treaty as to how we would do the valuation of those lands.

Scott McInnis : Thank you to the minister for that.

I’m curious. I may have missed this in the treaty, or perhaps it doesn’t exist. Just

as far as any binding commitments, either on the government side or the K’ómoks side,

as far as a scale up to purchase additional lands and add them to treaty settlement

lands, for example, is there a clause which says “up to 500 acres every five years”?

Anything like that? Is there any sort of standard for which the land must be or must

not be purchased and added to treaty settlement lands?

In, let’s just take, for example, five years, could K’ómoks potentially purchase all

4,500 acres? I just wondered if there’s kind of a scale that’s needed to be followed

in any way, shape or form for that when it comes to the purchasing of those lands.

Hon. Spencer Chandra Herbert : No. There’s no timeline set out, so it could happen quickly if there were the dollars

and agreement. Obviously, the private parcels are up to the private individuals.

It could also take many, many years. There may be no desire to move quickly, or there

may be the lack of funds to move quickly. There are a whole bunch of reasons why it

could take place, in one way or another.

[2:35 p.m.]

Scott McInnis : That’s helpful, just to understand, again, any sort of scale or timeline that’s potentially

referred to for purchasing additional lands to be added as treaty settlement lands.

I think I’m going to leave the rest of the land bit. I was kind of picking up on my

colleague before he stepped out.

I’d like to chat a little bit about governance, if I may. I have quite a few questions

here that I’m interested in around governance related to the K’ómoks treaty. I think maybe we’ll start with a couple of high-level questions. Then we’ll sort

of filter down from there, based on the answers from the minister.

Just quickly, when we’re talking about the constitution.… Let’s call it, for lack

of a better term, a legal hierarchy which exists between the K’ómoks Constitution, eventually, and provincial law. Could the minister explain how the

K’ómoks Constitution itself will interact with provincial law in practice? I’m thinking particularly

where there could be any type of a conflict that arises between K’ómoks law and provincial legislation.

Hon. Spencer Chandra Herbert : I’ll speak generally, but if the member wants to get more specific, we certainly can

do that.

There’s, as the member mentioned, the K’ómoks Constitution. So K’ómoks law, any laws that they pass, must be consistent with that constitution.

Built into the treaty there are processes so that if there are ever conflicts between

provincial or federal law and K’ómoks law, there is a provision which states how those conflicts are to be resolved, so

which law would take supremacy or how you would work through that issue.

If the member wants to get more detailed, we could probably go through each one, one

by one, but it was built in very much so that there’s a clear path around how these

laws are supposed to be interpreted.

Scott McInnis : I think we probably will dig into that as we move forward here. I’m just generally

wondering if there is.… Does the province have any oversight authority into the K’ómoks procedure of drafting their own law? Is there any way that the government has to

approve…? Do they have any ability to provide feedback onto specific laws or anything

like that? Or is that 100 percent under the jurisdiction of the K’ómoks Nation?

[2:40 p.m.]

Hon. Spencer Chandra Herbert : There are provisions in the treaty that speak specifically, for example, to children

and family law and requirements the province has in terms of how those laws are to

operate. For example, if K’ómoks decided to enact a law, the nation, in relation to those matters, would be required

to provide B.C. and Canada with notice of its intention to exercise law-making authority.

This would be followed by a collaborative process to identify matters needed to support

implementation of laws.

If Canada or B.C. identified that there may be issues in terms of how our jurisdictions

work together, for example, that would be identified at that time and worked through

together then.

Certainly, that’s how child and family law is treated in here, but the member could

certainly seek guidance on other areas of legal.

Scott McInnis : We’ll come back to some other examples. I am jumping around a little bit, but it’s

just kind of the nature of the way I wrote my questions here.

I was curious about something. I wanted to ask this at the beginning, and I didn’t.

Under

chapter 3, “Self-Government,” K’ómoks self-government,

section 4: “The exercise of K’ómoks jurisdiction and authority set out in this agreement will evolve over time.” I’m wondering

if the minister could enlighten us on just exactly what that means, exercising jurisdiction

and authority, and how that will evolve over time, some of those processes to take

place.

I felt it was…. It was something that caught my attention. I’m sure the minister will

have a pretty straightforward answer for it, but I was just hoping he could provide

a little more meat to what that statement means.

Hon. Spencer Chandra Herbert : As is consistent with other treaties, it’s about…. Just because the treaty says that

you have the ability to do something doesn’t mean that every nation wants to do that

something right away. So in terms of child and family services, for example, the member

may have heard of a nation drawing down the authority, bringing the authority locally

that they didn’t before.

[2:45 p.m.]

So then they have that child and family law. They have that ability locally, which

they didn’t have before. That would be the evolution or the development.

Also, the treaty talks about, for example, a police service. Currently B.C. provides

the police services. If the nation wanted to move to a treaty nation police, there

would have to be work done together over time, and that would draw down the authority

to implement that kind of provision. But again, it doesn’t happen immediately. As

in many things in the treaty, they are over time, as the nation decides and as we

are able to respond.

Scott McInnis : The treaty does require a democratic K’ómoks government with elections at least every five years. Is there anything within that

where the government has oversight mechanisms for the elections of K’ómoks members, governance disputes in the realm of K’ómoks elections? Is there anything that changes under the treaty here? Is B.C. Elections

involved in any way, or is that 100 percent a separate authority, and it’s all the

oversight of the K’ómoks Nation?

Hon. Spencer Chandra Herbert : The elections, of course, are K’ómoks Nation’s own elections, so they set their own rules around how elections are to be

run. Of course, the Charter, the treaty still apply, but in terms of internal governance

matters, that is a matter for the K’ómoks Nation.

John Rustad : I understand we’ve moved on to the governance structure. I’ve got a number of questions

around that as well. But one question I wasn’t able to ask before I moved on to that,

which I thought I should just get on record, because I need to understand what it

means….

Under page 19, 102, where it says “Minor Changes and Corrections: “After the K’ómoks treaty ratification vote, but before the parties sign this agreement, the chief negotiators

on behalf of each party may agree to minor changes in the agreement.” I’m just curious

as to what is defined by “minor changes.”

Hon. Spencer Chandra Herbert : Minor changes are not substantive. They’re not material changes. The member’s earlier

reference to sub 8(1), which is actually sub 8(l)… Arguably, if it was sub 8(1), that

could be a minor change if it needed to be cleaned up. Now, of course, typographical

errors can continue to be changed post–treaty signing, but minor changes really are

to reflect, just as it sounds, really minor changes that don’t change the substance,

the impact or the objective of the treaty.

[2:50 p.m.]

John Rustad : That’s good. I thought that was the case, but when you read on with that…. This next

one, 103, actually talks about the editing changes that the minister had provided,

so I just want to look for the clarity between the two in terms of it.

In the self-governance, I’m not quite sure exactly where my colleague has gone in

terms of the questions. Unfortunately, I wasn’t able to follow through. But I will,

perhaps, turn it back over to him to carry on with a question on that and I’ll try

to catch up with where things are at.

Scott McInnis : So the treaty does permit appointed members within executive or legislative branches,

so long as a majority remain elected, as far as I understand in the treaty. Is there

a proportion somewhere that government could look at…? Sorry, is there…? What proportion

of government could theoretically be appointed rather than elected in the treaty?

Hon. Spencer Chandra Herbert : As provided in the constitution, a majority of the total members and total legislative

members will be elected.

Scott McInnis : I just wondered. When we’re talking about the appointments of members within an executive

or legislative branch, are there any clear restrictions on who may or may not be appointed

to that?

Hon. Spencer Chandra Herbert : So of course K’ómoks will be responsible for their own membership in terms of membership rules — who is

a member of the nation. Conflict-of-interest rules, generally accepted, would apply.

Beyond that, the election process is very much within K’ómoks Nation’s own law-making authorities.

John Rustad : In terms of the governance structure, one of the questions that has always been out

there is: who is a K’ómoks member? In many nations, it’s lineage — matrilineal. I’m just wondering. Is there

some process as it’s laid out in here in terms of who is a…?

[2:55 p.m.]

[The bells were rung.]

I’ll wait for the four rings. I always think of it as a naughty class causing grief for the rest of us. Just joking,

by the way.

I’m just wondering if it lays out in terms of how they will do that determination

and if there is any appeal process associated with it.

I’ve got a number of other questions around this, but it’s an important question because

there are many Indigenous people in B.C. who are no longer attached to what would

have normally been considered their home nation because of how they’ve determined

the official status of a particular nation.

Is there anything in the treaty that lays this out, and is there any process that

anybody could follow to potentially get that overturned or be recognized as a member

of the K’ómoks Nation?

Hon. Spencer Chandra Herbert : If I might refer the member to

Chapter 23 of the K’ómoks treaty. I don’t know that it would be useful for me to read page after page into

the record, but there is a

section around appeal process, around enrolment, around

membership, eligibility criteria, applications for enrolment. Hopefully that will

put the member’s mind at ease.

John Rustad : That’s good, and we will get a chance to look at

Chapter 23, I’m sure, in terms of

it. I don’t know how I missed that. There we are. Through procedures, I thought that

was just the more technical side. Anyway, okay. That’s good to know.

Just in terms of governance, obviously, there are going to be people living within

the traditional territory, as well as within the treaty lands, that may not be K’ómoks members. Now, just in terms of the law-making ability, do those laws apply to their

treaty territory as well as the treaty land or just to the treaty land? I’m just curious

in terms of how those laws will be structured and applied.

Hon. Spencer Chandra Herbert : Treaty nation laws apply to anyone accessing or living on treaty nation lands, so

not the treaty area but the treaty lands.

For example, if a member of the public drove onto the treaty lands, they, of course,

would be subject to the nation’s speeding and parking laws, those kinds of things.

For a nation member who lived abroad, the laws around election processes would still

apply. But they would not apply, of course, to a non-member who lived abroad, because

that wouldn’t make sense. But yes, that’s how that would work.

John Rustad : Thank you. It’s good to know that the laws that are passed by the K’ómoks Nation apply to the treaty land, not to the treaty territory. That’s an important

piece to know.

In going through here, I think there were some provisions I read, but I want to ask

this, so we can get this into the record, as well, in terms of the rights of individuals

who may not be K’ómoks members who will live, work or carry on other activities within the K’ómoks land, what the rights would be for those individuals.

[3:00 p.m.]

Hon. Spencer Chandra Herbert : In the self-government chapter, it talks about decisions affecting non-members, that

K’ómoks institutions will engage with non-members in respect of K’ómoks institution decisions that directly and significantly affect those non-members. K’ómoks will provide non-members with access to the appeal and review procedures — and it

references to paragraph 8.1 and the administration-of-justice

chapter — in respect

of administrative decisions that directly and significantly affect non-members.

John Rustad : It’s good to have that in the record. I appreciate that. I also appreciate the reference

to 8.1. It’s nice to know. The reason, of course, for asking is that obviously, there will be taxation. There

will be other decisions that are made, and individuals living within those territories,

obviously, don’t get an opportunity to vote in terms of that, which is what we’ve

created in terms of treaties. It’s taxation without representation, but it is what

it is.

Actually, I do have a question in terms of governance, because one thing I didn’t

see in here as I read through and.… I’m thinking, obviously, to Nisga’a, the first modern treaty. They had a very elegant solution and process for recognizing

the Hereditary Chiefs and the Elders in terms of like a Senate-type structure that

was created within their treaty.

I didn’t see that created here. I just want to know if I’ve missed it or whether the K’ómoks Nation decided not to create something that would be utilized or recognize the Hereditary

Chiefs that they do have or the Elder structure, similar to what Nisga’a did.

Hon. Spencer Chandra Herbert : Of course, nations are individual in terms of culture, heritage, law-making, history.

What might work for Nisg̱a’a may not work for somebody else, or it might. In this case, the hereditary Senate,

versus another structure, is not how it’s set up. In response to an earlier question,

I spoke about how the majority of the executive and the majority of the legislature

must be elected. How K’ómoks decides to work with a Hereditary Chief or another structure, of course, would be

their choice.

John Rustad : Just to confirm, if they so desire to do something like that down the road, this treaty

actually enables them to be able to create that kind of structure without it having

to be specifically described in the treaty. Is that correct?

Hon. Spencer Chandra Herbert : As long as any modifications made fit within the constitutional parameters that are

in the treaty, then they could make a choice to do that.

[3:05 p.m.]

John Rustad : We’re going to have a number of questions as we get into the legislative components

— obviously, it’s defined in here — and some of the other components.

Before we do that, our colleague from Vancouver-Quilchena has a number of questions that she’d like to ask, which will likely be wide-ranging across the treaty in this section. It’s probably the best thing to

do, to give her an opportunity to do that now, as opposed to having to come back in

as we’re trying to move through this.

I hope, with your indulgence, you’ll have an opportunity to be able to maybe answer

questions. Then we’ll come back into governance and to keep moving forward from there.

With that, I would turn it over to the member for Vancouver-Quilchena.

Dallas Brodie : Minister, on page 4 of the treaty, it states that the parties involved — that being

the K’ómoks band, the provincial and federal governments — have the common objective in recognizing

the K’ómoks Aboriginal rights and title and inherent right to self-government.

My question is: is this agreement sort of legally agreeing with future Aboriginal

title claims that the K’ómoks may make? It sounds like that’s saying that they’re committing to future concessions

in this agreement. Is that your understanding?

Hon. Spencer Chandra Herbert : We’ve covered these questions around how changes to treaty could be made, at what

point, the fact that all three parties would have to agree to make any changes at

a ten-year review period. I would refer the member to the Hansard record of the extensive back and forth I’ve had with other MLAs on that question,

just to respect the committee’s time and respect the process, which suggests that

we should keep our questions not repetitive.

Certainly, I’m sure the member has other questions that might shed new light on the

subject, but it has been covered quite consistently so far.

Dallas Brodie : Also on page 4 of the treaty, it’s stated that another common objective of the parties

to the treaty is achieving equality with other Canadians in socioeconomic outcomes.

This is important, as this agreement is committing a lot of taxpayer money to a band

that already receives outsize support compared to the average non-Aboriginal Canadian

and the size of the population base there.

Have we got a definition as to what means “equality with other Canadians in socioeconomic

outcomes” — like some criteria for what that means on a per-capita basis?

Hon. Spencer Chandra Herbert : As we discussed earlier, these are common objectives. They are not binding objectives

in the sense of being in the legal sense, but they are common objectives.

[3:10 p.m.]

I think — I would like to think, anyways — that we all share the same goal that everyone

should have the opportunity to prosper, to have good jobs, to have good health care,

to not face racism, to be able to live a good life where you’re not fearing for your

safety, where you have the opportunity to raise a family in a good home, where you’ve

got good air, good water, where you’re able to live in peace with your neighbours.

That’s the common objective in the sense that we’re trying to lift up K’ómoks Nation but indeed with all British Columbians. Certainly I would expect that the

national government would have a similar objective for all of Canada.

Dallas Brodie : This agreement is committing to a one-time transfer from the provincial and federal

governments of $90 million, plus another $6.2 million per year for the establishment

of “self-government,” on top of what they are now already receiving from the provincial

and federal governments.

How was it determined that these sums would achieve enough to establish self-government,

and what were the criteria used to establish that $6.2 million per year was required

to establish self-government? And why was that broken out into a separate piece instead

of just being subsumed in the $90 million being transferred and other funds already

being transferred?

Hon. Spencer Chandra Herbert : The figure the member cited is federal funding, which is developed out of a formula

based on per capita, based on self-government needs for that nation.

Dallas Brodie : Well, the $6.2 million per year for self-government would come out to $18,235 per

person per year to administer a government for just 340 people. That seems like a

lot, considering…. I would assume that’s not going to take into account the actual

salaries of the people working there. Is there an idea of how large this government

will be, this self-government, and what specific mandates they will be required to

undertake?

Will the self-government have to undertake things like establishing their own police

authority, their own hospitals, their own first-responder units and the general things

that a municipal government does? Will they be required to do those types of things?

I guess, what is the scope of what the self-government will take on?

[3:15 p.m.]

What I see here is that we’re creating another layer of government which is going

to be akin to a municipal government. And it’s a very small population, but still,

a municipal government has normal commitments to the people it’s governing, and that

would include things like maintenance of sewer, water, street signs, street poles,

lights, electrical services, first responders, ambulances, police, all these kinds

of things.

I’m wondering. Is self-government going to be responsible for those kinds of things?

Precisely what do we mean by self-government at the rate of $18,235 per person in

the band and a yearly sum that’s going to keep coming? What are they going to be doing

with that money?

Hon. Spencer Chandra Herbert : While not exactly the same as a municipal government, nation governments are required

to provide very similar services, things like sewer, things like roads, things like,

in many cases, social services and supports for members.

They do more than that. They look at other things that municipal governments don’t

look at. I know, for example, my own municipal government in Vancouver…. We don’t

pay for hospitals. We don’t pay for health care through the city of Vancouver, but

municipally we cover a lot of other things. So it is akin to a municipal government

with some other additional layers of work that go beyond that with nation members.

But the member certainly could read the treaty. It goes into extensive detail about

what sort of governance services are provided, how they’re expected to be provided.

There are numerous chapters about that for the member to do further reading on.

Dallas Brodie : What happens…? Is there any assurance or enforcement mechanisms in this treaty that

ensure that the money that is being transferred for the purpose of self-government

will be used for that purpose? Are there any checks and balances, or is this going

to be left to…?

And what happens if the specific things that you’ve just pointed out that they will

be responsible for aren’t happening, such as water, sewer, the kinds of things that

you just mentioned? What if those aren’t happening? Who becomes responsible for that?

Hon. Spencer Chandra Herbert : Just like for each one of us, the ultimate accountability is with our voters, with

the people who choose to or choose not to vote for the member. So in this case, if

the local government, if the nation’s government was not providing the services its

members wanted, they would do something about it. I know they’re very much involved.

They were very much involved in the treaty vote. They’ve been very much involved in

local democratic governance, as would be expected for a local government.

[3:20 p.m.]

Dallas Brodie : So the minister is comfortable that in the event that, for example, there are water

problems or other issues going on in this band and under the regions that they’re

now responsible for, this band won’t be returning to the provincial government or

the local municipal governments to fix any problems there? The band will simply have

recourse only to its chief and council?

Hon. Spencer Chandra Herbert : Certainly, through treaty, through K’ómoks’ constitution, there’s a strong expectation that the K’ómoks Nation, as they’ve said very strongly, don’t want the Indian Act hanging over their

heads, they don’t want the yoke of the Indian Act around their necks.

They want to be able to stand on their own two feet and not have paternalistic governments

trying to tell them what to do and what not to do because of racism, because of a

history of not trusting them, because of the history of how this place came to be

and the lack of relationship between Indigenous Peoples and governments.

They want to be able to stand on their own feet and be able to work in the way that

they had since time immemorial, before some of the impositions of things like the

Indian Act were brought in — the imposition of things like not being allowed to own

land, not being able to have a lawyer, not being able to educate their own young people

because of the imposition of provincial and federal law.

So, very much, they are accountable to their membership, but they also are accountable

to the region around them. That’s why locally elected leaders in the Comox Valley,

the city of Courtenay, city of Comox, township of Cumberland — I’m sure I’ve called

one of them a city that is actually a town so apologies if they take that stuff very

seriously — and the Comox Valley regional district have all come out so strongly in

support of this treaty, because of the partnership, because of the working relationship

they have developed with K’ómoks Nation.

They’re looking forward to this treaty and are strongly supporting it because they

know it will support the wider region.

Dallas Brodie : Your comments on the Indian Act, I fully agree with. The Indian Act should be repealed

and, in fact, was recommended in 1969 by, then, Pierre Elliott Trudeau and Jean Chrétien, in The White Paper , but it was opposed that that be repealed by the Assembly of First Nations, the 635

Chiefs who went and said: “No way. We want the Indian Act.”

So I agree with you, Minister, that the Indian Act has been a terrible blight on the

Indigenous community in Canada and that it needs to go. Because I also want Indigenous

people to own their land outright and be through with all of this paternalism. What

I’m concerned about here is that we’re creating more paternalism and more open-ended

deals for the Canadian and British Columbian taxpayers.

I have some questions about these courts that are going to be set up. There’s reference

to something called K’ómoks laws and K’ómoks courts. Are there going to be separate courthouses established in the K’ómoks lands?

There are references to K’ómoks laws. What are these laws, and are they separate from the common law of Canada and

the Criminal Code of Canada?

There are other concerns I have about this that I’ll just give in broad strokes here.

What are the rules that are going to abide in these courts? Are they going to be rules

that are predetermined by Indigenous principles, or will they abide by the rules of

evidence that have been developed through the common law?

What will be the credentials and requirements for judges who are sitting on these

courts? Can a band member opt in or out of these courts, or must they stay and use

these courts that are now established? Who decides which courts you’re going to be

subjected to?

[3:25 p.m.]

So just some broad questions there about that, and maybe, based on your answer, I

might have some more questions about how this is going to work.

Hon. Spencer Chandra Herbert : To respect members’ times, I’ll try and do this in two parts.

As mentioned to the critic earlier, on the opposition side, Canadian laws, B.C. laws, K’ómoks law will apply on treaty land. But if there

is conflict between those laws, there are provisions built into the treaty in terms

of which laws prevail so it’s clear how that process is to take place.

I will work on getting a further response to the member’s other question.

I think this…. The member is quite capable, I’m sure, to ask further questions. But

the way it would work would be: should B.C. and Canada ratify this treaty, the treaty

needs to then come into effect, after which K’ómoks would be able to decide on whether

they will use the Provincial Court of B.C. to be their court or establish their own

court to hear matters under their laws. This depends on what law-making powers from

the treaty K’ómoks chooses to exercise.

As I mentioned earlier, it could be an evolution. It is unlikely that all of those

legal authorities would be drawn down on day one. It would, in fact, probably take

quite a while to work through those processes.

Before they choose to enact their laws, though, about a K’ómoks court, the nation

would be required to provide B.C. and Canada with notice of its intention to exercise

their law-making authority. This would be followed by B.C. and the nation beginning

a collaborative process to identify matters needed to support implementation of these

laws, such as operational matters and any impact on B.C. laws in terms of the direct

treaty lands for K’ómoks.

I have more, but maybe I’ll await the next question.

Rob Botterell : Is it true that these provisions or similar provisions have been implemented in other

treaties without difficulty?

Hon. Spencer Chandra Herbert : Short answer is yes. This has happened before, and it’s worked well. The Nisga’a treaty

provides law-making powers to the Nisg̱a’a Lisims Government for a Nisga’a court, but they’ve never chosen to draw down that power, instead working

through the Provincial Court.

Now, the Tsawwassen and Maa-nulth treaties do not include authority to establish a court. Of course, each treaty is

different. The ɬəʔamɛn treaty does provide law-making authority to the ɬəʔamɛn Nation to recommend judicial justices to the Judicial Council of B.C. with jurisdiction to

adjudicate offences under ɬəʔamɛn law in Provincial Court. However, they have not used those powers.

[3:30 p.m.]

Dallas Brodie : On that point that my friend just pointed out, other bands have established or decided

to still stay with the provincial and federal court systems.

We did see, in the last year, that up in Haida Gwaii, a family and their friends....

It was decided that they weren’t behaving the way the band liked. They took forklifts

and excavators and destroyed their homes and actually chased the family and their

friends out of the Haida Gwaii area and then alerted the rest of the province, to

other bands, not to allow those people onto their lands. They were being actually

shunned according to Aboriginal law traditions, apparently. That’s what Ellis Ross

said: “This is the way we do it.”

If this is the kind of thing we’re going to be seeing when laws are applied, is there

any guarantee that this type of activity will not be happening? And if it is going

to happen, what happens to those people who are pushed out of the system on the K’ómoks lands?

Are we supposed to take the people they don’t want and then deal with them in the

provincial system that we have, the provincial and federal court system that we have

in British Columbia? This is a direct example of self-government, self-determination,

and what has happened. They were tracked all the way down the province by journalists

as they were chased from city to city and not even allowed to fill up their gas tanks.

What are we going to do about situations like that, where there’s a dispute? The politics

of smallness are an issue. A small group of people, there’s enmity between neighbours,

and these kinds of things happen. So what are we going to do? Is there any provision

in this treaty that deals with that kind of thing, where we’ve got basically a good

old-fashioned shunning taking place?

Hon. Spencer Chandra Herbert : Canadian and British Columbia law will still apply. The Charter of Rights and Freedoms

will still apply.

K’ómoks law does not.... The treaty does not allow the creation of new criminal law. That’s

a federal matter, and that continues to be the case here. I can’t comment on the matter

the member addresses as I don’t have all the details that she references. But this

is very much about treaty law for the K’ómoks Nation and not another nation or another location.

Dallas Brodie : Well, I think it was a fairly widely reported event that happened. It’s hard for me....

I’m going to....

The Chair : Recognizing the House Leader of the Third Party.

Point of Order

Rob Botterell : I want to raise a point of order around the relevance of an example involving a completely

different governance framework to the questions in front of the committee.

The Chair : Thank you, Member, for raising that point of order. I am paying attention to matters

of relevance, and I will ask the member for Vancouver-Quilchena to continue with her line of questioning, just bearing in mind to stick to the clause

and the bill that we’re on, which is clause 3.

[3:35 p.m.]

Debate Continued

Dallas Brodie : The agreement is reopened every ten years, this treaty. What is the purpose of reopening

the treaty? What is expected to take place at the reopening of the treaty in the mind

of the minister?

Hon. Spencer Chandra Herbert : We went through this question fairly extensively yesterday, so certainly, the member

might be interested in that back-and-forth discussion. It helps fill in more of the

detail that she might be looking for.

The periodic renewal, really, what it does is similar to other modern treaties. I’ll

share this answer now, but I probably won’t go further into this, because we did spend

quite a bit of time on it. It allows any one of the parties, whether it be B.C., Canada

or the K’ómoks Nation, to make a request for a renewal or a review of the treaty.

Maybe there’s a certain aspect that’s not working as well as one of the members wanted.

Maybe there’s a legal change that is requested. As nobody is frozen in time, treaties

are not frozen in time. The law is not frozen in time. So what it allows is the parties

to make a request for review. Other parties are obligated to look at the request in

good faith, follow good-faith principles, but they’re not required to say yes to a

request for change.

I know some members have characterized, in YouTube videos and other things, that this

just allows the nation to do whatever they want, and that it opens up, again, for

a whole bunch more land, and it’ll never end and so on. That has been a characterization

I’ve heard some members make, which is unfortunate because this is not how the provision

works.

It’s very much about good-faith discussions between treaty partners who are able to

work with each other in good faith to respond to issues each other has. We’ve done

that with Nisga’a. We’ve done that with ɬəʔamɛn. We’ve worked through issues with treaties with other nations and responded to issues

that we needed to update or fix for the betterment of the nation, for the betterment

of the region, for the betterment of the province and Canada.

That’s how this periodic review, renewal operates. It’s very much in keeping with

other modern treaties and that work to work collaboratively in good-faith discussions.

Since we’re all here and we all want this to be a better province, let’s provide opportunity

that we can do this in a practical process, an orderly way.

Dallas Brodie : This is going to be my last question. Just on the definition of “self-sufficiency”,

what are we defining as “self-sufficiency?” Is there a point at which we declare the

K’ómoks Band to be self-sufficient? And do we have a way of measuring when that outcome has

been achieved?

To your comments, I think that people are concerned about this being for the betterment

of British Columbia and for British Columbians. And there is some concern that if

it is, we would like to see this move to a self-sufficiency phase, but is it going

to get there? And what are the measurements that we will have that we can look at

to say, “Yep, we’ve reached that, and we’re done here”?

[3:40 p.m.]

Hon. Spencer Chandra Herbert : I guess there’s no explicit definition in the

preamble of what self-sufficiency means, but I would say that I think we’re all British Columbians. We’re all living here in a way that we want to ensure that each other has the opportunity

to prosper, that each other has the opportunity to live a good life in a safe home

in a good community with good-quality air, good health care, good water — you know, all of the things that we would want for ourselves, in terms

of how we would treat our families and how we would treat our communities.

In terms of that self-sufficiency, that’s the goal here with K’ómoks Nation. That’s

their goal. That’s our goal, obviously, for the region, for all of us. But I think

self-sufficiency is not so much: “Go away; be by yourself.” It’s also about acknowledging

interdependence — that we are all dependent on each other and that if one of us is suffering, it’s

going to impact each other.

I think, really, the idea behind treaty is about creating a better connection between

us all so that we know how we work together, we know how we live together, we know

what the expectations are for the future in our regions as best as we can, understanding

that there’s unpredictability. Things change; life changes; things come up. But really, in this sense, it’s trying to unlock….

In terms of the member’s reference earlier to the Indian Act, of course it’s to take that off so that the nation again can stand with pride, as they have long done in the region, and are looking

forward to doing even more. The excitement they have for the prosperity they can bring

to the neighbours, to everyone in that region, is really exciting to see.

Dallas Brodie : Speaking of the whole notion of living together — and we are all here together — are

there any requirements put on the K’ómoks leadership? I couldn’t find anything in

here that requires a standard of neighbourliness, reasonableness and giving back to the communities that surround it and ensuring

that their cooperation will also be reasonably and freely and properly given to help

the people around it who are not of the same ancestry, such that it is a truly reciprocal

and happy arrangement between, basically, what are essentially all British Columbians.

Hon. Spencer Chandra Herbert : The member said she couldn’t find it, but for her clarity,

chapter 5 speaks to how the nation is to work with the local government.

Certainly so far, based on the response I’ve seen from local governments in terms

of support for the treaty and support for working with K’ómoks Nation, that relationship

is strong, and it’s one that has worked very well for the region.

John Rustad : I thank the member for Vancouver-Quilchena and the minister, in terms of that exchange.

Going back to the self-governance component of the treaty, I’d like to ask a few questions,

particularly when we start talking about family and children services. Obviously, there’s an effort by government, and I believe rightfully so, to transfer

authorities, make sure that children stay within the nations, make sure that the nations

have the opportunities to determine what is best for those children. But there’s always

the question out there in terms of potential liability, because there are obviously

requirements by the government — right? — to meet those needs.

I’m just wondering. How has that authority been structured between the province and

K’ómoks Nation as part of this treaty, and how will children that may need to be in

care be addressed?

[3:45 p.m.]

Hon. Spencer Chandra Herbert : There’s a bunch more information — that’s the technical term — for that in the self-government

section of the chapter. But of course, that would have to be negotiated with B.C.

and K’ómoks, should they decide to draw down those authorities.

Usually when those discussions happen, there is conversation. There is negotiation

around liability and how that transfers, how cases would transfer. Those kinds of

things would all be taken care of in those negotiations, should they decide to draw

down those authorities.

John Rustad : That’s good to know. Obviously, I know most nations — I suspect K’ómoks will be the same; it’ll be a priority for them — want to create the legislation associated

with doing that.

It’s good to hear that, particularly the issues of liability and stuff, will be discussed

in terms of how that’s done. Obviously, that’s potential for a huge challenge, I think,

for any nation, taking on those responsibilities.

With regards to the laws, since the laws that they will create in self-governance,

which would be, if they draw down on the authority associated with children and family

services and writing their own laws…. We talked earlier about those laws applying

obviously to title land, but how would those impact K’ómoks members who may be living outside of the title, outside of the treaty land? In other

words, they might be living in a different community or even a different province.

How would those laws, potentially, be applied, or not, to members who are off treaty

lands?

Hon. Spencer Chandra Herbert : Obviously, some laws would be geographically restricted. A speed limit would be restricted

to the treaty lands.

One that could be broader, should it be drawn down…. Children and family services,

for example, could be not geographic. It could create obligations for K’ómoks Nation in relation to K’ómoks Nation children that do not live right on the treaty lands.

That’s one possibility, which we have seen before, in terms of similar but different

approaches with other nations.

[3:50 p.m.]

Another one that wouldn’t be geographically restricted would be, for example, the

election laws, which I mentioned. Maybe if you lived across the road from K’ómoks treaty lands, you could still be involved in the election if you were a nation member.

John Rustad : Thanks, Minister, for that. I think we’ll get into this a little bit further on.

Because we’re talking about members that are off treaty lands, this is actually an

interesting question in terms of responsibilities of the nation and children in care

or children who may need those services. It goes much further beyond that, obviously,

with other members that may need services, whether that is addiction treatment, mental

health or these types of things. That would be some members of the nation, but they’re

off the treaty lands.

As they draw down and create their laws and authorities and implement this treaty,

which, obviously, both federal and provincial governments will be partners in, I’m

just wondering how those sorts of issues would be handled for members who are not

on the treaty lands. What would apply? How do the province, K’ómoks and, potentially, the federal government manage those kinds of issues that are not

directly on the treaty lands?

Hon. Spencer Chandra Herbert : It’s hard to speak definitively about such a broad question because, of course, depending

on which law, which legal agreement and where, it could change. It might be a different

answer. I don’t know that I can give the member what he’s looking for unless he can

be a bit more definitive.

In how a law shows up, there can be coordinating agreements, for example, where the

province could make an agreement around a certain approach, around a certain.… I don’t

know. I’m getting into the hypothetical, which I don’t like to do, but there are a

number of approaches that could be made in terms of legal coordination, if that were

required. Until the negotiations go on, in terms of which law-making authorities are

used and how they are used, it’s difficult to answer that question.

John Rustad : I thank the minister for that, and I recognize these things are part of a negotiation.

The legislation that’s created, all these sorts of things, will be going on.

What I’m trying to really nail down is just that sense of responsibility for its members

who are off treaty lands. They may be scattered throughout the province. They may

require mental health services, addiction services or children and family services.

I’m trying to understand what the responsibility is of the K’ómoks Nation for its members that could be under stress of some type somewhere outside of

their treaty lands.

[3:55 p.m.]

Hon. Spencer Chandra Herbert : As referred to earlier, of course, provincial law and federal law still apply. That’s

also true for provincial programs or federal programs, unless, of course, we found

agreement together around K’ómoks taking up that responsibility. Then that could change the fiscal relationship.

That’s not currently what we’re discussing. It’s not under the treaty in the sense

that it’s part of the treaty. It allows those conversations, as I mentioned. It allows

the drawing down of legal room. But in terms of requiring K’ómoks to create its own hospital because it’s now no longer allowed to use the local…. That’s

not how it works. It’s very much that this is about building togetherness but also

respecting difference.

Scott McInnis : I’m interested in some of the legislative authority around child care and K-to-12

education. It’s a complex space with lots of regulation and so forth, and I just had

a few questions I wanted to ask in relation to that.

I know over my time as critic speaking with Indigenous People in British Columbia,

whether it’s Métis or First Nations, there’s a strong desire to provide their own

child care services within their communities, which I think…. I’ve seen a couple of

them locally, and they’re fantastic places of learning for children.

I think these questions will probably be pretty straightforward for the minister,

but I do want to ask them on the record. I know after managing an independent school

for a number of years and having two licensed child care spaces, the regulations are

quite complex. It always made me very nervous when there would be an inspection from

the ministry, making sure everything from cleaning standards to safety and everything

else was being very, very strictly adhered to.

I’m wondering. Under the child care component, 106 and 107 say: “K’ómoks may make laws in relation to child care services on K’ómoks lands.” Number 107 says: “Federal law or provincial law prevails to the extent of

a conflict with K’ómoks law under paragraph 106.” In relation to the child care question specifically, I’m

just curious as to if the K’ómoks decide to enact their own legislation in relation to child care they will still be

mandated to follow the strict regulations of child care in British Columbia.

I know there is an ongoing conversation around challenges with unlicensed child care

facilities and potentially some of the vulnerabilities around that. I’m not saying

that’s at all what the K’ómoks intend to do by any stretch of the imagination. I’m just simply always looking out

for the safety of children and making sure that they’re cared for in a proper space

under the proper regulations and rules.

Again, just ensuring that if that legislation were to be enacted, it would, in fact,

fall in line with the provincial child care regulations which exist.

Hon. Spencer Chandra Herbert : I think the member almost answered his own question in his statement. Yes, Canadian

and provincial law will continue to apply to child care. K’ómoks could make their own laws, but they have to be as protective or safety-focused as

our provincial and any federal rules that might apply.

[4:00 p.m.]

Scott McInnis : I figured that was the answer. I just wanted to ensure that onto the record.

In relation to kindergarten-to-grade-12 education, I just had a couple of notes I

wanted to ask around that. Paragraph 116 talks about K’ómoks making “laws in relation to K-to-12 education on K’ómoks lands (

a) for K’ómoks members, (

b) provided by a K’ómoks institution.”

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

And 117, any K’ómoks law made under paragraph 116 will:

“(

a) establish curriculum, examination and other standards that permit transfers of

students between school systems in British Columbia at a similar level of achievement

and permit entry of students to the provincial post-secondary education system, and

(

b) provide for the certification of teachers, other than for the teaching of K’ómoks

language or culture, by a K’ómoks institution or a body recognized by British Columbia,

in accordance with standards comparable to standards applicable to individuals who

teach in public or provincially funded independent schools in British Columbia.”

There’s 118, which talks about the laws previously under paragraph 116. Law made under

116 “does not apply to schools under the School Act or the Independent School Act unless the

school is established under the Independent School Act by K’ómoks institutions.”

I just have a couple of clarifying questions around that, which I’m hoping the minister

can indulge me with. I guess first of all would be: if K’ómoks were to decide to draw

upon legislation related to K-to-12 education for the establishment of an institution

on K’ómoks treaty land, would that institution be mandated to teach standardized curriculum

as is taught in schools across British Columbia?

Hon. Spencer Chandra Herbert : It would be great if the member keeps going along this line of questions in this way,

because he’s giving me the answers in his questions, which is great. Less work for

us over here.

In terms of what he referenced, “establish curriculum, examination and other standards

that permit transfers of students between school systems in British Columbia at a

similar level of achievement and permit entry of students to the provincial post-secondary

education system” speaks to the requirement for a similar curriculum. It may not be exactly the same, but you must be able to meet the same learning outcomes.

This would suggest that it may be the same curriculum with additions, or it may be

the same curriculum delivered in a slightly different way in terms of how the K’ómoks

Nation wants to teach the curriculum. But their students need to be able to have the

same capacity, same ability to enter into a provincial post-secondary or a provincial

high school. If you’re not familiar with the curriculum, you’re not going to be able

to meet the learning outcomes, and thus you’re not going to be able to fulfil what’s

required here.

So very much the answer is yes, they are required to maintain that same standard that

we have in provincial schools.

Scott McInnis : Thank you to the minister.

I think that’s where I was just getting at, that it said…. It was a similar standard,

just ensuring that if K’ómoks does decide to draw up laws to create an institution or institutions for

education for their members, there was some sort of alignment with learning outcomes,

learning standards that exist in the province, just so those students, when they graduate

grade 12, are certainly ready with the foundational skills to enter post-secondary

or the workforce or what have you.

[4:05 p.m.]

Let me just think about this for one second. Would there be any oversight from the

Ministry of Education to ensure that those standards were being met for learning outcomes?

Are there any sort of…? Would K’ómoks students in those institutions potentially be

under the guise of taking provincial standardized testing? Is there anything from

the Ministry of Education just to ensure that a similar alignment of curriculum standards existed and that

it was setting the K’ómoks students up for success that way, in alignment with traditional

learning outcomes?

Hon. Spencer Chandra Herbert : Should K’ómoks decide they wanted to create their own institution, a high school, let’s say, if

there were an issue where there was a question of if they were meeting the standards….

Obviously, a treaty is an agreement between three parties, where we have to uphold

our end; they have to uphold their end; Canada has to uphold its end. It’s not just

the K’ómoks treaty. It’s all of our treaty. So in that sense, if we had concerns that the educational

standards were not being met, we could intervene in a sense of engaging our partner

to look at getting to solutions for what that issue was.

I don’t think that would be an issue for K’ómoks, because I’ve seen how much they value education and how much they value their young

people. But should, at some future date, that not be the case, the possibility of

a provincial government working with K’ómoks to address what that issue is…. It doesn’t have to be education. It could be another

issue that’s an obligation and responsibility in the treaty.

Then certainly, we know we’d all hold each other accountable, because we all care

about the young people.

Scott McInnis : Yeah, I appreciate the minister’s answer, and I think in no way was it saying that

the K’ómoks would in any way, shape or form be setting their children up not to be successful

— just ensuring that those checks and balances would be in place, potentially.

Is there anything in here which requires a separate governance structure for K’ómoks as far as a local board of education, an elected group of school trustees, anything

like we see in the public education system which would be required for the K’ómoks Nation to enact if they decide to draw upon that law?

[4:10 p.m.]

Hon. Spencer Chandra Herbert : If the K’ómoks Nation wanted to create a school board for that kind of purpose, they could. There’s

no requirement. Certainly, that would be something that they could run out of the

local government as well, as I know there are a number of models for taking care of

education.

Scott McInnis : I think that was just what I was wondering, because I didn’t see it, if there was

some sort of requirement to meet anything around governance.

I just wanted to ask quickly about teacher certification. If K’ómoks were to draw upon a law to establish an institution on treaty settlement lands for

members for education, would those educators be B.C.-certified teachers?

Hon. Spencer Chandra Herbert : The member read out the qualifications in his earlier question, but aside from language

and culture, all teachers must reach a comparable level to B.C. certification. So

it wouldn’t have to necessarily be B.C. certification if there was a comparable process,

but of course, that assumes they draw it down and then they create a teacher education

program that you can see as comparable in terms of effect. But I say that aside from

language and culture.

Scott McInnis : Just interested in in the comparable certification process. Through what body would

that be done? Would there have to be a basic letter of permission to then go through

a process of comparable certification? It’s just a little bit unclear. Who would that

body be — right? — to actually establish that yes, this person has the education and

the qualifications to deliver curriculum for the K’ómoks children. Just a little more clarification around that, if we could.

Hon. Spencer Chandra Herbert : Just for the member’s information, a very similar provision exists in the ɬəʔamɛn treaty as well. The thinking is that if such a drawdown was expected that they wanted to

create this institution and they were hoping to use teachers that were not B.C. certified,

there’d be an expectation.

First, they’d have to notify us that that was something that they wanted to do, and

then there would be work done to, I guess, find which organization would be comparable

if there were a request to go a different route than B.C. teacher certification, which

could take some time, obviously. Teacher certification isn’t an easy thing. Certainly,

that would have to be something worked through, should such a request be made in future.

[4:15 p.m.]

Scott McInnis : I just think it’s interesting because I’m not I’m not aware of a comparable designation

body that exists in British Columbia to certify teachers in order, like I said, that

they’ve met education standards, criminal background checks, all these important things

that teachers must do before they’re officially certified.

I’d be interested to hear.… And maybe that’s something I can research on my own. I

actually don’t know if the ɬəʔamɛn have a school of their own that they’re operating

and what that standard looks like for them. It’d be something that maybe out of interest’s

sake I could look at on my own time. But I do think it’s important.

I do think that, should the K’ómoks decide to go down that road of education, and I highly encourage them if it’s within

their means to do that, there are lots of benefits to that for the children to learn

under that umbrella. It’s just that we’re making sure that there are still high standards

to be met for education, again, to ensure that we’re setting children up to be successful.

I’m sure that there will be.

I’m just a little bit curious as to, if we’re not going down the road of B.C. certification,

what other avenues there are. I’d be interested in some more conversation around that,

moving forward, because I’m just not aware of what else exists out there.

With that, I’ll leave my questions for K-to-12 education and pass it off to my good

buddy here from Nechako Lakes to continue.

John Rustad : As we look at this, a lot of the questions that we’re asking, whether it’s education,

children and families or such things, are trying to understand the nature of the treaty

in terms of how these things will be implemented for its members. Of course, the big

ones are health services and that whole side of things. Obviously, health is a very complex issue around….

Maybe this is hypothetical. I promise I’m trying not to get into that, but I’m trying

to understand what the K’ómoks Nation is thinking in terms of how it will designate health services, how it will

work through those health services in relation to the regional health district, in

relation to the province and the services that would be normally available outside

of the treaty lands.

Hon. Spencer Chandra Herbert : Yes, there certainly could be hypotheticals we could get into, but I’ll try not to,

just to speak directly to the question.

K’ómoks is in the Comox-Strathcona regional hospital district. K’ómoks will join the Comox-Strathcona regional hospital district on the effective date. Modern

Treaty Nations are required to contribute to applicable provincial services, regardless

of whether they are exercising a property tax authority on their treaty lands or not.

Applicable requisitions attributable to the Modern Treaty Nation lands are calculated

in accordance with the legislation.

In the case of regional hospital districts, the applicable statute would be the Hospital

District Act. The regional hospital district collects the requisition amounts directly

from that Modern Treaty Nation.

If there are further questions on that, for further detail, I’m happy to try my best.

John Rustad : I was actually going to go off in a different direction, but since the minister has

gone there, I actually want to talk about that relationship between the K’ómoks First Nation and the regional health authority, or particularly, the regional district

health, whatever that structure is called.

Interjection.

John Rustad : Yeah, regional hospital district. Thank you.

Obviously, when new infrastructure is being put in — hospitals, clinics, these types

of things — there is a cost-sharing agreement typically between the province and the

area and the region. Typically, that’s 40 percent. Sometimes that’s negotiated at

a different level, and each of the members who live within that region contributes

as part of their property taxes.

Now, K’ómoks, of course, is collecting its own property tax, not through a regional district for

that side of things. Or they may not collect property tax. I’m not sure how they would

implement it. That’s going to be entirely up to them.

[4:20 p.m.]

I’m just wondering. Is there an agreement in place already? Or is this something that

needs to be negotiated, in terms of how K’ómoks Nation members will contribute to the capital requirements associated with providing

health services within the region?

Hon. Spencer Chandra Herbert : I referenced the Hospital District Act. That act includes how the requisition process,

the amounts and so on, are calculated through Ministry of Finance and how the distribution

or acquisition occurs.

Probably best to refer to the Hospital District Act for those specific questions around

how that act works.

John Rustad : Of course, I understand in terms of how those structures work within the province,

but there’s obviously a relationship change in terms of the K’ómoks Nation and treaty.

For example, I remember when Nisg̱a’a treaty was done there, they joined the regional district. They’ve joined the regional

health side. They’re part of that structure, contributing and all that kind of stuff.

I don’t know if that structure has already been set up or has been contemplated, which

is why I’m asking that question of the minister.

Hon. Spencer Chandra Herbert : Clause 10 on the bill…. Maybe the member wants to get to clause 10. It does directly

speak to if, on the effective date….

I’ll jump forward, with the hope that the member might soon jump forward with me:

“If, on the effective date, the letters patent for the Comox-Strathcona regional hospital

district have not been amended to include and designate K’ómoks lands as a member of the district, those letters patent are deemed amended for that

purpose.”

John Rustad : No, I’m not going to quite move forward to clause 10 of the agreement yet. I appreciate the minister’s offer in terms of it, but of course as we’re going

through, looking at this, there is a component here that does, in the treaty, talk

about this, which is why it feels appropriate to ask those questions here.

There is a component here in this that I’m wondering about that I haven’t run across

before, which is Indigenous healers. I’m just wondering what the intent here behind

this is and how they would be plugged in and work with the health services being provided

within the region.

[4:25 p.m.]

Hon. Spencer Chandra Herbert : The member probably has come across this before, though in a different name. The ɬəʔamɛn treaty passed in 2014, I think. I should know this; we just celebrated the anniversary.

It talks about Aboriginal healers. This is similar. It just talks about Indigenous

healers, that they have the right to make laws authorizing individuals to practise

as Indigenous healers on K’ómoks lands.

It does not include the authority to regulate medical or health practices, or practitioners

who require licensing or certification under federal law or provincial law, or products

or substances that are regulated under federal law or provincial law. The laws still

apply, but K’ómoks will have the right to make laws in respect to Indigenous healers operating on treaty

lands.

John Rustad : The reason why I was asking the question was I’m trying to understand the nature of

what services an Indigenous healer would provide. Is it comparable to a doctor or

a nurse? Is it something different entirely in terms of how they might be able to

provide services to K’ómoks members or members of the public at large within the K’ómoks lands?

Like I say, I’m trying to understand just how they fit into the scope of health services,

and I have a couple of questions about that afterwards.

Hon. Spencer Chandra Herbert : Well, I wouldn’t want to be the one to define an Indigenous healer for an Indigenous

nation. I think that would probably not go well. But it is defined in the law, inasmuch

as it’s not like a doctor, because that’s a regulated profession. What I read into

the record around regulated professions, regulated substances and those kinds of things,

would not be inclusive of the job of an Indigenous healer.

John Rustad : An Indigenous healer, then — I’ll just get a confirmation from the minister on this;

I think I understand what he’s saying — wouldn’t have the ability to prescribe drugs

or, perhaps, provide an IV or those sort of things. It would be a different type of

service?

Hon. Spencer Chandra Herbert : Again, I’ll just point back to my earlier answer. They would not be able to provide

drugs or medication in that sense, unless they were a licensed doctor or a licensed

nurse. Now, maybe they would be both, and that’s a possibility, but if you’re going

to be in the prescription world or medical services as we understand them, that require

registration, licensing and so on, that’s very much in the realm of doctor, nurse,

licensed professionals.

John Rustad : I guess I’m still trying to understand exactly what services they’d be providing,

but perhaps.…

Interjection.

John Rustad : Madam Chair, if we could have a recess.

The Chair : Sure. We will take a ten-minute break and be back at 4:40.

The committee recessed from 4:30 p.m. to 4:44 p.m.

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

The Chair : Good afternoon, Members. I call the Committee of the Whole on Bill 20 back to order.

We are on clause 3.

[4:45 p.m.]

John Rustad : Just another quick question on the issue of the Indigenous healers.

I’m trying to understand how they will fit in with the structure. I mean, will they

have privileges in hospitals? Will they be recognized in terms of that?

If it’s just something that is just happening independently off on treaty land, that’s

fine. I’m just trying to understand how they integrate in terms of any of the traditional

— or, I guess you could say, Western — health care systems that we have structured.

Hon. Spencer Chandra Herbert : As referenced earlier, Indigenous healers and the provisions that are in the treaty

are only applicable to treaty lands.

If it was outside of the treaty lands, they are not applicable. It would be about

K’ómoks Nation making decisions through their own legal process around what they would term

an Indigenous healer, how that person could operate within their community — very

much an internal-to-K’ómoks decision and discussion.

John Rustad : I want to go on to another topic. It’s not directly related, but it is next up in

the things to look at, which is on liquor.

In particular, there are rules here that K’ómoks may make laws in relation to prohibitions and these types of things. I’m just trying

to understand how that works in terms of…. I believe it says it allows them the opportunity

to be able to set up and to distribute or sell alcohol, I believe, on land.

I’m trying to understand what that relationship is between provincial law and what

could be set up on treaty land.

Hon. Spencer Chandra Herbert : This is very much the same as in the ɬəʔamɛn treaty, that the nation would have the exclusive right to sell liquor within the treaty

land itself, and it’s following the same process as the ɬəʔamɛn treaty.

Of course, there would still be provincial law applying, federal law applying, in

terms of issues associated. But in terms of the sale of liquor, they would have, as

the member referenced in the chapter, the right to do that on K’ómoks treaty land.

John Rustad : With regards to that, obviously they could…. Are they restricted in terms of selling

only to K’ómoks members, or could anybody come and purchase alcohol within the K’ómoks treaty lands, wherever they have it set up on the treaty land?

[4:50 p.m.]

Hon. Spencer Chandra Herbert : As long as the person is of legal drinking age and they are allowed to purchase liquor,

they would be allowed to purchase, should K’ómoks decide to get into the sale of liquor.

Now, it should be clear that they would still have to purchase through the B.C. system.

There couldn’t be a deep-discount kind of thing, in the sense that there is a floor

price that would be shared with other liquor operations.

John Rustad : The minister could just confirm, then, that the proximity rules that apply for the

sale of liquor, which are typically within X number of…. I guess what I’m saying is

that some of those rules that we have in British Columbia, in terms of where liquor

sales could be done, would basically be overridden by the K’ómoks treaty. They wouldn’t

have to follow those types of rules because they’re on treaty land. Is that correct?

Hon. Spencer Chandra Herbert : Federal and provincial law do still prevail in the extent of a conflict with K’ómoks

law. If there was a law that said, for example, you can’t set up a liquor store right

across the street from a high school, that law would still prevail.

John Rustad : That law would apply even if it’s within treaty land. That’s good to know. It’s important

to know in terms of it. One of the things that they have set up here, that they mentioned

here, is manufacturing — laws in terms of manufacturing or consumption. Obviously,

we have laws in British Columbia around that.

How does that work in terms of…? What sorts of laws could be created by the K’ómoks

Nation associated with manufacturing? For example, could they set up to produce beer

or wine or other types of products, having their own laws? And would that override…?

Or how does that work in terms of provincial laws?

Hon. Spencer Chandra Herbert : Similar to some earlier answers, they do have the law-making authority in terms of

manufacturing. However, provincial and federal laws apply. If the law was more restrictive

or more safety conscious — I don’t know what you’d want to say — then that could apply.

However, the law can’t be looser or more permissive than provincial law when it comes

to decisions around manufacturing of liquor, for example.

John Rustad : I seem to think…. I mean, obviously, we have lots of craft beer and things that are

being produced in British Columbia today, and I’m just wondering. Are there any restrictions

against K’ómoks in terms of actually licensing for manufacture?

Obviously, they would have to follow the laws in terms of the product that’s being

made within those restrictions, but I’m just wondering. Basically, can they set up

a dozen factories, or whatever you want to call them, producing an alcohol product

that there may be some sort of restrictions in B.C. in terms of it?

I’m just trying to understand. I understand that they have the ability to create laws

that would be potentially more restrictive, but I’m trying to understand what the

nation’s ability is to be entrepreneurial and to go into business, creating those

opportunities outside of provincial laws.

[4:55 p.m.]

Hon. Spencer Chandra Herbert : Provincial law still applies, rules that relate to manufacturing of alcohol. Or a

factory or distillery might be another term, or a brewery. Those laws would still

apply in terms of how that would be set up and that sort of approach.

If there were specific changes to the law that K’ómoks wanted to make in reference

to things that…. I don’t know. I’m just trying to think hypothetically what they might

want to do that would be different. Really, that would be up to them to make the case

for what kind of legal change they might want to make.

I certainly haven’t heard anything from K’ómoks in terms of liquor distribution and

manufacture and sale, but it is in there just in case that was an economic avenue

that they wanted to follow.

Scott McInnis : Just along the same lines, a couple of questions about liquor control, liquor sales. Things of that nature could be a potential business opportunity for

K’ómoks if they wish to pursue it, down the road. My line of question is around oversight

and enforcement around that.

I know, for example, the penalties for an establishment…. I’m thinking of a private

liquor vendor. For sales to a minor, the penalties are pretty strict. I just wondered if…. Related to those

enforcement measures, would they be the same under this liquor control model as they

would be for a private vendor that’s not on treaty land or a B.C. liquor establishment?

Would that be the same sort of regime as it would be here in the treaty settlement

area if the K’ómoks pursued that?

Hon. Spencer Chandra Herbert : Provincial liquor laws, again, would still apply in terms of enforcement and those

kinds of things.

Now, there’s a possibility that the nation could decide that they didn’t think our

penalties, provincial penalties, for sale of alcohol to a minor are strong enough.

They could decide to bring in further penalty action, or something like that, through

legal changes themselves to their own K’ómoks law. The same sorts of provisions, because

it’s the same law, apply when it comes to liquor control on treaty lands.

Scott McInnis : I’m just curious. Would it be the liquor and cannabis regulation branch that would

kind of oversee that as well? Or would K’ómoks also be required to establish their

own body to oversee? If they made those penalties stricter, or what have you, would

they have to set up their own regulatory body to administer that?

[5:00 p.m.]

Hon. Spencer Chandra Herbert : Provincial law would be overseen by provincial authorities, as is currently the case,

or would currently be the case, for a liquor store. If there was a desire to set up

an extra penalty or another penalty in addition to provincial law, that would be overseen

by…. It would have to be a K’ómoks authority, so that would have to be regulated and enforced through their own local

government.

Scott McInnis : I appreciate that answer from the minister. I’m assuming it’s probably a very quick

yes to this. I’m just wondering about a local restaurant establishment perhaps in

the treaty land that is serving alcohol and if employees there would be required to

have their Serving it Right and follow those regulations, as well, that currently

exist under provincial regulations.

Hon. Spencer Chandra Herbert : Yes.

Scott McInnis : Just wondering. I didn’t see anything in here about cannabis sales, production, manufacturing,

anything like that. Is there any language that falls under that regime, as well, for

cannabis? Or is it exactly the same as it is for liquor? I’m just not quite sure.

Hon. Spencer Chandra Herbert : There are no provisions in the treaty with respect to cannabis, so that’s why the

member didn’t see it, which means that provincial and federal laws will apply, as

they did prior to the treaty effective date, and the province would be allowed to

continue to take enforcement actions to encourage unregulated retailers — shut them

down, that kind of thing — and focus on the regulated system.

John Rustad : I’m just curious about emergency preparedness and that side of things, really from

a perspective…. I understand how this is structured here. It’s more from a perspective

of liability.

For example, a forest fire starts in the province. If somebody is held responsible

for it, obviously, they go after them. If the nation itself is found to be negligent

through some actions that they authorized that started a fire that obviously went

beyond the traditional territory into Crown territory or into other areas, there could

be a significant liability.

I’m just wondering if there are any provisions or thoughts in terms of how a nation

is protected against what could be significant liability, should there have been a

finding of negligence on behalf of the nation in a case of something like a wildfire

or an emergency.

[5:05 p.m.]

Hon. Spencer Chandra Herbert : Two useful answers, I think, to the question. First, in the forest resources chapter,

paragraph 14: “On the effective date, the parties will enter into a wildfire suppression

agreement that will set out how the costs incurred by B.C. for wildfire control on

the K’ómoks lands for wildfires that originate on such lands will be shared by B.C., Canada and

K’ómoks.” Paragraph 16: “If K’ómoks caused or contributed to the start or spread of any wildfire due to its own wilful

misconduct, K’ómoks’s responsibility for costs is not limited by paragraph 15.”

I’m sure I can follow up with more.

John Rustad : I’m just wondering about a building code. Obviously, with the treaty land, there is

a desire by the K’ómoks Nation to do development, and it’s fully understandable, whether it’s housing or

whether it’s other types of activities that they want to do. I believe they have the

ability to be able to create a building code.

Once again, I just want to confirm whether that building code could…. For example,

they may not want to go with the step code. They may not want to go with these types

of things that the province is doing — and whether they have the ability to create

their own building code or whether they have to follow the building code that the

province and/or federal government may have implemented.

Hon. Spencer Chandra Herbert : Under the self-government chapter, heading “Buildings and Structures,” K’ómoks may make laws — the member is correct — in relation to buildings and structures on

K’ómoks lands. “K’ómoks law may only establish standards that are different from or additional to those in

the British Columbia building code pursuant to an agreement with British Columbia

under paragraph 140.”

Paragraph 140: “At the request of K’ómoks, B.C. and K’ómoks will negotiate and attempt to reach agreement to enable K’ómoks to establish standards for buildings or structures which are additional to or different

from the standards established by the British Columbia building code. Federal law

or provincial law prevails to the extent of a conflict with a K’ómoks law under paragraph 138,” which was the first paragraph that I read.

John Rustad : So that I understand…. They could enter into negotiation to create a unique building

code if they so desired, but it would have to have been done through negotiation with

the other levels of government. They couldn’t just implement it arbitrarily on their

own.

Hon. Spencer Chandra Herbert : That is correct.

John Rustad : I want to give the minister as many opportunities as possible to get up and down.

Just joking. Sorry. Got to have a little bit of a chuckle from time to time in terms

of this, despite the fact that this obviously is of a very serious nature in terms

of what we’re debating and discussing.

Regulations on businesses. I’m just wondering how that structure works. Can they create

regulations or limitations beyond what may be provincially in nature? I know most

municipalities regulate businesses, etc. So is it the same nature as what other municipalities

are, or is there some other type of structure that could be implemented as part of

this treaty?

[5:10 p.m.]

Hon. Spencer Chandra Herbert : In “Regulation of Business,” a heading under self-government: “K’ómoks may make laws in relation to the regulation, licensing and prohibition of business

on K’ómoks lands, including the imposition of licence fees or other fees.” K’ómoks law-making

authority under that paragraph does not include the authority to make laws in relation

to the accreditation, certification or professional conduct of professions and trades.

Federal law or provincial law prevails to the extent of a conflict with K’ómoks law

under that first paragraph I read.

John Rustad : I’m just wondering, as we move forward with this…. Obviously, in municipalities,

other treaty nations, debt accumulation or access to capital is critical. I see that

we have provisions here in terms of accessing long-term debt financing. Are these

provisions the same provisions that have been laid out in the other modern treaties?

As I remember, when we originally set up Tsawwassen, we had to do some modifications for Tsawwassen to allow them access to certain financing tools. So I’m just wondering how comprehensive

this is in taking into consideration the experiences of other treaty nations.

Hon. Spencer Chandra Herbert : Well, sort of similar, but K’ómoks will not be able to borrow from the Municipal

Finance Authority. However, there are new provisions in this treaty created in such

a way that it will allow K’ómoks access to the First Nations Fiscal Management Act,

through the federal system, so that they can access the pooled resources there for

borrowing, as other nations or bands are involved in.

John Rustad : Just to confirm, I think I understand the answer to this question. But it’s one that

comes up from time to time. It’s just in terms of default on debt and liabilities

or assets that could be accessed by a creditor.

Obviously, when municipal governments borrow, if they get in trouble, they have to

raise taxes, that side of things. However, it’s a little different in terms of the

structure, I think, within the band. As we get into the land question, I’m going to

be asking about ownership of the land and how that structure works.

I’m just wondering. If the band is unable to make payments on borrowed money, what

structure is put in place to enable a creditor to be able to be kept whole in terms

of the money that has been lent to the nation?

Hon. Spencer Chandra Herbert : Sort of similar to the Municipal Finance Authority, just in terms of working with

First Nations governments, there are similar provisions in terms of requirements if

you’re going to get a loan. There are requirements on the person requesting a loan

or, I guess in this case, the government requesting a loan. If they don’t meet those

tests, they won’t get the loan.

[5:15 p.m.]

If they get the loan but then don’t meet the payments, well, just like any other creditor,

your credit becomes due at some point. Then whether or not it’s…. I guess it would

depend on the arrangement and the agreement that was reached in terms of collateral

or payments or how that would be addressed.

Of course, each arrangement is unique in terms of each arrangement, so I can’t guess

at every one of them, but that’s roughly how it would work.

Scott McInnis : Shifting gears a little bit. I’d wanted to ask about this earlier, and just our line

of questioning kind of put us down this direction. I’m curious around the whole piece

around delegating law-making authority under the treaty. I’m not really sure how that

works, and I’d just like a little bit of clarification, if I could, from the minister.

The treaty does allow for K’ómoks to delegate law-making authority to other First

Nations, public institutions, local governments — other legal entities, perhaps. So I guess my question is: how broad is this delegation power intended to be?

I just find it interesting with delegating law-making authority to another First Nation.

Does that apply…? I’m just a little bit confused. Could the K’ómoks delegate law-making

authority to their neighbour, which then impacts their treaty settlement lands?

I’m just wondering if the minister could give us a high-level overview of how that

works, please.

Hon. Spencer Chandra Herbert : If the member turns to the self-government chapter, starting paragraph 32, it discusses

the delegation procedures, practices, as the member mentioned.

Just trying to think of an example that the member could connect with.

We talked about the First Nations Finance Authority earlier. One of the provisions

could be that if you’re going to get a loan, you must be willing to delegate authority

to us if you default on the loan, so that we could, I don’t know, require taxes to

pay for the loan. That might be one example.

Another example could be maybe…. And this is a consistent provision that has shown

up in the modern treaties that we have in B.C. Maybe there was a body. We talked about

courts earlier. Maybe the different nations agreed to create a body that was a court

to adjudicate their laws. There could be a delegated authority in terms of some of

the authorities to that court which would be shared with other nations, for example.

Scott McInnis : Yeah. I just find it interesting. I guess it’s more my lack of understanding of the

structure of how that actually works in practice.

I think just maybe another clarification question or two…. I’m just trying to wrap

my head around under what scenario or circumstance the K’ómoks would want to delegate

law-making authority away from their government, just so I can try to understand that.

[5:20 p.m.]

Could governance authority effectively be exercised by regional Indigenous entities

not directly elected by the K’ómoks members themselves?

Hon. Spencer Chandra Herbert : Delegated decision-making and delegated law-making authority are actually not that

unusual. The province of B.C. does that, for example, with municipalities, in terms

of giving that authority. It’s housed still within the province, in the sense that

we could take it back, but in the way the structure has developed over many years,

of course, the province has delegated that authority to local governments. I think

in the example I gave, it’s not just the law-making, but it’s also looking at administrative

authority.

So you could designate another to enforce your rules. I think we mentioned policing

earlier, for example. Maybe there was a group that decided in the region that they

wanted a local policing authority to work on treaty lands. There could be an agreement

with other local nations to build up that force and to have it apply. That might require

a certain amount of delegating authority to that body. That might be a common agreement

amongst nations.

In terms of the question, again, it’s about the treaty land itself; it’s not about

the wider region. Again, I think it’s important to note that the paragraph includes

that the delegation and the exercise of any lawmaking authority has to be in accordance

with this agreement and the K’ómoks constitution.

So there would have to be a number of changes made before the arrangement the member

suggested could legally even be possible. Right now it’s not possible, in the constitution,

to just give all your authority away, unless it met the test of the constitution,

which says the legislature and the executive are majority-elected, for example.

Scott McInnis : I appreciate that from the minister. I think using the example of municipal governments

was helpful. I was just trying to wrap my head around why K’ómoks would want that provision within the treaty. It’s just more of a case of interest

than anything else. These delegated entities — is it possible that they could create

regulations which would affect non-members on the treaty lands?

Hon. Spencer Chandra Herbert : Really, delegation cannot be used to circumvent the K’ómoks government’s responsibility and accountability to K’ómoks members and non-members, or to carry out obligations under the treaty.

[5:25 p.m.]

Earlier we had discussed about how non-members would have to be given a voice or find

a way that they can be consulted with, accommodated, depending on what sort of law-making

was being done at the local K’ómoks level.

Scott McInnis : Just a couple more quick follow-ups on this line here.

Before there are powers delegated externally outside of the K’ómoks government, is

there any provincial approval process that’s required within that?

Hon. Spencer Chandra Herbert : Under the “Self-Government”

chapter “Delegation”, certainly the only…. Agreement from

B.C. and Canada would have to be sought and would have to be received if there was

going to be delegation to any institution other than Canada; B.C.; a local government;

an Islands Trust body; a First Nation with a self-government agreement negotiated

with B.C. and Canada that provides for receiving delegated authority; another First

Nation government in B.C. or a public institution established by one or more First

Nation governments in B.C.; a K’ómoks public institution; or any law-making authority

of K’ómoks. That’s right.

So any law-making authority of K’ómoks may be delegated to those institutions, but

if it’s a legal entity outside of those institutions, that must be agreed to by the

parties. And, of course, also, if the delegated authority was for B.C., if Comox decided

to delegate that to B.C., of course, we would have to agree to take on that delegation.

Scott McInnis : Yeah, that’s interesting. Thank you for that.

I just wonder, then, what the process is if there’s delegated authority from K’ómoks

maybe to the province or to somebody else, if they have the unilateral ability to

revoke that authority themselves.

Hon. Spencer Chandra Herbert : Yes. So if somebody delegated authority out, they can claim it back in. However, of

course, in delegated decision-making and delegated authorities, usually there is an

orderly process where a legal agreement would’ve been struck to explain how transitions

were to happen, notice periods, etc.

John Rustad : I’d like to ask just a few questions around the administration-of-justice component

of the treaty.

Just starting off with the…. My understanding reading through this is that the nation

has the ability to be able to enter into negotiation and enter an agreement with other

police forces, whether it’s a municipal or a provincial police force, to be able to

provide those services.

[5:30 p.m.]

I wonder if the minister could just clarify if he understands it’s the intention of

the K’ómoks Nation to do that, or over time, is it the intention of the K’ómoks Nation

to have its own law enforcement officers?

Hon. Spencer Chandra Herbert : I’m not aware of an interest in establishing their own police force for the K’ómoks Nation.

The treaty doesn’t speak to the ability of a First Nation to start their own police

force. It does refer back to provincial law. Of course, the member will know First

Nations can apply to the province to establish a designated policing unit, in accordance

with the Police Act.

But I don’t know of their intent to or not. Sorry, I can’t help the member there.

John Rustad : It was more out of interest, just to know where they’re going. Obviously, there are

provisions in here in terms of being able to provide training and that whole side

of things.

I’m just looking at it also from the perspective of enforcement of K’ómoks law. Obviously,

K’ómoks is going to create a number of laws for its people, governing its people on

its lands. It says that K’ómoks is responsible for enforcing those laws, but it also,

later, talks about the fact that a police force, police officers, may be able to, at their discretion, enforce those laws.

So I’m just wondering how they’re going to handle that in terms of enforcing the laws

that they’ll create on the land, how that’ll work and whether or not there has to

be some sort of negotiation that creates the ability for those laws to be enforced.

[5:35 p.m.]

Hon. Spencer Chandra Herbert : As mentioned earlier, of course, police services are responsible for enforcing provincial

law and federal law. In terms of K’ómoks law, a police service may, in its discretion, enforce that K’ómoks law.

The treaties also allow the province and the treaty nation to negotiate an agreement

for K’ómoks enforcement officers to enforce provincial natural resource laws, similarly for provincial

enforcement officers to enforce treaty nation laws on the treaty lands.

John Rustad : I think I heard the minister talk about enforcement officers. I’m assuming those

would be officers that would be the responsibility of the K’ómoks Nation to be trained and given the authority to enforce those laws.

I guess just a couple of questions. One basic question that I’d like to ask is whether

or not those enforcement officers would have the ability to carry firearms or other

types of equipment that a normal police officer would be licensed to be able to utilize

and carry.

Hon. Spencer Chandra Herbert : In the “Administration of Justice” chapter, heading “Enforcement of K’ómoks Laws,” paragraph 30:

“The parties agree as a general principle that K’ómoks be in a position to support the safety of K’ómoks enforcement officers, having regard for federal and provincial legal frameworks with

respect to non-restricted firearms, restricted firearms, prohibited firearms and prohibited

weapons, in a manner that is comparable to federal and provincial enforcement officers

enforcing similar laws or performing similar duties in B.C.”

So very much the principle is that we want to make sure that K’ómoks enforcement officers have the same abilities and same safety and same requirements

as we would expect to keep our provincial enforcement officers safe as well.

John Rustad : More what I’m trying to get at, I suppose, on that, is the training of these enforcement

officers. Obviously, K’ómoks Nation has the opportunity, I believe, to be able to train their own officers, but

it may require outside.

I’m just wondering about the standards of training, whether it’s the same as the Justice

Institute or how that would be structured, or whether the province would potentially

provide that service for a fee to be able to train those enforcement officers.

[5:40 p.m.]

Hon. Spencer Chandra Herbert : Paragraph 34 under “Enforcement of K’ómoks Laws.”

“If K’ómoks appoints K’ómoks enforcement officers in accordance with K’ómoks law under paragraph 26, K’ómoks will (

a) ensure that those officers are adequately trained to carry out their duties,

having regard to training requirements for provincial or federal enforcement officers

carrying out similar duties in British Columbia; (

b) establish accountability standards

similar to those established by Canada and British Columbia for its enforcement officials

enforcing similar laws; and (

c) establish and implement procedures for responding

to complaints against those officers.”

John Rustad : I’m just wondering whether.... Sorry, the point of the question that I had asked the

minister was around who pays for that training. I’m assuming it is the nation itself

that pays, but obviously, that’s a service that could be provided by the province.

If that’s something that’d be done through negotiation….

Hon. Spencer Chandra Herbert : As would be expected, yes, K’ómoks Nation would be responsible for the training of its own enforcement officers.

John Rustad : Earlier we talked about a police force being, at their discretion, required or having

the opportunity to implement K’ómoks law. I’m just wondering. Would there be additional training or other types of recognition

or certification that would be required by K’ómoks for those officers to be able to provide those services, and if so, would that be

something that would be once again provided for and paid for by the K’ómoks Nation — to provide that additional training that would be required of a police force?

Hon. Spencer Chandra Herbert : There are at least two paragraphs that speak to this issue.

Paragraph 6 says: “K’ómoks and the chief of police will discuss objectives and operational matters that may

affect the scope, content and delivery of any cultural training program developed

under paragraph 5 prior to finalizing the program.”

And: “At the request of British Columbia or K’ómoks, B.C. and K’ómoks will negotiate and attempt to reach agreement regarding the delivery of any cultural

training program developed under paragraph 5, including the timing, duration, frequency

and delivery method of the program.”

If the parties are unable to reach agreement, treaty dispute resolution mechanisms

would be triggered.

Scott McInnis : There was something that I flagged initially when I was looking through the treaty.

I’m sure it’s a simple point of clarification for me, or I’m misreading it, perhaps,

as well.

Under the “Administration of Justice” paragraphs 40 and 41, paragraph 40 says: “Notwithstanding

paragraph 19,” relating to enforcement of laws, I believe, “provincial enforcement

officers have the authority to and may at their discretion enforce K’ómoks law respecting lands and natural resources.” That’s followed by paragraph 41, which

says that K’ómoks may make laws to limit the authority of provincial enforcement officers under paragraph

I’m not sure if it’s just me. I find those to be a little bit contradictory. If paragraph

41 is true, where authority of provincial enforcement officers has been limited under

law by K’ómoks, do they still have the authority to and at their discretion enforce K’ómoks laws respecting lands and natural resources, as it says in paragraph 40?

I hope that makes sense. I just wanted some clarification because I did flag that

earlier as something I found that would be a little bit contradictory.

[5:45 p.m.]

Hon. Spencer Chandra Herbert : To clarify, I can understand why the member found them potentially contradictory.

I don’t think they are because what 40 does is it says the default is that the provincial

enforcement officers may in their discretion enforce K’ómoks law.

Now, 41 says that if K’ómoks made laws to limit the authority to say, “No, in fact, only K’ómoks enforcement officers are going to enforce K’ómoks law on our treaty lands. You can enforce provincial laws, but our K’ómoks enforcement team are responsible for K’ómoks laws,” that would be the difference potentially.

It’s possible, of course, that provincial enforcement could do them all at their discretion,

but 41 says that if other laws were made, that discretion could be shrunk to just

provincial laws, for example, or maybe some K’ómoks laws but not all of them.

Scott McInnis : I’m assuming that this just applies to the treaty settlement land. Just to clarify

that when enforcing provincial law, enforcement officers would have the authority

to enforce provincial law. Would they need any sort of permission or acceptance from

K’ómoks to be able to do that if they found that, in fact, there was an infraction or something

or if, perhaps, they were called upon by a community member to enforce authority over

something to do with land and resources?

Hon. Spencer Chandra Herbert : Under the paragraphs we’re discussing here, it’s very clear — at least in my mind,

overall, and I’ve said it many times — that provincial law is provincial law, and

provincial enforcement officers have the obligation to follow that law and enforce

that law. Of course, if the treaty is a law as well or the treaty act becomes a law,

there are certain provisions in terms of how things could be modified — in seeking

agreement from other agencies, for example.

There are other possibilities, but very much provincial law is provincial law. Provincial

enforcement is expected, and the only area that K’ómoks law, as discussed, could either be enforced through provincial enforcement or not

would be if K’ómoks passed a law to say that these laws are for enforcement of this body and these laws

are enforcement of somebody else, for example.

John Rustad : Just one question or maybe more than one in terms of the implementation of provincial

law with respect to natural resources within the K’ómoks territory.

Everything we’ve been talking about before so far to date has been the implementation

of K’ómoks laws and provincial laws on K’ómoks land. Number 16 has a reference that British Columbia or K’ómoks may ask to enter into negotiation in terms of the implementation or the enforcement

of provincial laws respecting natural resources.

[5:50 p.m.]

I’m just wondering what the expectation there is in terms of what those negotiations

could look like and what might be the ask from either party to be able to provide

in terms of those services.

Hon. Spencer Chandra Herbert : Yes. At the request of K’ómoks or B.C…. Either party could request a negotiation to attempt to reach agreement on

an agreement for K’ómoks enforcement officers to enforce provincial law, respecting natural resources within

the K’ómoks traditional territory or the treaty area.

To reach an agreement would involve things like ensuring safety standards, justice

standards, training, similar issues to what we discussed earlier in terms of meeting

a standard to be able to enforce a law. You have to have certain designated training

and abilities to meet that test, but that would be a negotiation. If that request

came through, there would be a serious look at that issue.

I know there are many nations, for example, that have guardian programs where they

have people out on the land doing that kind of work as a natural enforcement officer.

But of course, that would take some serious negotiation before that became the standard.

John Rustad : I appreciate that. I was just wondering specifically around the natural resources,

what that would apply to. Does that apply to enforcement of, for example, the Forest

Act or perhaps hunting, these types of things that would be happening associated with

resource activities within the traditional territory?

Hon. Spencer Chandra Herbert : If an agreement was reached, there could be a very similar approach to provincial

enforcement officers, who are doing things like watching for the wildlife, for water,

for forestry, land-based values, land-based laws and water-based laws too. In terms

of how that enforcement would happen, it would be very much similar to the approach

currently taken by provincial enforcement officers.

Scott McInnis : I just want to ask a few clarification questions around local government relations

in the treaty, starting on page 81. I’m just reading through it. I did make notes

of a couple of general questions I was hoping to have clarified here today.

I’m just wondering about potential governance disputes that could arise, perhaps,

between the K’ómoks government and nearby municipalities, and how those would be resolved — thinking particularly

around land use, servicing, taxation, infrastructure, things like this. What is the

dispute resolution mechanis