Third Session, 42nd Parliament

(2022) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Tuesday, October 18, 2022

Afternoon Sitting

Issue No. 231

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Orders of the Day

Second Reading of Bills

Bill 33 — Food Delivery Service Fee Act

Hon. R. Kahlon

T. Stone

T. Halford

M. Dykeman

H. Yao

S. Chant

Hon. R. Kahlon

Committee of the Whole House

Bill 30 — Cannabis Control and Licensing Amendment Act, 2022

Hon. M. Farnworth

M. Morris

E. Ross

M. Lee

Report and Third Reading of Bills

Bill 30 — Cannabis Control and Licensing Amendment Act, 2022

Committee of the Whole House

Bill 32 — Gaming Control Act

Hon. M. Farnworth

M. Morris

T. Shypitka

M. Lee

Reporting of Bills

Bill 32 — Gaming Control Act

Third Reading of Bills

Bill 32 — Gaming Control Act

TUESDAY, OCTOBER 18, 2022

The House met at 1:34 p.m.

[Mr. Speaker in the chair.]

Orders of the Day

Hon. R. Kahlon: I call second reading on Bill 33, Food Delivery Service Fee

Act.

Second Reading of Bills

BILL 33 — FOOD DELIVERY SERVICE FEE ACT

Hon. R. Kahlon: I move that the bill be now read a second time.

I’m pleased to present Bill 33, the Food Delivery Service Fee Act.

Bill 33 will replace the temporary food delivery services order under

the COVID-19 Related Measures Act.

The food delivery services order was enacted in December 2020.

This was at a time when restaurants were seeing more and more of their

business transitioning from in-person dining to takeout and delivery. Up

until that point, restaurants were at the mercy of food delivery

platforms, paying high service fees up to 30 percent, sometimes 40

percent, as they tried to survive.

[1:35 p.m.]

The food delivery services order put in place limits on how much a

restaurant could be charged by the platforms. The limit, under this

order, was capped at a total of 20 percent: 15 percent for the ordering

and delivery service, and 5 percent associated with administrative

costs.

As you all know, in recent times, the restaurant industry has

faced unprecedented challenges — first the pandemic, and now supply

chain and labour shortages. They’ve shown amazing resiliency to stay

nimble and implement health and safety plans. I would like to take a

moment to thank all the restaurant owners and staff across this province

for following public health guidelines and doing their

part in keeping

our communities safe.

Bill 33 will offer restaurants continued stability, and this 20

percent cap on core services of ordering and delivering will always be

an option for them. This bill also allows for delivery platforms to

innovate and offer enhanced services to restaurants, as long as the base

offer of 20 percent is always an available option. Delivery service is

the new norm, and it’s expected to remain an important source of revenue

for the restaurant industry.

[S. Chandra Herbert in the chair.]

Bill 33 will help restaurants continue to recover from the

hardships of COVID-19. By enacting Bill 33, we will position restaurants

to maintain their profitability and their ability to offer jobs to a

diverse workforce across this province. The act will also continue the

driver protections from the temporary order. This means a driver

delivering for a food delivery platform subject to this act will not see

their compensation reduced as a result of the fee cap being made

permanent.

It is the policy of this government that all workers, regardless

of official status with their employer, are protected and compensated

fairly. Bill 33 allows for portions of the legislation to be enacted

through regulation. By doing this, we’re ensuring that this act will be

adaptable to changed business climates for restaurants in the future.

This legislation is just one of the many actions that we’ve taken to

support small businesses and restaurants over these unprecedented

times.

We’re continuing our commitment to the restaurant industry to help

them recover, to help them continue to grow and help them serve

communities across this province. I hope members from all sides of this

house will join me in supporting our restaurants as we celebrate this

week, Small Business Week.

T. Stone: I appreciate the opportunity to rise and offer some comments on

Bill 33, the Food Delivery Service Fee Act. I thank the minister for his

opening comments there. I will say at the outset that our caucus is

supportive of this legislation. We as a caucus made a very clear

commitment to the restaurant sector, the hospitality sector, in relation

to delivery fees in the last provincial election.

I’m also very proud of the work that my colleague from

Surrey–White Rock did on this file. It was actually the member for

Surrey–White Rock that brought forward a private member’s bill that was

a very commonsense, focused, very practical solution to cap delivery

fees. I think he really lit a fire under the government on this, which

resulted in the government bringing forward the legislation that it did

during the pandemic.

So hats-off to the MLA for Surrey–White Rock for his advocacy on

behalf of not just his caucus colleagues but, I think, all British

Columbians who own and operate or work for or supply a restaurant and

others in the hospitality sector.

You will probably hear this theme through comments that other

members will make in speaking to Bill 33. But it’s obviously no surprise

that during the pandemic, there were, perhaps, few sectors that were

impacted more significantly than restaurants and those in the

hospitality business. In fact, we all can recount conversations and

meetings and stories that we all had as legislators with restaurants in

our local communities and others in the hospitality business who

struggled, like others did in other sectors. But restaurants and

hospitality sector businesses were impacted, in many cases, at a much

deeper scale than other types of businesses were.

[1:40 p.m.]

Regrettably, there were many, many of these restaurants and

hospitality sector businesses that didn’t make it, that unfortunately

ended up having to close their doors, and they are not in existence

anymore. Thankfully, the vast majority were able to survive, and it’s a

testament to the resiliency of everyone in the restaurant and

hospitality sector. It’s a testament to the work ethic, the focus, the

entrepreneurial savvy that you see in people that own and operate and

work for restaurants.

There was also a heartwarming aspect that we all saw and felt

during the pandemic, in often very dark times during the pandemic, when,

clearly, there was a strong, strong public desire to support their local

restaurants. A lot of the impetus for moving forward with delivery caps

was really instigated and was really accelerated through, I think,

public pressure, public calls for these kinds of measures to be put in

place.

There was a huge increase, obviously, in the use by the public of

food delivery services, whether your Uber Eats or DoorDash or others.

There was a huge interest and demand for food delivery. People wanted to

support their local restaurants. They wanted to see these little local

establishments make it through the pandemic, so they utilized these

delivery companies and the services that they offer in order to support

their restaurants.

As part of that, it was also made very clear by the public that

there is an expectation that fees charged to restaurants for those

delivery services be fair, that they be reasonable, that they be

balanced between the profit interest of the delivery companies involved

and the financial viability interests of the restaurants that were

dependent on these delivery companies. Therein was the genesis for the

delivery cap legislation during the pandemic. It’s a positive step that

the government is moving forward to make this a permanent reality,

moving forward.

As I said, over 11,000 jobs…. We’re still down about 11,400 jobs

in the hospitality sector today from where we were before the pandemic

hit.

I want to just touch on, in relation to this — again, along the

theme of supporting small business — how important it is for measures

like this as provided in Bill 33 to always try as hard as one can —

especially when you’re in government and you have the levers of power

and have the ability through policy and legislation and tax — to

actually make decisions that really, truly can impact small businesses,

restaurants and hospitality businesses in particular, in such a

fundamental way.

That being said, a survey by the Canadian Federation of

Independent Business this past September regrettably found that the B.C.

government is the worst in Canada when it comes to understanding the

needs of small businesses. And 88 percent of small businesses said that

they felt that this government was ignoring their needs.

Additionally, this CFIB survey found the following top priorities

for B.C. businesses. As businesses and their organizations always do,

they propose solutions — they don’t just complain in a vacuum; they

propose solutions as well — and 63 percent of these businesses surveyed

want to see their overall tax burden reduced. Fee caps is one cost of

doing business. So as I said, we are acknowledging a positive step here.

It was, again, something that we proposed in a private member’s bill

prior to the government taking action on it, so we support

this.

[1:45 p.m.]

The overall tax burden of small business is too high. Small

businesses, I think rightfully, have said over and over to this

government that there needs to be some work done to determine where some

tax relief can be provided in other areas. That would have a very

positive impact on the viability of restaurants and hospitality sector

businesses, as well as other small businesses.

Fifty-nine percent want to see the health care challenges in

British Columbia resolved; 58 percent, very notably, want B.C’s. labour

shortage to be addressed. When you dig a little deeper on that one, you

realize that the looming and growing labour shortage, while it’s

impacting virtually every sector in our economy, is perhaps more

pronounced with small businesses in the hospitality and the restaurant

sector than almost anywhere else.

Yet there doesn’t appear to be a cohesive, focused strategy on the

part of this government to address the labour shortage that so many of

these restaurants and hospitality sector businesses are facing. A

strategy focused on that, a strategy focused on the overall costs, the

cost burden that is on the shoulders of these businesses, would be

greatly welcomed by businesses in this sector.

In closing, again, I want to acknowledge that we are supportive of

this legislation. Certainly, there will be a range of more technical

questions that we will canvass in committee stage on this bill, and

we’ll have a very thoughtful, respectful exchange to that end. But as

part of second reading, we do think this is a good step in the right

direction. This will be of benefit to restaurants and others in the

hospitality sector.

I should point out, as well, that in conversations with a number

of the delivery companies, the general sense seems to be that a decent

balance has been struck here. Did the delivery companies get everything

they wanted in this legislation? No, they didn’t. Should they have

gotten everything they wanted? No, they shouldn’t have.

Overall, I think there’s a reasonable balance that has been struck

here in recognizing, first and foremost, the interests of the small

businesses, the restaurants and those in the hospitality sector and the

important need for government to focus on doing all it can to help with

the long-term sustainability and viability of these small businesses,

all the while recognizing that that approach does need to take into

consideration other interests, most notably those of the delivery

companies as well.

With that, I will look forward to an exchange in committee stage

on a more detailed analysis,

section by section. We’ll look forward to

doing that, and I will now take my seat.

T. Halford: I want to echo the remarks from my colleague from Kamloops. This

legislation, I think, is a good step. I think it’s important that we

take a moment and realize how we got here.

The fact is that this has been an incredibly trying few years for

the hospitality sector, specifically the restaurant sector. I say that

with firsthand knowledge. I know there are other colleagues in the

House, and I know the minister, who will share the sentiment.

Growing up, it was a restaurant owned by my mom that put food on

our table. It was that restaurant that helped me pay for my hockey. It

was that restaurant that when I became the delivery driver for her,

helped me pay for my university. So it’s a sector I know well. I think

it’s a sector in British Columbia that has a great legacy, but it’s also

a sector that, as I’ve just stated a moment ago, has been hit incredibly

hard. When you look at things….

[1:50 p.m.]

I had the opportunity…. I was elected in October of 2020, as many

other colleagues that are here today. I will say this was an election

promise, I think, made by both sides of the House. It was one that we

understood at the time was important. We’d been hearing this from the

sector itself numerous times, that this was a struggle. This is why I

did bring in a private member’s bill in that fall session of 2020,

because, to me, we needed to take action.

I will remind the House and those that are tuning in that one of

the most important times, if not the most important time, for the

restaurant sector is the holidays, is the month of December. For that,

they have holiday parties to plan. They’re rented out.

Even though there was restrictions faced on people attending or

gathering inside of restaurants, there was still an opportunity for

restaurants to try and make up some of their losses through takeout. I

know that in our family, we relied very heavily on some of the

restaurants around us for our meals. Every single time I went in to pick

up, we heard what a struggle it was, given the legislation that we’re

talking about today.

Like I said, I think this is a good step in the right direction,

and obviously, we’ll canvass this during committee. But I’ve always

said, and I’ll say it again, it is never too late to do the right thing.

I would have wished, though, that we had the opportunity — whether it’s

somebody, a private member, from this side of the House or the other

side of the House — to act with a little bit more urgency. We could have

moved much quicker and provided relief quicker to the sector that I

think we all acknowledge in all our communities could have used it at

that time.

Again, I want to thank the Chair for the opportunity to speak, and

I look forward to more discussion.

M. Dykeman: The stairs in this building continuously remind me that I’m not in

as great shape as I could be. Oh boy.

Thank you for the opportunity to speak to Bill 33, the permanent

food delivery cap. This is a bill which I was excited to see come

through. One of the challenges that we’ve been facing as a society is

rising food costs, and that’s something that’s been seen around the

world. As a farmer, I’ve noticed that when I go to the grocery store,

you see such higher prices on just the staples.

I had this conversation the other day with my father. We were

talking about the old $25 basket. I’m not sure how many people here…. I

recognize that I’m looking at a few of my fellow members, and I think

they would…. They’re in the same age group that would allow them to

remember that. I’m not sure that I was ever alive when it was $25, but

we would talk about that. For $25, you could get all the staples you

needed for a week — bread, milk, butter, cheese. So $25 now I think gets

you the reusable cloth bag and some Mr. Noodles maybe, if you’re

lucky.

There are certain stores where you walk in and when you walk out,

it’s impossible to walk out for $100. I’m not sure how that happens.

When I go into a store and purchase three things, none of which were

probably on my list, I walk out remembering that I had forgotten about

something I previously went in there to buy, and it still comes to $150.

That is one of the things that really mystifies me.

We’re sitting in a time where, all joking aside, we have really

serious challenges with affordability facing the world, and food is

specifically one of them. Like I said, as a farmer, we see the costs

rising at our end, and then when they go to the store, we’re seeing that

translated through. And it’s all of the costs that go along with

that.

Through that, though, one of the things our government has

recognized is that there’s a need to support the restaurants to ensure

that the prices are affordable and that the delivery companies aren’t

charging exorbitant fees.

During the pandemic, meal delivery service really blew up and

became quite popular in Langley, and as a single mother, I can say that

it is really convenient to be able to order food when I’m on my way home

here from the Legislature and have it meet me at the same time as my

family and be able to enjoy a sit-down meal.

[1:55 p.m.]

With that demand, often you see an increase in costs. So it

changed the dining habits, and people really pivoted towards food

delivery services as an additional way to support their

customers.

When I go to local restaurants in Langley, I see restaurants

serving those 50, 60 tables that are in there but also, at the same

time, having the opportunity to diversify their income, to support the

delivery model, which has, I think, in many ways — actually, I was

contemplating this the other day — opened some really interesting

is going on in your life, and you can’t go to a meal. You’ve got that

option to have that food come to you, all cooked.

It opens up a wide array of different food choices. Growing up, it

was pizza — get that delivered. And maybe Chinese food was another one

that was often delivered. But now it’s any restaurant. You can get

anything you want delivered to your house.

Our government first put in place a 15 percent temporary cap on

food delivery fees, and we also introduced a 5 percent cap on additional

fees, for a total cap of 20 percent. And that temporary cap is set to

expire at the end of this year. So this legislation that’s being

introduced is to ensure that this cap is permanent.

It will give restaurants some certainty, and that certainty will

help them be able to understand their costs, going forward. And it

protects them from being charged unfair fees. It also allows food

delivery companies to innovate and provide tiered pricing models and be

able to offer enhanced services, like marketing and web design and data

analytics, outside of the fee cap.

It really is interesting. When I started working, my first

industry I worked in was the food industry. It was a great job. In many

ways, I really miss some of the aspects of it. I was very much into show

jumping horses, and I was looking at building the farm out here. The

food industry allowed me to work very flexible hours and in quite a

social environment, which is actually not that dissimilar to politics.

It allowed me to work different hours to support the interests and

hobbies and career path I wanted to take.

One thing about the food industry is that it wasn’t a very

innovative place. It was pretty predictable. Not much changed in that

area. So seeing the rate of innovation that we’re seeing now with the

opportunities that presented out of the pandemic is interesting:

changing delivery models — something that I hadn’t seen, in the years I

worked in there, change for a very long time — changing how the market

is tapped into, how you market to your customers, the services you

offer. The concept of apps being used so much related to the service

industry is really an interesting thing, because like I said, it’s been

a pretty stagnant market all those years.

One of the questions that, actually, I was asked is: why are

certain business types excluded from the cap? The cap protects

restaurants that were most affected by the COVID-19 pandemic

restrictions and changed consumer behaviors. These businesses had to

increase their reliance on food delivery companies and required

protections from the high fees.

The primary function of the coffee shops and juice bars is not

food preparation, so they do not rely on food orders in the same way as

traditional restaurants, and therefore, they don’t require the same

protection. Since food trucks have always been an outdoor-accessible

thing — they have not relied on in-restaurant dining — they weren’t

affected by pandemic restrictions or changed consumer behavior in the

same way. Food trucks may also not have a fixed address, which

determines eligibility under the restaurant count.

[2:00 p.m.]

Thinking about that with the food trucks — this is kind of a funny

story — I was recently at the Fort Langley Cranberry Festival. They said

that they had expanded it to look at things that people really…. It’s

sort of based on demand, and it has changed year after year.

One of the things that has struck me since the pandemic, and then

going to this event this past weekend, is that when I arrived there,

seven-eighths of the whole area of the Cranberry Festival was food

trucks. There was a young boy running down the road, who said: “I’m so

excited. I can’t believe it. Mom, look, my favourite thing is here.” He

rounds the corner, he stops, he puts his hands on his face, and he says:

“Mini doughnuts.”

Thinking through the pandemic, the food trucks actually offered a

really neat way, as we were dealing with restrictions, for people to

still get out and enjoy the things that they loved. I was really quite

amused at looking at all the different ways that the food trucks created

an entire activity for people to go to. In one of the very early ones,

they had food trucks set up, and it created almost a drive-through maze

with entertainment. It became this thing that people looked forward

to.

I was having coffee with one of my friends recently, and they

said: “I really hope that as we come out of the pandemic, we’re not

going to part ways with the food truck events.” Really, if you think

about it, is that anything you ever would have thought you’d have lived

to hear, a couple of years ago? People were ecstatic about a food truck

maze with entertainment. It really is interesting to see the things that

have become sort of entertainment events for people since the COVID-19

pandemic restrictions have started to ease.

One of the things, too, that is obviously a concern with anything

where you have a cap is how it will affect people that work in the area.

One of the questions was: will delivery drivers see reduced compensation

from this permanent cap? No, there is going to be added driver

protections to the legislation, to ensure that driver compensation is

not impacted by the fee cap and developing a new enforcement model, to

be paired with this legislation, to ensure that companies abide by

this.

That’s the thing about anything new. When we talk about

innovation, you aren’t able to easily predict how something is going to

evolve — like that the delivery service programs would be pushed to this

level of popularity, with food delivery. That’s one of the things that

came out of the challenges faced in the pandemic: there was added

pressure and an added interest in people having the flexibility to have

food delivery.

I have to say that I’m really quite a fan of having my coffee

arrive at my office before I get there. It makes me a nicer person, and

it makes the day go a lot smoother, if there’s coffee waiting there. And

you’re still able to support a local business, which is such an

important thing.

I always smile when I see how many of the local small businesses

have been able to open up and reach new markets they’ve never seen

before — which really helps support our Buy Local, Support Local — and

local shops being able to expand their market when they maybe couldn’t

expand their physical space. You know, it’s one of the challenges when

you’re a small business. You have a small area; you really aren’t going

to be able to access new seats. So you’re able to reach a new market

through innovation, through apps where you have food

delivery.

One of the other questions that somebody asked me was: “What

action is the government taking to develop the strategy?” I just have to

say that I’m sitting across from and looking at somebody who has put so

much work into it, Parliamentary Secretary Walker, who led so much of

this work and led consultations on the fee cap that’s now in place for

food delivery services, meeting with food delivery companies, worker

representatives and stakeholders from the restaurant and licensed

sectors. It’s a critical part of the regulation to protect food delivery

drivers by prohibiting companies from reducing drivers’ compensation to

adjust to the fee cap.

[2:05 p.m.]

In the coming weeks, the parliamentary secretary will have a lot

more to say about the new public engagement and gathering of

information. There was a lot of work put in in there. I really

appreciate the work that was put in by the parliamentary secretary in

this area and all the consultations that took place in this area that

the parliamentary secretary had undertaken, because it was a big

job.

It was something, really. He led a lot of that strategy and work

just to see us here today, in that area. I just wanted to say that it

was really great to see that, because I know it’s an area that he

appeared very passionate about. With that, it really has been a

privilege to be able to stand here and speak in favor of this bill. Like

I said at the beginning, we are facing high food costs, a changing

demographic, a changing industry and evolving in innovation.

As a group, as a province, we have to be prepared for changes, and

the folks that have worked so hard on this really have, in my opinion,

come forward with a fantastic plan and an opportunity to protect the

people that work in the sector, the restaurants and the local businesses

while supporting innovation, so that it’s not stifled. I’m really

excited to see opportunities for businesses to reach new markets and

take the benefit of the opportunities that come from innovation, while

also ensuring that those that could be negatively affected have some

security around them.

I really appreciate the opportunity to speak to that today. With

that, I’ll take my seat, hon. Speaker.

H. Yao: Thank you so much for allowing me to have the opportunity to

speak. I want to add a supplement to a previous speaker’s comment —

about December being the busiest month for restaurants — just to let him

know that in Chinese culture and a lot of Asian cultures, February is

also one of the busiest months for restaurants. Just food for

thought.

Today, I’m just grateful to be able to stand up talking about a

limit or food cap and making it permanent. For my family and me —

especially my wife, because we now have two under two — cooking often

isn’t an option. One thing we have noticed is that when we go through

Uber, Fantuan or SkipTheDishes when we order food, some of the

restaurants have actually started reducing the size — which I

understand; that covers some expenses.

We also need to now look at different families when they’re

dealing with deliveries — when they are not able to actually cook a meal

for their family, when a family has been challenged or when a

professional family is trying to take care of their family

themselves.

We want to make sure that there’s a fair playing field for our

delivery companies. When we’re talking about food deliveries, I think we

also have to realize that those big, major companies aren’t really

located in Vancouver. They aren’t located in British Columbia. There are

big, international corporations that often draw their financial success

into their respective jurisdictions.

I think one of the benefits behind this 20 percent permanent fee

cap is to help our restaurant sector here, in our local community, to

thrive. I think one of the key factors that has been pointed out by our

minister in his bill is that only companies that serve 500 restaurants

or more are subjected to this bill. Smaller delivery companies and maybe

even localized delivery companies may be able to get away from this

requirement.

I do want to say that when the pandemic hit in 2020, a lot of our

restaurant friends struggled. There’s absolutely no doubt that food

delivery was a lifeline that was thrown to them. But we also saw, at a

moment of desperation, and we are still seeing — as many of our

colleagues mentioned earlier, we are seeking cooperation — that some of

our businesses are raising their delivery rate up to 30

percent.

We’re talking about restaurants that already have to pay overhead;

they have to pay staff. They’re doing their best, doing what is right,

by keeping their staffs working in the restaurant, cooking and preparing

delivery meals and still sending them out. Some of them often function

under a deficit. But at 30 percent–plus, sometimes, it could be — I

can’t remember the analogy — the weight on the back of the camel that

actually breaks the camel. We’re talking about restaurants’ struggles

under the weight of COVID. We don’t want any additional

burden.

[2:10 p.m.]

That is the thing that we do want to also emphasize. COVID-19 also

demonstrated that there is the potential growth of delivery services.

We’re looking at a gig sector. We’re talking about drivers. We’ve seen

them delivering food, giving people rides and sometimes delivering

groceries. I know T&T and many supermarkets got to participate in

grocery delivery as well.

We’re looking at different people actually delivering purchases of

products. Of course, we see different kinds of companies thriving in a —

I guess I shouldn’t be saying post COVID; we’re still in COVID —

post-recovery time frame.

We’re all trying our best to survive in this economy. I think it’s

great when different sectors and different industries work together and

complement one another to strengthen our economic success, but we have

to make sure it’s done in a way that complements one another.

I think this fee cap…. Again, going back to square one, 20

percent…. The sector has demonstrated it to be a reasonable limit to

set. It allows the delivery companies to continue to thrive but also our

local businesses, local restaurants, small owners, which are owned by

British Columbians — to continue to be able to deliver services, deliver

food products, deliver cuisines to British Columbians.

I’m going to go back to square one. Me and my wife also like to

order our meals at night — when my wife has spent the whole day looking

after the kids or sometimes when I come back home exhausted or for

whatever reason. To be honest, I don’t think my wife wants to trust my

cooking, but that’s a completely different point.

We want to be able to come back and really find a way just to have

a lovely meal together. We often reach out to delivery apps. We’re

looking at, again, Uber. We’re talking about Fantuan. We’re talking

about SkipTheDishes.

I think one of the key factors…. I’ve bought through many in the

past. We do notice the portions getting smaller and smaller. Sometimes

we have ordered extra portions just to balance it.

As my previous colleague spoke about very clearly, British

Columbians are dealing with a lot of challenges in affordability. I

think restaurants also want to build up their credibility. They also

want to maintain a strong, healthy business and maintain strong trust

between the customer and restaurant.

By allowing a fee cap to be maintained and not be able to grow

unnecessarily…. In our restaurants, we can find the balance when it

comes to food deliveries and in restaurant food products, to continue to

serve British Columbians, serve our families and still allow families to

be able to say: “You know what? I can’t afford dining out today. Maybe I

can even afford a little delivery in today as well.”

I also want to emphasize the simple fact that going out…. I’m

pretty sure that many British Columbians who are watching this right

now, with families, understand. Once we have young kids, going out is

almost like an operation. Everything is triple or quadruple the time

frame that is required. Exhausted moms and dads and all grandparents, at

the same time…. Sometimes we just really want to enjoy warm meals

together, and by limiting this delivery cap, the option continues to be

available.

It allows us to realize that it is something we can do to share

our joy, to share our happiness and to share our appreciation for the

services provided by our restaurant sector.

I think another thing, too, often is…. When my parents or her

parents or family, cousins, uncles, aunts come together to help us look

after the kids, help us look after the family, we also want to say thank

you to them. We would like to have a big family dinner and have food

delivered with a capped fee.

If you think about it, $200 worth of products for our family to

share…. That’s $40, for 20 percent of that. If you’re talking about 30

percent plus, that’s $60 or $70. It will make a lot of families think

twice before they’re willing to offer the opportunity to express their

gratitude to the family, to their friends, over a meal.

Today I just want to take a moment to say thank you to our

minister for bringing such a powerful bill. It sounds like it’s much

appreciated by both sides of the aisle. It’s a bill that is much

appreciated by our small business sector. Most of all, as British

Columbia is recovering from the economic challenges of COVID-19, let’s

keep our economy in B.C. Let’s focus on thriving, growing and allowing

the prosperity of our local restaurants and local businesses. This cap,

again, complements that strategy.

I cannot say much more, except I’m just very grateful that our

minister came out with a strategy to keep British Columbia moving

forward and to allow all British Columbians to prosper

together.

[2:15 p.m.]

S. Chant: Thank you for this opportunity to speak on the Food Delivery

Service Fee Act that has been brought to this House for

review.

I recognize that COVID did not bring us a lot of good things.

However, in my opinion, one of the good things that it did bring us is

the expanded market that restaurants got from delivery of food and from

the way that we got food delivered from a whole variety of places — that

that never used to happen.

I can sit in one of my favourite spaces in my area, which is

called Tommy’s. It’s a little tiny restaurant about the size of this

seating area. Tommy’s is a haven for folks that ride bicycles on the

North Shore Mountains, and it seats, I would say, 25 people at any given

time.

However, now Tommy’s has stuff being made on the premises and

going out by Uber Eats, by SkipTheDishes, by all those other service

deliveries and is offering options to a much greater customer base than

they ever did before. It’s making it so that they’re doing much better.

Also, in my opinion, their food is really good and really healthy. So it

is offering some very wide options to folks in our riding.

With this cap in place…. What it does is allow places like Tommy’s

to know what it’s going to cost them to have their food delivered and

for them to be able to plan that into their budgeting. Other things are

not able to be planned in so much anymore. They used to be able to sort

of say: “Okay. If we need to get a flat of” — let’s say — “cauliflower,

it’s going to be X amount.” Well, it could be X plus Y next week. So

those things have gotten out of control.

However, at this moment, putting this in place does allow them to

have some idea and some ability to plan on what their costs are going to

be, week over week, so that they can make things work.

Another place that’s in my area is the Wonderful Szechuan. Now,

Wonderful Szechuan, before COVID, had a really good delivery system.

You’d call them. They’d make up your meal. It would arrive. All was

well.

However, when COVID hit, they couldn’t do that anymore. For

whatever reasons, it did not work for their restaurant, so they actually

tried working with delivery drivers, delivery systems, and it did not

work for them. It just about broke them. They were very close to

closing, so they just stopped. They just stopped having any delivery at

all. We would go in and pick up from them.

They have managed to kind of scrape through. They are now back on.

Once we brought in the delivery driver cap last year, they slowly,

surely resumed it and are doing that again, and it’s working out very

well for them again, because, once again, it allows them an expanded

customer base.

I perceive that everybody who has a small business in the

restaurant industry — and any small business, quite frankly — is there

to not only survive but to thrive. In order for that to happen,

everybody in the chain that they are working in financially has to be

able to make some kind of income that isn’t enough…. The folks that are

doing the service, the folks that are doing the cooking, the folks that

are doing the delivering, etc., all need to make a decent wage so that

they, too, can have a life.

However, if one of those is out of whack, then it impacts all the

others in that chain. So this is an effort to make sure that that piece

of the chain is kept within a reasonable level, so that the other parts

of the food delivery process are able to also survive and

thrive.

The other piece that is really important to me — and I’d like no

comments back from my colleagues at a later date — is that I really like

to have a meal at home with no prep work and no cleanup. My husband

seconds the motion, because he is the culinary expert in our home and

has been for many, many years. If we depended on me for a meal, I’d be

somewhat slimmer than I am at this point, or a lot.

Interjections.

S. Chant: Shhh. Stop laughing.

[2:20 p.m.]

So for us to have a meal come in is lovely, to be able to have a

meal and, as my colleague was pointing out, enjoy each other’s company —

no prep, no cleanup — and to know when it’s going to arrive and know

what it’s going to cost. Initially, when the food service delivery came

out, again, the costs were questionable, depending on what delivery

service you used. It was generally a surprise when it got to the

door.

Now it’s manageable. We know what it’s going to cost. It’s going

to cost more than it used to. However, it is something that we can plan

for. It also allows us to eat at home and have an alcoholic beverage and

not be driving. To us, that is also important. We like to have a glass

of wine or, in my case, cider with supper or after supper, and this way

we stay at home. We’re not driving. The food is delivered. All is well.

We don’t have to sort of mix and match how we do things.

The other thing that is interesting here is that this applies

right across the board. You heard my mention of Tommy’s, which is a

little tiny place, maybe 20, 25 seats at the most. We have a Browns in

our neighborhood, which seats, I’m going to say, 70 to 100 people at any

given time. They, too, are doing food delivery, and they are subject to

the same cap as everybody else. It goes right across the board, from the

little, tiny places to the great big places, to the commercial places,

such as Kentucky Fried Chicken, which also delivers using a delivery

system — same cap.

It’s something that is able to be understood by the people that

are using it. It makes sense to the people that are receiving. It makes

sense to the people that are preparing the meals and sending them out.

It is something, I think, that we have gotten from COVID that, in fact,

is rather positive.

On that note, I think it’s time I stopped speaking. Thank you so

much for the opportunity.

Hon. R. Kahlon: For the guests in the House today that are watching the debate, we

are discussing a bill that puts a 20 percent cap on food delivery

companies so that they can’t charge restaurants more than 20 percent per

order. It’s something that we saw that was a real challenge through the

pandemic. We’re now making it permanent to ensure that our restaurants

can continue to survive, going forward, given that we’re in a new world,

where food deliveries are more and more common.

I’ll start with a comment made by my colleague across the way

about one of the things, one of the silver linings of the pandemic,

which is that people, more so now than ever, understand the importance

of supporting local, about buying local, supporting the local

restaurants. We saw that throughout the pandemic in every community. I

think there’s a good acknowledgment from every member, from every corner

of this House, how important it is to support the local businesses in

our communities.

I also heard from my colleague across the way, the member from

Kamloops, about this bill striking the right balance. I believe it does.

It puts a 20 percent cap on, but it allows businesses that want

additional services to be able to buy additional services, giving the

food delivery cap industry some flexibility to be able to create new

products but, at the same time, ensuring that businesses have the core

services capped at 20 percent.

Balance is something that we’ve struggled to do as a government.

We have worked hard to find the balance. Everything we bring forward, we

think of: how does this impact workers? How does this impact business?

How does it impact the environment? How do we find a balanced approach

on how we go forward?

Certainly, we know that this work started before the pandemic. The

member across the way mentioned pressures and taxes. There was a time….

I believe it was Gordon Campbell who promised to reduce small business

tax, and that never happened. In fact, it was supposed to happen.

Everyone was expecting it to happen, and then it was changed. The

decision was changed last minute. Of course, we have lowered the small

business tax. We lowered the small business tax when we formed

government.

Now, I’d also like to highlight a comment that was made around

supports through the pandemic. We provided the highest per-capita

supports for people and businesses through the pandemic. We were proud

of the supports. Of course, we didn’t have the same shutdowns as other

jurisdictions. In fact, Ian Tostenson, from the restaurant association,

highlighted that we had the least amount of business

closures.

[2:25 p.m.]

Deputy Speaker: Excuse me, Minister. I did believe I heard some unparliamentary

language from this side of the House. I may have misheard it, but I

would appreciate if folks tried to maintain some decorum in this House.

Thank you.

Hon. R. Kahlon: I appreciate your intervention, hon. Speaker.

Again, back to the supports. I think all members in this House

know how important those supports were. We chose to give grants to small

businesses because we knew not every business is the same — every

business will have unique needs — and we left it to businesses to decide

where the dollars needed to be spent during the challenging times. Quite

fortunate that we’re able to be in a position where we are today — where

we are one of the leaders in the country in our economic

recovery.

Of course, another point that was mentioned by one of the speakers

was around the challenge of labour. We know that labour is going to be a

challenge not only now but going forward. We’ll have a declining

population in British Columbia by 2030. We know right now that we have

more jobs in this province than we do people.

I have heard from some people saying: why do people not want to

work? I think it’s important to correct the record. It’s not that people

don’t want to work. In fact, we have 4.9 percent more employment now

than we did prior to the pandemic. We have record numbers of people

coming to British Columbia. Last year we broke the record: 100,000 net

people coming to British Columbia, the highest since 1962, since we

started collecting this data. The first two quarters of this year it’s

70,000 people, so on track to surpass even last year’s

record.

Lastly, I’ll say that I really appreciate that there is an

agreement in this House that sometimes intervention in the market is

needed. There was a time when this debate would happen in this House,

but it’s great to see that all political parties in the House now

realize that sometimes you need to intervene in the market. That free

enterprise piece that we used to hear about a lot is clearly not here

anymore.

So I appreciate the support. I look forward to the debate as we

move this forward.

Deputy Speaker: The question is second reading of Bill 33.

Motion approved.

Hon. R. Kahlon: I move that the bill be referred to the Committee of the Whole

House to be considered at the next sitting after today.

Bill 33, Food Delivery Service Fee Act, read a second time and

referred to a Committee of the Whole House for consideration at the next

sitting of the House after today.

Hon. M. Farnworth: I call committee, Bill 30.

Deputy Speaker: We’re just going to take a short recess as we prepare for the

committee on Bill 30, the Cannabis Control and Licensing Amendment Act,

The House recessed at 2:28 p.m.

Committee of the Whole House

BILL 30 — CANNABIS CONTROL AND

LICENSING AMENDMENT ACT,

The House in Committee of the Whole (Section

B) on Bill 30;

J. Tegart in the chair.

The committee met at 2:31 p.m.

The Chair: We’re dealing with Bill 30, Cannabis Control and Licensing

Amendment Act, 2022.

Would the minister like to introduce his staff?

Hon. M. Farnworth: Beside me, on my right, I have Mary Shaw, and Dylan Sherlock is

with me.

With that, I’ll turn it over to my critic.

On clause 1.

M. Morris: Just prior to getting into all the different clauses of the bill,

I guess an overarching question that I have that applies to the

legislation generally is: is this legislation, this bill, considered to

be laws of general application in British Columbia and enforceable on

First Nations lands?

Hon. M. Farnworth: Yes.

M. Morris: In consideration of government’s position with respect to UNDRIP,

I wonder if the minister can just relate the extent of consultation that

his ministry has undertaken with respect to following the commitment to

UNDRIP.

Hon. M. Farnworth: I thank the member for their question. These amendments are

technical amendments in nature and basically relate to the operational

effectiveness of the CSU. They’re not wide-ranging in terms of policy

changes.

We did have discussion with the First Nations Leadership Council.

We’ve also used this as an opportunity to continue ongoing discussions

in relation to the broader policy questions around cannabis.

[2:35 p.m.]

E. Ross: I sound like a broken record here, because we’ve been having this

discussion about UNDRIP for the past four years at least, in terms of

the commitments that were made by this government. Back then, the

discussion was that not only would every bill be consulted with in terms

of the legislation coming out of this building, but also, all the laws

would be aligned with the principles of UNDRIP.

I didn’t think that was realistic at the time, and actually, it

took a lot of debate in this house to actually get out of the Attorney

General at the last minute to say that UNDRIP or DRIPA would be in

accordance with

section 35 of the constitution and all the pursuant case

law. Now the government, when we asked this question on consultation in

terms of these bills, whether they be amendments or not, or whether it

be technical, the answer has changed, where….

Even at one time in this past year, I heard a minister say that

this bill really had nothing to do with the nature of Aboriginal rights

and title in terms of an infringement. So therefore, there was no

consultation accommodation in terms of the bills. This is the opposite

conversation that we had in this building when we were debating UNDRIP

in the first place.

Not only that. I didn’t think it was realistic for the government

to consult the true title holders in this province, which are 203 bands

in B.C. who hold onto their rights and title on behalf of their

community. In fact, it’s a community that owns the rights and title.

It’s not the leaders.

So to hear again from the Solicitor General that there was no

consultation as per the definition of UNDRIP, or even case law, for that

matter, that was determined in the courts of B.C. and Canada…. But also,

they went back to consulting with an advocacy group, with the leadership

council. The leadership council does not represent communities, and they

do not represent rights and title.

Is there any true consultation, as dictated by the courts of B.C.

and Canada and actually confirmed by UNDRIP, that was passed in this

legislation, proposed in the near future regarding this bill?

Hon. M. Farnworth: I appreciate the member’s question. I’d just like to point out

that all nations were in fact notified of the bill, were given an

opportunity to comment on the bill. There was active discussion — he’s

right — with the First Nations Leadership Council. They have a working

group on cannabis, in particular. Many representatives and nations are

on that working group part of the FNLC membership who have an interest

in the issue of cannabis.

[2:40 p.m.]

As I said, these particular amendments are technical. On the

broader discussion, absolutely First Nations are and will be consulted

on the broader cannabis issues.

E. Ross: Notification is not consultation. In fact, the process for

consultation is defined very clearly in the court cases that actually

dictate the duty and the honour of the Crown — specifically, the Haida

court case versus B.C. of 2004. It’s got to be a deep consultation. It

can’t be just notification, or it can’t be just a process for a First

Nation to let off steam and then the government goes back to decide

whatever they wanted to do in the first place.

Now, normally, I would agree with the Solicitor General in terms

of the technical nature of this bill. But using the government’s own

language when we’re debating UNDRIP, it was going to be taken to a

higher level. We’re talking about a higher level than, say, what the

court said about Chilcotin. Granted, the bill that was passed in this

House is very vague. It’s very general. A lot of the principles in that

bill have already been accomplished or are already in place for many

First Nations.

But the issue here is the legal definition of “consultation.” The

duty to consult was actually heightened by the government’s own

conversation around what they would do once UNDRIP was passed, and we

have not seen that commitment actually materialize here. All we’ve seen

are the reasons why this government didn’t consult the true titleholders

of B.C, which are 203 communities in B.C. The reasons we’re getting are

because there was notification or “we consulted an advocacy

group.”

I heard the Solicitor General say that there will be future

consultations. I don’t mean to put words in the Solicitor General’s

mouth, but there will be further consultations with the true rights and

title holders of B.C., moving forward on Bill 30, I believe. Am I

correct in saying that?

Hon. H. Bains: Hon. Chair, I seek leave to make an introduction.

Leave granted.

Introductions by Members

Hon. H. Bains: In the House, in the gallery, today is — I think many people in this

House know — Randeep Singh Sarai. He’s an MP from Surrey Centre, and he’s

been there for a number of terms. He came from a very strong New Democratic

family, but along the way, he slipped, I must say. But it’s all good. Not

one of you guys, not your types.

I just want to say that I owe a lot to the family of Randeep Singh

Sarai — his mom and…. We call him, with respect: [Punjabi was spoken.] She’s

a matriarch of our family, and his father is no longer with us.

This is the family that took me in and gave me the love that you don’t

find in a lot of places, including your own family, and supported me, showed

me the path, showed me the ways and helped me establish here in Canada. I

think everything that I am, I owe to this family.

I just want to say that he is here with some other members of the

family — Sarbjeet Kaur Sarai, his partner, his wife. Also visiting them from

India are Balwinder Kaur and her daughter Kulkiran Sarai Samra from

Minneapolis, United States, along with Kulkiran’s daughter,

Samya.

I just want to say Randeep Sarai has done a good job for Surrey, and

he’s here to show the family around.

Look, there’s a lot of productive work that goes on in this House, and

I hope that you guys can follow us. There’s just so much of a progressive

agenda that we have been dealing with, and there’s a lot to be learned here.

I know that our government and your government have a pretty good

relationship, because that’s how we make progress.

[2:45 p.m.]

So I just want to ask the House to please give them a warm, warm

welcome and make it very, very special for their trip here.

M. Lee: I’d like to seek leave to join in that introduction just

now.

Leave granted.

M. Lee: On behalf of the official opposition and Kevin Falcon, our leader, the

member for Vancouver-Quilchena, I just want to join the Minister of Labour

in welcoming Randeep and Sarbjeet and the rest of their family members here

to the House, also to say that Randeep has a strong history with South

Vancouver, apart from the community in Surrey. Certainly, as I came forward

as a new MLA in 2017, I appreciated the friendship and the introductions

into the community in so many different ways.

We have a real opportunity, of course, to bring together communities

across Metro Vancouver, and Randeep and Sarbjeet have been very instrumental

in doing so many of those efforts at such a challenging time. So we also

look forward to continuing our work with the Member of Parliament, Randeep

Sarai, and his other colleagues in the government caucus across British

Columbia, particularly in Surrey in Vancouver.

Debate Continued

Hon. M. Farnworth: I thank the member for his question. In my comments — not related

specifically to this particular bill, but rather to the broader policy

questions, which take a lot more time to develop — all First Nations are

going to be invited to take

part in those discussions around those broad

policy questions.

E. Ross: Consultation has been a word that’s been defined in the courts,

and it does speak to the honour of the Crown, the duty of the Crown, to

address it. This bill wouldn’t have been part of that discussion if it

weren’t for UNDRIP and these promises that were made by this government

to higher the bar in terms of that and in that regard.

There’s another facet to consultation — accommodation — and we

haven’t talked about accommodation yet. But for a First Nation to

participate in the consultation process, which this isn’t, by the way….

Notification is not consultation.

You’ve got to think about it. A band council could get 20, 30

letters a day, emails a day, asking for their input on something. They

can’t actually address every single issue. That’s why the definition of

consultation, the process for it, is so deep. It actually puts a lot of

onus on the Crown to do their best to make sure a First Nation is fully

understanding of the issue that the province is willing to

undertake.

In that respect, when the government does go out and does propose

to enact some sort of consultation process…. In the past, since 2004,

government realized that 203 bands did not have the capacity to respond.

So in this question, here, for something so vital to communities’ health

— not only First Nations but non–First Nations, as well — will there be

capacity funding or support in place for 203 bands to respond fully to

Bill 30?

[2:50 p.m.]

Hon. M. Farnworth: I appreciate the question. What I can tell the members is…. While

there is not specific capacity funding for this particular bill…. As

I’ve said, this is related to very specific technical amendments. It’s

not about broad policy changes. When it comes to those broad policy

changes and the development of legislation, we have…. Capacity funding

has often been put in place and, I fully expect, will be put in place in

the future.

There’s a major piece of legislation, under my jurisdiction,

that’s under development and that I have spoken about in the past:

emergency management legislation. It is undergoing a full co-development

process. Capacity funding is part and parcel of that, because it deals

with those huge, broad policy area changes.

These are specific, very technical amendments designed to address

some technical issues in how the legislation operates. It does not take

away or add additional burdens in terms of First Nations issues around

cannabis or, for that matter, non–First Nations around cannabis

policy.

M. Lee: Just to further the questions from my colleague the member for

Skeena, who’s canvassed well the nature of the consultation obligations

and requirements here…. I appreciate the minister’s responses. Let me

turn to something that was cited by at least several of the colleagues

on the government bench, members speaking to this bill on second

reading, the reference to the Declaration on the Rights of Indigenous

Peoples Act action plan.

Could I ask the minister to comment on where this bill is situated

in terms of meeting the specific action 4.47 in the action plan, which,

of course, includes advancing a collaborative approach to

cannabis-related governance and jurisdiction between First Nations and

the province?

[2:55 p.m.]

Hon. M. Farnworth: In regards to the action plan that the member operates, there is a

parallel process that is currently underway. Over the next six months,

we will be having those conversations with First Nations who have an

interest in this particular area as well as a broader discussion with

First Nations on the broader policies around cannabis. I expect that to

be taking place over the next six months.

M. Lee: I just need to take us back to comments made in this House by the

government, members of this government on the bench on the government

side. I appreciate the response from the minister. Good to hear

timelines. I look forward to that process working forward. I will make

another comment in a moment on a subsequent question.

Just focusing on what’s been said in this House on this bill,

there were expectations raised that this is an important step towards

dealing with that specific action item. There is certainly a recognition

that currently there are concerns relating to unlicensed retail and

production facilities operating on reserve. There are other issues I’m

aware of, certainly, from the Assembly of First Nations for British

Columbia.

Let me just bring the minister back to the comments by, for

example, the member for Boundary-Similkameen and the member for North

Coast around the expectations around what this bill is meaning to

do.

Just so that we have a good clear understanding…. The minister

refers to this as technical. We just want to have a clear understanding.

In terms of the nature of this specific DRIPA action plan and what is

going to be unfolding in this process…. Are there any considerations in

the design of this bill that are dealing with the larger considerations

with First Nations in the area of a more collaborative approach around

governance and jurisdiction in the aspect of cannabis production and

sale?

Hon. M. Farnworth: As I said, this bill…. The amendments are technical in nature, and

they don’t make major changes in cannabis policy in the province of

British Columbia.

M. Lee: Just so we’re clear, just because…. As the member for Skeena

referred to earlier, with the adoption of UNDRIP, there have been raised

expectations in this province amongst First Nation leaders as to what

UNDRIP means.

To ask a specific and narrow question to the minister, is there

any requirement or has there been any work done to harmonize this bill

and the act we’re addressing today, the Cannabis Control and Licensing

Act — to harmonize that act or this bill itself, to amend that act — in

accordance with UNDRIP?

[3:00 p.m.]

Hon. M. Farnworth: I would say that at this point, the answer to the member’s

question is no. I’d say the alignment of laws is a longer-term

project.

M. Lee: In view of his response, can the minister be clearer on what he

means by a longer-term project?

Hon. M. Farnworth: The DRIPA action plan is the starting point of that longer-term

process.

M. Lee: Of course, putting those two responses together, meaning this

response and his previous response, would suggest that the first phase

of that longer-term process is six months, dealing with the specific

item in 4.47 of the DRIPA Action Plan .

I just want to refer, at this time, to a document that I’m sure

the minister may have seen a copy of. It’s referred to as the cannabis

toolkit for the B.C. Assembly of First Nations.

Just to confirm, have the minister and his team had an opportunity

to receive that document?

Hon. M. Farnworth: It is something the secretariat has seen in the past, but it’s not

something I have before me today.

M. Lee: I just wanted to ensure that…. Government has certainly been

informed of the document. It seems like that’s the case.

I mentioned earlier…. I had the opportunity to attend, as an

observer, meetings of the BCAFN. I know that the Minister of Jobs

presented — I was present for that — as well as, of course, the Minister

of Indigenous Relations and Reconciliation, on the day before I was

there.

This document that I received a copy of includes a memorandum,

let’s say, of the regulatory framework federally, provincially and in

the territories of our country. It talks about some of the challenges,

as articulated, which I believe speaks to, of course, the necessity of

that specific action item that we’re referring to, 4.47.

Just recognizing, again, that we’re talking about the Cannabis

Control and Licensing Act. As much as this may be a technical bill, as

the minister has said, it is still the opportunity where…. To the member

for Skeena’s point, when we’re talking about free, prior and informed

consent, we’re talking about a process where there’s early consultation

beyond just notification. We’ve had that discussion on this point

here.

The point that I’d like to ask the minister is: what

considerations have there been, at this time, in terms of the nature of

the considerations and concerns raised by First Nations as to not being

involved and consulted under the federal legislation regulating this

industry and the opportunities that First Nations are looking for on

their territories to move forward in a good way?

Looking at that opportunity in this act, does the minister see any

gap here that’s not being addressed for First Nations at this time, in

terms of any of these amendments that are being presented in this

bill?

[3:05 p.m.]

Hon. M. Farnworth: I’d just like to ask the member to clarify his question a bit. I

just want to make sure I’m understanding it correctly. Is the member

asking if, in the process that led up to legalization at the federal

level, in terms of how the federal legalization process unfolded, we are

addressing some of those gaps with First Nations, either through this

legislation or further discussion?

If the member could clarify, I’d appreciate that.

M. Lee: Certainly, I appreciate the sub-question that the minister has

developed in response to the clarification. I would appreciate his input

to answer that question.

But if given the opportunity to readdress the question, the

concern that I see is this provincial government not progressing, let’s

say, in this area in the midst of unlicensed operators on First Nations

reserves, in the midst of First Nations that want to move forward in a

meaningful way — like, for example, Williams Lake. That was cited by

Boundary-Similkameen.

I’ve certainly had the opportunity to visit with Chief Willie

Sellers with the local MLA, the member for Cariboo-Chilcotin. I

appreciate what they’re building out there. But there is a mix in terms

of this area that is certainly problematic, in the words of the Assembly

of First Nations of British Columbia. So what I’m asking the minister

is: were there gaps that were identified in the consultation process

leading to the federal legislation, as the minister pointed

to?

Were there gaps in the lead-up to the work done on this bill to

amend the provincial legislation? This remains important work, as we all

recognize, because of the specific item 4.47 in the DRIPA action plan.

I’m asking the minister what gaps have been identified that still need

to be addressed, recognizing the challenges that I’ve referred to as

identified, for example, by the Assembly of First Nations for British

Columbia.

Hon. M. Farnworth: I thank the member for the question, and I thank the member for

the clarification.

Absolutely, we recognize that there were issues when the federal

government brought in the legislation around First Nations consultation.

That is something that we had raised with the federal government. What I

can tell you at this time is that the federal government is currently

reviewing that federal legislation with a specific focus on addressing

some of the issues that were raised by First Nations.

In terms of what we have been trying to do…. Understanding where

things were with the overall legislation when we developed ours, that’s

why we brought in the

section 119 agreements, which were designed to be

able to deal with some of the gaps and some of those issues. We have

been working very closely with First Nations on that.

E. Ross: For those millions of people watching at home, we’re talking about

Bill 30, Cannabis Control and Licensing Amendment Act, 2022. The

Solicitor General has made some comments in answer to our questions

around the duty to consult in regards to UNDRIP — and really, the

impracticality of UNDRIP and the high-level promises that couldn’t be

kept since its enactment and still can’t be kept.

[3:10 p.m.]

Now we’re starting to hear other reasonings why the true rights

and title holders can’t be consulted — because it’s technical in nature

or it’s not truly an infringement of rights and title, so therefore

there is no duty to consult. That is not the conversation that was had

here when they passed UNDRIP.

But we are discussing

section 1 — specifically,

section 11 of the

Cannabis Control and Licensing Act. I’m not sure if First Nations…. This

is the value of consultation, deep consultation: to make sure that an

Aboriginal community truly understands what the government is doing in

relation to what can affect a community — or a band, for that

matter.

section 11 is amended by adding the Civil Forfeiture Act.

Basically what that means is giving the government the power, even

though they’ve got to go through the courts, to seize assets so those

that are breaking the law can’t benefit from their illegal activities or

criminal activities.

My question to the Solicitor General is: how does this clause, by

adding the Civil Forfeiture Act, align with UNDRIP?

Hon. M. Farnworth: I thank the member for the question. I would say this. First off,

this doesn’t create the ability to do civil forfeiture. That already

exists. What it does is it creates the ability to share information, and

that is what is taking place.

E. Ross: That’s the reason, in our questions, in terms of fulfilling the

definition of “consultation,” not only in terms of the case law that’s

been established but also in terms of the expectations that were set by

this government in enacting UNDRIP…. In all my years of being a public

servant, I’ve never come across a government talking to First Nations

about their ability to go in and seize assets from a First Nation member

that might be breaking the law.

This is not a technicality. This Civil Forfeiture Act is actually

being added to the Cannabis Control and Licensing Amendment Act. For 203

bands in B.C., I think that a number of them would be surprised to hear

that the government is actually including this in their plan to control

and license cannabis in B.C.

Don’t get me wrong. This is a great bill. This is needed. I mean,

we do have legalized cannabis in B.C. — we know that — but there is an

element of illegal cannabis in B.C. I suspect that’s what the government

is trying to get a handle on, and that’s a noble cause. It doesn’t

matter if it’s First Nations or not. But it does come back to the idea

of whether or not First Nations truly understand the extent of what the

government is talking about and what I read into this, which is the

ability for the government to seize assets from illegal

activity.

Under UNDRIP, I feel that it’s the duty of government to inform

First Nations of this proposed ability — not just notify of Bill 30 and

ask for comment but actually explain to them exactly what it means in

terms of the Civil Forfeiture Act. Mind you, in normal circumstances, it

wouldn’t be necessary, but UNDRIP has raised that bar.

[3:15 p.m.]

So for that specific clause, are there plans of this government,

under the promises of UNDRIP, to notify First Nations that there is the

power of forfeiture, with Bill 30, being proposed in First Nations

communities?

Hon. M. Farnworth: I appreciate the question from the member. One thing I would just

say: this power already exists. It is already in place, and it applies

to cannabis already. So it is not changing that. It doesn’t change that

one bit. What it does is allows sharing of information. So it’s not the

creation of a new power to go and seize assets. That is already in

place.

I understand what the member is saying, and if this was saying,

“For the first time, you are now able to do that,” I would say, yeah,

that’s a significant change, but it’s not, in that that’s already in

place and is already allowed to happen.

M. Morris: Further to the response that my colleague got on this, it says,

under clause 1: “provides authority for information and records obtained

under the Act to be disclosed for the purposes of administering or

enforcing the Civil Forfeiture Act and the regulations under that

Act.”

This leads me to believe that there was a gap in this legislation

prior and that by providing and allowing the director to share this

information with the civil forfeiture office, they can now take action

under the Civil Forfeiture Act, on First Nations property, for an

example. Is that right? I tend to think that that authority wasn’t there

before this

section was proposed.

Hon. M. Farnworth: If this information has been able to have been shared by the

director of civil forfeiture asking for it, that’s already been in

place. What this does is make it more efficient by allowing the director

to be able to — I’m not sure what the correct phrase is — proffer the

information, let the director of civil forfeiture know the information

without having to wait to be asked for the information.

M. Morris: This enables, then, the director to be proactive in submitting

information to civil forfeiture.

One other question with respect to clause 1 then. Once the

section

becomes law, will this allow the community safety unit to take action on

assets from previous files up until the date this legislation is

passed?

Hon. M. Farnworth: It’s already happening in terms of existing files. The director

can already ask. It’s just, as I said, a technical thing that allows the

director, the CSU, to be proactive as opposed to having to wait for

civil forfeiture to ask for information.

[3:20 p.m.]

M. Morris: Has there been, to date, since the statute was brought into force

in 2018, any civil forfeiture action taken on First Nations lands

anywhere in the province?

Hon. M. Farnworth: Absolutely, there has been civil forfeiture, but specifically

location-wise, I can’t answer that at this particular time.

M. Morris: Just for clarification, there has been civil forfeiture action

taken on First Nations property in British Columbia?

Hon. M. Farnworth: There has been civil forfeiture taken in the province, but

specifically and location-wise, I don’t have that information for the

member, but I can endeavor to find out what I am able to for the

member.

E. Ross: The Civil Forfeiture Act. It’s quite interesting when we talk

about this in terms of UNDRIP, as well as consultation. Also, I’m glad

that the minister is going to return to us some information regarding

whether or not there’s been civil forfeiture on First Nations land.

There are some laws that apply across B.C., regardless of where you’re

located or who you are. Then there are some laws that don’t apply on

reserve.

I was just questioning the Minister of Environment, because I was

unclear on the laws of shooting a grizzly bear on reserve, something

that was actually part of our culture and custom, to manage grizzly bear

populations.

I was surprised to hear that the minister said that it was okay

for us to shoot a grizzly bear on reserve as long as there was safety

involved or something to that respect. I don’t remember the exact

wording. When I was chief councillor, I was told that we were not

allowed to shoot grizzly bears, and the penalty, at a minimum, would be

the confiscation of our firearms, which did happen.

I understand that there’s some confusion about what the province

can and can’t do and whether or not they’re welcome on First Nations

land at all to begin with. In terms of Bill 30, 2022, and the Civil

Forfeiture Act and the Cannabis Distribution Act, will these acts be

implemented fully, across the board, including on First Nations

land?

Hon. M. Farnworth: I appreciate the question from the member. In terms of when it

comes to the laws of cannabis, obviously, we view them as laws of

general application, but as the member points out, when it comes to the

Civil Forfeiture Act, that I’m not in a position today to be able to,

because it’s not before us.

In terms of how that works, specifically in the way that the

member has posed that question — and he gave an example of himself being

one earlier — I’m sure that we can find out, in particular, as it

relates to that specific piece of legislation, the answer to the

question that the member just asked.

E. Ross: Thank you for that answer. It seems like we don’t both know the

answer. I was chief councillor for six years, and I still don’t know the

answer.

[3:25 p.m.]

I had perceptions, based on what was told to me by government

officials at the time, as were regulatory authorities…. But it seemed to

me that there was a divide between federal jurisdiction and provincial

jurisdiction. I agree with the Solicitor General that the laws of

application…. I thought that, back in the day, I didn’t agree with it,

jurisdictional-wise, but I understood it in terms of safety of the

general population, the safety of society. And I see that’s what the

government is trying to do here.

But we do have these technical, political issues in terms of

whether or not the province can go onto reserve land and seize assets,

let alone go onto reserve and then basically charge a band member under

Bill 30.

So is the question of the province, under general laws of

application or otherwise…? Are these issues being looked into and

investigated while we’re actually talking about Bill 30 right now?

Because it’s a huge question.

Hon. M. Farnworth: I appreciate the question from the member. What I can say is that

this bill doesn’t create any new charges. But that broader question that

the member raises is very much, you know, on our radar and part of the

discussions that we have on the broader issue of cannabis policy in

general and will continue to have with First Nations.

As the legalization process is still evolutionary, in the sense

that we’ve had legalization, there have been amendments that have been

made. There have been regulatory changes over time. The federal

government is now doing its review of the original legalization

framework.

Going from there, in terms of what we have learned through the

legalization process, I expect there will be other changes. With those

changes, I think the whole action plan, UNDRIP, and consultation are

clearly crucial. But, specifically, as it relates to this, I think, as I

said, these are very technical and don’t create any additional

charges.

E. Ross: I seriously doubt many First Nations read the original Cannabis

Control and Licensing Act, let alone whether or not they’ll have the

time or the capacity to read the amendment we’re talking about here

today.

Given that the government is actually adding the Civil Forfeiture

Act and the Cannabis Distribution Act to the Cannabis Control and

Licensing Act, is the government of the opinion that the Cannabis

Control and Licensing Act and the Civil Forfeiture Act and the Cannabis

Distribution Act will be enforceable on First Nations land once this is

passed in this House?

[3:30 p.m.]

Hon. M. Farnworth: I thank the member for the question. As I said earlier in our

discussions, we view these as laws of general application that apply

right across the province.

M. Morris: Just one more question then, on clause 1, that kind of came to my

mind when my colleague from Skeena was speaking about the safety

involved. There still seems to be a little ambiguity, in my

mind.

I appreciate the minister’s last answer, but when we have assets,

for example, that have been used that are liable under the Civil

Forfeiture Act for seizure, and no action is taken, then this becomes a

haven for organized crime. This heightens the safety of the people

living in those First Nations communities, if the law isn’t equally

applied across the province, in all jurisdictions. It doesn’t matter

where you live.

I just need some certainty from the minister that that these laws

will be applied equally across the province for everybody. It doesn’t

matter whether you live in a First Nations community, a municipality, a

regional district or throughout the province in some area.

[S. Chandra Herbert in the chair.]

Hon. M. Farnworth: These laws are general application. They apply right across the

province, and laws that we have on the books have been enforced and will

be, in my view, enforced. That’s why we’re bringing these amendments

forward — to assist in that.

E. Ross: Thank you to the minister for that answer, because I think we all

have an interest in ensuring that cannabis is controlled and there is a

legal licensing scheme to make sure that it’s all done legally. It’s

mainly done to protect all of us as a society.

I do appreciate this. But I still have to go back to the process

on how the province will go on to First Nations land to enforce Bill 30,

the Cannabis Control and Licensing Amendment Act, but also go onto the

First Nations land to enforce the Civil Forfeiture Act and how they’ll

go onto First Nations land and enforce the Cannabis Distribution

Act.

Now, in my experience, when there was a jurisdictional issue that

had to be worked out with the province, that really meant a long process

of negotiating with the province and Canada, in terms of allowing that

access and having a three-party agreement with no veto power to any

party. I’ll give you an example.

The First Nations commercial and industrial development agreement

actually allowed not only for an LNG plant to be built on reserve land

in our territory but also allowed B.C. to come onto reserve land and

enforce B.C. regulations and federal regulations at the same time. It

was done for efficiency, but it was also done in the spirit of

reconciliation, long before reconciliation became a buzzword. That

agreement still stands today. Even though Chevron has left town and that

project is dead, that agreement still stands.

We also have some corporate partnerships that were done in the

same manner, where we actually signed agreements with the bigger banks

to guarantee mortgages on reserve, which you can’t do, because the rules

around the Indian Act in terms of reserves are pretty strict. Based on

my experience, one of those rules was the province is not welcome. It

could get ugly if the province shows up uninvited and tries to do

something like seize assets or tries to enforce the Cannabis

Distribution Act.

[3:35 p.m.]

How will the government roll this out in terms of explaining to

First Nations that the Cannabis Control and Licensing Act will now

include the Civil Forfeiture Act and all that that entails for First

Nations community and band members?

Hon. M. Farnworth: I thank the member for his comments and questions, and I would

just say this: it already does. This is not new. For First Nations, this

is not new. That civil forfeiture is already in place. It already

exists. So it is not new. It is nothing…. That is not new in terms of

this legislation.

E. Ross: I’ve got to tell you that surprises me. So First Nations are well

aware that the province can go onto First Nations land and seize assets

that were actually the gains of illegal activity? Am I correct there

that the province has the authority to do that right now?

Hon. M. Farnworth: The Civil Forfeiture Act is a separate piece of legislation that

already applies. It’s already in existence. It already applies now. This

legislation that’s before us does not change that. It does not change

how it operates. It doesn’t change how it works in any way, shape or

form. This legislation does not deal with that with that piece of

legislation.

E. Ross: Yes. I understand that portion. I understand that. What I’m asking

is: do First Nations understand that? I wasn’t aware of the authority of

B.C. to go onto First Nations land and seize assets. I wasn’t aware of

that. This goes back to why it’s so important to the government to

fulfil their duty for deep consultation in terms of what they’re

doing.

I know the Civil Forfeiture Act has been around for quite a while.

I know that. What I’m asking, though, is: do First Nations…? Are they

aware that the province can come onto their land and seize assets and —

if I might inject this — it doesn’t have to have the permission of the

band council?

Hon. M. Farnworth: I appreciate the member’s question, and I’m not trying to

obfuscate or to duck. But I think the best thing I can say, first off,

is this legislation doesn’t deal with that and, in particular, that

question. But what I am happy to do for the member is to get him a

briefing on the Civil Forfeiture Act and how it relates to the questions

that he has been asking in regards to the Civil Forfeiture Act and First

Nations reserve land.

I’d be happy to get that set up for you.

E. Ross: You know what? You could add to the mix the consultation questions

I’ve been asking, especially around the province’s ability to go onto

First Nations land and enforce what we’re talking about here in this

bill as well as in the Civil Forfeiture Act and the Cannabis

Distribution Act. Ultimately, First Nations are probably going to have

the same questions I have when the province comes knocking on the door

saying: “Hey, we’re going to seize your assets” or “You’re under

investigation.”

I’d love to see that information come forward but also the plan

not only to notify First Nations of this bill and its intentions but

also the consultation plan that is promised under UNDRIP.

M. Morris: Just so I have it clear. I thought I had it clear in my mind, but

it’s a little bit obfuscated now, to use the minister’s

words.

[3:40 p.m.]

I was under the impression that this particular bill and the

Cannabis Control and Licensing Act is a law of general application and

the community safety unit and the police can go on First Nations

reserves and enforce this piece of legislation at any time with respect

to whatever the provisions are that they’re going in there.

In addition to that, the Civil Forfeiture Act is also an

enforceable act of general application. The police or the folks

associated with that can go on First Nations reserves and seize and do

anything that is within the power of this particular bill — the Cannabis

Control and Licensing Act or the Civil Forfeiture Act.

Hon. M. Farnworth: I thank the member for the question, and I just want to be really

clear. Yes, the bill before us today…. The cannabis laws are laws of

general application. The Civil Forfeiture Act isn’t here, and I’m just

trying to be helpful in terms of the question that the member asked on

how it works. I’ve said that I’m happy to get a briefing for him on

that, related to those questions. We will follow through on that

commitment.

Clauses 1 to 4 inclusive approved.

On clause 5.

M. Morris: I just require a little clarification on clause 5. It’s technical,

as the minister has reflected on earlier. It says that an electronic

device means “a device by which a person may electronically send,

receive, download, view or access information or records.” I’m just

wondering: is this an inclusive enough definition?

If you see a memory stick sitting on the table and it’s not

attached to anything, by itself, it’s not capable of doing anything — or

some other device that has information on it, but it has to be inserted

or used in conjunction with a computer or some other device in order to

get that information off of it. I’m just concerned that this definition

might be questionable when it comes to a search warrant.

Hon. M. Farnworth: I thank the member for the question. Two things. We have drawn on

existing

definitions of electronic devices to go into this.

Just for an example, a laptop may be turned off, and it is not

doing anything, but all you have to do is plug it in, and it becomes

active. Likewise, the example of the memory stick would be the same. It

would be like… Okay, yeah. It’s sitting there, and it is not doing

anything, so it is not usable, but you plug it in, and yes, it is.

That’s why we are confident in the definition as it is here in the

legislation.

Clause 5 approved.

On clause 6.

[3:45 p.m.]

M. Morris: Just a question in reading

section 89, which this clause pertains

to. Reading it, it implies that the director has to be present on every

search. Am I wrong, or can he delegate that power to somebody? How does

that work?

Hon. M. Farnworth: He/she can delegate that power.

E. Ross: In terms of

section 89, clause 6…. It’s a great clause, especially

when you’re talking about an electronic device that can actually lead to

charges being laid. But just a clarification on

section (a.3): “request

that any person provide a password, or otherwise facilitate access, to

an electronic device if the director has reasonable grounds to believe

that (

i) the electronic device contains, or can provide access to,

records….”

I heard this problem coming from the RCMP when they were trying to

control illicit drugs. We’re talking not about cannabis, but we’re

talking about crystal meth and fentanyl. One of the problems that the

RCMP had was that they didn’t have the authority to access the phones,

let alone the passwords.

So in

section 8.3, are we talking about a person that refuses to

give the password so that the director can then go to a professional

person that can then unlock that phone or laptop? Is that what we’re

talking about?

Hon. M. Farnworth: I’ll answer the question because this

section actually deals with

the specific of where I think the member is going on this.

This particular part that the member is referencing deals with

making a request. I am asking the individual to supply a password, so

that request is being made. If that request is denied, then the director

can still seize the electronic device, but they have to get

authorization from a judge to be able to access it — you know, the

privacy considerations that go along that. So that’s how this is

intended to work.

E. Ross: Yeah, just reading this…. For those folks at home, we’re not

looking at the full act. We’re just looking at the amendment, so it’s

hard to have the context without the full act in front of us. But is it

worth it to mention that in this act — to say that there are legal

technicalities that will have to be implemented before the authorities

can actually access the information? It seems too simplistic. It looks

like a solution when really, it isn’t, when a person says: “No, I don’t

grant you the authority to look into my phone and my laptop.”

But really, I think what the government’s saying is that you do

have existing powers, but it’s going to take a little bit longer. Even

just for explanatory purposes, would it be worth it to mention some of

the next steps that the government would have to undertake to actually

make sure that this clause is fully implemented?

[3:50 p.m.]

Hon. M. Farnworth: I appreciate the comments of the member, and I know that

section

11 does address, I think in some way, the concerns the member raised.

But I do thank him for raising it and allowing us to put it on the

record so, as he said, the people watching at home get a better sense of

the context.

Clauses 6 to 9 inclusive approved.

On clause 10.

M. Morris: Just again, some clarification on this particular clause. It’s

amending the authority for a prescribed form of search warrant. I’m just

wondering whether the warrant is now going to be issued pursuant to

section 21 of the Offence Act? Or is there a new form of warrant that’s

being considered and that will be prescribed?

Hon. M. Farnworth: It will be a new form, which is why it will be

prescribed.

M. Morris: Interesting. It’ll be prescribed. I’m curious as to what

conditions existed with the old format, or with the format under

section

21 of the Offence Act, that is leading towards prescribing a new form of

warrant. Has the issue surfaced with respect to First Nations or

municipalities or something? Generally, search warrants have a

prescribed form, and they’ve been tried and tested in courts of law

many, many times. So I’m curious about what this new prescribed form is

about and why.

Hon. M. Farnworth: We’re doing it because — let me make sure I get this right — this

does not, the current….

It is not an Offence Act warrant, and it’s not otherwise

prescribed. That’s why we’re having to do a prescribed form.

M. Morris: If I understand this, there’s no other way for a search warrant to

be issued to enter premises to search for illegal cannabis, for records

or for anything pertaining to the Cannabis Control and Licensing Act, so

we need a new method of entering and searching for these

things?

Hon. M. Farnworth: Currently, you can get a warrant, but there’s no specific form for

this. What this is going to do is to clarify it and make it so that

judges know what to expect when one comes to them.

Clauses 10 and 11 approved.

On clause 12.

M. Morris: I find this an interesting clause. Is this authorizing the

director to purchase cannabis from a suspected illegal source? Or is it

to provide the director attending a licensed retailer who may be selling

suspected cannabis…?

[3:55 p.m.]

It’s a little unclear in my mind as to what this

section is

addressing.

Hon. M. Farnworth: I appreciate the question. This is one of those areas where….

Since the legalization of cannabis, since enforcement has taken place,

we are seeing a shift in how the illegal market is operating, and there

is a shift away from the bricks-and-mortar stores to more online sales.

Right now enforcement does not have the ability to buy online cannabis,

because it’s illegal online cannabis.

This will allow that to take place, will allow them to start to

have a much more in-depth investigation, will allow them to build that

case in terms of where the supply is coming from and who is selling the

supply, and will allow for a much more effective enforcement operation.

It is dealing with a gap that exists in the ability to enforce on

illegal cannabis by being able to buy online.

M. Morris: I appreciate that. Of course, as we emerge into this new world of

legal cannabis, it’s going to present all kinds of issues for us to deal

with.

Would this be applicable to online sales, then, anywhere — like if

it happens anywhere in Canada? What about down in the States? Is this

just applicable to B.C.? How does it apply across the nation?

Hon. M. Farnworth: It’s a general authority, because right now, in many cases, you

don’t know where it’s coming from. This will allow enforcement to do

stronger, more effective investigations. It’s something they’ve asked

for, and we think that it will be of significant help.

M. Morris: Thank you for that. I guess just a little bit more clarification

on the act itself, on this particular bill. This relates a lot to the

community safety unit, but it’s not precluding other police agencies

from enforcing the Cannabis Control and Licensing Act as

well?

Hon. M. Farnworth: I thank the member for the question. Police already have the

authority to do that. What this does is that it allows CSU, allows the

director, to be able to do that. That’s another important way of being

able to do enforcement.

Clause 12 approved.

On clause 13.

M. Morris: Clause 13 establishes, in the act, certain grounds for

reconsideration of a compliance order. There are a couple of amendments

here. It says: “…by striking out ‘may be based on only one’ and

substituting ‘may be based only on one.’” And (a.1) is: “a failure to

observe the rules of procedural fairness.” Is that procedural fairness

by the director or the general manager? Who is this pointing at? Is it

the applicant or the person that is being adjudicated?

Hon. M. Farnworth: This is about the director violating the rules of procedural

fairness.

M. Morris: So it’s up to the applicant to raise the issue of procedural

fairness to the director. Or this is subsequent to a reconsideration of

an order, I understand. So is it the person that is asking for that

reconsideration that identifies what procedural fairness rule has been

broken here?

Hon. M. Farnworth: Yes, hon. Chair.

[4:00 p.m.]

M. Morris: The other part of this that I find interesting is that it’s “an

error of law other than an error of law respecting any constitutional

question, including, but not limited to, a constitutional question that

requires notice to be given under

section 8 of the Constitutional

Question Act,” so an error of law other than a constitutional

question.

Has the director been confronted with constitutional arguments

that he or she has ruled on? Are those constitutional questions, if

they’ve already been heard by a level of court — and that constitutional

question, there’s some jurisprudence to support a decision by the

director on that — does this rule that out?

Hon. M. Farnworth: I appreciate the question, and the answer is yes, that is correct.

What we have been seeing is applicants asking the director to rule on

the constitutionality of the question that they’re raising, and they

don’t have that authority.

What this

section is doing is making it clear that they don’t have

that authority. That authority, obviously, when it comes to the

constitution, rests with the courts.

M. Morris: So the director has been faced with the situation where he’s been

asked constitutional questions, to make a determination on that, up to

this point?

Hon. M. Farnworth: The answer is yes, and he has determined that he does not have

that authority.

M. Morris: As a result of those constitutional questions, has the director

set the process in motion to follow through on under

section 8 of the

Constitutional Question Act?

Hon. M. Farnworth: No, that’s for the applicants to raise those with the courts

directly.

E. Ross: In relation to

section 13, when we’re talking about the

constitution, maybe

section 35 has already been considered in the

existing legislation, or is it being proposed now to explore that in

full? Or will the government be waiting for that question to be

challenged, to the government, in respect of Bill 30?

Hon. M. Farnworth: I appreciate the question from the member. This

section makes it

clear that the director does not, as he said…. This does not authorize

him to make a ruling in terms of the constitution. That is something up

to the courts, and that’s where the applicant would take it, regardless

of the

section of the constitution.

M. Morris: What has the constitutional question been to this

point?

Hon. M. Farnworth: They’ve been primarily around the medicinal cannabis issue. Those

are the ones that have that have been raised.

[4:05 p.m.]

M. Morris: The constitutional question on medicinal cannabis, what is the

constitutional question around medicinal cannabis? The federal

legislation is quite clear on that. I’m just wondering what the question

is that a director can’t answer at this particular time, and is it

frequent enough that it, perhaps, needs some intervention, on behalf of

the ministry, for that question, under

section 8 of the Constitutional

Question Act — or have this thing go through a judicial process rather

than an administrative process? Is that option available?

Hon. M. Farnworth: I think what it comes down to is that regardless of the merits or

non-merits of a constitutional question case, the director is not the

appropriate person to make that decision. That is something that is for

the courts.

M. Morris: I certainly understand that process, having been an adjudicator

for a number of years before I got into politics.

I guess the other question I have…. We’ve had a lot of discussion

around First Nations issues. I know there’s been a bit of reticence, on

behalf of the community safety unit, to go and do some enforcement work

within First Nations communities.

Have there been any constitutional questions surface as a result

of any First Nations enforcement attempts, I guess, or

activities?

Hon. M. Farnworth: Not to our knowledge.

M. Morris: I wouldn’t mind finding that out, if it’s possible to canvass the

community safety unit.

To date, have there been any decisions made by the director that

have been halted as a result of a constitutional question?

Hon. M. Farnworth: No.

M. Morris: Thank you for that. The director has made the decision to do

whatever the case might be. I will get into clause 14 and the monetary

penalties and stuff down the road here.

I guess I’m just curious as to the inclusion of this in this

particular clause when we know that the director…. Dealing with

administrative issues on constitutional matters has to be referred to a

court of competent jurisdiction or through the Constitutional Question

Act. I’m just curious as to why this particular clause was included in

this legislation.

Hon. M. Farnworth: For clarity. It does come up. It has come up with applicants on a

regular basis. The director has said that they do not have the

authority, and this clause makes it clear that they do not have that

authority.

[4:10 p.m.]

M. Morris: So it’s come up on numerous occasions by applicants dealing with

the medicinal cannabis issue or other aspects under this current

legislation?

Hon. M. Farnworth: Yes, it is primarily medicinal. It has been used.

The fact that there’s a lack of clarity makes it easier for

someone to delay, delay and delay and draw out the administrative

adjudicative process by constantly trying to raise a constitutional

issue, for example. So what this makes clear is that the director does

not have that authority. So an applicant, if they want to pursue that,

is going to have to go through a court.

M. Morris: If I’ve got this right, then…. If the applicant is not happy with

the director’s consideration or response or determination, then the

applicant’s next step is to take it to court.

In the interim, then, whatever decision that the director has made

stands. There’s a separate action, then, that would take place through

section 8 of the Constitutional Question Act or…. How does that process

work?

Hon. M. Farnworth: They have avenues to pursue those things. What this makes clear is

that the director does not have the authority to rule on constitutional

questions. If they don’t like that, they can ask a judge to do a review

of the director’s decision. They don’t have the authority. This specific

section makes it clear that they don’t have that authority.

M. Morris: This gets into…. The constitutional question, depending on what it

may be…. A lot of those constitutional questions, just about all of

them, need to be addressed by a court. A lot of times the courts

have….

A judicial review is not the avenue to address a constitutional

issue. It needs to be assessed on its own, on its own merits, on the

evidence that’s presented. So subject to the individual who is being

adjudicated by the director and the decision of the

director….

It can’t go on in infinity. If that individual is not happy with

that particular decision…. A judicial review doesn’t answer a

constitutional question. It’ll just confirm that the director doesn’t

have the authority or the jurisdiction to hear a constitutional

matter.

[4:15 p.m.]

What happens next? Does it just sit in limbo, or does the

director’s decision stand?

Hon. M. Farnworth: The director’s decision would stand. If the applicant decided they

wanted to pursue it through a court…. If they think there’s a

constitutional question, they could pursue it through the court system.

The reality is the director’s decision would stand until that

constitutional question was ruled on and found to be correct.

M. Morris: I look at the impetus behind including this in this particular

section, when everybody knows that the director doesn’t have the

authority to deal with constitutional questions. I go back to the

original discussions that we had, when we started on clause 1, with

respect to First Nations and the ability to enforce this law of general

application on First Nations reserves throughout British

Columbia.

Is the minister aware of any conflict between trying to implement

UNDRIP and the document that my colleague from Vancouver was talking

about earlier — about the First Nations cannabis law that they’re

talking about? Is the minister concerned about any conflict between

trying to bring UNDRIP to bear on this particular

section and

section 35

of the constitution?

Hon. M. Farnworth: No.

M. Morris: The constitutionality of this particular section, any argument

that might be presented…. They can go to court. They can figure things

out. Will the director’s decision stand till the end of time unless the

judge comes back and says that the constitutional question was answered

and it needs to be reconsidered?

Hon. M. Farnworth: The answer is yes.

I’d just point out to the member that we have similar sections to

this in other provincial legislation that relate to this kind of a

situation.

E. Ross: The constitutional question is big in First Nation communities and

with the First Nation leadership.

I, myself, thought that

section 35 was the answer to everything,

meaning that my inherent rights included everything from law-making to

self-determination. That’s not what

section 35 promises.

Section 35,

under the constitution, basically just recognizes that Aboriginal rights

and title exist. That’s it. That’s all it says. There’s no

definition.

The definition comes from case law. Over 250 court cases actually

came out with the principles that everybody has to abide by, including

government. A lot of those court cases were won, but a lot of them were

lost by First Nations. It did set out a roadmap for how our two

societies are supposed to cohabit this land.

The Solicitor General said it himself. The laws of application

that apply to all of us will be enforced on First Nations land. But the

constitutional question will always be brought up when a First Nation

wants to implement something like a cannabis facility that grows or

acquires or sells cannabis.

It will always go back to

section 35. I know that’s not the

answer.

Section 35 is not the answer. I think the answer would have been

in the general laws of application. That’s a great answer. It keeps us

all safe. I think there’s probably existing case law that speaks to that

already.

[4:20 p.m.]

The uncertain question is still UNDRIP, even in relation to the

general laws of application. UNDRIP talks about the ability for First

Nations to make their own laws, but it doesn’t talk about in what

manner. Is it an oral law that they just came up with in relation to

cannabis or forfeiture? Is it a council law? Is it a law that was set up

by hereditary chiefs?

It’s all going to flow from the constitutional question of

Section

35 of the constitution. That’s where it’s going to come from. It’s going

to take a long time to understand the answer. It would have been

answerable five years ago. It would have been clear cut. The government

would have had strong ground, and they would have been confident going

to court in terms of their ability and their jurisdiction to enforce

these types of laws. But now, with UNDRIP, that’s all up in the

air.

Does the province have a type of mandate or a type of principled

approach to what will happen when a First Nation questions their ability

to grow, acquire or sell cannabis outside of the law that’s being

proposed by B.C?

Hon. M. Farnworth: I thank the member for his question. In fact, he raises, I think,

some very legitimate and complex questions that governments are dealing

with and courts are dealing with.

But the point I’d make is that the purpose of this

section is to

make it clear that the director does not have the authorization to make

those decisions. That’s what this

section is all about. That’s for — for

want of a better term — higher pay grades. That’s for judges and courts

to decide. It’s not for the director to decide. This just clarifies that

that is, in fact, the case.

E. Ross: Then let me put it this way: the constitutional question is there.

It will exist. It will come up, but the director does not have the

authority to make decisions that will allow it to go to a higher level.

But in saying that, whether you’re talking about the constitution or

whether you’re talking about the pursuant case law, you’re also talking

about UNDRIP.

In that constitutional question, does the director have the

authority to implement UNDRIP as approved by this House? Does the

director have the authority to implement UNDRIP principles when

considering Bill 30 and

section 13?

Hon. M. Farnworth: The director exercises the authority given to them or that they

have through the legislation. DRIPA is part and parcel of the overall

value system, if you like, that helps to inform that work.

[4:25 p.m.]

Those are the only powers that the director gets to use. The

constitutional questions — no. That’s for the courts to do.

E. Ross: It’ll be a mixed bag of questions, concerns, coming from First

Nation leaders, who will ultimately come up against this legislation and

will understand at some point that they do not have the inherent right

to grow, acquire and sell cannabis on their lands — not even under that

constitutional question that I’m sure is going to be asked at some point

when their assets get seized or there’s an investigation into their

lands.

How then…? I mean, everybody under the provincial government will

be bound by legislation. I understand that. DRIPA is legislation. I’m

just trying to find out where that…. Does that run parallel to the

rights and title case law that the previous Attorney General promised

that DRIPA would be implemented under? Is it parallel to the

constitution, to

section 35, or is it underneath it?

I understand that the courts will look at the constitutional

question just as a constitutional question. They’ll look at the rights

and title case law principles that were laid out to define

section 35,

but they’ll have to cover new ground when they’re trying to figure out

exactly what DRIPA means in the context of something as serious as

growing, acquiring and selling cannabis.

Under DRIPA: “Indigenous peoples have full enjoyment of their

rights to self-determination and self-government, including developing,

maintaining and implementing their own institutions, laws governing

bodies and political, economic and social structures related to

Indigenous communities.”

My question is: does the government have a mandate or set of

principles related to the constitution that will basically inform First

Nations of their rights and responsibilities in comparison to the rights

and responsibilities of the B.C. government when enforcing a bill such

as Bill 30?

Hon. M. Farnworth: I appreciate the question from the member, and I would make this

point. I think the questions that he raises are important, but they are

far above and beyond the scope of this particular piece of

legislation.

I think what he’s raising refers to earlier, around that parallel

process of the broader policy discussions that take place through the

DRIPA action plan as it relates to the broader issue of cannabis, for

example.

M. Lee: Just coming back to the earlier discussion with the member for

Prince George–Mackenzie and the member for Skeena here, we’ve

established that in the response from the minister, this bill is

confirmed to be a general application law. That still leaves us with the

situation where, in the words of the minister, a parallel process

continues to deal with that DRIPA action item, specifically dealing with

looking at collaboration with First Nations and respective governance

and jurisdiction under 4.47.

Recognizing that we have reached this part of the bill at this

juncture, and our previous discussion at the beginning of this committee

stage on this bill — keeping those points together — what is the step

that’s been taken forward by government in presenting this bill to this

House to further the process with First Nations in the area of 4.47 of

the DRIPA action plan?

[4:30 p.m.]

Hon. M. Farnworth: We’re on this

section of the bill, dealing with the authority of

the director dealing with constitutional questions. That’s the

section

that is before us.

So if the member would frame his question in the context of why we

are clarifying the director does not rule on constitutional questions

that would be really helpful in the clause-by-clause

section on this

particular debate, because that’s where we are right now.

M. Lee: We’re talking about constitutional questions here. So if there’s a

challenge to the director about the general application — which

includes, certainly, jurisdiction — that is specifically pertinent to

the DRIPA action plan item 4.47, because, as I read out that language,

previously, it talks about advancing “a collaborative approach to

cannabis-related governance and jurisdiction between First Nations and

the Province.”

The only reason why I’m coming back to this is there was an

expectation raised at the second reading debate on this bill that this

is an important step with First Nations. I’m asking: what is that

important step if it’s not constitutional in nature?

Hon. M. Farnworth: I thank the member for the question. I think the issue around the

second reading debate…. As the member knows, second reading debate is a

broad-based discussion, not just on the specifics of the bill but the

issue in general. I think that’s what the member is referring to when he

looks and talks about some of the questions or some of the comments

raised during that second reading debate.

The issue here that we are dealing with…. And the member raises

constitutional questions. The director is often, at times, confronted

with, in terms of the applicant appearing for the adjudication, to raise

a constitutional question. The director has said: “I do not have that

authority to make that ruling on a constitutional question.” This

section clarifies it that that is, in fact, the case.

On the broader discussion around cannabis and First Nations, there

is significant work that is underway with the First Nations Leadership

Council, a working group on that. I’ve mentioned the parallel process

that is underway, and that’s where many of those issues are

addressed.

I think we need to recognize the difference between second reading

debate — which can be broad and general encompassing, not just on the

specifics, but also on the philosophy and what’s happening on the issue

in general — as opposed to the very specifics that are taking place in

committee stage debate.

M. Lee: I appreciate the response from the minister. The concern, of

course, is that with this bill and this proposed amendment, we seem to

be, from this government, skirting the issue here that’s fundamental to

how First Nations can move forward.

I appreciate, again, there’s a parallel process. But if the

minister is asking me and inviting me to give an example, I mentioned

earlier the comments from his colleague, the member for

Boundary-Similkameen, who said on second reading: “In our Declaration

Act action plan, we made a commitment to: ‘Advance a collaborative

approach to cannabis-related governance and jurisdictions between First

Nations and the province….’ This is really the impetus for me to stand

up and speak to this, as I see this” — presumably, he’s talking about

this bill — “as a step in the right direction on that front, helping us

help those nations and bands that want to operate in a safe way to do

that effectively.”

[4:35 p.m.]

So my suggestion to the minister, of course, is…. The questions

that we’ve been asking in this committee stage, in part, are addressing

how First Nations and communities operate in a safe and effective way in

the course of this legislation.

The clarity around the jurisdictional issues that are referred to

in the DRIPA action plan are important. How UNDRIP is utilized…. The

minister, in response to the member for Skeena, just referred to UNDRIP

as a value system. If that is the way the government sees that, then

what values are government interpreting and utilizing behind this bill

and this amendment at this time, when we know that there are questions,

questions that are being raised by First Nations, in terms of the

jurisdiction, coming out of UNDRIP, for self-governance?

The principle the member for Skeena read out is a principle that’s

there in UNDRIP. That jurisdictional question is still a live issue for

this government, which this provision seems to just skim

over.

My question to the minister: at this time, when I talked earlier

about gaps in the legislative framework, is the minister not

anticipating that this provision will not be sufficient to provide

sufficient clarity to First Nations operating on reserve either in a

regulated or unregulated way?

Hon. M. Farnworth: No, I am not concerned, because what this does is clarify that the

director does not make constitutional decisions. That is a matter for

the courts.

The Chair: Of course, we’re here on clause 13, which establishes in the

act certain grounds for reconsideration of a compliance order, just

to be clear on what we’re discussing right now.

M. Lee: This is the problem. I think this is the challenge with this

government. It is leaving matters to the courts. That is not the spirit

of UNDRIP. I would point that out to the minister. I know that in my

discussions with First Nation leaders, as the expectations were raised

by passing UNDRIP in this House, it’s not just a matter of leaving this

to the courts. This is the point.

So I would just register that concern with the minister. That is

the concern I’m trying to address here. My expectation would be that the

concern over this provision and the answer in response to the questions

we’ve been raising seems to leave a fairly wide gap with First Nation

leaders in this province as to how this regime, this legislative

framework, applies through the lens of UNDRIP to their nations and their

territories.

Clause 13 approved.

On clause 14.

M. Morris: Again, this is putting into legislation that the director has no

jurisdiction to determine monetary penalties or reconsider compliance

orders if there’s a constitutional question raised.

I guess it goes back to our original discussion on clause 1, with

respect to laws of general application and enforcement in First Nations

communities and whatnot. There’s been a lack of enforcement action on

First Nations lands across the province here.

[4:40 p.m.]

So if an individual is subject to a monetary penalty under this

particular clause and no argument has been made — he’s been found guilty

by the director, and he’s been assessed a monetary penalty under that —

and an individual now comes up with a constitutional question, saying,

“You can’t do this, because it’s my right to do whatever,” what redress

is available?

Not redress, I guess. What avenues are available to the director

to take to enforce that particular action under this legislation, and

does this constitutional question prevent the director from enforcing

that administrative decision?

Hon. M. Farnworth: What it means, hon. Member, and I thank you for the question, is

that the director can make a ruling, in terms of what the amount and the

value is, and they have the same options to collect as under any other

administrative penalty under the act.

M. Morris: So if I understand correctly, the director has various avenues to

collect whatever monetary penalties are owed the government. But if the

applicant that has asked for reconsideration poses a constitutional

question, this is going to be available to everybody that’s watching. It

will pretty much stymie the community safety unit and the director if

everybody says, at the time that they ask for reconsideration: “Oh, I

have a constitutional question here, and therefore, I’m going to take it

to court. I’m going to do this. I’m going to do that.”

Is the director going to just carry on, enforce the order and do

whatever is necessary to collect that money off of the individual that’s

asked for the reconsideration? What will happen if everybody goes in

this direction here that’s going to make the system

unworkable?

Hon. M. Farnworth: They can do that right now. But what this change does is it makes

it clear that the director does not make that ruling on the

constitutional matters. It means that they can go ahead and continue to

make the decision on: “You owe 3 million bucks because that’s how much

the value is.” That will go into the collections processes that are

available