First Session, 42nd Parliament

(2021) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Wednesday, March 17, 2021

Afternoon Sitting

Issue No. 33

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Routine Business

Introductions by Members

Statements (Standing Order 25B)

FLIR Systems imaging technology and NASA Mars mission

A. Singh

Northern Environmental Action Team

D. Davies

Agassiz Elementary Secondary School graduates

K. Paddon

COVID-19 response and resilience

T. Stone

COVID-19 vaccination program in Prince Rupert

J. Rice

Alder Grove Heritage Society

B. Banman

Ministerial Statements

Ian Waddell

Hon. J. Horgan

M. de Jong

S. Furstenau

Oral Questions

COVID-19 response for hockey teams

S. Bond

Hon. J. Horgan

COVID-19 response for sports and arts organizations and community venues

S. Bond

Hon. J. Horgan

T. Stone

Hon. R. Kahlon

Protection of old-growth forests and Indigenous consultation and consent

S. Furstenau

Hon. K. Conroy

A. Olsen

Hon. M. Rankin

Premier’s office records and freedom-of-information requests

B. Banman

Hon. J. Horgan

T. Shypitka

Hon. L. Beare

Orders of the Day

Committee of the Whole House

Bill 11 — Court of Appeal Act

M. de Jong

Hon. D. Eby

E. Ross

Report and Third Reading of Bills

Bill 11 — Court of Appeal Act

Committee of the Whole House

Bill 5 — Insurance Corporation Amendment Act, 2021 (continued)

M. Lee

Hon. M. Farnworth

S. Furstenau

WEDNESDAY, MARCH 17, 2021

The House met at 1:34 p.m.

[Mr. Speaker in the chair.]

Routine Business

Prayers and reflections: D. Coulter.

Introductions by Members

Mr. Speaker: The member for Richmond South Centre.

[1:35 p.m.]

H. Yao: Thank you, Mr. Speaker, for the accommodation.

I do want to take a moment to introduce my family. As many people

know, all MLAs are able to be here because they all have a strong family

looking after them and taking care of family members.

Today I want to acknowledge my in-laws, who flew thousands of miles

here and who also actually went through all the quarantine requirements to

be here to take care of my wife and take care of my newborn baby, Mackenzie

Yi Yao. My in-laws are Tan Lian Sheng and Mrs. Ning Xiu Yun.

I would like to ask the House to welcome them and welcome my baby girl

at the same time. Thank you, everyone.

D. Coulter: I’d like to introduce my nephew, Nathaniel Alexander Coulter, to the

Legislature today, on his 21st birthday. He currently lives in Abbotsford

and is a student at the University of the Fraser Valley.

I’ve one particularly fond memory of him. When he was five, he and I

stopped at a drive-through to buy six cookies. Before we got 500 metres down

the road, there were five cookies gone, and he was covered in crumbs. I’m so

glad that he left a cookie for me.

Anyway, I hope this House will help me wish my nephew Nate a happy

birthday.

Statements

(Standing Order 25B)

FLIR SYSTEMS IMAGING TECHNOLOGY

AND NASA MARS

MISSION

A. Singh: First, I really want to congratulate my colleague Henry. I’m so

happy his daughter is here.

Many of you know my background as a lawyer. Earlier in my life, I

was an absolute science kid. Physics was my jam. I originally went to

university — UC Berkeley, bachelor of science — to study physics. I’m

delighted to speak about innovation right in my constituency of

Richmond-Queensborough.

On July 30, NASA successfully launched their Mars 2020

Perseverance rover mission, scheduled to land on the red planet on

February 18, 2021. The primary mission is to search for signs of ancient

microscopic life and collect the first-ever Martian soil samples to

bring back to Earth, which, for a long time fan of The X Files

and anything sci-fi, thrills me to no end.

The NASA team also prepared this trip for another first: footage

of a spacecraft landing on another planet. Previous Mars mission have

taken lots of photographs, still photographs, of planetary descent, but

no landing has ever been filmed. While everything about a space mission

takes expert engineering, landing the rover is an especially high-stakes

endeavour. The entire process of entry, descent and landing takes only

seven minutes, during which a wrong move can leave the whole mission in

flames.

In late February, you may all have seen some of those spectacular

images from NASA’s Perseverance rover touching down on Mars. I was

hoping to get one in front of you, but I guess there are some rules

around that. Well, did you know that that was brought to you courtesy of

a company that’s located right in the constituency of

Richmond-Queensborough, FLIR Systems?

I had the pleasure of speaking with Sadiq Panjwani, vice-president

of FLIR Systems, the company that signed and built those cameras right

here. He described to me in detail how these cameras were built — how

they captured what I can only describe as unique and dramatic images of

the red planet, including the deployment of the parachute, the rover

hanging below and the descent of the vehicle.

I have some of those photographs here. If any members would want

them, please email me. I’d be glad to get you a copy.

Please join me in congratulating this incredibly innovative

company.

NORTHERN ENVIRONMENTAL ACTION TEAM

D. Davies: I’m going to speak today about an incredible northern group called

NEAT, the Northern Environmental Action Team, that was established in

1989. They are a homegrown group of creative and innovative people that

believe in building healthy, vibrant and connected communities through

education and outreach activities.

NEAT is a proud part of northern British Columbia and provides

community outreach and education programs like NEATfx, their K-to-12

education program that is dedicated to bringing current, hands-on

curriculum-based programming to classrooms to help inspire students to

the world around them; Food Secure Kids, a K-to-6 food security program;

and Nourish, a local food rescue program providing job skills training

opportunities. Camp Wildlings, which my son will be attending next week,

and Little Wildlings will take campers deep into the Fish Creek

community forest and allow their imaginations to come alive as they

discover all that nature has to offer.

Recently NEAT took over operational duties of the local Meals on

Wheels program, focusing on delivering quality frozen, nutritious and

affordable meals to those who need it.

[1:40 p.m.]

Fireweed Market is NEAT’s newest unique shopping experience,

providing easy, sustainable product choices to our community. The aim is

to provide functional, zero-waste lifestyle choices and offer practical

skills development through workshops, while helping to grow and incubate

local producers, artisans and businesses in our community.

NEAT is a local treasure, but COVID-19 has highlighted the gaps

and the vulnerabilities in our community that disproportionately affect

our small, rural communities with equally small non-profit

organizations. Finding funds is always a challenge for these groups that

provide an incredible service to my community, as well as other

communities throughout the province. NEAT’s dedication to the community

and the education they provide to our families truly makes our region a

better place.

To Jeff Aitken and his board, and to Karen Mason-Bennett and her

staff, thank you.

AGASSIZ ELEMENTARY SECONDARY

SCHOOL

GRADUATES

K. Paddon: I rise today, speaking from the unceded traditional territories of

the Stó:lō people, to recognize one of many examples of resilience and

community spirit in Chilliwack-Kent.

On February 21, the graduating class of Agassiz Elementary

Secondary School had a bottle drive to raise funds for their graduation

activities. Like so many grads this year and last, the traditional

activities surrounding this important milestone will look different due

to COVID-19. The grad committee at AESS went around the community

collecting [audio interrupted] from the community.

Around March 9, a large portion of what was collected was stolen

from the private property where the cans and bottles were being stored.

It is estimated that roughly $1,000 was lost to this theft.

I had the chance to connect with two soon-to-be graduates, grad

committee member Nicole Pope and student council president Mackenzie

Leverrier. They shared their disappointment with me. On March 11, Nicole

shared the news of the theft on Facebook, and her disappointment, by

saying: “We already have lost so much. We barely have a ceremony and

cannot celebrate our years of high school coming to an end.”

The community of Agassiz heard this call to action and quickly

stepped up. Donations rolled in, including a very generous cash donation

from Norm Sperling at Agassiz SuperValu. The support was overwhelming.

These funds, and those from the remaining cans and bottles, will help to

pay for the grad class’s 2021 activities and ceremony. This will allow

each graduate to individually walk the stage, collect their diploma and

awards and provide a recording to each of the grads of this special

moment.

Please join me in thanking the generous community who came

together to support our grads, Agassiz SuperValu, all of the education

staff at Agassiz Elementary Secondary School and the grad committee of

AESS.

COVID-19 RESPONSE AND RESILIENCE

T. Stone: Not all heroes wear capes, emerge from a bat cave, spin webs or

are able to leap from tall buildings in a single bound.

After a year of unspeakable trauma, anxiety, frustration and

anguish for far too many British Columbia families, we note with

tremendous pride and appreciation the efforts of our real-life heroes.

All of those women and men who stepped up to the forefront during the

pandemic to be there for the rest of us and those who have selflessly

served so many in so many ways to stand tall with their fellow British

Columbians in our greatest hour of need.

Over the course of the past year, that selflessness has manifested

itself in many different forms: people stepping up and volunteering at

their food banks; neighbours looking after each other, from shovelling

driveways to picking up groceries, to simply checking in on each other;

families pulling together to care for parents and

grandparents.

There are, quite simply, no words to describe the resilience of

British Columbia’s front-line workers or to express our heartfelt

appreciation for all that they have done. Doctors, nurses, other health

care professionals and first responders have experienced firsthand the

worst of this pandemic and the worsening overdose crisis at the same

time.

People like Kamloops firefighter Kris, who lives in my

neighbourhood. Teachers like those who have been there day in, day out

for my daughters and children across our province. Grocery store clerks

who have shown up to do their jobs, like my friend Crystal at the

grocery store I go to most often back home. Truck drivers who, without

hesitation, have risen every day to hit the road, often having nowhere

to get a warm meal or a shower for hours on end.

[1:45 p.m.]

Thankfully, there appears to be light at the end of the tunnel and

a promise of better days ahead, although what normal looks like in the

future remains to be seen.

How we thank front-line workers for all they have done will be a

discussion for another day. But if there is one thing this past year has

taught us, it is that cream really does rise to the top, and we are

fortunate in each and every one of our communities to live among

real-life heroes.

COVID-19 VACCINATION PROGRAM

IN PRINCE

RUPERT

J. Rice: Today I’d like to acknowledge an incredible undertaking going on

right now in Prince Rupert: a mass immunization program.

After an entire year with some of the lowest COVID-19 numbers in

the province, Prince Rupert was recently hit hard and fast with the

virus. A plan was mobilized to vaccinate every adult who wants a vaccine

in a city of 12,000. Just yesterday over 1,300 residents were

vaccinated. We are well on our way to stopping the spread.

This massive undertaking requires a huge team, and I’d like to

take a moment to acknowledge the hard work of so many. Please know that

you are seen and appreciated, even if you are not named here. I thank

you from the bottom of my heart.

Thank you to Julia Pemberton, Kim Hughes, Naila Bedford, Leanne

Cunningham, Tamara Checkley and the rest of the Northern Health team who

worked to put the whole event together; Tamar Meyer, Jesse Sayles and

the First Nations Health Authority team; St. John Ambulance; and the

entire BCCDC team.

Special mention to Shala McCarthy, Michelle Pele, Andrea Lorette,

Carol Lindsay, Cindy Mielken, Prince Rupert physicians, Rosa Miller, the

city of Prince Rupert, the district of Port Edward, school district 52,

the grade 12 students of Charles Hays Secondary, Stuck On Designs, all

the local businesses who made donations, Alex Campbell, who blessed the

clinic on behalf of the nine allied tribes of the Coast Tsimshian

people, and the hundreds of volunteers who are helping keep the clinic

moving smoothly every day.

Lastly, I’d like to thank my colleague the hon. Minister of Health

for the understanding and quick deployment of resources to carry this

enormous feat out.

I’m grateful to each and every one of you for the part you’re

playing in protecting our community.

ALDER GROVE HERITAGE SOCIETY

B. Banman: I rise today to speak of a local society in my constituency of

Abbotsford South, the Alder Grove Heri­tage Society.

This volunteer-run museum and community archives runs out of a

1910 mill’s pre-fab building built by Frederick J. Hart of famed Burnaby

Hart House. It is actively collecting photos, documents and artifacts

about the history of the Aldergrove area, its area communities, and

accounts, which is how it caught my eye.

Like many heritage societies and non-profits in our province, the

past year has been one of great challenge, for the society depends on

membership dues and donations for 95 percent of its income. Not being

able to hold its usual number of events or welcome visitors has been

very costly indeed. While the society was able to take advantage of a

small Heritage Canada small museum COVID grant, operating grants for

small, non-government-owned museums are not only difficult to obtain but

nearly always won by larger museums. So I’m told.

The Alder Grove Heritage Society has no paid staff, and the museum

is run by volunteers, most of whom have outside jobs. As a longtime

resident of Abbotsford with a long family history in the Fraser Valley,

I believe it is important that these smaller groups and facilities be

recognized for the important part they play in the preservation of our

history, making these collections accessible for the enjoyment and

education of present and future generations in the community in which

they serve.

I thank the Alder Grove Heritage Society for their continued work

to support their efforts in this pandemic. If you’re looking for a

noteworthy donation, I’m sure they’d be happy to take a cheque from you

as well.

Mr. Speaker: The Hon. Premier will make a ministerial statement.

[1:50 p.m.]

Ministerial Statements

IAN WADDELL

Hon. J. Horgan: Before I begin, I want to wish a very happy St. Patrick’s Day to

all of my colleagues here in the Legislature and to people across

British Columbia who like to celebrate on the 17th of March, whether

they be Irish or they just wish they were Irish. To all of you, have a

very, very good day.

It is with sadness, however, that I rise to pay tribute not to an

Irishman but to a Scot, a feisty fellow named John Ian Gardiner Waddell,

who passed away this past weekend at his home in Kitsilano. Ian spent

five years as the member for Vancouver-Fraserview in this House, always

working for the betterment of the people of British Columbia. I’ll touch

on some of those accomplishments as I go through my comments

today.

The Waddells started in Glasgow 78 years ago. Ian moved with his

family to Toronto, where, he was always happy to tell us, he skipped two

grades and still won the debating championship in his grade 12 year,

when he should have been in grade 10. Anyone who tried to engage with

Mr. Waddell in a battle of wits found themselves immediately disarmed by

his diminutive size but also overwhelmed by his command of the language

and his tenacious desire to always be the last one speaking at the end

of any engagement.

Now, being a friend of mine, that was always a challenge because

I, too, like to be the last one speaking.

Ian was an extraordinary fellow. His first foray into politics was

as a 19-year-old history student in Toronto, driving Lester Pearson

around to campaign events. It wasn’t until he moved to British Columbia

that he joined the B.C. NDP, after succeeding Mike Harcourt as legal

director of the Vancouver Community Legal Assistance Society in the

Downtown Eastside.

Voters sent him here, as I said, in the 1990s, but he served

before that five terms in Ottawa, four as the member for

Vancouver-Kingsway. He was tenacious and fiercely proud of being a

representative from Kingsway. In his last term, after Kingsway was

absorbed in a redistribution, he moved out to the suburbs, to Port

Moody-Coquitlam. I know the member for Port Coquitlam, who ended up

being a constituency assistant for the little battler for a period of

time, was one of many, many people that Ian mentored over his time in

politics.

He was always there for a story. He was always there for some

advice. Sharon Olsen, Naomi Harrison and Paisley Woodward worked with

him in Ottawa, and the member we now know as the Minister of Health, the

member for Vancouver-Kingsway. Jack Woodward, prominent B.C. lawyer,

Indigenous rights activist, also learned under Ian Waddell.

It was what Ian did with not one minute in government in Ottawa

that was truly extraordinary. He served, prior to arriving in Ottawa, as

special counsel to the Berger commission, the inquiry into the Mackenzie

Valley Pipeline.

Working with now Justice Tom Berger, Ian learned to understand the

importance of our environment and the importance of Indigenous rights

and title. When he went to Ottawa as a Member of Parliament, he worked

hard, during the repatriation of the constitution, to ensure that

section 35 in the Canadian constitution understood the importance and

recognition of rights and title in British Columbia. That one act, that

tenacious act to convince the first Prime Minister Trudeau of the

importance of Indigenous rights, is perhaps the strongest legacy of

Ian’s time in Ottawa.

He did some other things, too, that I think are worthy of note.

For example, I mentioned his diminutive size. His first intervention in

the House of Commons was when he was recognized by the Speaker. He said:

“Thank you, Mr. Speaker, for recognizing me without binoculars.” He was

so far away, as a member of the Third Party, and wouldn’t have taken up

much space when he left his chair, as some members of this House will

know.

After Ed Broadbent stepped down as leader of the federal NDP, Ian

was then the lone member from British Columbia who offered up to be

leader of the national party. He gathered around him a bunch of young

people. Someone who would not be recognizable to this day, his

assistant, now the member for Vancouver-Kingsway and the Minister of

Health, ran his campaign. His constituency assistant, the Solicitor

General, was signing up people in British Columbia. I just came along

for the ride, because I played basketball with the Health Minister. I

worked for someone else, doing other things, but Ian had always gathered

people around him.

One of the first people to say “Welcome aboard” when I arrived in

Ottawa, just out of school and not knowing what the heck I was going to

do with my life, was Ian Waddell. In large measure, I owe my presence in

this place today to Ian’s constant support and encouragement.

[1:55 p.m.]

He wasn’t successful in 1989, far from it, but boy, we had fun. No

one had more fun than his beloved mother, Isabel, who I can remember at

age 94 dancing the night away at the Billy Bishop legion in Kitsilano.

Were she here today, I know, although she would be mindful and

respectful of wee Dr. Bonnie, she would probably want to go dancing at

the legion, even if public health restrictions restricted her from doing

that.

Ian wrote some books. He wrote a biography; he wrote a novel. He

produced films. He was part and parcel of the film tax credits that, as

Minister of Tourism, Arts and Culture, led to the burgeoning Hollywood

North that we know so well today.

Even former Premier Gordon Campbell acknowledged, during the 2010

Winter Olympics, the important role that Ian played in securing the bid

for Vancouver, out of the Canadian participants in that process. Ian was

passionate about the Olympics.

Again, I want to acknowledge the government of Premier Campbell

for also bringing Ian along for the ride. That was the kind of guy he

was. Although fiercely partisan, there aren’t too many people that

didn’t have a kind word to say about Ian. Relentlessly optimistic, never

negative.

Ian was made Queen’s Counsel in 2013, and he wrote, famously, in

his book: “Literally counsel to the Queen. A high honour indeed. Your

Majesty, I stand ready to serve.” I don’t think Her Highness ever did

phone Ian and ask for guidance, but it’s her loss that she didn’t do

that.

Ian was also famous for grabbing the mace. I’m not even going to

think about that, Clerk. He grabbed the mace in Ottawa and, as a result,

was censured and was called to the Bar, the first MP since Louis Riel to

do so. Riel didn’t show up. So Ian was the first to be chastised for

touching the mace.

There was another story. I’ll end with this, because I think it

speaks to Ian’s impishness. It speaks to his lack of strategic thought.

He and Jim Fulton were both elected in 1979 to the minority parliament

of the Joe Clark government. Now, Jim Fulton was of my stature. Ian

Waddell was of the stature of the Minister of Finance. The two of them

contrived on an evening, because Jim Fulton’s minister was in the

Senate.

You’ll remember the Joe Clark government was a minority

government. They had no representation from Quebec. So Prime Minister

Clark appointed a guy name Robert de Cotret to the Senate and then

immediately made him the Minister of Mines, so Fulton had no one to ask

questions to.

The larger Fulton and the diminutive Waddell got together one

night. I’ve heard this story so many times. My biggest regret is I won’t

be able to hear it again. This may well be the last time it’s told. The

two of them conspired to rush the Senate. Now, I would have thought

you’d send the bigger fellow in first. But not Ian. He said: “No, no,

Jimmy. I’ll go first. I’ll get their attention. Then you run in and ask

your questions to the minister.”

Sure enough, the Gentleman Usher of the Black Rod said, “Intruder,

intruder,” as young Waddell stormed the red chamber in Ottawa. He was

immediately tackled by the larger security guards. Fulton went around

the other side, asked his questions and then was dragged out of the

place.

Ian was very proud of that, that he took one for the team, making

sure that his colleague could discharge his responsibilities — to then

the member who was, of course, from Skeena and the North Coast. Waddell

and Fulton continued to be fast friends throughout their time in

parliament and then when they returned back here to British

Columbia.

Many people will miss Ian. I know I certainly will. For those who

have known him over the many, many years, know that the last thing that

he tweeted was the following: “The view from my deck today as the

blossoms start. See Stanley Park in the distance and the rest of Canada

over the coastal mountains. Paradise.”

I’m going to remember Ian Waddell on his deck looking across

Vancouver, looking across Canada and acknowledging what we all know.

We’re in paradise.

M. de Jong: Thanks to the Premier for a very apt and touching

reminiscence.

I got the word yesterday from my friend the Government House

Leader, who advised me of Ian Waddell’s passing. I don’t know about him,

but it occurred to me that one of the sad consequences of arriving here

in the early 1990s is that we’re called upon, with increasing frequency,

to consider the departure of former colleagues.

He was, Ian, as we’ve just heard, born in Glasgow, proud of it. He

came here with his folks and ended up, ultimately, in Vancouver. He was

a man who played many roles, as we’ve heard.

[2:00 p.m.]

A lawyer. He started as a prosecutor, defence counsel in Vancouver

and, of course, early in the ’70s ended up as one of the team of

commission counsel working with Mr. Justice Berger on the Mackenzie

pipeline inquiry.

I do think it is fair, as the Premier has mentioned, to mention

that his appreciation and understanding of the unique linkage between

the land and Indigenous Peoples was greatly influenced by that

experience.

He was, as we have heard, a proudly partisan politician and made

no excuse for that. A longtime devoted member of the NDP, though, as the

Premier has fairly pointed out, Ian mentioned to me a few years back

that he actually got his start tootling around with Prime Minister

Pearson back in the early 1960s. He suffered the trials, tribulations

and triumphs of internal party politics, nomination battles, the sort of

thing that all of us experience and never talk about.

He was also a distinguished parliamentarian — 14 years in the

House of Commons. He walked those halls at a unique time in our

country’s history, as we’ve heard, when Trudeau the first, Broadbent and

Clark were leading their respective parties, considering something no

less than the patriation of our national constitution. He played a role

that, perhaps, history hasn’t fully recognized as a member of a third

party, in terms of the influence that he and his colleagues brought to

bear in that exercise.

He arrived in this place in 1996, which is where I got to know

him. It was shortly after that 1996 election that he was asked to take

charge and to chair an all-party committee that would travel the

province of British Columbia to solicit input and reaction to what was

then a draft Nisg̱a’a treaty, the first modern treaty in British

Columbia. It wasn’t an easy task. The government was understandably

proud of the achievement; the Nisg̱a’a, hopeful. And there were no

shortage of critics, least of all political opponents.

The committee was an interesting group, no less than Jack

Weisgerber, Bill Barisoff and the relatively new member for Matsqui, as

I then was. But I think Ian understood intuitively that this was a time

to let people speak and to encourage people with differing views to

speak with one another. His character, his patience, his sense of humour

equipped him well for that task. He would preside over those public

hearings, mostly during the day, sometimes in the evening. Then he would

preside over private hearings in unique locations like animal’s pub in

Fort St. James or in a similar establishment in Nass Camp, just outside

of New Aiyansh in the Nass Valley.

I actually do recall, Mr. Speaker, on one occasion…. Forgive me,

but I will share this. This was an evening session, a formal public

session — Hansard, all being recorded. Two members of the committee —

I’m obliged to say during the dinner break — had, shall we say,

over-imbibed, and arrived at the public hearings, which were due to

start, fairly rambunctious, perhaps overly rambunctious.

[2:05 p.m.]

Ian had a choice, as the Chair. He could call them out and would

have been justified in so doing. He was much wiser than that and quietly

reminded the two members involved that the sooner they quieted down and

let people make their presentations uninterrupted, the sooner they could

get back to those other activities that had clearly engaged their

attention earlier in the evening.

There were other occasions during that time, those travels and

that committee, when it was necessary to board a small aircraft to fly

to more remote parts of the province. As you would expect in B.C.,

sometimes the weather would descend. I had a particular appreciation of

this. There Ian and I would be, both of us nervous flyers, cowering at

the front of the aircraft, contemplating our own mortality and the

number of by-elections that would undoubtedly be caused by the next

incident of turbulence.

Ian was fun. We’ve heard from someone who knew him better than I,

but you didn’t have to know Ian well to detect the twinkle in his eye

and the eternal optimism that propelled him through life. Yes, he loved

politics, but I think it’s because he loved people. I could not have

imagined last December, when I spoke to him, that it would be the last

time that I would speak with him. He was full of life, full of energy.

He has left us too soon, and he will be missed.

S. Furstenau: As the relative newcomer, I don’t have the stories from decades

ago with Ian Waddell, but I can assure you that he made a very deep and

indelible impression on me in just the few years that I had the pleasure

of knowing him. It is, I expect, all of us sharing heavy hearts at the

news of his passing.

For me, Ian wasn’t a partisan. Ian was a model for all of us in

that he so clearly put service to people, to the province, to the

country and, importantly, to this institution and to parliamentary

democracy at the centre of who he was. In the years that I knew Ian,

this is what really, truly motivated him. His commitment to youth and to

education and to that vibrant excitement of parliamentary democracy is

why I feel I was so easily able to connect with Ian.

I can attest to the enormously positive impression that he made.

It was pretty much impossible not to run into Ian in a hallway and

absorb that joyous energy that he always had, and the brimming of ideas

and innovations and thoughts and projects. He was relentlessly energetic

in finding ways to continue to be of service. For that, I am very

grateful to have had the few years of knowing him that I did.

I think that, as has been outlined by the Premier and the member

for Abbotsford West, I only got a small sliver of this extraordinary man

who has done many extraordinary things, particularly in service to

Indigenous rights and title, the work he did to bring the Vancouver

Olympics, his advocacy for the LGBTQ community and rights.

He is a model for all of us. Something we can all aspire to in our

years after being in this place is to be like Ian and remain committed

to this institution, to democracy and to service.

He will be missed.

[2:10 p.m.]

Mr. Speaker: Thank you, Members. Thank you for your beautiful comments about

this very amazing man.

On behalf of all of you, all of us, we’ll be sending flowers to

his family and also a card. The card will be ready for anyone who wishes

to sign, in my office, on Monday. It will be available. Please come and

visit us, and if you wish, you can put your comments on it.

Thank you very much.

Oral Questions

COVID-19 RESPONSE FOR HOCKEY TEAMS

S. Bond: For weeks now, we have been asking the Premier to respond to a

request for funding to support hockey teams in British Columbia. In

fact, we know they will not survive. We are very thankful that there is

a return to play in process, but there will be no crowds in the

stands.

The Premier had this to say. “We need to make sure we…provide the

resources to keep these organizations going until they can get back on

their feet….” Well, the Premier knows that these organizations

desperately need help. In fact, he said help was on the way, yet they

are still waiting.

Today can the Premier tell those teams and other organizations

when exactly they will get the badly needed funding that they have asked

for?

Hon. J. Horgan: I thank the Leader of the Opposition for her question. I know her

passion for this subject, and I share it.

We were delighted to announce the news that the public health

office, Dr. Brian Emerson and Dr. Henry had worked through the details

of putting in place pods so that the B.C. Junior Hockey League could

have an abbreviated season.

We’re also mindful of the fiscal challenges that not just the

BCHL, the WHL and a host of other significant sporting organizations,

whether it be the Western Lacrosse Association, junior football…. Any

number of those community-driven initiatives depend on getting people in

seats. They depend on business sponsorships, which have been maintained,

in many instances, but even those businesses are questioning the

investment in an organization that may not be there next year. So we

absolutely understand this.

We’re working through the processes of government, which the

member knows very, very well. First order of business was to get the

kids back on the ice. Second order of business is to make sure that the

teams, the franchise…. They are not all for-profit businesses, as she

knows. Many of them are community-driven. Many of them are

not-for-profit. We need to try and find the type of program that will

meet the needs of all of the franchise, not just those that are

businesses.

Mr. Speaker: The Leader of the Official Opposition on a

supplemental.

COVID-19 RESPONSE FOR

SPORTS AND ARTS ORGANIZATIONS

AND COMMUNITY VENUES

S. Bond: Thank you to the Premier. We certainly know that there was a lot

of celebrating in British Columbia when the return to play was granted.

People are very appreciative of that.

Yesterday we asked about the status of the funding request. The

Minister of Jobs replied that “there are grants available for sports

teams” to apply for. But as the Premier just pointed out, and he knows

well, B.C. Hockey League teams like the Prince George Spruce Kings, the

Powell River Kings, the Merritt Centennials are non-profit

organizations. The Premier himself pointed that out.

What does that mean? It means that yesterday, while the Jobs

Minister was busy touting an application, they are ineligible for that

minister’s grant program. Ineligible, yet he stood in this House and

said to everyone: “Well, they can just apply.”

Actually, the Premier may want to know that the Minister of Jobs

apparently doesn’t know what’s going on in his own grant program, which

just points out the fact that that program has been botched and bungled

since the day it was announced. Just another example of

that….

Interjections.

S. Bond: The members can mutter all they want on the other side. But here’s

what the Jobs Minister said yesterday. “Let’s just let those sports

teams apply.”

Well, sadly, the minister doesn’t know what’s going on in his own

ministry, and the Premier needs to clarify for the record today. He can

either clarify the Jobs Minister’s comments, or he can today stand up

and specifically tell us what grant program that non-profit

organizations like the B.C. Hockey League, like the PNE, like festivals

across British Columbia….

Where exactly can they apply for the money that the Jobs Minister

touted yesterday?

[2:15 p.m.]

Hon. J. Horgan: Well, I think the Leader of the Opposition answered her own

question.

I said in my response to her first question that there are not the

same apples in this basket. There are apples. There are oranges. There

are pears. The member knows this full well, as does the minister

responsible. Those franchises that are for-profit businesses should

apply for the grants that are available to them.

What I said in my response to her, which I think was abundantly

clear yesterday, is that there are other franchised operations that are

not for-profit businesses. That will require a different tool, a

different solution to the challenge.

We want to make sure that all of the franchises have access to the

resources that they will need. We want to make sure it’s fair and

equitable. Those that are for-profit businesses have programs that they

should have already applied to. For those that are not, we’ll see what

the balance is at the end of the day, and we’ll make sure that they’re

kept whole as well. That’s the objective, hon. Speaker.

Again, one of the challenges, I think, the opposition is having is

that they can’t take yes for an answer. They can’t take yes for an

answer.

We understand the challenges. We understand the challenges. These

programs did not exist 12 months ago. They did not exist 12 months ago.

Not everyone is the same, and that’s why we need to make sure that we do

this in an equitable way that ensures that the franchise in Merritt gets

the same access to dollars as the franchise in Penticton.

T. Stone: Only in NDP land would it make sense to tell organizations to go

and apply for a grant program which they’re not eligible for. With all

due respect to the Premier, he is likely hearing from the same

organizations that we are — not to mention countless businesses around

this province that have been waiting, for almost a year now, for support

from this government.

Mr. Speaker, yesterday we asked what kinds of supports non-profit

organizations like Science World, the Vancouver Aquarium and others

could expect. The minister responsible replied: “I’m a member of Science

World.” Well, Science World is going to need more than 130 bucks out of

the minister’s pocket in order to keep their lights on.

My question to the minister is this. Is 130 bucks the level of

funding that he believes organizations like Science World and the

Vancouver Aquarium need to survive, or is he prepared to step up today —

not two days from now; not 30 days from now; God help us, not six months

from now but today — and provide the funding for organizations that need

the support now?

Hon. R. Kahlon: Hon. Speaker, clearly 99.4 percent of jobs returning to B.C. is

really bothering the opposition members over here — the highest

per-capita supports for businesses and people in all of Canada. I don’t

understand why they’re so angry at the success that we, collectively,

are having here in British Columbia.

I shared with the members that there are some businesses, some

sports teams, that operate like businesses. They’ve applied, and some

have already received the money, as the Premier has noted. Some of them

are not-for-profits, and I’ve said, yesterday as well, that the Minister

of Tourism, Arts and Culture is continuing to engage with them to find

solutions for the not-for-profits.

The sports organizations that are running like businesses have

applied, and some have actually received the money. The opposition

leader will be pleased to hear that.

That being said, today we expanded a launch online program, a

fantastic program. We had put $12 million towards that originally. We

saw such an increase in demand that we increased it by $30 million

today.

I know that a member for Kamloops, when it was announced, said:

“Oh, this is not needed.” That was his position: “This is not needed.”

So just as we are adapting our programs to adjust to the needs of

businesses throughout B.C., it’s nice to see that the member is

adjusting his views on the needs for programs in B.C. as

well.

Mr. Speaker: The member for Kamloops–South Thompson on a

supplemental.

T. Stone: I’m not the one that is expressing the anger about it taking a

year for this government to deliver programs. It’s small businesses.

It’s mid-sized businesses. It’s non-profit organizations. It’s

organizations like Science World, the Vancouver Aquarium, rodeos. All

kinds of organizations that are waiting and waiting and waiting for this

government to deliver.

The only thing that’s comprehensive about the minister’s recovery

program is how bungled, and how comprehensive his bungling of it, this

program actually is. That’s the reality.

[2:20 p.m.]

The minister also claimed yesterday that there was money available

for theatres — made a big deal about this yesterday. Theatres can apply

to a program to build infrastructure. But a news flash to the minister:

the program is closed. It’s closed. It’s not taking applications

anymore. So there’s no money left for performing arts organizations, but

that same program had enough money to give the city of Vancouver

$645,000 to build a toilet. Now, we all agree on the importance of

public washrooms. But $645,000 for a toilet? Is it

gold-plated?

My question to the minister would be this: why was spending over

half a million dollars on a toilet more important than grants for

struggling performing arts venues that are barely hanging on?

Hon. R. Kahlon: The member may want to reach out to the theatre in Trail, which is

delighted to have the dollars available to continue to operate their

business. I’ve already highlighted and….

Interjections.

Mr. Speaker: Members. Members, let’s listen to the answer.

Hon. R. Kahlon: The twins from Kamloops might want to hear the answer to

this.

Interjections.

Mr. Speaker: Okay, let me know when you are done.

Hon. R. Kahlon: Thank you, hon. Speaker. I’ll let them decide who Danny DeVito

is.

Mr. Speaker: The minister will continue.

Hon. R. Kahlon: We have the highest per-capita supports in all of Canada for

businesses and people. We’re so proud of that — 99.4 percent of jobs

returned and ten straight months of job increase, leading the country.

This is something we should all be proud of.

We’ve cut property taxes, deferred others to reduce pressure.

We’ve prohibited commercial evictions. We’ve put in tax subsidies for

businesses to hire and rehire employees. We’ve provided a 25 percent

reduction to liquor pricing for restaurants. Guess what. We made it

permanent. Going forward, we’re allowing restaurants to be able to sell

liquor, which they’ve been asking for, for a long time.

We’ve made so many adjustments to our programs. We’ve made so much

support available. That’s why we’re having success in B.C. right now,

and we’re well positioned to have a very strong economic

recovery.

PROTECTION OF OLD-GROWTH FORESTS AND

INDIGENOUS

CONSULTATION AND CONSENT

S. Furstenau: I believe we are all in agreement in this House that building a

new paradigm for forest management in this province must be done in full

partnership with Indigenous Peoples. Part of this is recognizing the

fact that the status quo of old-growth logging is currently happening

without the consent of many Indigenous Peoples in our

province.

I’d like to quote Dorothy Hunt, Chief in council, Kwakiutl First

Nation, who has some very powerful words to say about what’s happening

in her territory.

“The Kwakiutl First Nation is not opposed to logging. But we have

had a ban on old-growth logging in our territory for over ten years. Yet

new logging approvals continue to move forward without meaningful

consultation and consent. We asked this government for deferrals, in all

remaining old growth in our territory, more than five months ago, yet we

still see new old-growth logging being approved in our salmon-bearing

watersheds. Recently Western Forest Products logged right into our

salmon-spawning rivers.”

To the Minister of Forests, Lands and Natural Resource Operations,

the Kwakiutl Nation would like to know: “Will the minister give a

directive to Western Forest Products and regional district staff to stop

violating our rights, title and Douglas treaty and defer old-growth

logging so that we can begin having much-needed government-to-government

conversations?”

Hon. K. Conroy: Our government is strongly committed to implementing the 14

recommendations from the old-growth report. The first report, of course,

is to engage the full involvement of Indigenous leaders and

organizations. Our ministry is doing that, and I would be happy to reach

out to the member and to the leader, to the Chief, and talk to them

about their issues.

[2:25 p.m.]

We know how important this work is. The number one recommendation

from the report is one that we take very seriously. It is to engage the

full involvement of Indigenous leaders. I would be happy to talk to them

about this.

S. Furstenau: I guess I’m struggling with what “strongly committed to the

recommendations” really means, coming from this minister and this

government, given that we’ve missed the first important deadline on

deferrals of old growth that need protection. Now we’re hearing from

Indigenous communities that have indeed not been consulted

with.

This is Chief Rande “Makwala” Cook of the Ma’amtagila First

Nation. He says: “Collaboration between First Nations governments will

be key to moving forward. B.C. Timber Sales continues to high-grade and

target ancient, culturally significant red and yellow cedar old-growth

forests in the Ma’amtagila territory in both the Great Bear Rainforest

and on Vancouver Island.”

He has a question to the Minister of Forests, Lands, Natural

Resource Operations. He asks: “Will the minister tell B.C. Timber Sales

to cease all logging of old-growth forests to show that B.C. is a leader

in ending the unethical practice of old-growth logging, and please,

could you start with my territory, where B.C. Timber Sales and companies

like LeMare Lake Logging are destroying culturally modified trees and

the last of our sacred trees of life, the great cedar tree?”

Hon. K. Conroy: There are thousands of hectares of protected old-growth trees

across B.C. In Clayoquot Sound, there are 170,000 hectares. In

Crystalline Creek, there are over 9,900 hectares. There are almost 600

hectares in Quinsam. Incomappleux Valley has 5,000 hectares. I could go

on.

There are hundreds of thousands of hectares of old-growth forests

that have been protected, and we are committed to working with

Indigenous governments on additional areas of old-growth deferrals and

protections. All of the protections, all of the deferrals that were done

in September, were done with direct consultation, with direct

discussions, government to government, with Indigenous

governments.

We will have also protected old-growth trees together for wildlife

and modernized land use plans. We continue to defer logging to support

the caribou conservation work, which was done in consultation with and

the support of Indigenous Nations — protection for spotted owls, again

in consultation with Indigenous Nations, and protecting the marbled

murrelet and northern goshawk recovery plans.

Paradigm shifts take time. We will work with all our partners,

including the government-to-government discussions with Indigenous

Nations, to make sure that we get this right.

A. Olsen: What’s clear from the Minister of Forest’s response is that

they’re getting it wrong. They’re getting it wrong because you can’t

consult about trees that are already cut.

The minister, when asked a direct question about an Indigenous

leader, Rande Cook, on the north Island, starts to rattle off about

other areas that are protected but that are not in the territories that

we’re talking about.

Quoting the Nuchatlaht Nation Hereditary and band council Chief

Jordan Michael:

“The Nuchatlaht Nation is fed up with the B.C. government and

logging companies gaslighting our people. In fact, it’s hard to tell the

difference between logging corporations and the government sometimes. We

want to end the theft of our old-growth rainforests and steward our

lands in a way that benefits everyone, not just wealthy shareholders.

When will the Premier, the Minister of Forests and the Attorney General

honour the rights and title of the Nuchatlaht Nation and stop

prioritizing Western Forest Products profits over the health of the

environment, wild salmon and my people’s cultural heritage in the

old-growth forests of Nootka Island?”

My question is to the Minister of Indigenous Relations and

Reconciliation. What specific steps has he taken to date, in partnership

with FLNRORD, to begin to prioritize reconciliation and restore

Indigenous self-determination, decision-making and stewardship in the

management of our forests?

[2:30 p.m.]

Hon. K. Conroy: Again, we are committed to government-to-government discussions

with Indigenous nations in this province, as the number one

recommendation from the old-growth report. I will remind the member that

the old-growth report was written by two illustrious foresters in this

province, Al Gorley and Garry Merkel. Garry Merkel is a member of the

Tahltan Nation.

We know that we need to…. What we have done is those 14

recommendations, where we deferred over 100,000 hectares of old-growth

forest. We also know that we did that in discussion with Indigenous

nations.

We have more to do. We don’t deny that. We have more to do. We

will be reaching out to Indigenous nations. We will be reaching out to

them on a government-to-government basis to have those important

discussions about their land, with the nations that want to be involved

in forestry, the nations that want to be involved in tenure management

and in stewardship of the land. We recognize how critically important

that is, and we are committed to doing that.

Mr. Speaker: The member for Abbotsford South.

A. Olsen: Mr. Speaker, I have a supplemental.

Mr. Speaker: Member, go for a supplemental.

A. Olsen: Thank you, Mr. Speaker. I think whoever is making the decisions

about who’s answering these questions just put Indigenous nations on

notice as to the rank and file of where the Minister of Indigenous

Relations and Reconciliation stands in the grand scheme of things of

this government.

My question was not about forests. My question was about what the

Minister of Indigenous Relations and Reconciliation has done to advance

this conversation, a question specific to that minister, a ministry

which I hold to high esteem.

Grand Chief Stewart Phillip, president of the Union of B.C. Indian

Chiefs, has also called for immediate protections to create space for

proper consultation. He said to have good-faith conversations, we must

“put away the power saws.”

UBCIC has written a letter to this government explaining why

adequate funding is a critical component of reconciliation and a shift

away from old-growth logging. I quote: “With a lack of critical and

accessible funding, combined with the government’s overwhelming

influence resulting in Indigenous dependency on old-growth logging jobs

and revenues, First Nations communities are unable to exercise their

title and rights to freely pursue their economic options consistent with

the protection of old-growth forests and Indigenous

self-determination.”

To quote from the letter again: “Conservation financing is vital

to support and advance sustainable economic self-determination in First

Nations communities to ensure that an equivalent economic alternative to

old-growth logging is available for these communities.”

Again my question is to the Minister of Indigenous Relations and

Reconciliation. Has the minister, along with his counterpart in FLNRORD,

brought forward a proposal for conservation financing as a central part

of reconciliation and a new forestry paradigm for next month’s

budget?

Hon. M. Rankin: I reiterate what my colleague the minister responsible for forests

and for the old-growth strategy has said. The first recommendation of

that report, which was co-authored by Mr. Merkel of the Tahltan Nation,

commits our government to work with Indigenous peoples.

I have the greatest respect for Grand Chief Stewart Phillip and am

aware of the correspondence that the member refers to and, of course,

will continue to be involved, as a member of the executive council, in

the decision-making respecting this critically important file. We are

playing a supportive role across government and will continue to do

so.

I thank the member for his question.

PREMIER’S OFFICE RECORDS AND

FREEDOM-OF-INFORMATION

REQUESTS

B. Banman: For over three years, the Premier has been fighting a legal battle

to hide a list of files on his computer. The government lawyers tried

every argument imaginable to suggest that providing a screen shot or a

list of files was too hard and too complicated.

Well, good news. The Premier lost. The Office of the Information

and Privacy Commissioner has dismissively ruled that while human effort

is required to provide a list of files — for example, the pushing of

buttons and entering commands, etc. — that kind of effort is an ordinary

part of using a computer.

[2:35 p.m.]

Here’s a yes we’d love to hear. Will the Premier end the games and

hand over a list of documents on his computer?

Hon. J. Horgan: If the member wants to see access to a computer that’s rarely

turned on, he’s welcome to it.

It’s the constant fishing expeditions by the official opposition,

not to elevate awareness or understanding of the critical issues facing

British Columbians but to keep the people in the basement busy with the

FOI requests.

You can come and take a look at my computer right after question

period. I’m happy to let you take all the pictures that you

want.

Mr. Speaker: The member for Abbotsford South on a supplemental.

B. Banman: Government lawyers spent over three years delaying and blocking

the information. Now they seek to defy the ruling by choosing the most

difficult means possible of providing those records by applying a

trumped-up fee.

I have an invoice for $2,700 for an estimated 90 hours of work to

produce a record. If they’re going to charge us that, I shudder to think

what they would charge the press.

Are the basic computer functions beyond the capabilities of the

Premier or his staff? It is nothing more than attempt to block access.

What is the Premier hiding on his computer?

Hon. J. Horgan: I think it was a tactical move by the official opposition to put

up a rookie MLA. The

schedule that he refers to was not created by me.

It was not created by the Attorney General. It was created by the B.C.

Liberals. In fact, it was approved by the former Finance Minister, who

proudly said: “I don’t use emails.”

If the member on the other side has a concern with the Freedom of

Information and Privacy Act, it is under review right now. There are

members of the official opposition, I believe, that are on the

committee. I’m hopeful that they are.

If they want to improve the public’s access to information that

will help them make determinations about the well-being of their

families, the support in their communities, how we can help businesses,

100 percent behind you, my friend. But if you just want to look at what

I’m listening to on YouTube, you can come and look at that right after

question period.

T. Shypitka: Sticking with the St. Patrick’s Day theme, it’s going to take a

lot more than the luck of the Irish to allow the Premier to wiggle out

of this one.

This is what the Premier said three years ago: “I set a very high

standard. I am disappointed that we are not always meeting that

standard, but I remain committed to ensuring that we’re doing our level

best…to be open, to be transparent…and to have best practices when it

comes to freedom of information.”

Yet time and time again this NDP government has blocked access to

information to the opposition, the public and the media — huge fees to

block access, endless extensions for even the simplest of requests, even

going so far as to defy legislated deadlines for FOI

requests.

Why is the Premier using trumped-up fees to avoid providing

information?

Hon. J. Horgan: Again, it’s good. Although a more seasoned member asking the

questions, he wasn’t here at the time that the former Finance Minister

declined to use email. He wasn’t here when the former Minister of

Transportation perfected the triple-delete strategy. He wasn’t here when

the former Premier’s office had someone responsible for freedom of

information who used yellow Post-its to track information coming in and

out of the office.

We are doing everything we can to meet the public’s expectation

about access to their information. If that does not meet the needs of

the kids in the basement that are working hard…

Interjections.

Mr. Speaker: Members.

Hon. J. Horgan: …to drum up something for the people on the opposition to ask the

government, that’s not our problem. That’s their problem.

Mr. Speaker: The member for Kootenay East on a supplemental.

T. Shypitka: Maybe I should snap the Premier into the now, into

This is what the Information and Privacy Commissioner had to say.

He said: “Between April 1, 2017….”

Interjections.

Mr. Speaker: Let’s listen to the question, please.

Continue, Member.

T. Shypitka: This is what the Privacy Commissioner had to say: “Between April

1, 2017, and March 31, 2020, government failed to comply with legislated

timelines in thousands of cases…. Over 900 files remained unanswered

with no legal authority to delay responding.”

[2:40 p.m.]

This is a deliberate attempt by the NDP to conceal government

records from British Columbians.

When will the Premier stop fighting the release of public

information?

Hon. L. Beare: I want to let the members across the way know that their attempts

at making this request sound so simple couldn’t be further from the

truth. This request that was put forward requires 90 hours of staff

time, and it will take designing and developing two computer programs to

process this request.

This is a broad, sweeping request that’s asking for screen shots

of devices, which aren’t typically government records. They historically

have not been, under the previous government. They are not,

historically, records that our government has kept.

Over the past three years, there has been a 250 percent increase

in FOI requests from political parties. Imagine that. A 250 percent

increase from political parties that has cost B.C. taxpayers $43

million. Applying that fee of $2,700 is entirely appropriate. To design

and develop two computer programs to actually generate records that

don’t currently exist…. It’s an entirely appropriate use of the

fee.

We are being open and transparent with British Columbians. Last

year we released 1.86 million pages in responses to FOI requests, and

our response time is 86 percent, compared to the previous government’s

79 percent. We’re going to continue to be transparent.

[End of question period.]

Orders of the Day

Hon. M. Farnworth: I call committee stage, Bill 11.

Committee of the Whole House

BILL 11 — COURT OF APPEAL ACT

The House in Committee of the Whole on Bill 11;

S. Chandra Herbert in the chair.

The committee met at 2:43 p.m.

On clause 1.

M. de Jong: Here’s what I was going to propose for the purpose of the

discussion this afternoon. I’ve got a series of sort of general

questions about how the act came into being. I don’t actually anticipate

a lot of time being spent. There will be a few questions on some of the

sections after that, but if the Attorney is agreeable, I’ll propose to

lump some of these general questions into

section 1, and then we can

move beyond that.

[2:45 p.m.]

The first question. Because of the uniqueness of the bill, dealing

as it is with this third very independent branch of governance, the

judiciary, I thought it worthwhile for the Attorney to put on the record

just a general description of the process — he touched on some of this

in second reading remarks — that was followed in terms of the bill

coming together — there was obviously a white paper — and particularly

the interaction that would have occurred between the executive branch,

his ministry and the judiciary, leading to the statutory product we have

before us.

Hon. D. Eby: I can advise the member that the road to this act arriving in

front of us was a long and…. Not particularly winding, but it was a long

one.

There were two significant public consultations that occurred in

relation to the Court of Appeal Act. The first one — the member would

have been in executive council at that time — was in 2015-2016. The

Court of Appeal invited members of the public and the profession to

identify needs and suggestions to make court procedure and process more

user-centred, efficient and effective. That consultation resulted in a

decision to move forward with revisions to the act. That was the

original engagement, done under the B.C. Liberal government.

The second public consultation period took place in 2019 and

provided members of the public an opportunity to comment on the revised

act, rules and forms. This public consultation was held for a six-week

period from October 25, 2019, to December 6, 2019. That was done through

the govTogetherBC website.

There were letters sent to a number of stakeholders to draw their

attention to the consultation. Letters went to the Canadian Bar

Association, B.C. branch; Law Society of B.C.; Trial Lawyers Association

of B.C.; Justice Canada, B.C. regional office; Ministry of Attorney

General, legal services branch; Access Pro Bono Society B.C.; Justice

Education Society; justice access centre; First Nations Justice Council;

Métis Nation B.C. leadership circle; Native Courtworker and Counselling

Association of B.C.; Access to Justice B.C.; and the National

Self-Represented Litigants Project. That resulted in feedback that

informed changes to the revised act and which will also inform changes

to the revised rules and court forms.

Specifically to Indigenous communities, ministry staff presented

at the First Nations Justice Council, Métis Nation B.C. leadership

circle meetings in fall 2019. Invitation letters advising of that

consultation were sent to First Nations Justice Council, Métis Nation

B.C. leadership circle and Native Courtworker and Counselling

Association of B.C. We received feedback from a number of these

organizations. I can go into detail if the member is

interested.

As part of that consultation process…. The member referred to a

white paper that was provided, and it included a proposed draft of the

act. It wasn’t conducted in a vacuum. The feedback was provided in

relation to that white paper. I understand that that may be of some

interest to the member, as well, in terms of changes between the white

paper and the version that’s in front of us today. I’ll leave it at that

and await his next question.

M. de Jong: That’s helpful. I can advise the Attorney that at a certain point

in this initial conversation, my colleague from Skeena may have some

more specific questions about the level of engagement that took place

with the First Nations Justice Council and the Métis leadership

council.

If I could just back up for a moment. With one exception, the

level of consultation, or the manner in which consultation takes place

here, would not be that different than in any other piece of

legislation. To cut to the chase, I can put this to the Attorney, and

maybe he can determine the best way to provide the committee of the

House with the level of comfort — I think he’ll understand — I’m trying

to secure on the record.

[2:50 p.m.]

The court itself, which this act proposes to continue and

delineate powers and jurisdiction to, is precluded from providing the

same kind of public commentary that other stakeholders would

historically be in a position to make, whether they made it through a

consultation exercise like the one described by the minister or chose to

speak out in other forums.

That’s not an avenue open to the court itself. My understanding —

and I’ll be really direct with the Attorney — is that the court is

relatively content and sees the act as an appropriate continuation and

replacement for the existing act that it seeks to replace. But is there

a way for the Attorney to signal to this committee and to the House that

that is so? That the court itself has had an opportunity to review — I

think it has — and that it has signalled that it believes the proposed

legislation, Bill 11, is appropriate and workable going

forward?

Hon. D. Eby: I do understand the context of the member’s question, given that

the courts are, as he rightly noted in his second reading speech, the

third branch of governance in our province. I appreciate that nuance in

his speech. I’ll use it going forward, even if it may not be with the

total approval of the court.

One thing that does…. I do not presume to speak for the court, but

I can advise the member that the court has been very involved in this

process. The Court of Appeal has an internal Court of Appeal rules and

practice committee. The mandate of that committee is to review, enhance

and simplify the practice and procedure of the court. They meet

regularly, throughout the year, to discuss proposals by the justices of

the court, the registrar, lawyers and the public for amendments to the

Court of Appeal Act, the Court of Appeal rules and the Court of Appeal

criminal appeal rules.

The committee consults with members of the bar and other

organizations such as the Canadian Bar Association, many of them that

I’d list — I won’t go through all of them — when there is a proposal

that would significantly change the court’s practice and procedure. The

members of this committee are obviously the Chief Justice, Chief Justice

Bauman; Hon. Madam Justice MacKenzie; Justice Harris; Justice Goepel;

Justice Finch; Justice Fisher; the registrar; and two legal counsel that

are in-house with the court, Sally Rudolf and Shirley Smiley.

To the member’s question, that committee was consulted throughout

the legislative drafting process and had the opportunity to provide

comment on the proposed amendments to the act. The member may recall

from a 2013 MOU between the then Attorney General and the chief justices

and the chief judge of our various courts in the province that the

Attorney General must consult with the courts for any initiatives that

may affect judicial administration.

These amendments that are in front of the House today were

developed in close consultation with the Court of Appeal and within the

framework of the MOU. In accordance with the MOU, the chief justice of

the Supreme Court and the chief judge of the Provincial Court were also

consulted. Any concerns raised by the courts were, to the best of our

knowledge, addressed.

M. de Jong: That, too, is helpful and, I think, worthwhile to have been placed

on the record, including the reference to the MOU that guides the

delicate relationship that exists between the executive branch and the

judicial branch.

I’d like, in a few moments, to come back to the draft rules,

insofar as a key part of this legislative initiative is to re-organize

the act versus the rules. I’ll be interested to pose a few questions

about how, going forward, the rules and practice committee will be

engaged, assuming it will — and I think it will — with respect to the

rules.

[2:55 p.m.]

Before we get to that, however, can I ask the Attorney to confirm

that specific responses were received from the Law Society of British

Columbia and to what extent, if at all, there were concerns expressed by

the draft legislation, Bill 11, before us?

Hon. D. Eby: We did have one letter from a lawyer associated with the Law

Society of B.C., but it indicated that those were personal views and not

those of the society as a whole. The society as a whole did not provide

any feedback to us that we received. We did receive feedback from the

Canadian Bar Association, B.C., appellate advocacy section; DOJ Canada,

B.C. regional office; and a number of lawyers and members of the

public.

Some of the feedback we received from CBABC and the DOJ was

positive feedback about the focus and reorganization of the act and the

rules, the filling of procedural and technical gaps that can confuse

counsel and self-represented litigants. They appreciated the

streamlining of procedures, the incorporating of practice directives and

using more plain language. They proposed amendments to empower a single

justice to make a number of different orders, sitting as a case

management judge.

General support of the changes was indicated from the

correspondence received from lawyers or groups of lawyers, with notable

comments being appreciation of the increase in the use of case

management, greater involvement of the registrar, improvement to the

forms and a clarification in a number of identified existing

ambiguities.

M. de Jong: In the list of agencies that the Attorney General read off who

have provided feedback, did I hear him refer to the Trial Lawyers

Association as well? Were they included in that list?

Hon. D. Eby: They were invited to provide feedback, but I don’t believe we

received any feedback from them on the rule amendments.

M. de Jong: I’ll refer back, as I did in second reading, to the briefing that

the minister and the ministry kindly provided. I won’t ask the minister

to, at this point, go through,

chapter and verse, the changes, because

some of them are quite minor.

This is more of a thematic question for the Attorney General that

he has, in part, touched upon with his earlier comment. But in general,

if we were to take the draft bill that was attached to the white paper

and hold it next to Bill 11, where, if at all, would we see any

significant departures, substantive departures?

Hon. D. Eby: As the member notes, there was a white paper provided in the

second round of public consultations, the 2019 consultation, which

included a proposed draft of the act. The member is right that there

were some very minor changes, but there were some more significant

changes.

I’ll go through the highlights, but there were changes made to

over 30 sections of the proposed draft of the act or clauses of this

bill that’s in front of the House — actually, 38, to be exact. Many of

these were refinements to wording or placement of punctuation to clarify

ambiguities identified during and since the consultation.

The more notable sections that were added and modified include

clause 1 of the bill that’s in front of us. That’s the

interpretation

clause. It was renamed from the white paper to

interpretation. The

definitions for “appellant” and “party” were clarified from the version

that was in the white paper. Subclause (2) was added to disapply

section

5 of the Offence Act, which is a current drafting convention.

[3:00 p.m.]

Subclause 13(3), concerning appellate jurisdiction, was clarified

to preserve the possibility of seeking leave to appeal to match the

existing subsection 6(2) of the act. So it’s different from the white

paper in that regard.

Clause 20, related to preliminary objections. It is intentional to

have the justice quash an appeal if the justice believes an appeal is so

devoid of merit that it amounts to abuse of process, but only the court

may dismiss an appeal for the purpose of giving effect to a preliminary

objection.

Clause 21 was modified from the white paper. This concerns

referral to the court for

summary determination. This was an addition

that was welcomed by CBABC and DOJ Canada, because they both suggested

removing “significantly irregular” from the original version, as an

appeal may be irregular but still have merit and the court would still

want to proceed with it.

Clause 26 concerns limiting hearings and requiring preparation of

written arguments. I wasn’t there, but I suspect this may have been

informed a bit by COVID. The ability to conduct hearings by telephone,

video conference or other means of telecommunications was added to

maximize clarity of the court’s powers to proceed remotely.

Clause 5 was modified to preserve flexibility for members of the

court to appear remotely and is consistent with subsection 9(2) of the

Supreme Court Act. The member will see some differences from the white

paper there.

Under clause 30, the general powers of a justice, modifications

were made to sub (a), sub (

d) and sub (i). Some were minor edits to

wording to ensure consistency of language. Sub 30(

d) was changed to

clearly indicate that “the purposes of a matter that is to be decided by

a justice,” applies to both sub 30(d)(

i) and 30(d)(ii).

Clause 35 was changed from the white paper. This concerns varying

orders of a justice or registrar. It was re­phrased to avoid

ambiguity and clearly indicate that the “material change in

circumstances” threshold applies to both clauses 33 and 34, because in

the white paper it was not as clear as everyone wished it to

be.

Clause 45, in relation to powers of court or a justice in relation

to costs. This was raised by counsel, who provided feedback. The phrase

“the court or” was added before “justice considers appropriate” to

clearly indicate that the power should be to the court and a

justice.

Clause 51 varies from the…. This is the last one. I don’t know if

this is maybe a bit more micro than the member hoped. Clause 51 was the

last of the significant departures from the white paper. It’s the

transition, regulations section.

A clause was added to ensure there is sufficient authority for the

Lieutenant-Governor-in-Council to be able to provide that the new Court

of Appeal rules have retrospective application to appeals that commenced

before the new act and rules come into force. This clause provides

explicit authority for the LGIC to, in repealing and replacing the Court

of Appeal rules, apply the new Court of Appeal’s to existing appeals,

which, of course, is only something that would happen following

engagement with the court.

M. de Jong: Thank you to the Attorney.

I mentioned a few moments ago, on the question of the consultative

work that took place, that my colleague will have a couple of questions

relating to the First Nations Justice Council and the leadership

council. I’m just going to introduce the topic by asking this and trying

to be forthright with the Attorney, so he knows where I’m coming at this

from.

[3:05 p.m.]

Since the passage of Bill 41, I guess, over a year ago now, and

the incorporation of the United Nations declaration, the Attorney will

have noted that the official opposition in this House has been trying to

ascertain what the triggering point is, or the test, in the minds of the

government, for engagement and consultation around proposed pieces of

legislation.

Now, in this case, the Attorney has already indicated that there

was consultation work that took place. My colleague will pursue that.

I’m interested, in a general way, as to whether the Attorney can offer a

more definitive articulation of what kinds of pieces of legislation

trigger that obligation in the minds of the government.

Again, I don’t want to unnecessarily belabour the discussion, but

here’s the starting point. When we had the discussion around Bill 41,

the Attorney’s then colleague, in response to a question I posed to him,

said that that obligation exists for all legislation, including laws of

general application with no specific reference to First Nations,

Aboriginal, Indigenous peoples. Since then, colleagues of mine have

posed questions to other ministers, whose responses have been: “Well,

the piece of legislation being considered was not of particular concern.

There was nothing unique about that legislation that attracted or

engaged the attention of First Nations, so there was no consultation

that took place.”

I’m curious to know whether the Attorney can offer to the

committee and the House a clearer enunciation of when it is, with

respect to proposed pieces of legislation, that that obligation and the

obligations under the Bill 41 are triggered.

Hon. D. Eby: I can advise the member that from my own perspective, given the

importance of the courts in our province to holding government

accountable to the rule of law and as a critical branch of governance in

our province independent of government, to me, it made a lot of sense

that we would engage directly with Indigenous organizations about this

act.

I can also share — it’s my belief, anyway — that through his

actions and leadership in the court, Chief Justice Bauman would expect

no less from government before we put a piece of legislation like this

in front of the House — that Indigenous organizations were, indeed,

consulted and meaningfully consulted.

That is why the ministry staff on this file presented at the First

Nations Justice Council and Métis Nation B.C. leadership circle meetings

in the fall of 2019. In advance of those presentations, letters were

sent to the First Nations Justice Council, Métis Nation B.C. leadership

circle and Native Courtworker and Counselling Association of B.C. so

they could be assured of the opportunity to invite members and those who

were interested in this bill or in this consultation process to their

membership so that they could attend and hear about it and understand it

and provide feedback to government.

This was, to me, quite a straightforward matter and not one

requiring the application of an onerous test or a legal test of some

kind.

M. de Jong: Rest assured, the Attorney will get no argument from me about the

conclusion he came to. I think it was, in the context and certainly in

the aftermath of Bill 41, the right conclusion.

I was more interested, though, in the first part of…. Well, that’s

not true. I was interested in everything the Attorney said. But where he

said: “I, as the Attorney General, came to the conclusion that this was

something of paramount interest.” I’m now paraphrasing, but he concluded

it was entirely appropriate for the following reasons.

[3:10 p.m.]

Is that the process? Is it for the sponsoring minister to make a

determination? Because we’ve heard from other ministers who have said

that, in other circumstances, they came to a different

conclusion.

I’m not arguing with the conclusion the Attorney came to in this

instance. I think it was the correct one. But it does suggest that the

determination is left to individual ministers. Is that a correct

assumption for me to make?

Hon. D. Eby: The decision to engage Indigenous leadership groups in relation to

this bill is certainly made in the context of our commitments under

UNDRIP and, my understanding, as best as possible, those provisions,

given the fact that we’re one of the first jurisdictions in the world to

adopt this kind of legislation and to make these kinds of

commitments.

It was my understanding that for my obligations, both through my

mandate letter, directed by the Premier, to engage Indigenous

organizations in the work that we do in the justice system, and our

commitments under UNDRIP, that this bill required that work to

happen.

E. Ross: Following up on my colleague’s comments, regarding the

consultation regarding Bill 11. It goes back to the idea of the latest

legislation regarding Bill 41, Declaration on the Rights of Indigenous

Peoples Act.

To be fair, when we were debating this back in 2017, in estimates

and the UNDRIP bill itself, I did get some broad, general answers that

didn’t actually answer the question that I was asking. The only answer I

really got was from the Attorney General, who at the end of his comments

said that the issues would be viewed, under UNDRIP, through the lens of

section 35. That was the only comment that I heard through estimates,

from all of the different ministers, that made any sense.

That’s what I was looking for, trying to reconcile

section 35,

with all of its case law — 300 court cases and counting, I guess — with

a broad, general statement that came from the United Nations.

In terms of the consultation, normally this type of bill would

have been adequate to consult the organization you refer to, which is

the Justice Council, normally. As chief councillor back in my band, if I

ever heard about this happening, it wouldn’t have occurred to me to

stand up and protect my rights and title, especially the consultation

and accommodation of it. But this is all changed with the NDP

government’s introduction of Bill 41.

I’m not really trying to redefine any of these clauses, but I just

want to know: how does the government decide — this is a follow-up to my

colleague’s question — on which bills to consult First Nations with? How

do they decide which body they consult and accommodate with, in terms of

these types of legislations?

Hon. D. Eby: It may assist the member to understand what my thinking was about

why this bill required consultation.

I see what the Chief Justice of the Court of Appeal has done

around reaching out to Indigenous people and leadership organizations

across the province in the work of the court, the leadership that he and

his staff have shown on this important matter.

[3:15 p.m.]

I know our own government recognizes the importance of the courts

as an independent branch of government that holds us accountable to the

rule of law — that includes in relation to rights and title cases, but

every aspect of the law that affects all British Columbians, including

Indigenous people.

I know of our commitments that we made, whether explicit in the

act or otherwise, through adopting UNDRIP. I say “otherwise” not in the

sense that there’s some sort of secret unwritten piece. The commitment

that was spoken — not unspoken — in the adoption of that act was a

commitment to work with Indigenous people and to work in partnership. So

when we’re talking about reforms to a branch of government in the

province, in the spirit of UNDRIP and the spirit with which we adopted

that legislation, it just didn’t seem to me to be controversial or

particularly thought-provoking about whether we would do

this.

The question turned to, really, how we would do it most

effectively. I think that’s something that is still evolving. How do we

engage with Indigenous people in this province around matters like the

Court of Appeal Act? Is it sufficient to engage with the groups that I

listed? Should we be doing more? This is an ongoing conversation. It’s

an evolving conversation as we work through this in partnership with

Indigenous people in the province.

E. Ross: That’s quite troubling to hear that this is an evolving process,

because according to the bill, the government actually commits to

working with the Indigenous governing body. Under the

definitions of

Bill 41, the NDP government’s own bill: “‘Indigenous governing body’

means an entity that is authorized to act on behalf of Indigenous

peoples that hold rights recognized and affirmed by

section 35 of the

Constitution Act, 1982.”

The Justice Council, the Assembly of First Nations, the Union of

B.C. Indian Chiefs don’t hold rights and title. Rights and title are

held on behalf of communities. If you’re going to consult — and this

does lead to the bill that we’re talking about today — on Aboriginal

rights and title issues or issues related to rights and title, it only

stands to reason that the government consults rights and title

holders.

I’m just trying to reconcile what the government said when they

introduced UNDRIP and how they reconciled that with the case law in

section 35 of the constitution.

I want to know if the Attorney General…. I’ve heard him say

before: “It’s my opinion” or “It’s my perspective.” I’m really asking:

does the government have any intention of living up to its own promises

within Bill 41 in relation to consultation with the rights and title

holders of B.C., in terms of First Nations?

Hon. D. Eby: I understand the member is taking the position that the engagement

in consultation was not adequate. This is, to my mind, not a partisan

issue.

If the member has suggestions on how government can better engage

on these questions, I’d love to hear his suggestions, especially given

his experience and leadership roles in the Indigenous communities in

British Columbia. I think his insights would be invaluable.

I have no hesitation, no compunction, about putting the bill in

front of the House. I feel we’ve discharged our responsibilities around

engagement with Indigenous people in the province. But I always think

that there’s opportunity for us to do better, so I’d be glad to hear

feedback that he had.

E. Ross: I can tell you how to consult with First Nations rights and title

holders, and that’s basically to go sit down with those rights and title

holders in B.C., the leaders of the communities that hold rights and

title. The Justice Council does not hold rights and title.

[3:20 p.m.]

The Attorney General says that he feels it’s adequate, that they

did enough consultation around B.C. with First Nations leaders. That is

not what I heard. In fact, when we were talking with ministers in this

House, every minister has basically said something other than consulting

with First Nation rights and title holders. On some occasions, some

ministers got up and said: “This doesn’t even relate to rights and

title, so therefore, we didn’t see any duty to consult.”

Well, previous to Bill 41 being introduced, that was probably

true. But the NDP government has actually raised the standards of

consultation to a level where I don’t think they understand, truly, what

it means. There are 203 bands in B.C. that hold rights and title. Now,

if the Attorney General is saying that there was some form, directly

with these 203 bands, to consult on this bill, then I applaud the

Attorney General. But if it was just one-stop shopping through the

justice council, the leadership council or the AFN, in terms of

addressing rights and title, not only have you not abided by case law

set out under

section 35 of the constitution, but you haven’t actually

abided by your own bill.

The advice, I guess, that you’re looking for, through my extensive

experience, is, basically, that the government could at least try to

understand its own bill and the high standards set and really speak to

the consultation and accommodation that this government aspires

to.

Hon. D. Eby: The answer is yes. I will continue to try to do my best to work in

partnership with Indigenous organizations and uphold both the spirit and

the letter of our own law, as well as our intentions around our

relationship with Indigenous Peoples. I thank the member for his

feedback.

E. Ross: Thank you to the Attorney General. I’ll get off that topic. I

don’t think I got the answer.

In terms of the rights and title impact here, without Bill 41, the

Declaration on the Rights of Indigenous Peoples Act, I don’t think this

would have stirred any interest from me as a chief councillor. Bill 41

has changed that, and this does. I’ve been in this House when I’ve heard

ministers say that there’s some legislation that doesn’t affect rights

and title. So the government made their own decision, without talking to

anybody, to say that they would not consult Aboriginals on the

legislation, even though UNDRIP says that every single piece of

legislation will be aligned with UNDRIP and that all of the laws in

B.C., for that matter, will be aligned with UNDRIP.

I won’t be here for the next 50 years. I won’t be here for the day

when that’s accomplished. But in terms of this bill we’re talking about

here today, Bill 11, the Court of Appeal Act, this does affect rights

and title, because the Court of Appeal is just one of the stops that

B.C. First Nation rights and title holders actually fight in to get

their rights and title recognized. Any technicality, any

misunderstanding of the procedures, costs a lot of money and takes a lot

of time. Those two concepts are inseparable when it comes to First

Nations going through the courts to fight for what’s promised to them in

section 35 of the constitution, as well as now with Bill 41.

My question to the Attorney General: in your consultations, was

there any feedback given as to the amount of time and money it would

take for First Nations to understand this, in preparation for their own

court cases that might end up in the Court of Appeal?

Hon. D. Eby: I’m sure the member understands the challenge of the government

purporting to go and educate First Nations about how to prepare their

cases to go to the Court of Appeal. That is something that would never

happen, for several different reasons.

[3:25 p.m.]

I must be misunderstanding what he was suggesting. It may be that

what he’s suggesting is what we actually did — that is, do a

presentation about the proposed changes to the act; invite, as broadly

as we could, Indigenous people from across the province that may be

interested in this to come and hear about the proposed changes and

provide feedback; and incorporate that feedback into the final

product.

I heard something slightly different in his question. I will, with

respect, draw a line, and an important right line, between a nation that

wants to use the court system to have its rights and title recognized

and the role of government. The courts are a neutral arbitrator between

the parties, whoever they may be, when they’re on appeal. For one party

to go to the other party and purport to tell them how to bring their

case forward would not be something that could work.

If the member is raising a separate issue, and one that I am

inclined to agree with him about…. That is that court processes for

recognition of rights and title are lengthy, expensive and not ideal.

They’re artificially — and intentionally artificially — adverse in

structure and colonial in structure. I’m inclined to agree with all

those things.

Part of the bill that he raised questions about, about UNDRIP, is

trying to find different ways of working together in the province on

really tough and difficult questions like rights and title, where there

are overlapping claims or other challenges, and less fraught disputes.

How do we work together around what environmental assessment looks like

in the province? How do we ensure that we’re operating as a government

in a way that’s respectful of the fact that Indigenous people have been

here since time immemorial?

I don’t pretend to have all the answers, and I don’t know that

anybody here does. But we’re trying to set a path — where we want to go,

how we want to get there. For this bill that’s in front of the House

today, that involved specific engagement with Indigenous people in the

province.

E. Ross: I guess we agree to disagree. The government did not work with

First Nations leaders around the province. They worked with the justice

council.

[N. Letnick in the chair.]

I’ve already pointed out that the justice council, as put together

by the founding organizations themselves, does not have rights and

title. My point is that in the court system, it’s already complicated

enough without arguing UNDRIP, without the changes that are proposed in

Bill 11.

I mean, one technicality that was highlighted in the Tŝilhqot’in

title case basically lost that Tŝilhqot’in case in terms of the

pleading. One technicality. So the First Nation has to go and

recalibrate, fix that flaw in their pleadings, and they’ve got to go

back, and they’ve got to do it again.

First Nations have learned how to navigate their way through the

court system to address Aboriginal rights and title. Nuu-chah-nulth is

the latest one.

The first part of my question has been answered, in terms that the

B.C. government did not consult with rights and title holders. They

consulted with the justice council. What I wanted to know was: were the

changes that are proposed through Bill 11 communicated in a way that

would explain to First Nations that you might have to reconsider your

arguments in terms of the technicalities that might pop up arising from

Bill 11?

[3:30 p.m.]

Hon. D. Eby: Thanks to the member for his patience. I had a bit of a

back-and-forth with staff.

We’re just not aware of a

section in here that would require a

nation to redraft argument on an appeal. These are rules about how the

proceedings go in the court or what the forms look like that people fill

out. But no such notice was given, because there’s just really no

understanding of how this bill would affect that.

I would invite the member, although I suspect his concern is sort

of more general…. Is there a

section that would require arguments to be

rewritten, in which case, have you provided notice? My answer would be:

none that I’m aware of. If he does have a specific

section he has

identified that he’s concerned about that would require redrafting of

arguments or would cause a litigant to face, as he describes it, a

technicality that would prevent them from arguing their case, I would

encourage him to point it out.

I would also add that the intention of the bill — and the member

will have seen this — compared with the old act, is that it’s in what

some people might call just plain language now, as opposed to what is

also sometimes called legalese. Under the old act, there were practice

directions. There was the act itself and the rules. The way to negotiate

your way through the Court of Appeal was to work through several

it into a language that we hope a self-represented litigant can

understand, someone who’s just in court by themselves, without a

lawyer.

[3:35 p.m.]

An example of that. It used to be you had to choose between two

different forms to start your appeal, and it caused a great deal of

confusion and concern. “Should I use form 7? Should I use this other

form?” Now there’s just one form to start your appeal. You just check a

box if you think that you have a right to appeal or you think you don’t

have a right to appeal and you’re seeking leave of the court. You don’t

even have to be 100 percent right about that, because the court has

discretion, even when people are confused when they’re filling out the

form.

The intent of this is actually not to increase the technicalities

but to reduce them and to make it easier for people to get in front of

the court if they don’t have a lawyer. There is no provision in the bill

— that we’re aware of — that would cause a party to need to redraft

arguments that they had prepared already or that they were in the

process of preparing under the existing act.

E. Ross: This is the complication of two topic areas. One is Aboriginal

rights and title, which is complicated enough. Then we’re trying to

match it up with the vague generality of Bill 41 of 2019.

For the most part, I’m just trying to figure out whether or not

the government is actually going to live up to its promises that they

made in Bill 41. So far, the answer is no, with the legislation that

we’ve seen presented here in this session.

One final point here in terms of the consultation. We know the

government does not want to consult with the rights and title holders.

They would prefer to consult with Indigenous organizations that don’t

have rights and title. Yet the government is actually breaching its own

bill, Bill 41, on the UNDRIP.

What I’ll leave this House with is that basically, when we’re

talking about the consultation with true rights and title holders, the

Attorney General mentioned the justice council. My point was, one: is

the government living up to its own commitments in terms of consulting

First Nations on every single piece of legislation that passes through

this House? The answer is no. The second one is that the Crown, the

government, is actually going to representative — and I use that word

loosely — organizations to get that check box of

consultation.

The justice council. Who they are, who the justice council is and

what they do…. They “challenge approaches that contribute to the growing

overrepresentation of First Nations children and youth in the care of

government and First Nations men and women in incarceration.” They also

“productively engage with the government to advance effective strategies

that can achieve better outcomes for Indigenous people in the justice

system.” There’s no mention of rights and title.

Not in this bill specifically but in every single bill so far, the

government has admitted they have not consulted with rights and title

holders. Not only are they breaching the case law under

section 35 of

the Constitution of Canada; they’re breaching their own UNDRIP bill,

including

article 40. It says: “Indigenous peoples have the right to

access to and prompt decision through just and fair procedures for the

resolution of conflicts and disputes with States or other parties, as

well as to effective remedies for all infringements of their individual

and collective rights.”

My only point was…. Two points. One is that government made a

commitment to consult First Nation title holders on every single piece

of legislation that passes through this House. They’re not doing it. Two

was that if the idea is reconciliation, then procedural changes to

something like the Court of Appeal Act do matter. They will matter to

Nuchatlaht, coming up in the title court case.

My only point was: has this been communicated to the true rights

and title holders?

Hon. D. Eby: I was just trying to figure out if it was a rhetorical question at

the end of his closing remarks or if he was asking the same question

again.

[3:40 p.m.]

I’ve run through who we engaged with several times now. The member

has communicated quite clearly that he disagrees with the sufficiency of

that. I appreciate his clarification about what he feels government

should have done. It’s what I asked for, and I appreciate him sharing

that with me. I will definitely take his comments under advisement and

reflect on them about how we can do a better job.

M. de Jong: I’ll just pose one last question, by way of

summary, deriving from

the exchange that we have just heard in the committee between the

Attorney and my colleague from Skeena, who asserts to the Attorney that,

yes, there is clearly an obligation to consult, which derives from a

variety of sources, including an enhanced requirement to consult, out of

Bill 41. My colleague asserts that despite the work that the Attorney

has referred to, the obligation that arises out of Bill 41 and the UN

declaration requires consultation with specific groups — those that hold

rights and title.

My understanding from the exchange is that the Attorney believes,

notwithstanding those remarks, that he and the government have

discharged their obligations sufficiently under Bill 41 and the

declaration. Is that correct?

Hon. D. Eby: I can advise the member — as I did his colleague and as I did, I

think, advise him before we started down this line of questioning: I

would not have brought the bill to the House if I thought we had not

discharged our responsibilities in terms of engaging Indigenous People

in the province in relation to this bill. Its existence here, I’ll

advise the member, is consistent with my belief that we had to discharge

that responsibility. But I want to put a caveat on that and say: I

always think we can do better.

I invited the member for Skeena to provide his feedback on where

he thought we should be going and what we should be doing better. I

heard him on that. I take that under advisement, and I take it

seriously. It doesn’t mean that I’m pulling the bill, but it does mean

that there’s always opportunity for us to do better and to learn how to

work better. I take his comments in the spirit that I assume they were

intended, which is a constructive criticism of how to ensure we’re

meeting our stated obligations.

M. de Jong: I wonder, now, if we can turn — again, within the context of Bill

1 on these general matters — to the rules. As the Attorney has pointed

out, we’ve got a bill that empowers the court and provides it with

jurisdiction and then rules that provide for its operation. Part of the

intent of this exercise was to clearly delineate between the

two.

The rules and practice committee. The Attorney went through

membership on that committee, the chief justices of the various courts.

I can’t recall if he mentioned representation from the Ministry of

Attorney General.

If we think about this going forward, when Bill 11 has been

proclaimed and we are some time down the road — the evolution of court

processes is never-ending — how does that function in practice? Where

does the impetus for changes to the rules come? Does it come from the

ministry? Does it come from the court? Does it come from both? How does

that operate?

[3:45 p.m.]

Hon. D. Eby: The member is right in recalling when I recited the members,

current to 2019, of the Court of Appeal Rules and Practice Committee.

There is not a member or representative of the Ministry of Attorney

General on that committee. It is distinct and different from the Supreme

Court’s rules committee and a different process.

The way, I’m advised by staff, that it works is: either the court

will reach out to government and request or suggest changes to the rules

or the act, or vice versa. That will initiate the conversation between

the Court of Appeal Rules and Practice Committee and government. Then,

in partnership, amendments to legislation or to the rules are brought

forward. It is a different process from the Supreme Court process, but

it’s one that has worked well for us and, I’m hopeful, for the court as

well.

M. de Jong: Where does the rules and practice committee derive its form and

authority from? I must confess. It isn’t a question I’ve thought about

until this bill hit the floor. Is it a function? I’m sure there has been

one for many, many years, if not decades. Is it most recently a function

of the MOU? Is it a creature of the chief justice? Is there an OIC

underpinning for it? I’m just not sure.

Hon. D. Eby: I’m advised that the authority for the committee derives from the

authority of the Chief Justice of the Court of Appeal. As chief justice

for British Columbia, it is his working group. I would assume that the

basis for its authority is that the chief justice gives it authority.

We’re not aware of a statutory basis for the existence of the committee,

nor are we involved in the selection of the members or its operations as

government.

M. de Jong: Maybe the easiest way and the quickest way, then, to move through

this part of the discussion….

We have seen in the past — I’m not just talking about the most

recent past — situations with respect to the Supreme Court rules, where

differences of opinion have arisen but, ultimately, the government and

the Attorney General proceed with what they believe are the appropriate

changes to the rules.

Does a similar authority exist with respect to the Court of Appeal

rules? Or is there a mechanism that would preclude that from happening —

an ultimate, unilateral decision by the executive branch, by the

Attorney General, to change the rules?

[3:50 p.m.]

Hon. D. Eby: The nature of the committee that we’ve been talking about, the

Court of Appeal committee, is to provide advice to government and,

explicitly, to me, as Attorney General, around reforms to the Court of

Appeal Act or rules. The Court of Appeal Act and rules are statutes,

responsibility for which resides in the Ministry of Attorney

General.

We have an MOU, which I know the member is familiar with, from

2013 with the chief justices and the chief judge that obligates us to

consult before any changes are made. The technical situation is such

that these are government regulations and laws. The practice, though,

obviously is co-development of legislation and rules. That is what has

taken place here.

When we had concerns raised by the Court of Appeal in relation to

this bill, or by the Chief Justice of the Supreme Court or the Chief

Judge of the Provincial Court, I’m advised by staff that any concerns

that were raised by the courts were addressed. So, happily, we don’t

have a situation that bedeviled either the previous B.C. Liberal

government or our government, in relation to some rule changes. It is a

dynamic relationship between the two, but at the end of the day, the

statute and the rules do sit in the Ministry of Attorney General as

government laws, essentially, in function.

M. de Jong: Maybe we can pursue that, then, rather than doing so in the

abstract, in the context of the work that has been undertaken in the

white paper, which included not just the draft act but the draft Court

of Appeal rules. Is it fair for me…? Were those draft Court of Appeal

rules a product of work by the Rules and Practice Committee and reviewed

by that committee?

Hon. D. Eby: Behind the curtain that developed this bill and the rules, the

process, I’m advised, worked like this. The draft legislation and the

rules were both provided to the court, and an iterative process ensued

from that — both based on feedback and consultation engaged in by the

Practice Committee of the Court of Appeal that we’ve discussed and then

further engagement and discussion with the public — and has resulted in

the draft that’s in front of us today.

The process is the same for the rules. The rules were drafted by

leg. counsel in consultation and partnership with the Court of

Appeal.

[3:55 p.m.]

M. de Jong: That’s helpful, from the Attorney. It’s my understanding that

there is work underway now to draft or redraft or make changes to the

Court of Appeal rules and changes to the version of those rules that was

attached to the white paper and the draft legislation that has given

rise to Bill 11. Am I correct? Are there changes?

We understand that the committee has before it Bill 11, the act.

We don’t have the rules before us. The Attorney would be entitled to

point that out, but he has also correctly pointed out the significant

interplay between the two.

Is he able to offer to the committee confirmation that there are

changes in the works to the draft rules and the relative significance of

those changes? I don’t know how widespread those changes are or how

significant they are, but given the significance of the rules, it would

be of interest, I think.

Hon. D. Eby: I can confirm for the member that the ministry is actively working

with the Court of Appeal to update the rules. Our target is completing

the drafting this year. Amendments are intended to simplify and

streamline the existing rules and procedures. Forms are being redesigned

to improve user experience and comprehension. The conduct of this, in

terms of engagement with various stakeholders, will take place within

the Court of Appeal Rule and Practice Committee.

This committee, as I advised the member in an earlier question,

does engage in its own consultations with members of the bar and other

organizations. That includes the Canadian Bar Association, justice

access centres, Legal Services Society, B.C. Access Pro Bono, Native

Courtworker society and others. This is their practice any time there’s

a proposal that would significantly change the court’s practice and

procedure. That work is underway. The engagements, though, will be led

by the court and by the practice committee, not by

government.

M. de Jong: Again, that’s helpful. My question was long-winded, and maybe I’ll

try to shorten it up. When that work is complete, it’s my understanding

that the Court of Appeal rules, the final product, will be somewhat

different than the draft Court of Appeal rules that were attached to the

white paper. Is that the case? And if so, how different?

Hon. D. Eby: Yes, that is the case, but I can’t advise how different as the

work is happening right now. There will be an answer for the member when

the drafting is completed, but that won’t be until…. That will be

sometime this year, but it’s not right now, so I’m afraid I don’t have

an answer that would be sufficiently reliable for him to base his

analysis on.

[4:00 p.m.]

M. de Jong: The Attorney almost anticipated my question, which is: (

a) when

does he anticipate the rules to be in the form suitable for enactment?

He had said later this year. Can he offer a little more specificity

around that? Then (b), once they have been drafted in their, we’ll call

it, final form, does he anticipate the rules and practice committee

providing them one final time to stakeholder groups for review and

comment?

Hon. D. Eby: I’m not able to provide a specific timeline to the member, given

that the processes involve the court working with the Ministry of

Attorney General. We’re kind of reliant on each other.

I’m extremely reluctant to provide any timeline other than the

fact that we hope to have the drafting complete this year. I can advise

the member that it’s my understanding that any engagement on the newly

drafted rules or forms will be led by the court itself, not by

government.

M. de Jong: Is it fair for me and others to assume, though, that the act

itself — the bill that we are working on — will not be enacted by

regulation until the rules themselves have been completed?

Hon. D. Eby: Yes, the member is correct. The act will be brought into force by

OIC — only once the drafting of the rules is complete.

M. de Jong: The next, I think, second-to-last area, sort of a general matter

that I would like to quickly canvass with the Attorney before moving on

to the individual sections, relates to something he highlighted in both

his introductory remarks and his second reading remarks.

As I understand it, the objectives, which have helped guide this

fairly lengthy project around the updating of the legislation and

regulations, were to reorganize the content of the act and the rules;

secondly, redesign the court forms so that they’re more user-friendly;

and then, thirdly, do those things with a view to recognizing the

increased presence of self-represented litigants.

I wonder if the Attorney might offer some thoughts to the

committee about that phenomenon. What is giving rise…? Well, I’ll

package up a whole bunch of random questions and allow the Attorney to

deal with them as he sees fit.

Does he have statistics and data on that phenomenon of

self-represented litigants at the Court of Appeal? If he does, is he in

a position to share them with the committee? What, in his mind, is

giving rise to that? Is it a negative thing? Is it a positive thing? Is

there a specific intention to facilitate it versus respond to it as a

reality? I guess that’s the distinction I would make.

[4:05 p.m.]

Hon. D. Eby: Can I just say that I appreciate the member using the opportunity

of second reading speech to advise of areas of potential interest that

he may have. I don’t hold him to any of the topics he raised, but it

enables me to prepare better answers both to respond to him and to

respond to any interest in the public on these issues. Because he

flagged this area of interest, I’m able to respond a bit more

comprehensively than I might have otherwise.

I’m advised by staff that the Court of Appeal produces an annual

report each year that includes a rolling ten years of statistics on the

percentage of self-represented litigants, the number of cases filed and

concluded, and so on. That is the source of these statistics, if the

member or any other members are interested in the work of the

court.

I can advise the member that in 2019, out of 633 civil appeals and

applications for leave to appeal filed, 189 of those, or about 30

percent, were appeals or applications for leave to appeal involving at

least one self-represented litigant. That’s an increase from 2018, where

the figure was about 26 percent.

In 2019, out of 116 family appeals or applications for leave to

appeal filed, 49 appeals, which is about 42 percent, were appeals or

applications for leave to appeal involving at least one self-represented

litigant. This is an increase from 2018, where the figure was 34

percent.

Also in 2019, out of 219 criminal appeals or applications for

leave to appeal filed, 41 appeals — 19 percent — were appeals or

applications for leave to appeal involving a self-represented litigant.

This is a decrease from 2018, where the figure was 26

percent.

The rules are changed to make the experience of self-represented

litigants easier by bringing together three different sources of

information that currently litigants must assemble in order to

understand how to get to court. Currently you’ve got to consult the act,

the rules and practice directions to find the procedural instructions to

get to court properly. Having the content of the act and the rules be

reorganized to have the general powers in the act and all aspects of

procedure in the rules should, we hope, make the rules become a more

complete and easier-to-follow guide for the appellate

process.

The courts made a number of other changes. I’m happy to go into

them with the member if he has a particular interest in this area. They

really are striving to both recognize the reality, as the member noted,

of the number of self-represented litigants that are coming to court and

to facilitate their appearing in front of the court with a minimum of

procedural friction.

Without commenting on or passing a value judgment on whether this

is good or bad, it is. When you’re talking about one in three cases,

really, and almost one in two cases on the family side coming to the

Court of Appeal with a self-represented litigant, having someone being

more able to negotiate the process, which would be intimidating at the

best of times, saves the court time, saves counsel time, is far more

efficient and for the litigant — him or herself — spares a fairly

significant amount of misery.

I will opine briefly on one area of concern for me as Attorney

General, which is the growing number of self-represented litigants in

the family side. The member will note that 49 out of 116 family appeals

involved at least one self-represented litigant. The member will likely

know about my concern in relation to the number of people involved in

family disputes who are not represented by counsel, who can’t afford

counsel and who find themselves in a court process that they little

understand, at probably one of the most stressful times of their

lives.

[4:10 p.m.]

The harm that that can do to families and children when conflict

is escalated rather than assisted in being resolved by the courts is a

very serious matter. I’m happy to go into that in some detail, but we

start to stray away a bit from the bill. To the extent that I feel

comfortable weighing in on an area of concern about self-represented

litigants, the family area — I don’t know about the member’s time as

Attorney General — is certainly the one that I receive the most

correspondence about, of people just in misery about the court

process.

We’ve done a lot of important work to try to address some of that.

This is a very small piece of it, but there’s far more substantial work

on the court of first instance, which brings a lot of people into the

family law system — the Provincial Court of British Columbia — and more

to do. I will flag that as an area where I am concerned. I do not think

it is a good thing. I think it is really causing a lot of problems for

families in the province, and I look to continue to do work to address

that.

M. de Jong: I think we’re on relatively safe ground, given what we understand

the partial objective of the act is, to explore this just for a few

minutes. What accounts for the trend, in the Attorney’s mind? I’ll share

with him my thoughts in a moment, but at least insofar as the family law

cases are concerned, I detect, and I think he meant to convey, a tone of

concern in the Attorney’s voice.

By the way, I think, in a slightly different context, a small

family-owned business that lands in a Court of Appeal scenario is

confronted by, perhaps, different emotions but similar challenges. What,

in the Attorney General’s mind, accounts for the trend that we are

seeing?

Hon. D. Eby: I guess I’d feel most comfortable…. I do feel that I’m wandering

out on a bit of a ledge here, in any event, in opining a bit on the

family side. It is an area of interest and concern for me. There are,

just bottom line, an insufficient number of lawyers practising family

law in the province. As a result, their services are very much in

demand, and the consequence is that their services can be quite

expensive. It’s a matter of economics.

To address that, the Law Society of B.C. has put forward a number

of different initiatives. They continue to work on a number of reforms

related to examining the possibility of paralegals being able to

practise in some areas of family law, I’m advised. They have also set up

a number of what they call regulatory sandboxes, allowing different

professions or legal advocates to appear in different areas of law. I

look forward to hearing about the results of that work.

I also believe that family law, because it involves issues as

profound as custody of children, causes parents to be willing to go all

the way to the Court of Appeal and to appear by themselves in order to

ensure that their case is heard. The opportunity that we’re pursuing

will, hopefully, reduce this number by going upstream to the families

that are in the Provincial Court and try to divert them out of the court

process, or at least narrow their issues before they get to court so

they can come up with their own solutions rather than have a court

fashion a solution for them.

[4:15 p.m.]

It’s admittedly not as grounded in research and data as I would

like, but I think, given the Law Society’s efforts on this front, it is

a concern that is not unique to me. Given the frankly admirable and

heroic efforts of the chief judge in relation to our family justice

reforms and getting them done and getting them implemented in the

Provincial Court in Victoria and Surrey now, I think it must be —

without attempting to put words in her mouth — a matter of concern to

her as well.

It is not a unique issue to the Court of Appeal, but there are a

number of factors driving it.

M. de Jong: Well, I am going to take advantage of the Attorney’s willingness

to engage in a little unscientific speculation and make this

proposition. In the vast majority of cases where someone is

self-represented, it’s because they can’t afford a lawyer. I’m not

actually sure I agree entirely with the supply-demand argument, although

there are places in the province where it can be difficult to retain the

services of a family lawyer. I think they’re out there. I just think

people can’t afford it.

That brings me, then, to something I’m really pleased that the

Attorney General mentioned in his response. I think we do need to move

on here shortly, but I am anxious to get his thoughts on this. He

mentioned the work that the Law Society has been doing around the,

perhaps, expanded role of paralegals in the practice of family

law.

A lot of the discussion around this, quite appropriately, has

tended to be on the issue of diverting cases away from the courts to

other, alternative dispute options. Fair enough. Hopefully, in the vast

majority of cases, that can be done for reasons that the Attorney has

mentioned. In some cases, that’s not possible or doesn’t

happen.

This project seems to be rooted, in part, in the belief that

self-represented individuals are a reality. We can have our theories

about why that is so. I tend to think it has the most to do with the

cost of retaining help. I’m not sur