1996 Legislative Session: 1st Session, 36th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

MONDAY, AUGUST 12, 1996

Afternoon

Volume 2, Number 19,

Part 2

[ Page 1831 ]

The House resumed at 6:42 p.m.

[The Speaker in the chair.]

Hon. J. Cashore: In Committee A, I call the estimates of the Ministry of Small Business, Tourism and Culture. In the House, I call Committee B to debate the estimates of the Ministry of Aboriginal Affairs.

The House in Committee of Supply B; G. Brewin in the chair.

ESTIMATES: MINISTRY OF

ABORIGINAL AFFAIRS

(continued)

On vote 9: minister's office, $332,000 (continued).

Hon. J. Cashore: Hon. Chair, perhaps I could be advised as to the area of some of the questioning we're getting into now, because some of our staff are in the dining room. We may need to just let people know what topics are coming up.

W. Hurd: Just to clarify for the minister, to continue our earlier discussion I intend to ask a few questions with respect to the Crown Land Activities document. Then I have a brief series of questions on the Métis agreement. I don't know if the appropriate officials are here for that, but I....

I want to ask the minister about the rules governing private land in the province with respect to where the Crown authorizes certain uses. The minister will be aware that in the Crown land activities document, the issue of private land encumbrance will apply where the Crown authorizes certain uses for that land.

First of all, I wonder if the minister can advise the committee whether, as a result of this policy, the ministry has identified private land in the province where such an encumbrance has been identified or where the notion of title has been identified. Or at this stage are we just dealing with it within the confines of the Crown Land Activities document? Are there specific examples that he could cite where in fact the encumbrance has been identified and duly noted by the ministry?

[6:45]

Hon. J. Cashore: The Crown land activities policy is specifically related to Crown land. However, there have been some areas where it's been indicated that there is a right that also involves private land, such as on a heritage site. There we would have the definition of the Heritage Conservation Act, so it would be very specific. An area where it might not be quite so specific would be an area such as fishing on a private lake, which is not clearly spelled out. You have an array of possibilities there, but the Crown land activities policy is drafted to deal with Crown land activities only.

W. Hurd: The minister will be aware of incidents at Douglas Lake and Gustafsen Lake where the issue of the use of private land was the subject of obvious disagreement by the parties. Since the minister did raise the issue of fishing on a private lake, I wonder whether as a result of the agreement to terminate the hostilities at Douglas Lake, in that particular instance, the Crown land activities policy would anticipate a ceremonial use for fishing in a lake.

Hon. J. Cashore: No.

W. Hurd: I wonder, then, if the minister can cite some examples of where the activities on Crown land would be regulated. Are we dealing specifically with the identification of burial sites at this point and the overlapping jurisdiction and identification under the Heritage Conservation Statutes Amendment Act? Or would there be cases where the ministry has identified an encumbrance on private land in the province? Are we seeing the initiative coming from this ministry, or is it primarily just backing up the Heritage Conservation Statutes Amendment Act, which governs all heritage sites in the province?

Hon. J. Cashore: I'm reminded that there has been some discussion in reference to the Crown land activities policy, which acknowledges certain realities that have come out of the court framework. There is a hypothetical possibility that some rights, such as food-gathering rights, could in some instances be considered to relate to Crown land. It's my understanding that this comes out of the Delgamuukw decision.

In terms of defining actual instances, I don't have the kind of specifics that the hon. member is looking for. It think it's an area that we seldom hear of, except in cases such as the fishing case which we talked about, and also those that are clearly defined by legislation -- which is, incidentally, not aboriginal rights legislation in the first place but heritage legislation. Nevertheless, it defines instances where certain heritage sites would require certain types of protection on private land. I guess we saw the most dramatic example of that at Nanoose Bay.

W. Hurd: The minister will be aware that there are other types of what I would term "private property rights" that are impacted by the Crown land activities policy. Specifically under

section 6.0 there is mention of tenures authorizations that are granted by the Crown.

In the case of Gustafsen Lake, where you had a component of private land that was rolled into a larger component of public land in the form of a management unit -- in that case a ranch -- does the Crown, under this policy, make a differentiation for the rolling over of the tenure if this is the case? Clearly this policy anticipates that before the tenure is rolled over there is a requirement on the part of the Crown to identify potential aboriginal rights and to work with first nations to identify what those might be.

In the case of a ranch or a forest tenure where you do have that mixture of public and private land, is it specifically understood that the infringement, if it's identified, is only applicable to the public land component of that management unit? Or could it theoretically apply to the tenure as a whole?

Hon. J. Cashore: A couple of things come up. The hon. member referred to when a tenure is about to roll over. The fact is that a tenure still is Crown land -- I think that's pretty clear. Now, where it comes to an activity on a Crown land, that is where the Crown land activities policy primarily clicks in. I would expect -- and, again, I'm not in the position of the Minister of Forests to answer this question -- that the rollover of a tenure would be considered an activity that if a first nation decided they wanted to raise that issue, they would be in a position to do so. Again, I might stand corrected by the Minister of Forests with regard to the actual application in that instance.

With regard to the activities on private land, again it's very difficult to canvass this without using actual specifics of

[ Page 1832 ]

where this has come up. I don't, to my knowledge, believe that that has come up in the application of anything relating to Gustafsen Lake. As a matter of fact, I think that the Gustafsen Lake issue was based on some, I would say, unacceptable approaches by those who carried on that action -- approaches which were also unacceptable to the local Indian band. I'm not sure how that example would apply.

We have referred to the Douglas Lake example. I think that's getting into the area of not having a lot of definition. My understanding is that the issue is referenced in Delgamuukw, but again it's an area where we as a government would move very, very cautiously.

W. Hurd: What I am trying to do is to refocus the minister and the staff on the specific requirements of the Crown Land Activities document where it indicates the types of activities on Crown land which are regulated. Under tenures it talks about the alienation of Crown land or resources by Crown grant, lease or licence, converting a licence to a lease or permitting a lessee to purchase the lease premises when those options are outlined in the original document.

With respect to a forest tenure, for example, or a grazing tenure, where the applicant has a portion of private land rolled into a larger management unit, I am asking whether the document would apply to the range of activities on the tenure as a whole or whether the private land component of it would be specifically excluded.

The second question relates to people who hold Crown leases, like foreshore leases or something, with an option to purchase. I am aware that a number of those exist in the province. One could consider that as a right -- an option to purchase being a right -- and some would argue a private property right. I just wonder whether or not, potentially, that right could be alienated by the identification of an aboriginal right or in some way held up. I'm just seeking clarification on those two points.

Hon. J. Cashore: If it came to a matter of -- again, I think I've answered this -- say, a rollover of a lease or a licence, or somebody exercising a right to purchase, under the Crown land activities policy, the first nation would have a right to seek consultation, to seek to be consulted and to identify issues. But they would not have a veto. They would not have a de facto right to put a stop to that, but they would have a right to seek consultation.

W. Hurd: Under the document -- and we've been down this road before -- there is a requirement on the part of the Crown to identify an unextinguished aboriginal right. I'm just trying to determine, in the event of a tenure rollover, where clearly the component of public land lumped in with private land is what makes the licence viable, in the case of a forest tenure, for example.... Maybe I won't use that example, because the minister might not be too familiar with it. Certainly in the case of grazing rights, for example, the ranch itself is not viable based on the private land that the owner may hold. It's clearly the access to public land that is critical.

The concern I might have is whether or not, if the licence were rolling over in the normal way -- in the case of a forest licence it's a five-year rollover; in the case of a grazing tenure it might be longer.... I'm just seeking assurance that no matter what aboriginal rights were identified by the ministry or what consultation processes were put in place, the private land component agreement would be sacrosanct and not subject to any

interpretation by the ministry or any encumbrance as a result of this Crown land activities policy.

[7:00]

Hon. J. Cashore: I do recognize -- and I have made this point many times myself, especially having visited ranches in the Cariboo at the invitation of the B.C. Cattlemen's Association -- that a viable cattle ranch requires backup of Crown land in order to make it viable. I get that point.

The hon. member is asking a question that I'm having a difficult time grasping. It has to do with private land and whether or not the Crown land activities policy impacts that private land. The answer is basically no. It does not impact that private land. Insofar as someone may produce a position based on something coming out of a court case, it is hypothetically within the realm of possibility that there might have to be a consideration based on criteria that came out of that court case being applied in this instance.

Again, I think we are getting into territory here that is very uncharted. All I can say is, as I said before, that is an area where it would behoove government, if government had a role, to proceed very, very cautiously -- recognizing the importance of all the positions that we've taken all along and continue to take about private land. Private land, for instance, is not on the table in negotiations. That is our fundamental position. I think perhaps part of the assurance that we need here is the fact that this issue has not come up, to my knowledge, in any volume of such claims.

W. Hurd: I'm probably not making myself clear. I'm not intending to confuse the minister, but the policy clearly stipulates that such things as resource rollovers, tenure rollovers, licence rollovers would be subject to the impact of this policy. The only caution I would give the minister with respect to those tenure rollovers is that they do involve a component of public and private land. If in any way the private land component were subject to an

interpretation under this activities guide -- because they are part of one management unit -- then that would concern me greatly. I'm comforted by the minister's suggestion that it wouldn't apply to the private land component of that tenure, and perhaps I'll go back and look at Hansard to satisfy myself that that's exactly what he did say.

The only other question I have with respect to this document refers again to the legal

interpretation of consultation. I know the minister has talked briefly about this with other members of the committee, but I was particularly interested in

section 7.2.4 of the Crown Land Activities document which says: "...the legal test for sufficient consultation has not been established.... " Does that mean the ministry anticipates that at some future date the legal test will be the subject of a court

interpretation? Is that a potential case before the courts -- that they may rule, for example, that the ministry hadn't sufficiently consulted? Or is it something specifically mentioned just in this particular document?

Hon. J. Cashore: It would not be the position of the government to take it to court. But we do know that policy has been shaped by the fact that various parties have taken issues to courts. Courts have come out with decisions that sometimes move the envelope a little bit, and that then becomes a factor. It's not a factor that we would seek, but if it becomes one due to other circumstances, then it's a factor we have to take note of. But it's in the future and very hypothetical.

W. Hurd: Just one other question, then, with respect to the Crown Land Activities document. In

section 7.2, observation is made that "the province is currently faced with a lack

[ Page 1833 ]

of information on aboriginal rights, and few central mechanisms exist for compiling and making this type of information available on a shared basis. In the absence of a coordinated central database or inventory for obtaining information on specific first nations rights and interests..." and it outlines following steps.

I wonder if the minister can advise the committee whether any progress has been made in dealing with this problem since the document was first produced, I assume, as a guide for all ministries, and whether the problem of a lack of shared information continues to exist, or whether there's a voted expenditure within this set of estimates to try to deal with that specific issue, which would dovetail all the interim measures agreements and any encumbrances which may have been identified under this policy. Are we seeing any progress with respect to establishing such a mechanism for cross-referencing all this material?

Hon. J. Cashore: There is no such data bank or inventory.

W. Hurd: That invites one further question: why? The ministry has identified that it is a need and says it is currently faced with a lack of information and that there are no mechanisms available. Does the minister acknowledge that there might be a problem here that should be addressed, perhaps in this set of estimates or at some future point?

Hon. J. Cashore: No, I don't think anything has happened that is inconsistent with what was stated and what the member referred to. A body of experience and information is evolving as the line ministries carry out this policy. They are learning from that, and I would say that that body of experience and information is much greater at this time than it was a year ago, and that informs the process admirably.

W. Hurd: One other recommendation in the Crown Land Activities document is that where the province has repeatedly made unsuccessful efforts to engage in consultation, legal advice should be sought from the Ministry of Attorney General. Can the minister tell us whether the number of consultations with the Attorney General is increasing? Perhaps he can tell us how that legal advice is charged to the ministry. Is it just a matter of routinely applying to the AG's ministry for ongoing legal advice, or is there a chargeback on that?

Hon. J. Cashore: All I'll say about that is that we do seek advice from the Attorney General. That is a resource that's made available to our ministry which has had a key role in developing policies that are carried out by line ministries. So yes, that advice from the Attorney General has been and continues to be significant. As for the number of calls and that sort of thing, such questions would have to be made to the Attorney General. We don't keep that information.

W. Hurd: I wonder if the minister can outline for the committee the nature of the advice that the Attorney General's ministry offers with respect to not only this document but the whole issue of land claims generally. Is it advice that is referenced with the legal ramifications of the ongoing Treaty Commission process?

Hon. J. Cashore: I won't say what the advice is, but I will say that the advice is implicit in the Crown land activities policy and other policies of this government with regard to treaty-making. We wouldn't have the policy if we didn't have the advice; the advice is implicit in the policy.

W. Hurd: I'm trying to straighten out that answer. Clearly, the policy which guides all ministries indicates that there is backup from the Attorney General's ministry. I would certainly feel more comfortable if the minister were to tell us that the Attorney General's ministry is fully apprised of developments with respect to court cases; there is a whole range of advice and expertise that it may possess. I didn't find the minister's answer particularly reassuring, but I guess I can leave it at that.

Perhaps at some future date the ministry could advise us as to what kind of advice they receive from the AG's ministry -- perhaps with respect to this specific document. I'll let it go at that; the minister might want to respond at a future date. I have just a few other questions. I don't have any further questions on the Crown land document, but I would like to express the concern that there still appears to be a lot of grey areas here which are open for

interpretation.

I also want to ask the minister a question about the draft memorandum between the federal and provincial governments and the Pacific Métis federation. Could the minister tell us where that agreement stands and, in particular, if discussions are developing with respect to the self-government provisions of the draft agreement?

Hon. J. Cashore: The Métis have signed a memorandum of understanding among themselves, because, as the member knows, there are a number of different components, organizations and groups throughout the province. I commend them for the fact that they have come together and signed an MOU amongst themselves to hold an election this fall in order to determine Métis leadership in B.C. This is something that the province had suggested and encouraged for the past year.

We look forward to working with the Métis as an aboriginal organization once they achieve that process of bringing them all under one umbrella, so to speak, so that we can be involved in a positive way, working with them in the area of delivery of services to Métis people in B.C.

The hon. member references the agreement that our government has been working on. That is on hold and held in abeyance until the stage I have just described has been completed.

W. Hurd: It occurs to me that I may have been able to benefit from a briefing on the agreement. It was my understanding that it was the subject of signatures by the Prime Minister and the previous Minister of Aboriginal Affairs, but if the minister is saying that the agreement hasn't been finalized, then I don't really have a lot of questions about it.

[7:15]

Hon. J. Cashore: I am not absolutely sure of this, but I believe that prior to my becoming the minister there could have been an agreement signed. I don't know this for sure, but it's in the realm of possibility that such an agreement was signed at that level, to set up the process to begin the negotiations towards some kind of an MOU. It had no substantive meaning beyond process.

W. Hurd: As I look at the agreement, which is contained within the Pacific Métis Federation report, it may well be a memorandum of understanding as opposed to a framework agreement. I do note that even in this draft memorandum of understanding there was a commitment on the part of the ministry, or the government of the province, to provide the Pacific Métis Federation with funding to pursue its negotiations. I wonder if the minister could tell us whether or not the ministry is providing any funding, under this draft memorandum of understanding, to further the process.

[ Page 1834 ]

Hon. J. Cashore: There is the Métis Tripartite Secretariat, the instrument that has brought about the process which is leading toward this election among themselves to elect a leader. We have within the budget up to $100,000 for the purpose of enabling the Métis organization, once it becomes established, to support it in its organizational activities. It is my understanding that that money has not been made available to that organization and will not be made available until that organization becomes a unified entity.

W. Hurd: I was just looking at

section 6(1) of the draft agreement. Under the heading "Resources for Pacific Métis Federation Participation," it says: "Adequate funding will be provided by both levels of government so the Pacific Métis Federation can carry out community consultations and participate fully in the negotiation process." If I understand the minister's response correctly, he is saying there is $100,000 in funding to do this work, but that it is in abeyance pending the creation of some sort of regulatory or elected body to negotiate further with the provincial government.

Hon. J. Cashore: In the previous fiscal year, they did receive some money within that budget limitation to do the work of the secretariat and bring their organizations together. In the previous fiscal year there was some money made available to them. In this fiscal year there is some money budgeted, but that money has not been made available because.... I think I understand this correctly. According to the advice I'm receiving, the money budgeted this year will be made available at the time that they have their organization in place. As the hon. member acknowledged in what he read there, this money is 50-50 cost-shared with Canada.

W. Hurd: This is a question that I just wanted to get clarification on. It may belie a lack of understanding of the treaty process as a whole, but would it be fair to say that the arrangements the government has with the Pacific Métis Federation, in terms of providing funds to further negotiations, are different than arrangements with the Treaty Commission, where first nations are required to come up with their own funding to establish their initial claim and pursue it through the process?

Hon. J. Cashore: The relationship the government has in negotiating with the Métis is completely outside the Treaty Commission process. There's no connection whatsoever. It started off as bipartite negotiations, but very much with our encouragement, it has become tripartite, involving the federal government.

W. Hurd: I have a few other questions about the framework agreement. It does become very specific with respect to the whole notion of self-government for the Métis people. I wonder if the minister can advise whether he believes that any settlement or agreement with the Pacific Métis Federation with respect to self-government would in any way reference the self-government model that may flow from the Treaty Commission process. Are we dealing with the Métis with a totally different set of needs and requirements in terms of a self-government model?

If I refer the minister's attention to the draft memorandum of understanding, it does contain very specific references to the programs and responsibilities that would flow to the federation or to the Métis by the Crown. I guess what I'm looking for from the minister is the observation that this agreement with the Métis in terms of its self-governance model would be specific to that group and might not necessarily be a self-governance model for other groups in the province.

Hon. J. Cashore: There's no relationship to the self-government models that are emerging from the treaty-making process. This is service delivery; it's really focused on practical applications. With the line ministry, Social Services, there are negotiations underway that are ongoing with regard to these service delivery issues.

W. Hurd: My final set of questions this evening deal with the situation pertaining to the Treaty 8 negotiations with the McLeod Lake band. I wonder if the minister can just clarify the status of that dispute and where we're headed with it, particularly as it relates to Crown timber in the region.

Hon. J. Cashore: The band has chosen to end negotiations and litigate, and therefore negotiations are in abeyance.

W. Hurd: I wonder if the minister could clarify the status of the Crown timber that was under dispute. It is my understanding -- and the minister will correct me if I'm wrong -- that for a brief period of time there was Crown timber outside the boundaries of the original Treaty 8, which was harvested and was the subject of an investigation by both the Ministry of Forests and the Attorney General ministry. It is my understanding that subsequent to that, Crown timber entitlement was rolled into the ongoing treaty negotiations.

I wonder if the minister could clarify for the committee the status of the Crown timber that was under dispute. Is that still a matter of litigation? It is my understanding that the matter was under investigation by both the Ministry of Forests and the Ministry of Attorney General.

Hon. J. Cashore: Some of the Crown timber is under injunction and some is not. The reason the province is a party to the negotiations is to protect British Columbia's interest in matters such as the Crown timber.

W. Hurd: Can the minister confirm that the matter was under investigation by the Ministry of Attorney General with respect to, at that time, the illegal cutting of Crown timber in the area in question?

Hon. J. Cashore: It's our understanding that there was an investigation based on allegations that some timber was cut which should not have been. To be able to get further answers on that, I would have to refer the hon. member to the Attorney General.

W. Hurd: Can the minister tell the committee whether the Ministry of Aboriginal Affairs played any role in the decision of the Attorney General to drop the case and to have the dispute rolled into ongoing Treaty 8 negotiations? It is my understanding that the ministry investigation had proceeded to the point where consideration was being given to criminal charges of trespass and illegal cutting of Crown timber, and that the case was shelved and the disputed area rolled into the Treaty 8 negotiations.

I wonder if the minister can confirm that sequence of events and confirm that the Crown timber in dispute is now the subject of treaty negotiations as opposed to an investigation by the Attorney General ministry.

Hon. J. Cashore: The Ministry of Aboriginal Affairs has no relationship to any issue that has to do with the charges or the allegations that have been cited by the hon. member. Given our principle that negotiation is better than litigation, when we were negotiating and when this issue had an opportunity to be resolved through negotiation, taking all

circum

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stances into account, that was an approach that we were consistent with our principles in negotiating, which is better than litigation. When it comes to a matter crossing that line, where it goes back into litigation, then it is a question for the Attorney General.

W. Hurd: It's my understanding that the circumstances of the case are somewhat different from what the minister described -- that the trespass may have been a wilful one and may have resulted from frustration, on the part of the band, with the progress of the Treaty 8 negotiations. It's my further understanding that the Ministry of Forests determined that the Crown timber that was harvested was sold at well below market value, resulting in a loss to the Crown of a significant amount of money.

What I am looking for from the minister is a recognition that if indeed the circumstances did occur as I've described them, the loss to the Crown on the timber that was harvested will in some way be reflected or be the subject of a determination by the Crown to get a fair settlement. There appears to have been a significant loss sustained by the Crown involving enough cubic metres of timber that it came to the attention of the Attorney General and was duly investigated.

Hon. J. Cashore: First of all, I want to point out that this is not a Treaty 8 negotiation; it's an adhesion to Treaty 8. It's an existing treaty where a band has been deemed to be within the area covered by Treaty 8. Therefore it's an adhesion.

With regard to the events that the hon. member is talking about, I can't really help him with that.

[7:30]

W. Hurd: I'd certainly settle at this point for an admission or a determination by the minister that he will endeavour to determine the facts of the case and the extent to which the Ministry of Forests identified the illegal cutting of timber, quantified the loss to the Crown and recommended to the Attorney General that an investigation should ensue. Somehow, during the course of all that, the area in dispute became part of what the minister calls the adhesion to Treaty 8.

I would just say to the minister that while I respect the desire to achieve consultation instead of litigation, if there has been a loss to the Crown, I would hope that there would be a recognition of that and a determination to protect the assets of the taxpayers in any negotiation with any group.

Hon. J. Cashore: I would like to advise the hon. member that I am asking my deputy minister to.... I think this issue has come up in other estimates. I'm going to ask my deputy minister to talk to the officials from the AG ministry and the Ministry of Forests, and then, after not very long, we'll invite the member to sit down with the Deputy Minister of Aboriginal Affairs and go over this together.

J. Weisgerber: I too want to pursue some Treaty 8 issues. I'll come back to McLeod Lake a little bit later on.

First, I'd like to clarify with the minister the position of the province and the ministry with respect to Treaty 8 and the acceptance by the Treaty Commission of a statement of claim from the Treaty 8 tribal council. Obviously it's of considerable interest to me to know whether the Crown considers Treaty 8 to be subject to renegotiation or whether the Crown recognizes the clauses in Treaty 8, along with the other numbered treaties, which in fact extinguish future claims within the claims area.

Hon. J. Cashore: Treaty 8 has withdrawn their statement of claim. I believe they did that after there was a change in their administration, after there had been an election that replaced certain personnel. At the time that the Treaty Commission had accepted that statement of claim.... I can certainly speak for the province and say that the province would go to the table with them only under the condition that -- and I think this was also understood by the Treaty Commission and the federal government -- the issue would have nothing to do with land, the delineation of land or the definition of what Treaty 8 land was. That's not what it would be about; it would be about governance.

J. Weisgerber: My understanding is that Treaty 8 has withdrawn with some considerable anger over the unwillingness of the other governments to consider their claim. In fact, when the statement was made that only self-governance would be open to negotiations, the Treaty 8 tribal council, with some degree of resentment or hostility, decided that they would withdraw their claim in protest.

It suggests to me, I guess, that the Treaty 8 tribal council executive, at least -- and perhaps members -- hasn't accepted the notion that in fact there isn't an opportunity to open up the treaty to modern-day adjustments, if you like. Can the minister tell me whether or not there has been any dialogue, any correspondence or any sitting down with the people involved in Treaty 8 to try to come to an understanding regarding the position of the province with respect to Treaty 8?

Hon. J. Cashore: It's a little back in time now, but to the best of our recollection, we have made our position very clear through correspondence, and we have stated it on many occasions. What I say to Treaty 8 people when this comes up is that when B.C. entered the treaty-making process, it was constantly stated that this was because the land question has not be settled in British Columbia. So the B.C. treaty-making under the B.C. Treaty Commission is not about renegotiating existing treaties with regard to land. It's about trying to come to a settlement on land issues where there is no such settlement.

But we felt that they did have a point with regard to the governance issue, and we're ready and willing to engage them on that. We have made that very clear, and I believe there has been correspondence on that.

With regard to the questions of what it would take to get them back to the table and whether there have been meetings or discussions about that, generally it would not be the role of the province to initiate such a discussion. For instance, there have been times when groups have come to talk to me in my office, and I've explained policy to them. No such request, to my knowledge, has ever been made.

J. Weisgerber: First of all, let me say that I wasn't at all suggesting that the minister should go out and try to bring them back to the table. Indeed, I was more concerned, and continue to be troubled, with the fact that Treaty 8 members and other members of the community seem to be unwilling to recognize what the minister stated. That is that treaty negotiations and comprehensive land claims in British Columbia are about land issues, and that issue has been resolved in the northeast part of British Columbia under Treaty 8. I agree with the minister.

As the MLA for a good part of that area, I continue to be troubled by the fact that there isn't a recognition of that. I'm wondering more about some dialogue to explain, perhaps in greater detail, the rationale for comprehensive land claims in the rest of British Columbia versus Treaty 8.

Hon. J. Cashore: The nearest that I can recollect is that the previous Deputy Minister of Aboriginal Affairs, Mr.

[ Page 1836 ]

Walsh, signed a letter in which he very clearly and explicitly outlined the very points that the hon. member and I are agreeing on, as to why some of their expectations are simply not on.

J. Weisgerber: If there's no confidentiality involved, I would very much appreciate a copy of that correspondence, given the impact on my own constituency.

With respect to McLeod Lake -- which, as the minister has noted, is an adhesion claim to Treaty 8 -- has the province now accepted the argument that bands and tribal councils residing in the Pacific watershed, as opposed to the area to the east of the height of the Rockies, are in the area that was originally proscribed as Treaty 8?

Hon. J. Cashore: I expect that that answer will receive definition in the court case as that litigation goes ahead.

J. Weisgerber: I'm a bit confused by the answer. I can understand that because of a dispute over quantum, this issue has gone to court. There were apparently areas where the negotiators were unable to agree, particularly on access to forest lands, as I understand it. I'm not sure that I'm particularly interested in trying to debate who's right and who's wrong in that particular decision.

Also, pretty clearly, in order for the negotiations to have progressed as far as they did with McLeod Lake, there at one point had to have been an acknowledgement by the province that in fact McLeod Lake was within the area historically laid out as Treaty 8, and that argument goes as to whether the western boundary was the height of the Rockies or was in fact the area within the Arctic watershed.

I have to assume that at some point, the provincial Crown must have accepted that argument with respect to the Arctic watershed, and that brings into question not only the communities of Fort Ware and Ingenika but also, I understand, as far west as Dease Lake. So it's a pretty fundamental question; it's not an argumentative one. I am just curious to know: has the province accepted the argument, which I happen to believe they should, that we erred historically on the western boundary of Treaty 8?

Hon. J. Cashore: There was an injunction that was filed tying up the Crown land. That was a factor that brought the province into it because of an interest in seeing that land able to serve the province in the way it should. I believe that another factor, as I've said in the past, is that the main party in an adhesion claim is the federal government, because it comes under federal treaty. The province's role is to be there to protect the provincial interest. I do not accept the statement, although I cannot come up with it

chapter and verse -- this goes back to an era prior to mine -- that we must have accepted the definition of the Rocky Mountain Trench as the defining boundary. I really do not believe that is what brought the province into the negotiation, and therefore I don't accept the "therefore" or the ramification that it therefore brings other areas in. I have stated that I think there will be some definition coming out of the court case, if and when it goes to court, but I don't believe that it was what brought the province into that. If I am to stand corrected, I will communicate with the hon. member to that effect.

J. Weisgerber: There was a history of litigation going back to my time as minister, where the province, for many years, actively resisted the claim and argued in opposition to the broader boundaries. But I don't think this is the right forum, and I'm not here to try and make an argument, although as the MLA not only for the northeast part of the area, the area that's traditionally Treaty 8, but also for Ingenika and Fort Ware, I have a very keen interest in how that evolves. I'll pursue the questions that would flow naturally from that at some time when we have made the first resolution.

[7:45]

I'm also intrigued by a statement of intent by the Kelly Lake first nation to file a claim. It's one that I know Mr. Brant has some familiarity with, and it's endorsed by the Treaty 8 Tribal Association. Can the minister tell me whether that has progressed at all? Is there any consideration? Again, we're talking about something which is essentially, in my view, a Métis colony or at least a group of non-status people who travelled in very early times in our history to western Canada. It's an interesting claim if it's to be at all considered by the Treaty Commission or others.

Hon. J. Cashore: As I see it, the step would be that they filed to be recognized as a first nation. To my knowledge, Canada has said no. Therefore that precludes them from ever getting into the treaty process. Hypothetically, if Canada did say yes, then I think they would be in a position to file a statement with the Treaty Commission. It would still remain to be seen whether it would go to the next step or not.

J. Weisgerber: I accept that that's probably the reasonable route for it to proceed, and I was curious to see how the province was in fact dealing with it.

One other issue that's at least treaty-related is something I raised in this House ten days or so ago: the question of the Treaty 3 member charged in British Columbia with hunting infractions and deemed by a provincial court judge to have -- in fact, to enjoy -- aboriginal rights outside of the home treaty area, for want of a better description. My sense is that this has enormous implications for British Columbia, particularly -- as the former Minister of Environment would probably recognize -- for wildlife and wildlife management, and for fisheries and fisheries management.

It seems to me that if this precedent is accepted, we could have aboriginal people coming not only from across Canada but from all over North America to enjoy their aboriginal rights along British Columbia's shores. Gosh, we know just from present company how hard that would be on fish stocks if nothing else. So I'm curious to know whether the ministry is involved, along with the Ministry of Environment and the Attorney General ministry, in the consideration of an appeal. Perhaps the minister could give us some sense of the ministry's position.

Hon. J. Cashore: I think there is complete agreement on this; I stand behind the response our Minister of Environment made to the member for Peace River South's query in the House the other day. It is my understanding that the Attorney General is reviewing the situation with a view to protecting important provincial interests. The role of the Ministry of Aboriginal Affairs is to remain very closely connected and to assist, in any way we can, in order to ensure that the interest of the province is supported in this matter.

G. Wilson: I'm delighted to enter into these estimates. I have just one area of primary concern, although I do want to raise a couple of very minor secondary issues. Well, I have one that is maybe not so minor, depending on how the minister

[ Page 1837 ]

responds. Let me start with my first question. Is it the opinion of this minister and this ministry that the coastal aboriginal people -- the first nations -- have an inherent right to oysters and oyster harvests?

Hon. J. Cashore: That is a very good question. First of all, in my role as minister I don't view that as an inherent right. It is, however, an issue that could come under consideration with regard to aboriginal rights. It would have to be examined on a site-specific basis with reference to court cases. Again, you'd have to take it from there, based on the specific situation. But I would start off by saying that I don't view that as an inherent right.

G. Wilson: I understand the complexity of jurisdiction over the oyster. One could argue that every variety of clam which is indigenous to coastal waters certainly might be an inherent right. Oysters, however, were introduced to this country -- largely from Japan. They are certainly a recent transplant into the coastal economy, even though many of us have thought that they have been here forever. In fact, they haven't; they were transplanted onto our shores. The degree to which they've been able to take over really shows the adaptability of their species.

My second question, then, concerns the fact that at the moment there is an ongoing dispute between local oyster harvesters and some coastal aboriginal bands with respect to the latter's right to harvest oysters in those areas which are not currently under licence. I want to stress that. We're not talking about accessing or trespassing on a current commercial operation, but about those areas that have been set aside by the Department of Fisheries and Oceans where commercial harvesting or picking of oysters is permitted.

But large seine boats are essentially being operated by some first nations who are going in and doing commercial harvesting off those beaches. They've taken the position that they have a right -- an inherent right -- to shellfish and that because the oyster is in a shell, it's a shellfish. I wonder if the minister has some comment with respect to how we might deal with this issue before it escalates and causes very serious problems with people in the industry.

The Chair: Would you mind waiting just a moment, hon. minister? I recognize the hon. member for Alberni on what matter?

G. Janssen: I ask leave to make an introduction.

Leave granted.

G. Janssen: Looking up to the gallery, I ask the House to help us welcome Ian Fraser, the former comptroller for the Legislative Assembly and the man who used to write our paycheques. I ask the House to make him most warmly welcome for his past remembrances.

The Chair: We won't ask why he's here. He watches it all on television.

Hon. J. Cashore: No, I don't have a plan with regard to how to address that. I do recognize the point the hon. member has made about the jurisdictions of both the province, under Crown lands, and the federal government when it comes to oysters. This may well be a situation where we might get some definition from the courts if it persists in moving to that point. One can only hope that if that were to be the case, it wouldn't happen with any unfortunate confrontation.

I know that the Klahoose band on Cortes Island is getting into oyster culture, and it's quite an impressive operation. In that instance, everybody on the island is very, very positive about what they are doing, and what has been achieved there has been a kind of win-win situation.

I want to say too that while I don't recognize it as a right, I think we're probably all together in recognizing that we want to see business opportunities to help people get out of cycles of poverty. It's not something we dismiss lightly on either side of this issue. As I say, the member poses a difficult question, and I haven't given it a lot of thought. But I think we are going to have to put some thought into it.

G. Wilson: I won't pursue it, save to say that I flag the issue for the ministry. It is an issue where there will be conflict, and the conflict will not be exclusive to aboriginal law and aboriginal people. There are aboriginal bands who currently hold licences and who are concerned that oyster spat is not being left in areas where they need it because of what amounts to an unregulated harvest. I'm a hundred percent in favour of anybody, whether aboriginal or non-aboriginal, who has a commercial licence succeeding in that venture, so that is why I raise the issue.

The second issue that I put to the minister, which is also a rather thorny one, has to do with the extent to which appeals from people in aboriginal bands who live on reserves may be heard through their local elected Member of the Legislative Assembly. I put this forward not to get into a long, protracted philosophical debate, but because here is the problem: within our electoral system every individual, aboriginal and non-aboriginal, has the right to cast a ballot. They do so, and therefore they elect each of us, presumably, or vote for somebody who doesn't get elected but nevertheless is a representative.

That representative, when approached by a member on reserve who has concerns about what's going on with respect to governance of that reserve, makes demands of the elected member to go forward and to take issue with it.

I'm talking now about application of moneys, problems associated with licensing, and issues that have to do with matters internal to the band; I'm not talking about licensing relationships with the federal government. At the moment, there appears to be no avenue of appeal for individuals in this position.

When I have made representation on behalf of first nations people who have come to me with documented evidence outlining concerns about the way that moneys are being applied, I have approached the federal Department of Indian Affairs and Northern Development to be told quite curtly that it's none of my business, that I am a provincially elected member and it's none of my business. Yet they have no way of entering and administering matters with respect to aboriginal self-government.

I understand that there is an obvious limit to the ability, or even the desirability, of the provincial government to get in and meddle in what is essentially the band's affairs, and I'm not advocating that. But I am advocating that it may be time we start to consider the implementation of a provincial aboriginal ombudsperson that would be allowed to hear these cases by members of aboriginal bands and be able to interface with both provincial and federal jurisdictions to see that those issues are properly resolved. At the moment there is no appeal.

There is no recourse for these individuals, and some of the charges being put forward are serious in nature. I would like to get the minister's thinking on that.

Hon. J. Cashore: I think the hon. member describes a situation that he is aware of from personal experience, and

[ Page 1838 ]

that is the despair sometimes of being in the role of an MLA's office. People come in, they don't know where to turn, and they say: "You're my elected representative. Can you help me?" And sometimes we end up saying, "Oh, that's a federal issue," or whatever. But sometimes when you meet that person, you really are very much aware of the dilemma and that it just gets passed back and forth, never gets addressed and never has the honour of being taken seriously. I think the idea of an aboriginal ombudsperson is perhaps one way to address that. I think it's worthy of discussion, worthy of thought.

I believe that if it were to take place, it would absolutely require major input from the federal government.

There may be other alternatives that could be looked at. Within the aboriginal relations division in our ministry, I would say that the province is involved in that sense, because a lot of the time of people in the aboriginal relations division is taken up with people such as Mr. Brant, who has worked for the federal government, contacting people there and getting the wheels rolling and helping to make a referral so that we do get on with it. In some ways, that has some of the elements of an ombuds role.

This is perhaps one of the reasons for some of the frustration that we see when people don't have a place to turn. I haven't put in a lot of time addressing myself to that issue, other than where we've been able to do it off the side of a desk within the ministry.

[8:00]

G. Wilson: I did say there were two issues I'd put out for the minister's notice, and those are the two. I think it is absolutely crucial in our country that every individual, regardless of who they are or what racial background they have, has a right to protection under the Canadian constitution and Canadian law. Where their rights are abridged or removed, or in some way discriminated against -- and I'm talking about serious discrimination in some cases, for reasons well beyond the control of individuals -- that individual has to have right of recourse.

If the only right of recourse is through an entrenched band government -- which may, in fact, be the very instrument of discrimination in the first place -- that person has no rights at all.

At that point, as an elected member of this chamber, I believe that I have an obligation and a duty to make sure that those individual rights are looked after, no matter how that should proceed. When you are stonewalled by the federal government, who turns around and says, "Well, the moneys are out there. We wash our hands of it; it's up to that particular band to decide how they apply that money. Don't come to me; it's none of your business," and I see this individual with no recourse whatsoever, to me that's a travesty that should not be permitted.

So I do put that out as a possible solution, and I hope the minister will take that suggestion seriously. Unless the minister wants to respond to that, let me move on.

The next issue is also a very important one, and it is one that is going to get us into some possibly sticky legal situations. It has to do with the transfer of taxing authority for property tax to bands with respect to leasehold lands in their jurisdiction. The government undertook last year, I believe, to enter into the transfer of taxation authority to a number of bands. That transfer was done without notice to property owners.

In fact, the first time the property owners were notified was when they were sent back the money that they had paid in good faith to the provincial government for property tax and were told to remit the same value or same amount to the aboriginal government. A number of people, of course, took exception to that, for good reason -- one being that they, essentially, are tenants to the aboriginal first nation, and they find that that puts the aboriginal first nation or the band government in a potential conflict where they act as landlord and also taxing authority.

So I wonder if the minister might first of all bring us up to date with respect to these transfers. What is happening with it? The minister will know that I have brought this to the attention of their staff before, and I wonder if he could just tell us how things are proceeding at this point.

Hon. J. Cashore: I am advised that where those transfers take place, Canada has the role of leading in the consultation to ensure that those consultations take place, and that is clearly a federal responsibility.

G. Wilson: We've established that it was the federal government's fault they didn't get notified. Fair enough, if that's true.

The process, however, still causes some concern, because, while it may be the federal government's role to notify, the authority that is assigning tax values against property is the B.C. Assessment Authority, which seems to now be working under contract to first nations bands. The B.C. Assessment Authority has a number of properties already under appeal, and we've seen a change in jurisdiction with respect to how the contracts do apply. Could the minister tell us what arrangement has been made with the B.C.

Assessment Authority with respect to the transfer of that taxing authority and the degree to which this government still has a role in determining what the rates will be in the application against that property?

Hon. J. Cashore: The Ministry of Municipal Affairs would be the ministry that is responsible for the B.C. Assessment Authority. The hon. member is correct in his description of being under contract in these instances. We do not have this primary information with regard to the answer. We will get that for the hon. member, but we will have to consult with that ministry in order to get that information.

G. Wilson: I understand the issue with Municipal Affairs. Municipal Affairs are equipped to say: "Look, this is a deal that's been set up through the provincial Ministry of Aboriginal Affairs and the first nations." There is an awful lot of buck-passing being done here, and I don't mean that as a pun on the fact that people are having to pay taxes at reasonably high value.

The difficulty that I run into -- and I wonder if the minister might want to talk about the arrangement that has been made -- is my understanding that there is a negotiated arrangement now between a number of bands and the provincial government with respect to the provision of taxing authority to those governments on those leased lands. It was my understanding -- and I could be wrong -- that those arrangements were negotiated through the Ministry of Aboriginal Affairs. At least, that's certainly what I've been led to believe. If that isn't true, then who did negotiate them?

Hon. J. Cashore: That was originally negotiated in 1987 by the Ministry of Finance.

G. Wilson: I've had an opportunity to review that original agreement, and there is limited documentation available on it. Essentially, the movement towards self-taxation authority certainly was in 1987. I understand that Manny Jules and others were actively involved in putting some of that original material together. I've gone through that fairly carefully, but I don't see where there is an assignment right -- if I can use that term, and that's maybe not the right legal term

[ Page 1839 ]

-- where first nations have a right to assign values against lease lands on property that is then subcontracted to the B.C. Assessment Authority with respect to administration. That seems to be what is going on.

There is a jurisdictional question here that we need to look at, because the difficulty is that the first nations band is the landlord; they set the rate at which these leases are now being assigned. If they are also given the right to assess the taxation on it, then I think we find ourselves in a bit of a conflict, because the taxation is going to be determined in large measure by comparable values which are assigned in the original lease, which the first nations band sets. If I'm articulating this clearly, maybe the minister could just nod or respond.

Hon. J. Cashore: My understanding is that the Assessment Authority is the instrument that assesses the value of the property, and the instrument could be at the political level of the band or the province that sets the tax rate. The deputy of Aboriginal Affairs was the deputy of Finance at the time this was negotiated -- the time of the emergence of the Indian taxation enabling act -- and I believe there was the concomitant federal legislation at that time.

This area is very complex, and I do think there is an issue that underlies all the complexities about how this came about, but the member is still seeking to make the point that it's not working as well as it needs to. I think that's where we need to identify that and try to establish where the province has a role in that.

G. Wilson: It's always nice to be able to find the culprit right there -- not that there is anything particularly wrong, exactly. I guess I've only got two questions with respect to this, and then maybe what we can do is leave it. I would greatly appreciate a briefing with whatever officials know what's going on, because I've got many bands in my riding, as you know, and all of them are moving toward this, and there are lease properties on virtually every one of them.

I guess I've got two other questions. With respect to the process -- that is, the degree to which the band is able to set a rate -- there is no right of deferral, because, as I understand it, the legality of the question on referral goes back to the federal Indian Act, which says that the properties are federal. Therefore, because the properties are federal, the province cannot allow deferral of tax. All of us have a right of deferral, as you know, but you can't do it if you're on leased properties.

Yet the rate that's assigned does not reflect the inequitous situation, because it's based on a rate that is measured against non-leased land. In other words, the Assessment Authority is using a rate that is comparable to market rate off leased land, even though the leased land is federal in jurisdiction and removes a whole host of rights to the tenant, the leaseholder. One is the right to defer taxes, which causes some considerable grief to people who find that their taxes have escalated tremendously and who are now not able to defer.

Now, I've taken this up with Finance, I've taken this up with Municipal Affairs people, and now I'm taking it up with the Minister of Aboriginal Affairs, just to cover all bases.

Hon. J. Cashore: When the deputy minister calls this hon. member to meet for what I think will be a mutual briefing, part of the argument that will ensue will be over the position that it is not correct to say that the assessment does not take into consideration the factor of it being leased land. You will get an argument that it does. Again, I think this is an area about which I would encourage the hon. member to meet with the deputy, who is going to call you. That will be done very soon.

[8:15]

G. Wilson: Let's leave it at that for now. I only serve notice to the deputy minister to bring your documentation, because I'll certainly bring mine. I can tell you that there have been non-leased lands that have been used as comparable values for setting assessments on leased properties, notwithstanding the fact that that leased property is of a different jurisdiction because of the federal nature. I do appreciate the opportunity to have put these questions to the Minister of Aboriginal Affairs, and I look forward to being contacted for that briefing as our schedules and timetables permit.

M. de Jong: I wonder if the minister is prepared to return to the Nisga'a agreement-in-principle. Specifically, I wonder if we could deal with the sections of that agreement that pertain to fisheries matters. Those sections, I think, begin at page 33.

Let me begin by referring the minister to paragraph 6 on page 34, which confirms that any entitlements granted to the Nisga'a will be held communally and may not be alienated.

I guess the first question that comes to mind is whether or not the minister is at all troubled that perhaps this could be seen as a continuation of that principle, which I think he found repugnant, where formerly there were constraints on the ability of aboriginal peoples to decide for themselves whether or not they wished to sell, trade, barter, lease or what have you their interest in lands or lands that they occupied, and whether or not a similar argument could be made with respect to their entitlement, whatever it is, obtained under treaty negotiations to have constraints placed on their ability to deal with that entitlement -- constraints, that is, that wouldn't be at play with respect to others involved in a commercial fishery.

Hon. J. Cashore: I'm going to ask the hon. member to restate the question, please.

M. de Jong: I'm happy to do that. I know the minister just got rearranged, but I know there's a member in the chamber now who has a couple of questions relative to the Apex situation. Is the minister in a position where he can, without knowing what those questions are...? I wonder if I can defer, then, to that member.

R. Thorpe: Minister, could you please give us an overview, from your perspective, of the current status of Green Mountain and the Penticton Indian band situation?

Hon. J. Cashore: The status is that we've gone through quite a progression of experiences between the provincial government and the three bands, primarily the Penticton band. There has been some conflict. Efforts have been made, involving this ministry, to try to resolve that. Those efforts did not succeed. The matters that come under the purview of the Minister of Employment and Investment have been well canvassed in this House, so I won't deign to speak for him, except to say that the Ministry of Aboriginal Affairs has diligently sought to address issues that were within our purview throughout the events that I'm sure this member is very familiar with.

R. Thorpe: Of course, one of the huge issues for the people of the area is the certainty of road access. I'm just wondering if the minister could share with us what he believes his government is going to do to ensure certainty in road access.

Hon. J. Cashore: This is a matter for the Minister of Transportation and Highways, but I can advise the member

[ Page 1840 ]

that there is a court case that is prepared for this government, and there is a trial date. I would also mention that it's my understanding that the Minister of Employment and Investment, if he's free of duties in the House, will be travelling to Penticton tomorrow to meet with parties.

R. Thorpe: The minister mentioned that a court date has been set. Could you share that setting of the court date with us?

Hon. J. Cashore: I stand corrected. We are waiting for a date to be set.

R. Thorpe: Thank you very much for clarifying that. Could the minister indicate if the government is aggressively pursuing a court date, or is the government taking its time in getting it to the courts?

Hon. J. Cashore: It's my understanding that the Attorney General ministry has asked for an early court date.

M. de Jong: I'll try now to restate my question relative to the fishery sections of the Nisga'a agreement-in-principle. I guess my point was this: I have always been troubled by the notion that lands aboriginal peoples live on.... They would not enjoy the same options you or I would enjoy in terms of selling those lands or realizing revenues or profits from the sale or transfer of those lands.

In his earlier comments, earlier today and last week, I think part of what the minister was saying is that he shares that concern and that part of this process, part of vesting lands in Nisga'a central government, vesting title with them, was to provide them with the means to control their own destiny, to shed that veil of paternalism that has cloaked aboriginal peoples for so long.

When I look at a provision like that which is contained in paragraph 6, which says that fishery entitlements will be held communally and may not be alienated, the suggestion there, at least, is that with respect to fisheries, that paternalism continues. The ability for the Nisga'a to transfer or sell the entitlements, whatever they are under this agreement, is being constrained in a way that if you or I were in possession of those entitlements, they would not be. Am I off in left field, or do I read this

section correctly? It seems to be saying that with respect to the right to sell or alienate those interests, the Nisga'a don't enjoy the rights that others might naturally expect to enjoy.

Hon. J. Cashore: No, it's not paternalistic. Given that this is a negotiated agreement-in-principle involving three parties, it is not paternalistic. It was my understanding that the Nisga'a, in arriving at this position, have taken the position that they wish to be able to sell fish but not sell the entitlement. It's an economic decision. It relates to the resource that again, from their perspective, is defining with regard to the river and the relationship to the river. No, it's not paternalistic; it is an economic decision.

Hon. J. Cashore: It's a different right. The hon. member will have to be satisfied with his

definitions as he sees them. I come at it from a different perspective. It's a different right, a negotiated treaty right, and at this stage an agreement-in-principle. He characterizes it in a different way than I do.

M. de Jong: The minister may be absolutely correct, but I'm not sure from what he said that I understand the difference. What I have said, the proposition that I have made to him, is that the rights, the entitlements to participate in the fishery that this agreement-in-principle purports to grant to the Nisga'a, are limited in the sense that they restrict their right to sell or transfer their entitlement. Does the minister agree with me that far?

Hon. J. Cashore: I agree that when you choose to compare land and entitlement, there are two different sets of solutions that have come through these negotiations. The one that pertains to fish is related to the three parties, but certainly the Nisga'a's position on how the Nisga'a wish to make use of that resource. As it is very clear there, it is to retain the entitlements communally but to be able to sell fish individually.

M. de Jong: I don't want the minister to be hung up on the analogy I drew with land. I certainly agree that these are different commodities. It is different currency, if you will.

What the minister seems to be saying is that this provision has been included at the insistence of the Nisga'a themselves. If that is the case, one can't help but come to the conclusion that the Nisga'a themselves want to bind their own hands and don't have confidence in their own ability to maintain this entitlement in a responsible manner. Otherwise, on what basis would they agree to terms that would restrict their ability to deal with that entitlement?

Hon. J. Cashore: Again, to the contrary, this is an indication that the Nisga'a do have confidence in their ability to conduct that fishery within the parameters that are negotiated here. I think that if we reflect on this, we can always find a way of coming at it negatively. But I don't see that negativity there. I don't see this as restricting. I see this as enabling. In this particular resource, I see that this has emerged in a way that recognizes the importance of maintaining it as a collective resource throughout time. I think that is what is stated in the agreement-in-principle, and I don't see any negative in that whatsoever.

[8:30]

M. de Jong: I don't know how the minister can honestly call this provision enabling, when clearly it is included to restrict what would otherwise naturally be a right of the Nisga'a. I heard the minister speak earlier this evening in response to a question I posed, where he said: "Look, the ultimate defence to all of these questions" -- in the area that we were canvassing -- "rests with the fact that the Nisga'a will have self-government, that they will elect their representatives, and those representatives will make decisions governing the interests of the Nisga'a people."

They won't be making decisions about what to do with this fishery entitlement because they won't have that jurisdiction. It's not provided. Given his earlier statements, I'd like to know how the minister responds to that?

[ Page 1841 ]

Hon. J. Cashore: Again, on the contrary, the Nisga'a will be making decisions about this because they will be involved in voting on the ratification. Therefore this will be one of the factors. If it is a concern to individual Nisga'a, they will have an opportunity at that time to express that.

M. de Jong: I know that the minister has been sincere throughout this debate, but I hope he's not asking me to be satisfied with a defence of this particular clause that says if individual Nisga'a are unhappy with it, they have the opportunity to scuttle the deal. I think he and I both know that that's not likely to happen. This is not the type of provision which, in and of itself, this deal is going to live or die on.

Hon. J. Cashore: It's a bit of an academic discussion. To the best of my knowledge, I have not heard this issue raised in any degree by the Nisga'a. Now, I may stand corrected on that. When the standing committee meets, we may hear some comment on that coming from first nations people or perhaps from Nisga'a people. I will be interested if that is the case. The only concern that I have heard expressed about this has been from non-Nisga'a people, and so I do not have information that would indicate that there is a groundswell of concern emanating from that community around this. I think I would have heard about that if that were the case.

M. de Jong: I think I understand what the minister is saying. He should realize -- and I think he does -- that not having been part of the negotiation process, the impetus for the inclusion of many of these clauses is not known to us. That's why this exercise is so valuable.

Maybe I could ask him this, though. The message seems to be that this provision has been included at the insistence of the Nisga'a. I think that's what I derived from his comments this evening. That being the case, one wouldn't logically expect a great deal of protest from the Nisga'a themselves. Having accepted that, I return to my earlier proposition, which is that as a non-Nisga'a person, I do see it as a continuation of a form of protectionism, if you will, that doesn't exist elsewhere.

I'm not aware of other allocations, other fisheries entitlements, that are bound in this way, that are restricted in the ability of the licence holder -- if that's what we can call this -- to deal with that licence the way the Nisga'a would be. From the perspective of a non-Nisga'a person who is looking to this agreement and the treaty that will arise out of it as the mechanism by which those restrictions, those differentiations, are going to disappear, it disappoints me that in this particular area it's not disappearing; it's going to be perpetuated.

Hon. J. Cashore: Well, hon. Chair, I'm not sure that I understood all of that, but this is not protectionism. This is not how I understand the Nisga'a have come to this issue. I think it's out of respect for the relationship that has existed throughout many, many centuries with regard to the return of the fish. There is every year, as I understand it, a time when the Nisga'a people will make decisions with regard to how to deal with their allocation, how that will be managed. I think that one can put as positive a spin on this as is available.

With regard to the fact that here is a manifestation of the Nisga'a relationship with a sustainable resource, the Nisga'a are a people who have won awards for their relationship to that fishery on the Nass and have actually dedicated dollars towards the conservation and the enhancement of the river, which will be a benefit not only to the Nisga'a. I think that what is reflected here is something extremely positive.

M. de Jong: It's why our relationship -- the minister and us on this side -- is so complementary. He can put the positive spin on the matter and rely on us to put the negative spin on whatever clause we happen to be discussing.

Something the minister said struck me as interesting and sort of gives rise to my next series of questions. I think that when the standing committee goes around the province -- not to anticipate, but I've heard this during my travels around the province.... If you ask British Columbians, I think the majority of them have absolutely no difficulty acknowledging that historic link, that spiritual, cultural link, that exists between aboriginal peoples -- in this case, the Nisga'a -- and the fishery; and I think the minister, quite properly, acknowledged that.

To the extent that as a society and as a state we want to preserve and protect that historic link, I don't think the minister will find a great deal of people quarrelling with him.

[S. Orcherton in the chair.]

It becomes a little more problematic when we take the next step -- which is the protection of an aboriginal commercial fishery -- when people ask themselves: "Where is the historical basis? Where is the spiritual or cultural link between aboriginal people and a commercial-based fishery?" So when you make that leap you start to lose some people at that point.

When you take the next step, which is contemplated in clause 15 on page 35 of the agreement -- and given everything the minister has just said about paragraph 6.... When you go to paragraph 15, it seems to be saying that in spite of this entitlement that's being granted, which is receiving, in my view, extra protection in the sense that it can't be alienated, and all based around this notion that there is this spiritual and historical link....

But then in paragraph 15, it appears that the Nisga'a can hire people to do that fishing for them; that it doesn't have to be a Nisga'a person operating under that entitlement that this agreement grants. I have to say that you lose just about everyone at that stage of the game -- or 90 percent of the people I talk to, who say: "Where's the spiritual link when you've hired someone else to go down to the river and do the fishing for you?" So they have some problems with that.

Hon. J. Cashore: I would say that the hon. member has used the words "spiritual link" about 15 times in his last comments. I did not use that word. He is taking those words from my comments when I said there is this traditional relationship with the fish. I don't mind him using those words; I don't particularly have a problem with that. To me, it's just that it's based more on what their history and culture is. I don't personally bring in the spiritual dimension at this point, although I'm sure that if Joe Gosnell were here he'd probably agree with the hon. member with regard to that characterization.

I think we're arguing some fairly esoteric points here. I could apply that argument about paternalism back to the characterization that this member made about this clause. What's wrong with having the self-determination to be able to decide you want to contract out? What's wrong with that? I don't think that's in contrast to or in denial of any type of a spiritual or traditional link.

One of the things we celebrate about first nations is their adaptability. Cultural survival has been aided and abetted by a remarkable and uncanny adaptability to change that was not visited upon them at their desire but by outside factors invading their existence. Adaptability is a very hopeful and vibrant

[ Page 1842 ]

part of the first nations part of the Canadian fabric of society, and I see it manifested here. They're saying: here's where we come as a group of aboriginal people negotiating a relationship in which we have the right to decide that. It's not some missionary deciding it; it's not some Hudson's Bay factor deciding it; it's us deciding it. So I see no conflict here whatsoever with regard to their spirituality or my understanding of tradition or the prospects for this all working out really well.

M. de Jong: If I were being mischievous, I would try to turn that statement back on the minister and say: "Well, if the logic he would now purport to apply to clause 15 is valid, why is it less valid when I try to apply it to clause 6?" I suspect that we could go in circles on that point. Nonetheless, maybe what we've agreed to here is that there is something of an inconsistency on that point between clause 6 and clause 15.

Now, to answer the point and to pose the question that I think arises out of it from what the minister has just said, the argument the public hears when the Nisga'a or aboriginal peoples make their pitch for protected and guaranteed access to the fishery -- and it's one that has been made time and time again for many years -- is the personal link between the aboriginal nation, the aboriginal individual and.... I'm sorry, when I used the word "spiritual "... . I have heard that word; I wasn't ascribing it to the minister necessarily. The cultural link....

It has been very much at the centre of the argument that aboriginal peoples have used when they try to convince me and when we engage in that debate -- that is, that this is very much a personal link between the Nisga'a, or the aboriginal person, and the fish.

I think that for all the validity of what the minister has said about wanting to preserve that absolute freedom in a market-driven economy.... I've heard the minister also say: "Hey, this is a way that we can encourage employment, by having non-Nisga'a people participate in the fishery." For all the validity that those arguments may entail, the fact of the matter, the raison d'être for this clause -- for this fishery allocation in the first place -- was that personal link with the fish.

I have to say to the minister that as an agreement that is going to be scrutinized very closely, I predict it is going to be very, very difficult for the ministry to deal with other aboriginal first nations if the impression is that the Nisga'a are going to take their entitlement under this agreement and simply contract out the actual catching of the fish. That's going to lead to difficulties with respect to other negotiations.

[8:45]

Hon. J. Cashore: Well, I don't think it will lead to difficulties with other negotiations. I think, again, when we look at other negotiations, we're going to see just how different they are, because this is such a unique situation with regard to the Nisga'a relationship to that river in that area of the province. I don't know of situations where that would be repeated anywhere else in the province, because those demographics aren't repeated.

Just thinking for a moment about this part about a personal link, I don't believe for one moment that the Nisga'a would ever cease to have their personal link with regard to fish. In the time that I have spent up on the North Coast, I've known first nations people, just as non-first nations people, who make their living in the fishing industry. If they find themselves working in a white-collar job for some reason, the spring comes and there's something missing from their lives. They start wanting to get into readying a boat and getting back into it.

At the same time, I don't see any inconsistency between clauses 6 and 15 whatsoever. I see no inconsistency between a group of people that would negotiate a settlement that would provide for the possibility of some contracting out. Again, what would be the downside of recognizing that the Nisga'a might be in a position where they are hiring, in a very limited way, I would expect, people of other ethnic backgrounds who happen to also be Canadians? I think that's a really wonderful part of the business opportunity that relates to this in terms of what this is going to produce.

M. de Jong: I will make this admission to the minister: because we are speculating, I am poorly placed and poorly equipped to argue with anything he said, and ultimately we'll watch to see what happens. I will suggest one thing: he is equally poorly placed to make comments about what might happen with respect to the extent to which these contracting-out provisions are utilized by the Nisga'a. His idea may be based on his extensive contacts with them, but ultimately, I think we will have to wait and see. I certainly have no hesitation signalling to the minister that the interplay between 6 and 15 trouble me, for the reasons that I have said.

When this agreement was first being signalled, there was much discussion about.... Much effort was undertaken to contend with the argument being made that this represented a constitutionalization of a commercial fishery entitlement, and I think there is obviously language included within the agreement that is purposely designed to counter those allegations and the employment of the harvest agreement mechanism. Will the minister agree with me that by virtue of how that harvest agreement operates, there is, in effect, a perpetual statutory entitlement based on the formula set out in the agreement?

Hon. J. Cashore: The answer is no. As stated in the document from Russell and DuMoulin that I'm holding in my hand, it is not a perpetual statutory entitlement. There's no such thing.

M. de Jong: If I refer to paragraph 17 of the agreement, where the harvest agreement is said to: "be for a term of 25 years and be replaceable at the discretion of Nisga'a central government every 15 years for a further 25 years," maybe the minister can tell me how this agreement ends.

Hon. J. Cashore: Like any renewable tenure, it's subject to

an act of parliament. The only time I would ever envisage it ending would be by a unilateral act of parliament. The salmon harvest agreement is really no different in law than the replaceable tenures created under the provincial Forest Act. In a sense, this is being referred to as a fish TFL, and no one has ever suggested that these forest interests are protected -- again, to quote Russell and DuMoulin -- "as if they were constitutionally entrenched." With regard to this fish TFL, the writing of the member for Richmond-Steveston is stating that it's as if it were constitutionally entrenched.

But we don't hear the same complaint coming from any quarters, that I'm aware of, that our forest TFLs are constitutionally entrenched, yet there's really no difference between the two.

M. de Jong: Well, here is the author of apparently the misstatements or misinterpretation of the provisions. I think the point is made: for all practical purposes, what is the difference? If the Nisga'a choose to exercise the right to renew as is set out in the agreement-in-principle, it continues, absent the legislative intervention that the minister contemplated. Is that a correct synopsis of what exists here?

[ Page 1843 ]

Hon. J. Cashore: Yes, and that's no different with a TFL.

M. de Jong: Just below the provision that we've been dealing with, paragraph 19 on page 36, is the provision which emphasizes that this harvest agreement is not to be construed as a land claims agreement or as creating any treaty rights. I wonder, though, if the minister has received advice as to whether or not it creates aboriginal rights within the meaning of that term and its application to constitutional law in this country.

Hon. J. Cashore: No.

M. de Jong: Was that "No, I've received no advice," or "No, the advice I've received is that it doesn't create any aboriginal rights"?

Hon. J. Cashore: It's the latter. It doesn't create any aboriginal rights.

M. de Jong: One of the provisions in this agreement.... I know the minister has taken pains to emphasize his belief that there are no constitutional overtones to this harvest agreement, but at paragraph 91 of the

section dealing with the fishery, mention is made of the fact that the Nisga'a central government is guaranteed consultative rights vis-�-vis any negotiations that occur on the international stage. That does seem to denote or bestow upon the Nisga'a some limited constitutional protection, insofar as international negotiations are concerned, at least. Does the minister agree with that proposition?

Hon. J. Cashore: This is consultation; it's provision for consultation.

M. de Jong: That's fine. I'm not arguing the substantive contents insofar as what's being dealt with here, but the point is that this now appears to represent a constitutional guarantee to consultation.

Hon. J. Cashore: No, it's not in the constitution. It's a treaty right to consult.

M. de Jong: With the greatest respect to the minister, it seems distinguishable, by virtue of how it is presented in this agreement, from the provisions dealing with the harvest agreement. If that is the minister's position, maybe he can briefly provide me with the basis on which he reached that conclusion. The harvest agreement is specifically referred to in paragraph 19. Paragraph 91 deals with something different.

Hon. J. Cashore: That's one of the issues that Canada agreed to. They're responsible for fish, and they agreed to have that consultation right there in the treaty. Canada has the lead role on fish. Canada deemed it as appropriate. Canada also has the responsibility for international issues, again agreeing that it behooves them to have that treaty right to consult.

M. de Jong: I hadn't actually got to the point where I was asking where the agreement or the impetus for the inclusion of the clause existed. I'm not sure that I have an answer yet to the original question, which is: by virtue of how this

section is presented, doesn't it represent a constitutionalized entitlement to be consulted whenever the issue of salmon is being discussed internationally?

Hon. J. Cashore: This gets at an issue that has sometimes resulted from some discussions, which have taken place on a wide range of areas and which, I think, have created a little confusion around

section 35 and the concept of entrenchment. I have heard the phrase used that a treaty is entrenched within the constitution. It's not really right. A treaty is protected by the constitution, so this is not an entrenchment per se.

Section 35 of the constitution recognizes and affirms aboriginal rights and rights set out in treaties.

Section 35 does not entrench the treaty itself.

[9:00]

M. de Jong: What I think the minister is prepared to concede, however, is that the right -- call it a procedural right, if you will -- stipulated in clause 91 on page 48 of the agreement-in-principle has a higher level of protection or is different from the right contained within the harvest agreement. Does the minister agree with that proposition?

Hon. J. Cashore: Yes, it is different.

M. de Jong: Paragraph 89 on page 47 deals with the question of the transfer of moneys that will be provided to the Nisga'a central government so that it can increase its capacity in the form of licences and participate in the commercial fishery. There's actually a figure set out there, $11.5 million, a significant sum by any standard. I'll begin by asking the minister to explain what the rationale was for including that

section above and beyond the provisions of the harvest agreement.

Hon. J. Cashore: This is additional economic opportunity.

M. de Jong: That's the shortest sales job I've been subjected to, hon. Chair.

Just to get a couple of the preliminaries out of the way on this point: is the $11.5 million included in or in addition to the $190 million that will be transferred to the Nisga'a?

Hon. J. Cashore: It's in addition to the amount the member cited, and it's my understanding that it's 50-50 cost-shared between B.C. and Canada.

M. de Jong: So the $190 million is subject to the original cost-sharing agreement, and the $11.5 million is subject to a different formula, a 50-50 formula.

Hon. J. Cashore: I'm sorry, I was listening to the answer before I heard the question. Could I just have the question again?

M. de Jong: I just want to confirm that the $190 million is subject to the cost-sharing formula that was in place, negotiated between the two levels of government, and that the $11.5 million is a 50-50 split between the federal and provincial government.

Hon. J. Cashore: Thank you. That enables me to answer the question yes.

M. de Jong: The minister has heard this from others, and it is easy to criticize agreements of this sort and to tell people what is wrong with them and where they fall short. The minister in the past has challenged his detractors to offer an alternative and to suggest how this could be done better.

In the case of the fishery, the response he has received in many cases goes something like this: if you have chosen to

[ Page 1844 ]

provide the Nisga'a with $11.5 million to allow them to acquire licensing rights to fish, why not simply adopt that approach in total? Why not say today that at today's market prices and licensing prices, we agree with the Nisga'a: "We agree that you are entitled to a percentage of the commercial fishery allocation, and we are going to provide you with the means to acquire that entitlement on the open market. What you do with it from this point forward is up to you. You will have utter and complete discretionary authority to purchase more or to sell; but it will be up to you.

We will provide you, as federal and provincial governments, with the means to acquire 25 percent of the market share of the entitlement -- or 30 percent, whatever that figure might be." Why wasn't that appropriate in the mind of the minister?

Hon. J. Cashore: Every treaty is a combination of factors. The combination of factors in this case produced this result. The primary discussion involved Canada and the Nisga'a on this, with a very keen interest on the part of the province. I dare say that as we look at other treaties we will find situations very similar to what the hon. member has just described. Again, I think we have to look at each situation with regard to its own merits. This was the combination of factors that has resulted in the agreement-in-principle.

M. de Jong: In fairness to the minister, I think there are a lot of issues dealt with by this agreement-in-principle where I might not take issue, and I might actually agree with him. But we are talking here about a pretty fundamental principle: the principle by which you allocate to an aboriginal group the ability to undertake that activity which they wish to undertake.

There are a couple of ways you can do that. One of the ways you can do it is to say that we are going to provide you with the means to become involved to the level that we agree you should be involved at, but having done that, you are on your own. You will manage it; you will be subject to the same regulations and the same environmental constraints. All of the things that apply to limit the ability of fishers in this province to make a living will apply to you. We're going to get you there. We're going to make sure that you're participating, in 1996 or 1997, at a level that we have deemed appropriate through the negotiating process. But after that you're on your own -- no special status.

The other way, or one of the other ways, to do it is by virtue of this, in effect, perpetual -- I shouldn't use that word because the minister will take issue with that -- harvest agreement, which guarantees an entitlement based on this contractual arrangement or treaty entitlement. So there are two very different ways to go about this.

I have to say to the minister that by virtue of how it's been dealt with in this agreement, there is a signal being sent about the preference that this provincial government or the federal government has. Maybe the minister is going to stand up and say that this wasn't the provincial government's preference but was the best deal they could get and that with the federal negotiators viewing this as just another form of currency that was really of no concern to them, the provincial negotiating team didn't receive any assistance from the federal negotiators in pursuing the line or approach they favoured.

Maybe the minister is going to tell me that. But I'm very interested to know the extent to which this is the approach that the provincial negotiators favoured.

Hon. J. Cashore: I answered, in part, in my previous answer. So again, I'm not going to get into a lot of circular stuff here. But I just want to say that I don't in any way want to disassociate myself from this agreement-in-principle. It's a good agreement-in-principle. The fisheries considerations, in all their different aspects, are sound and solid.

This kind of allocation -- again, remember it's an exchange of aboriginal rights for the clear definition of treaty rights -- is a heck of a lot of an improvement over what we see in the AFS on the Fraser, where you could have people of first nations the only ones out on the river fishing commercially. You can actually have that circumstance under the AFS. We know how unacceptable that is to so many people.

But here on the Nass you would not see that happening. You would see instead a capped allocation, based on negotiations. At that time in history, when the population of the Nisga'a reach a certain critical point where the amount would actually go over and above what this allocation is, that won't happen, because this is a negotiation. It's about give and take. Again, I think the hon. member disagrees with this.

But there is a component of this that has to do with the fact that the Nisga'a are a population very closely related to that river and that there are very few non-Nisga'a people in that region. Their relationship to the river was a factor of great significance in the negotiations. That's a very unusual set of circumstances. Yet in that particular case, it was important in being able to come up with what I think is a very good set of arrangements with regard to the fishery.

M. de Jong: Well, except for the very last part of the minister's statement -- I'm not sure what part of what he said he thinks I would disagree with -- I certainly don't quarrel with the description the minister has offered about the environment and the links between the Nisga'a and the Nass River.

May I ask the minister, with respect to paragraph 89, what the timetable for payment of the $11.5 million is?

Hon. J. Cashore: That timetable is to be negotiated.

M. de Jong: With the minister's indulgence, I wonder if we could return to the matter we were discussing just before the dinner break. I will prompt him by suggesting that he had some comments he was prepared to make regarding the situation at Tsatsu Shores and the Tsawwassen Indian band.

Hon. J. Cashore: With regard to the situation with Tsatsu Shores and the Tsawwassen Indian band, I want to start off by saying that I do have a very positive relationship with the federal minister. I think he's a good minister. I think he's doing a good job, and I know it's a much more difficult job than mine, because he has to manage such a variety of situations. I almost have to say that, because some of my comments are going to be somewhat, as it is sometimes characterized, bashing of the federal government.

I don't think the federal government has carried out its responsibilities in this situation in the most creative and useful way that was available to them. As I said before the break, the federal minister advised me in my conversation with him last week that a mediator has been brought in. I haven't heard how that process is going, and I don't know the timetable on it. I think it's extremely unfortunate that this sort of in-your-face relationship has developed, when obviously that wasn't in anybody's interest.

[9:15]

[ Page 1845 ]

In fairness, I want also to say that I think sometimes the long arm of politics.... We all know what politics is all about, at least we experience it in different ways. I think in this situation large-P politics has been disruptive on both sides. There have been statements made by people on city councils and that sort of thing that were fitting in to a climate of anxiety and hostility that was emerging as this thing was becoming more and more of an impasse. We needed somebody to find a way to get all the parties to go back and sit down, and then come back in a more creative way of working it out. I think, hopefully, we are now going to see that happen.

I just point out that I cannot for the life of me understand -- even where there may have been some legality that said, for instance, that the federal government has a right to authorize going ahead with a certain construction in lieu of certain consultations -- why it would not behoove the parties to do those consultations, in the interests of goodwill and building what would become a model for the post-treaty type of relationship that we hope would come to exist. You know, perhaps we can all say, "Well, maybe there's something I could have done better," but there is a need for that kind of small-p political will in order to enable that to happen.

I also point out that I think now, with that sewage construction issue, the federal Department of Indian Affairs and Northern Development finds itself cross-pressured with the federal Fisheries department, and that, too, is kind of an unnecessary and unfortunate situation.

All I can say is that I really do have a lot of hope for this mediation process. I think it's in the interests of all parties to do that, and I just hope that the municipal elections, and the federal election coming up don't politicize this to the point that it becomes difficult for the parties to do the reasonable thing.

F. Gingell: Could the minister advise the committee on who the mediator is, and what the terms of reference will be?

Hon. J. Cashore: No. This is something I was advised of by the federal minister whose responsibility it is, in relationship to the Tsawwassen band. I assume that if that is happening, it's being discussed between the band and the municipality.

M. de Jong: Given what the minister has said about the destructive nature of these sorts of disputes, I think he quite validly points out the fact that no one's interests are served when this takes place. I wonder whether he sees the need for a mechanism by which it's possible to head these sorts of disputes off at the pass, as it were. The member for Delta South has, I think, made the point in the past that this is the kind of dispute that is going to have the potential for taking place in communities right across the province, and that it is an incident over a laudable principle -- that is, that aboriginal peoples achieve a greater level of self-determination and economic self-sufficiency.

Yet part and parcel of that is the fact that they will, in some instances, be viewed suspiciously by neighbours who have, rightly or wrongly, grown accustomed to them being somewhat docile on the reserves they call home. We've all watched and lamented the deterioration in the relationship between the Tsawwassen band and the local civic government. We're engaged in mediation now, and that, I suppose, is a good thing at the stage we're at. But is there a means by which these types of disputes, which have the potential for existing in communities right across the province, can be dealt with far sooner and far more effectively than we've seen happen on the Tsatsu Shores?

Hon. J. Cashore: The answer is yes. It is not an area of responsibility of the provincial government. That's not ducking the issue. I think that the responsibility falls on all of us in the community, no matter what our relationship or role happens to be.

What I lament is the fact that the stories that don't get told are the success stories where exactly that kind of cooperation is taking place. I sincerely lament that, because when we don't hear what is working well, the public is left with a view of only these conflicts being publicized, and that becomes their understanding of the status quo. That is not the status quo; in fact, it's the other way around. There are far more examples of cooperation and of people sitting down and being good neighbours. I think the treaty process seeks to facilitate that, and hopefully it does.

But it is true that there are those cases that become very high profile, and in the mind of the general public often they are seen almost as people in a state of siege, which is not the case. There are a great many disputes where the parties have come up with a process and have addressed it together as adults and have come up with good results. It's unfortunate that we don't see more of that highlighted.

[G. Brewin in the chair.]

F. Gingell: I spent many years on a federal commission that owns and has title to substantial pieces of real estate in the Fraser Valley. My role on that commission started in 1975, and I'd like to suggest to the minister that in 1975, as an agency of the federal government, we weren't interested in listening to anybody. We were a major landowner in Surrey and in Richmond.

As the 12 years I spent on the commission went by, we moved from recognizing that as a federal agency we could do what we wanted when we wanted, to recognizing that it was not only in our interests to jointly plan the development of our properties with the municipalities, but there clearly was a need to be open and deal openly with local communities.

Perhaps the example that sits in my mind best is that towards the end of my time on the commission we were asked to stockpile very large quantities of sand for the purpose of the third runway. We decided that the appropriate place to stockpile that sand was on Steveston Island, and we would move it off by truck. An uproar ensued. You can appreciate that the commission had the right to do whatever it wanted. But we recognized that in the late 1980s that wasn't on, so in the end the sand was removed by way of barge, and alternative plans were laid.

It seems to me that if we're going to find solutions for these problems in the 1990s -- it's not only aboriginal issues, it is all issues between federal, provincial and municipal government.... The majority of federal agencies now recognize that they can't just ride roughshod over everybody. Although they won't give up their jurisdiction -- understandably -- they agree to entering into a process that is similar to the kinds of approval and zoning processes that local developers have for land development.

One of the ways to bring closure to those things is to have the federal government agree that although they won't give up their jurisdiction, they will agree to some arbitration at the end of the process. They may not agree, but I think you will agree that where that's happened in the city of Vancouver, 90 percent of the issues were satisfactorily dealt with.

[ Page 1846 ]

I'd like to suggest to the minister that in the process of these treaty negotiations -- where at this moment in time the aboriginal first nations are using their position as the child of the federal government to enable themselves to move ahead on whatever particular development proposal on their lands they wish -- this might be a good time to try to bring in some arrangement whereby local participation and consultation, entering through exactly the same kind of procedures that a non-aboriginal citizen has to, even though one may have to work out a workable deal on what will bring closure, would be well worthwhile.

I worry that we will have a series of enclaves around the province, which are reserve band lands within municipalities, that are going to be the subject of a great deal of tension within the communities if their plans don't tie into the communities' plans.

One must recognize that in the Tsatsu Shores it was an Indian band situation. In my opinion, what brought the issue to a head was not the Tsatsu Shores development but a plan that became public knowledge and that suggested there would be real estate developments on the Tsawassen Indian band land there that would hold 12,000 residents. That's an area of land that you can see as you come to the ferry terminal, Mr. Minister, and I'm sure you've come in many times.

That would be a gigantic development that would have dramatic effects on the community, on our transportation infrastructure, on our libraries, on our schools, on our water supply and on every aspect. It would be increasing the community of Tsawwassen by 50 percent.

Real estate development in Tsawwassen is not something new for the Tsawwassen Indian band. They were the developers who sold in fee simple the very desirable residential properties known as the Village. They subsequently extended the Village on its northern boundary to the edge of the bluff with a new development that is called Stahaken. The Stahaken development is long-term leases; the land was actually sold. So the Tsawwassen Indian band has gone through residential developments within the community which have been accepted and welcomed, and which have not caused any problems.

But I do get worried that the situation which has developed at Tsatsu Shores is just symbolic of what can happen in the future. So I really would press the issue that if some process can be brought into the treaty negotiations whereby real estate developments will be subject to the same processes and procedures as non-aboriginal ones, it would, I think, be a major trump card in bringing some sense of security or ease to the non-aboriginal community.

[9:30]

Hon. J. Cashore: I want to thank the hon. member for that contribution and just say that one of the bottom-line requirements of the provincial government in treaty-making is that there be jurisdictional certainty achieved between municipalities and regional districts and first nations. Bear in mind that there will be no more Indian reserves in the post-treaty circumstances, and the fact of that land becoming underlain by Crown title will afford a much more creative opportunity to address dispute situations.

The suggestion about the need for dispute resolution is, I think, more often in the context of a band that is not in the treaty-making process. I do know that the Tsawwassen band is in the treaty process, but I would just point out that around the province there are a number of joint ventures involving bands where those factors of the interface between the municipality and the first nation have worked out very well.

I would just point out the one that has recently been announced in Kamloops. My understanding is that that is proceeding in a neighbourly way. I hope that I'm not wrong about that; I believe that I'm right about it. It's a win-win for the community. One of the things that will emerge from urban-based treaty-making, I think, is a set of circumstances where, through negotiation, you won't be able to have a situation like we've had at Tsatsu Shores, because of that jurisdictional certainty being negotiated in a reasonable and agreeable way, recognizing that people want to be good neighbours.

F. Gingell: It is a subject that I haven't asked the question on before, but I presume that no Indian reserve lands as presently constituted are in the agricultural land reserve. I imagine that the federal government wouldn't allow the province to place a charge or a restriction on the use of the land. If any of the Indian reserve land would lose its current status and become clear title land that would normally be within the agricultural land reserve -- I'm sure there must be many properties up through the Fraser Valley -- does the province intend to include those properties within the reserve?

Hon. J. Cashore: The hon. member raises a very important policy issue that has not yet been worked out. We'd welcome this hon. member's contribution to the discussion on that, given the experience in the farmland area, which the member represents.

M. de Jong: Hon. Chair, my colleague from Chilliwack has some questions pertinent to his riding for the minister.

B. Penner: Taking up where my colleague left off, I wonder if the minister could clarify for me the relationship between lands contained within the agricultural land reserve and native land claims.

Hon. J. Cashore: In addition to the answer I just gave, that would be subject to negotiation -- how that would all play out. The province, in having a responsibility to represent the provincial interest and therefore the interests of the people living in the region, would need to have very carefully consulted with the hon. member and the people he represents, to hear their views on that so that those views are reflected in the negotiation.

B. Penner: I take it from the minister's comments that it is still an open question as to what happens to land in the agricultural land reserve, once treaty negotiations get underway.

Hon. J. Cashore: Yes, it is an open question. But let's recognize that it's a very hypothetical question, since in the area he is referring to, I think most of the agricultural land is in private hands. Private land is not on the table; therefore it is a non-issue in that instance.

If there are instances where there is Crown land in a claim area and also in the reserve, I can say as a pretty safe bet that the province will be seeking to maintain the integrity of the ALR.

B. Penner: I would support the minister in that endeavour.

I'd like to move the focus to the status of the Sto:lo nation land claim. I understand from articles in newspapers that the

[ Page 1847 ]

Sto:lo have now filed notice of their intention to enter into negotiations with the province of British Columbia and the federal government. I wonder if the minister could advise the House as to what stage the Sto:lo are at in their treaty negotiation process.

Hon. J. Cashore: They're in stage 2, the readiness stage. They have filed their statement of intent, which was stage 1.

B. Penner: I wonder if the minister could advise the House whether any discussions have actually started.

Hon. J. Cashore: No. Those discussions won't really get started until they get to the next stage, which is developing a framework agreement that sets out the agendas and the topics for stage 4. So they are not there yet.

B. Penner: I wonder if the minister could provide the House with some indication as to when that is likely to occur. When will we get to that framework established? When can the people in Chilliwack expect the negotiations to begin or the discussions to start?

Hon. J. Cashore: I don't know the answer to that. I can't speak for the Sto:lo, and it is a tripartite thing. I don't believe, once everything is in order, that the province would have any reason to want to hold it up.

B. Penner: As the minister is probably aware, one of the key concerns in Chilliwack, having to do with native land claims generally, relates to the lands at CFB Chilliwack. As almost everyone is aware, the federal government has announced its intention to close the Canadian forces base at Chilliwack. The lands there comprise, I believe, in excess of 200 acres at the primary site.

It's my understanding that the Sto:lo have indicated in their initial position that they are claiming the land which comprises CFB Chilliwack. Because of the economic loss the closure of the base represents to Chilliwack, numerous efforts have been made, and are ongoing, by the municipal government to try to find private investors to fill the gap that will be created once the base is finally closed. Of course, the uncertainty about the status of the land -- vis-�-vis the Sto:lo negotiations -- poses a handicap for the municipal government in trying to attract private investment.

That is why people in Chilliwack who I have spoken with express some concern about the time lines, and about the timeliness generally, of these negotiations.

My question to the minister basically seeks clarification. I think I know what his answer will be, but just for the record, I'd like to get clarification for the people in Chilliwack who I have to deal with. That question is this: is the province waiting until the Nisga'a agreement-in-principle becomes a final and lasting treaty before completing other agreements? To state it differently, is the province holding off getting into detailed discussions with the Sto:lo, pending final approval of the Nisga'a agreement-in-principle?

Hon. J. Cashore: No, and the province isn't holding anything up with the Sto:lo.

M. de Jong: Back to the Nisga'a.

Interjection.

M. de Jong: Hardly. I'll be greatly offended, hon. Chair, if the record doesn't reflect that remark. To suggest that I am engaged in some sort of destructive exercise.... I think the debate today and this evening has been stimulating in the extreme, and if the Chair of the select standing committee finds it to be otherwise, he's in for a long couple of months, I can assure him.

If I can direct the minister's attention to the

section of the AIP that deals with wildlife, my questions are fairly specific -- and brief, I hope. Beginning at page 49, I think the upshot of this

section of the agreement is the conferring of, I'll use the term, "special rights," upon the Nisga'a in the wildlife management area.

That area certainly includes Nisga'a lands. I think that in some cases it extends beyond Nisga'a lands, and that gives rise to perhaps the first of two difficulties. It's one we've touched on in respect of other areas in the agreement. Where there are overlapping interests, and where this agreement-in-principle purports to grant special rights to the Nisga'a and does so in the wildlife management area, to what extent have the minister and the government taken account of the fact that in bestowing those rights on the Nisga'a, they are likely going to be confronted by similar claims from other aboriginal groups wanting, at a minimum, I presume, the same?

Hon. J. Cashore: It's all a matter of what is subject to negotiation and what will achieve the certainty of an agreement that bodes for a better future for all parties concerned. Therefore, to say to what extent that is going to apply to various other negotiations.... We're dealing with a wide variety of circumstances throughout the province, but I think that some of the principles that are found in the way in which that is done with the Nisga'a will be applied elsewhere.

M. de Jong: I think in this case it's perhaps a little more specific than that in that we are dealing with the allocation of scarce resources -- wildlife, in this case -- and this agreement confers a certain entitlement on the Nisga'a. In areas where we already know there are competing interests and only X number of bears and X number of fox and other fur-bearing animals, it's conceivable, at least, that the government's ability to negotiate with these other bands has been compromised to the extent that this wildlife management area extends beyond the Nisga'a lands.

I suppose there are all sorts of good reasons for doing that. Wildlife does not respect artificial boundaries imposed as a result of treaty negotiations, and that is certainly the case. There are limited numbers of animals out there, and when it comes time to commence negotiations with these other groups, I'm anticipating some difficulty.

Hon. J. Cashore: The allocations are based on the best available data, but again, I would not use the term "confers an entitlement" in quite the same way. What it really does with an allocation is deal with the fact that under the present status quo situation we have the completely unacceptable and problematic circumstance where we have no reliable way of keeping track of harvests, with ambiguous and ill-defined aboriginal rights.

By being able to have clarity and definition of treaty rights with the negotiated and agreed-upon efficacy of the Ministry of Environment in setting limits, we are dealing with percentages within a whole. Where those other first nations would be involved, that would have to fit in with that, so that the ethic of conservation is the fundamental and unalienable requirement.

What we are finding with this wildlife

section is an exchange of a status quo situation, with regard to the taking of the resource, that's very nebulous and difficult to control for

[ Page 1848 ]

something that's clearly defined. We will have the benefit of the data coming forward from the first nations as they participate in harvesting.

[9:45]

M. de Jong: I won't belabour the point except to signal to the minister my own belief that, by virtue of how this is being attempted, there are looming difficulties simply because of the fact that neighbouring aboriginal groups are likely to impose their own claims over what has been agreed to in this wildlife management area.

If I can move on from that and ask the minister how he would respond to the criticism, or try to reconcile the difference that exists. Where we have a wildlife management area where the Nisga'a have specified rights.... Some might say preferred rights -- preferred vis-�-vis non-Nisga'a. The other way of saying that is if the non-Nisga'a have limited rights on Nisga'a lands.... Contrast that with what exists outside Nisga'a lands, where the Nisga'a will continue to enjoy the rights of all other citizens. Some would suggest to the minister that there's a double standard at play there, and I'm asking the minister now if he can provide his response to that criticism or his defence of that model.

Hon. J. Cashore: It's not a double standard; it's simply a recognition that hunting is something that takes place more related to a traditional territory. So we've managed to achieve through negotiation a confinement with regard to what actual Nisga'a lands will be. Through negotiation agreement, there is some limited access to that resource off those lands. Again, that's a negotiated agreement in the interest of achieving certainty and of being able to manage the resource much more effectively than is the case under the status quo.

M. de Jong: I think the criticism is founded on the notion that if you have granted to the Nisga'a exclusive rights within a body of land that is their own, they are then receiving preferred treatment if, in addition to that, they retain all of the rights that citizens of this country enjoy on lands outside the Nisga'a territory. In that sense, at least, it's not a level playing field; there is preferential treatment being shown. If the minister agrees with that, it may be because he believes there is a way to justify that preferential treatment.

But I have to tell him with all candour that I think the argument that there's a preferred right being granted here is an accurate assessment of the agreement. What I'm interested in hearing is his justification for the bestowment of that preferred righ