Proceedings in the

Birch Room

The House in Committee,

Section C.s

The committee met at 11:29 a.m.

[Sunita Dhir in the chair.]

Committee of the Whole

Bill 20 — K’ómoks Treaty Act

The Chair : Good morning, Members. I call Committee of the Whole on Bill 20, K’ómoks Treaty Act to order.

On clause 1.

John Rustad : I thought the minister might want to make some opening comments, but I guess we’ll

go straight into questions.

[11:30 a.m.]

When I’m reading through the treaty — I’ve read through this treaty and, of course,

many other treaties in the past — there are some significant differences.

As we start off with this, I’m hopeful that the minister will have a little bit of

latitude in terms of some of the broad questions that need to be asked as we start

this on

section 1. I’m sure when we get into

section 3, there will be a lot of information,

a lot of questions that’ll need to come as we go through the treaty clause by clause

in that whole process.

We’ll do our best to try to be concise as we go through and do this. My colleague

and I will be sharing the duties, obviously, as we go through and talk about this.

I’m sorry, Madam Chair, but I do have to make one quick comment. I really do hope

that I’m not going to be required to use Google to get questions answered on this

treaty, as there is a lot of information that does need to be answered, and the minister

does seem to be fond of using Google and telling people to use Google. But there is

a purpose for having a minister, and the minister’s purpose is to be able to answer

questions of his ministry and, in particular, answer questions of things that are

of importance, such as a treaty.

The Chair : Thank you, Member. There’s some stuff that is only appropriate for question period,

and we’re going to focus on Bill 20 here.

John Rustad : I do appreciate that. I do believe I have an opportunity to add some comment as I

lead into a question, but I will certainly follow the direction of the Chair as we

go through and talk about those things.

Particularly, I looked through this, and I started off right away looking at the differences

between this treaty versus other treaties. And there are some basic questions I need

to ask in terms of why there are those differences between other modern treaties.

Of course, we have the Maa-nulth treaty in British Columbia, which has been successful with the nations there, moving

forward in a good way. We’ve had the Tsawwassen treaty and the success that they’re doing. We have the ɬəʔamɛn treaty and what’s going on there. Of course, outside of the B.C. modern treaty process,

we’ve had the Nisg̱a’a, but it still is considered a modern treaty.

We had a couple of treaties that didn’t go through. One that was ratified and went

through but, obviously, wasn’t implemented was the Yale. Then the treaty that was

not ratified with the Lheidli T’enneh — a couple of attempts going through that, but that one failed.

When you look at those, there wasn’t anywhere close to the controversy of those, although

for Lheidli T’enneh, obviously, there was a lot of push-back from other nations in terms of the overlap

issues. Yale being one of the Stó:lō Nations, and there being 22 or 24 different nations associated there, so much of

that territory is shared in terms of their cultural and spiritual significance. I

understand why that one did not proceed through with this.

But we are in a situation where things have changed dramatically. One of the things

that obviously points out right from the beginning of this is right in the

preamble

of this treaty, where it says, “and

whereas the K’ómoks treaty advances the objectives of the United Nations declaration on the rights of

the Indigenous Peoples,” which is something that is not included in the previous treaties.

So I think we need to have a little bit of discussion with regards to that, because

it makes me wonder what exactly is the objective. What exactly is it that is trying

to be achieved through this treaty that is different from what other treaties achieved?

The process of going through treaties and the process of doing this is to reconcile

the differences to come to an understanding of

section 35, to be able to create the

opportunity for self-governance, for self-support, for success, to change the outcomes

that have so plagued Indigenous people in British Columbia, whether it’s health, whether

it’s education and so many other factors, which have been absolutely, quite frankly,

terrible over many, many decades. It’s an opportunity to be proud and fulfil the culture

and to have those potentials economically, culturally and socially.

In addition to that, the opportunity for the province is to create the certainty,

create the stability that is necessary to be able to see opportunity, going forward,

and avoid court cases and avoid the kinds of issues that we’re seeing far too often

these days, particularly under this government — the government that has said their

whole goal was to try to avoid this, and yet we have seen tremendous groundbreaking

and significant court cases that we hadn’t seen in previous years due to the approach

that this government is taking.

[11:35 a.m.]

I just want to start, because I know we’re going to be short on time here this morning.

I’ll just start with giving the minister that opportunity, that opening opportunity,

to perhaps explain why in the

preamble it says: “Whereas the K’ómoks Treaty advances the objectives of the United Nations Declaration on the Rights

of Indigenous Peoples.…”

The first question to the minister on that would be why that particular clause has

been included in the

preamble. I’m sure we’ll have many other opportunities to talk

about this in other parts, both within the act as well as within the treaty itself,

when we get to that opportunity.

The Chair : Thank you, Member. I just want to remind that the minister will go over the

preamble

after the questions are answered. So we can just focus on clauses for now.

John Rustad : Just for clear direction, you’re saying that we have to get through the entire treaty

before we have the

preamble, which sets the stage for this debate?

The Chair : That’s the usual course, yes.

John Rustad : Well, in that case, perhaps I will give the minister an opportunity, if he’d like,

to explain that or choose not to explain why this is being included as part of the

preamble.

Hon. Spencer Chandra Herbert : I’m certainly mindful of the Chair’s direction around the fact that, yes, the

preamble

is largely and traditionally, in this House, debated at the end of getting through

the clauses, but the member did ask about a little broader question, maybe, instead

of focusing on the

preamble, because we’re not debating the

preamble currently. He

had a bit of a broader question, around what has changed.

I would say that I’ve heard, in a number of the second reading speeches, concerns

about why this doesn’t extinguish, explicitly, the rights of the K’ómoks Nation and why this is a living agreement. I think the reality is that nobody is frozen in time and that

life changes.

That’s why we have, built into the treaty, a ten-year periodic review, where we can

take a look at elements, if all members agree they want to. They don’t have to, but

that allows us to look at potential changes, if we need to. Maybe something new is

happening in the region that we need to be aware of. Maybe the government needs a

change to fix something that it sees important, whether it be Canada, B.C. or the

local nation.

The other interesting change, I think, is really about how we acknowledge that the

section 35 rights of the nations are embedded in the treaty. They’re expressed through

the treaty. They’re not beyond the treaty. They’re not outside of the treaty, but

they’re expressed explicitly through the treaty. So there are not rights outside of

that, but it’s built right into the treaty, not extinguishing those rights but seeing

them as being fully expressed through the treaty.

The UN declaration the member mentioned — yes, it’s referenced in the treaty. I think

we will get there as we go through, but really, it’s acknowledging that Canada and

B.C. adopted the UN declaration on the rights of Indigenous Peoples as a tool to help us work through issues. Of course, one of the reasons it’s referenced

is that, indeed, one of the calls to action in the UN declaration is about making

treaties with Indigenous Peoples. That’s certainly what we’re trying to do here.

[11:40 a.m.]

John Rustad : We will get to being able to talk a little bit more about UNDRIP, certainly, as we get into the discussions going through, but I’ll just make a few other comments with regards to that.

The reason for asking the question, which I will obviously repeat as we get into other

things: we advance with the objectives. When you look at the United Nations declaration

on the rights of Indigenous Peoples and the debate from the UN, it was meant to be a guiding principle. It was not meant to be law. It wasn’t meant

to be brought in that way. That’s why I’m wondering just what those objectives are

that are being defined here. When it was supposed to be a guiding principle, now it

is going to be enshrined into law.

But we will get to that as we get into the discussion. I think, certainly under

section 3 of this bill, when we get into the treaty, there are all kinds of references there

that will need to be talked about.

So with that, the K’ómoks treaty in general. I was the minister back…. Some time after I became minister, I remember

sitting down with the K’ómoks Nation, and they were not interested, at that time, in advancing the treaty beyond.

I was curious as to why, and there was significant concern about

section 35 and how

those

section 35 rights would be redefined. Then it was some other concern about moving

it through. And I’m just….

Things do change over time, obviously. People’s opinions, people’s perspectives changed,

but also, like I say, the approach seems to have changed by this government in terms

of the modern treaty versus the treaties that were done in the past. That’s why I’ve

asked specifically, or asked initially, about the differences and why suddenly things

have changed and whether that was the deciding factor as to whether the K’ómoks move forward — whether or not things had to change.

Perhaps if I could, just in a very general question, ask for some of those specifics

in terms of what required to change or what did change as part of bringing this treaty

forward versus the previous treaties that had been reached in British Columbia that

made it to a place where the K’ómoks People decided that yes, this was the right thing for them to do.

Hon. Spencer Chandra Herbert : Certainly, as we get into specific clauses, there’ll be the ability to get more into

detail. But I’d say that — and it’s following up on my response to the member’s first

question around the

section 35 rights — indeed, he’s correct.

Members did have concerns around the extinguishment model, around the suggestion that rights would be extinguished. Instead, a rights recognition model has been brought forward. Really, what it does is that under this model, K’ómoks has agreed not to assert rights other than as described in the treaty, including title rights.

Instead of saying that your rights are extinguished or no longer there, your rights

are expressed through the treaty and only through the treaty. It is the modification which I think has certainly increased interest in treaty-signing amongst many nations as one of the key changes that nations were seeking.

[11:45 a.m.]

John Rustad : I find that curious because I do believe I remember, and maybe I remember incorrectly,

that the existing, previous modern treaties never talked about extinguishing but as

defining those rights under

section 35, in terms of those rights under treaty.

So I’m curious as to why the minister uses the language “extinguishment” because,

unless I’m wrong with those other treaties, those other treaties don’t extinguish

section 35. They just give definition to those

section 35 rights. Perhaps if the minister

could just clarify that for me.

Hon. Spencer Chandra Herbert : Recognizing the time, I’ll be quick.

We’ve gone from what…. A similar debate actually happened around the Nisg̱a’a treaty, with some changes, obviously, since that time. “Cede, release and surrender” was

the existing model to look back on. “Modification” was the new model, which was what

we were seeking to do through that process, and modification has been the process

up to the proposal, the legislation before us today. Modification was seen by nations

to still involve extinguishment.

Instead, the new approach is that we still acknowledge they have the rights, but the

rights are held only within the treaty, and any rights that are existing outside of

the treaty can only be expressed through the treaty. If they’re not in the treaty,

then they are not expressed.

I move the committee rise and report progress and ask leave to sit again.

Motion approved.

The Chair : This committee stands adjourned.

The committee rose at 11:47 a.m.