Proceedings in the

Birch Room

The House in Committee,

Section C.

The committee met at 1:09 p.m.

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

Committee of the Whole

Bill 20 — K'ómoks Treaty Act

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

On clause 1.

[1:10 p.m.]

Scott McInnis : Thank you, Madam Chair, and to the minister and the staff, for the opportunity to

dig into Bill 20, the K'ómoks Treaty Act, 2026.

As I stated in my second reading debate speech, this has been a really interesting

process for me, and one that I have found to be very informative. Whether it’s learning

about the treaty process or some of the histories involved, not only of the K’ómoks but of their neighbours, it has just been a tremendous learning opportunity all around.

That doesn’t get lost on me in this process here today.

I think, generally speaking…. We’re looking at clause 1 here, and I do have a bit

of a

preamble to my first question. I think all members can agree that at the end

of the day, the treaty, enabling legislation and the treaty document itself — one

of the goals of that, certainly, is to provide more answers than it does questions.

I hope that as we work through this process together, we can leave here with a set

of answers that, in our opinion, remain unanswered at this point, because, again,

this is a very consequential document which will surely lead as a roadmap for further

treaties to come.

So it’s crucially important for the K’ómoks and for the rest of British Columbia that we have those answers in the most fulsome

way that we can, because it’s going to be quite difficult to go back and say that

we missed this and we need to erase it and change it.

It is a pretty consequential debate here that we’re going to be having for the next

number of hours. I know there are many people watching outside of here to take note

of how these questions are brought forward and the corresponding answers to those

questions.

I know we’re on clause 1 to begin here. I don’t have a lot of detailed questions around

clause 1. I know my friend from West Vancouver–Sea to Sky will have some time, as well, for that.

I want to thank the Clerk’s office, especially, for supporting me, specifically in

how to interpret a treaty document using a portal of enabling legislation, because

it’s quite different than just a regular bill that we see passed through this House.

I certainly had a lot of questions about how to approach that properly, and I really

thank the Clerk’s office for their direction in that.

Just looking at…. In clause 1(2), my first question for the minister…. I’m assuming

it’s a fairly straightforward one, but it’s just something I had noted. It reads:

“Words and expressions used in this act have the same meanings as they have in the

K’ómoks treaty, unless the context requires otherwise.”

I’m just hoping the minister can expand on that second half of that statement: “Unless

the context requires otherwise.” What context would that be? Just a little bit more

explanation around that.

[1:15 p.m.]

Hon. Spencer Chandra Herbert : For us non-lawyers, this may seem confusing, but I would say that…. My understanding

is basically that if the term is defined in the treaty, it doesn’t need to be defined

in the bill, and the exception that the member refers to is for words that are in

common parlance. We don’t have a definition for the word “section,” for example. There’s

a common use of that word. That’s what I think might be the easiest way to explain

that.

Jeremy Valeriote : I have a large number of questions on clause 1, starting with some pretty general

ones. I think they can be justified under clause 1. If I have to move them to clause

3, I’ll take the Chair’s instruction, but we’ll get started and see where we land.

Just generally, can the minister explain why modern treaties in British Columbia exist

and how they’re shaped by the unique colonial history of our province?

Hon. Spencer Chandra Herbert : Thank you to the member.

Well, I believe treaties are one of the most comprehensive forms of reconciliation

between First Nations, B.C. and Canada. As the member knows, they’re negotiated. They’re

constitutionally protected agreements, which really provide a framework for reconciling

Crown title and the inherent title of First Nations.

As the member will know, unlike in other provinces, our responsibilities historically,

in relation to Aboriginal rights and titles, were not addressed, except for the Douglas

treaties and Treaty 8. So when the early Europeans first began to settle, the British

recognized that treaties needed to happen. There needed to be settlement. That’s what

they did in the eastern part of North America, and the treaties would help with that.

The British recognized that the people who were already here had title to land. In

fact, I think it was the Royal Proclamation of 1763 that declared that only the British

Crown could acquire lands from First Nations and only by treaty. In most of Canada,

that’s what happened.

The member knows that things happened a little differently here in B.C. Of course,

there were the Douglas treaties between 1850 and 1854, with Governor James Douglas.

Then, after B.C. was made a colony, there were no further treaties entered into, aside

from the Treaty 8 that I mentioned earlier.

The member will also know the colonial governments of the day took away the right

of Indigenous Peoples to acquire land, reduced the size of any existing reserves that

had been set up, denied they’d ever owned the land and paid no compensation for the

loss of those traditional lands and resources. We know those actions were wrong. The

courts have said the same. Those colonial decisions did not uphold the Crown’s obligations

to First Nations.

Out of all of that and the refusal for many, many decades to enter into the treaty

process to have those discussions. B.C.’s treaty process began, first discussed in

the late ’80s and set up during the early 1990s, overseen by the B.C. Treaty Commission,

which is an independent, neutral body that helps facilitate those conversations and

negotiations.

It’s up to First Nations to decide how they want to organize themselves for the purpose

of treaty negotiations or not choosing to enter into treaty negotiations. At some

tables, there’s a single First Nation represented. At others, there may be two or

more.

Really, the courts have been very clear that B.C. and Canada have an obligation to

show up in a good way at those tables, that Aboriginal rights and title exist and

that we have obligations to work through those issues on a nation-to-nation basis.

Of course, I prefer negotiations, but we know that sometimes those end up in court

discussions or in other processes to get to understanding.

Jeremy Valeriote : Thank you to the minister for setting the stage for an important discussion and probably

a lot of time and effort in this committee.

We know that there are concerns being raised by neighbouring First Nations regarding

territory overlap, governing and harvesting rights and non-derogation, and these concerns

have made their way to this Legislature.

[1:20 p.m.]

We also know that colonial and later Crown governance and legislation attempted to

strip Indigenous self-determination by outlawing governance practices that First Nations

had used for millennia to resolve territory disputes, such as the one being raised

today. This was done through disrupting family and hereditary systems, stealing children

from communities, outlawing community and governance gatherings and more.

The first question is: how is this interference and harm taken into account and addressed

in the province’s approach to treaty-making?

Hon. Spencer Chandra Herbert : To be clear on the question, the treaty process itself and the work that the Ministry

of Indigenous Relations and Reconciliation does really responds to the desires of

the individual nations in the sense of how they want to represent themselves and organize

themselves. The treaty process itself was a response to many of these disruptions,

beginning with the B.C. claims task force report in 1991 and the establishment of the Treaty Commission.

Key aspects that B.C. brings to negotiations include recognition that outcomes can’t

be imposed. Negotiations are voluntary, and they have to respond to the circumstances

of the individual nations. Effective approaches can be modified or shifted. They’re

not fixed. We continue to learn as the process of negotiation continues.

I think one way to explain that would be the 2019 Recognition and Reconciliation of Rights Policy , which, like the original claims task force, was a collaborative tripartite effort

with Canada, with First Nations Summit and B.C., and provides a specific vision of

new options to address the past in the interest of a just and a prosperous future

for this province.

Each process is different. Each process is unique based on who’s in the room and who

has interest in an area. So that’s a…. I’m sure the member will have other questions.

The Chair : I’m going to stop and recognize the member for Columbia River–Revelstoke.

Scott McInnis : I know this is kind of a unique situation, but I seek leave to make an introduction.

Leave granted.

Introductions by Members

Scott McInnis : I looked over to my left, and I see Chief Roberts from the Wei Wai Kum First Nation

here.

I know we bumped into each other randomly last night while we were having dinner and

had a nice casual conversation. We’ve spoken many times over the last few weeks.

It’s an honour to have you here during the committee stage debate.

Would the House please welcome Chief Roberts.

Debate Continued

Jeremy Valeriote : Thank you to the member for the introduction.

Following up on the previous question, can the minister describe specific actions

that himself and the ministry are taking to ensure that Indigenous governance structures,

as they’re determined by First Nations, are not impeded but are, in fact, supported

by the province’s participation in treaty development and implementation?

[1:25 p.m.]

Hon. Spencer Chandra Herbert : Treaties, in their very language, are clear in their approach to supporting the principles

of First Nations self-determination and self-government. They, of course, confirm

the right of self-governance and the authority and jurisdiction to govern. Treaty

nations have their own constitutions developed with and ratified by their members

to frame how they do governance.

Just an example,t̓uk̓ʷaaʔatḥ Nation, one of the signatories of the Maa-nulth treaty,

has a government structure that blends hereditary and elected leaders and is based

on three pillars: the people’s assembly, which includes the people who make up the

community; t̓uk̓ʷaaʔatḥ council, which includes two hereditary leaders and three elected leaders; and the

executive, which is a council who are appointed to hold a specific portfolio.

So very much in the creation of treaties, the recognition of self-governments and

the forms of self-governments are inherent in how we do that work.

Jeremy Valeriote : Recommendation 8 of the British Columbia claims task force of 1991 addressed the need

to address overlapping traditional territories. To the minister, how is that work

being supported, and how has he used their recommendations and work in the development

of this treaty?

Hon. Spencer Chandra Herbert : Recommendation 8 of the B.C. claims task force of 1991 stated the following, that

“First Nations are to resolve issues related to overlapping traditional territories

among themselves,” which was recommendation 8.

Certainly, in this work, we’ve repeatedly worked with K’ómoks, encouraged K’ómoks to work to resolve issues arising with neighbouring nations. We’ve offered capacity

funding to support the negotiation of protocols between the K’ómoks nation and overlapping nations to supplement funding that’s coming through the B.C.

Treaty Commission.

In fact, of course, the member will know the development of the B.C. Treaty Commission

was another of the recommendations from that task force. The legal landscape has changed

since that 1991 task force report.

In particular, there are now recognized constitutional obligations that the Crown

owes when undertaking any conduct that may adversely impact or affect asserted or

established rights of First Nations. Consistent with that, B.C. and Canada have consulted

with overlapping nations as the K’ómoks treaty has been negotiated.

As part of that consultation, the Crown has made changes to the treaty during treaty

negotiations to avoid impacts. We included provisions to minimize or address impacts,

including when

section 35 rights are established at a future point by any overlapping

nation, as well as offered accommodations to offset potential impacts of the treaty.

This includes, as well, provisions in the treaty that speak to the development of

protocol agreements between the K’ómoks Nation and overlapping nations, and it also sets out that when K’ómoks enters into a protocol, they will make laws to ensure that the exercise of any K’ómoks exercisable

section 35 rights addressed in a protocol is in accordance with the terms

of that protocol.

We’ve encouraged K’ómoks to enter into protocol agreements with neighbouring nations, and K’ómoks has been in protocol discussions with Wei Wai Kai, Wei Wai Kum, Kwiakah, Xwémalhkwu and Qualicum nations.

Jeremy Valeriote : How do the ministry and minister balance their obligations to treaty nations as compared

with nations that have chosen other forms of self-determination?

Hon. Spencer Chandra Herbert : B.C. has obligations to all First Nations, whether they’re expressed through a treaty

or not.

[1:30 p.m.]

There’s no way, nor would we want to avoid obligations to one First Nation by entering

into a treaty with another First Nation. It’s not what we would intend to do, and

it’s not what the law would support.

We’ve addressed the responsibility during negotiations by looking at the context into

which we are negotiating, consulting with neighbouring First Nations when there is

a potential for a treaty to affect the rights of another, much as we would in any

other process involving Crown decision-making. We always seek to avoid or, if unavoidable, to mitigate potential effects that

are identified. We also provide accommodation offers to First Nations in recognition

that

section 35 rights may be impacted by the signing of a treaty.

Specifically for the K’ómoks treaty, B.C. has successfully drafted a interim treaty

agreement with Wei Wai Kai that we hope to initial shortly that captures the accommodations being provided. Discussions

of accommodation packages are ongoing with Wei Wai Kum and Kwiakah.

As the question notes, as the member has noted, I know in the past we enter into different types of agreements with neighbouring nations that, like treaties,

are interest-based and designed to meet the needs of the nations. We have an active

negotiating table between B.C. and Wei Wai Kum around a different form of an agreement

— similar to treaty but not treaty in that sense, more of a self-governing agreement.

We also, as the B.C. Treaty Commission process calls for, certainly encourage and

expect our negotiation partners to engage and seek resolution to any conflict or competing

interests.

That same consideration applies to all negotiations with First Nations outside of

treaty process as well. We’re clear that we have obligations to reconcile in all contexts. It’s right there in the treaties

themselves, the provisions respecting other Aboriginal Peoples and the constraints

on the treaty if it is proven to have an adverse impact on another nation’s rights.

So there are concrete actions that occur during the negotiations, and they build them

into the treaty themselves, as I mentioned earlier, including shifts and land packages

and those kinds of discussions.

Jeremy Valeriote : I appreciate the minister’s

summary of obligations, and I’ll just follow up.

There were some concrete steps mentioned maybe specific to some of the pieces, such as accommodation and shifts mentioned.

What tangible steps is the ministry taking to ensure that First Nations who have ratified

treaties or are further along in the treaty process are not gaining at the expense

of First Nations that are further behind in the process or who have chosen not to pursue treaty?

Hon. Spencer Chandra Herbert : I’d mentioned the Wei Wai Kai interim treaty agreement that we’re working on and hope

to initial soon.

With Wei Wai Kum, we’ve had 13 or more on-the-record consultation meetings. With Wei Wai Kum, at least two meetings now with myself and Chief, and I appreciate that he’s here

today. Five without-prejudice meetings to brainstorm accommodation lands, 29 letters back and forth or as part of a larger group from Crown, over 50 emails. On May 13 the Premier and I also met with Wei Wai Kum to discuss their concerns. Subsequently, staff met to further explore their proposal

regarding an Indigenous law summit, facilitated protocol discussions with K’ómoks.

Our consultation with Kwiakah has included eight meetings with my ministry, 14 letters

back and forth as part of a larger group. I’ve met with Kwiakah Chiefs, as well, and

ten letters from them back to us, 33 emails back and forth. Then, of course, we also

take concrete actions to ensure neighbouring nations are heard.

We initialed the B.C., Canada and K’ómoks, what’s called the Salmon River land use

and access agreement. The intent of that side agreement is really to respond to concerns

raised by neighbouring nations to provide time and space for discussions to be undertaken

between K’ómoks and the neighbouring nations in respect of the treaty and other matters

of mutual interest.

[1:35 p.m.]

Under that agreement, for five years after the effective date of the treaty, it provides

that K’ómoks will not develop or significantly alter or dispose of any interest in the Salmon

River treaty lands. That’s the Salmon River Indian Reserve, Salmon River parcel.

During those five years, K’ómoks agrees to provide reasonable access to Ligʷiłdaxʷ Nations members through the Salmon

River treaty lands to exercise their

section 35 rights. I’ve continued to make good-faith

efforts to negotiate protocols with the Ligʷiłdaxʷ Nations.

Indeed, that area of the Salmon River was identified by Wei Wai Kum as one of their

highest priorities. Now, I’ve heard that from K’ómoks. I’ve heard that from Wei Wai Kai as well. They all have family members in the cemetery

that is on that parcel of the land. There are family connections there amongst all

members, and so we understand the intent and the interest in finding a path to recognize

what is currently known as the K’ómoks Indian Reserve, but it has, of course, a much broader connection and interest to

the Ligʷiłdaxʷ Nations, as well as K’ómoks.

Jeremy Valeriote : Thank you to the minister for that thorough

summary, and it takes care of my next

question, except I think I just need to ask…. I heard a number of neighbouring First

Nations, a thorough list of meetings and emails and letters sent. Are there any other

neighbouring First Nations that weren’t mentioned that have been heard, in terms of

perspectives, before introducing this legislation?

Hon. Spencer Chandra Herbert : Other nations that have some traditional territory overlap that have participated

in consultations on the treaty, including sharing their perspective and concerns,

include ɬəʔamɛn, Tseshaht, Xwémalhkwu, Mowachaht/Muchalaht and Qualicum.

A number of other First Nations have traditional territory that overlaps with the

K’ómoks treaty area, but they have not raised significant concerns in response to the consultation

correspondence, including Cowichan, Halalt, Lyackson, Penelakut, Ts’uubaa-asatx, Snuneymuxw, ʕaaḥuusʔatḥ, diitiidʔaaʔtx̣, Hupačasath, Klahoose, Domenos, ʼNa̱mǥis, Snaw-naw-as, Kwakiutl and Ławit’sis .

Jeremy Valeriote : I’ll admit I’m only a year and a half into this role, and I’m learning. I’m asking

this question for my edification but also to make sure we’re all working from common

understanding.

Can the minister please explain the difference between traditional territory and treaty

land?

Hon. Spencer Chandra Herbert : Yes, this indeed is an area where we can learn a lot. Treaty lands are the specific

parcels of land identified in the treaty that the treaty nation will own and over

which it has law-making authority. Nation laws apply to treaty lands in addition to

provincial and federal law.

These lands are generally owned in fee simple by the treaty First Nation or its corporate

entities. These lands are a smaller proportion of the broader treaty territory. For

K’ómoks, treaty lands make up less than 0.5 percent of their traditional territory.

The treaty area, I’ll provide a little bit more. I know it wasn’t the question, but

it’ll help explain. It generally refers to the broader area or areas identified in

the treaty within which the nation may exercise non-exclusive harvesting rights in

accordance with the treaty, subject, of course, to private property rights and some

other limitations.

In the K’ómoks treaty, this includes the K’ómoks harvest area, K’ómoks fishing area. These areas are not exclusive. Other nations may also assert and exercise

rights in these areas. Treaty nation laws do not apply to lands in the broader territory

outside of their treaty lands.

Traditional territory is a similar concept to treaty area, which reflects the geographic

area the nation has identified as having been inhabited, used and stewarded by their

people since time immemorial, encompassing ancestral and contemporary connections.

[1:40 p.m.]

Other nations could negotiate their own treaties or other agreements that include

lands within a traditional territory.

Jeremy Valeriote : Following up on that, how is treaty land delineated when it’s located on the traditional

territories of multiple nations? The minister mentioned fee simple. I’m guessing there

are some other delineations.

Hon. Spencer Chandra Herbert : How is the treaty land delineated? I understand that is the question. The B.C. Claims Task Force recommended, these being political negotiations, negotiations at a table that are interest-based,

where the parties negotiate based on an interest area. The process is based on the

statement of intent at the outset of negotiations.

However, the land for this treaty was selected through negotiations based on several

other factors, including availability, existing interests on the land — the member

mentioned one of those — interests of neighbouring First Nations, cultural and economic

significance to the First Nations, as well as input from local governments and the

broader public.

Another factor, specific more so to Vancouver Island than elsewhere, is the E&N lands grants, which were issued in the past, as the member may know. This means that most lands

in the Comox Valley are privately owned, and parcels of Crown land available for transfer

were limited.

Now, where other nations have asserted rights or title claims that may be potentially

impacted by a treaty and nations have not been able to resolve disagreements amongst

themselves, of course, it’s our obligation to ensure that those other nations are

consulted and, where appropriate, accommodated for potential impact to their rights

as well.

As I mentioned during these negotiations for the K’ómoks treaty, changes were made with the agreement of K’ómoks to address concerns expressed through consultation with neighbouring nations. For

example, lands on Sonora Island were removed in an earlier discussion because of objections

of the Ligʷiłdaxʷ Nations. Additionally, language regarding the horse camp and K’ómoks gravel interests in Salmon River was significantly changed to reflect concerns raised

by Wei Wai Kum and Wei Wai Kai.

Jeremy Valeriote : For the record, can the minister state the amount of land, in square kilometres, that

is covered by the K’ómoks treaty?

Sorry, I’ll add a question. Can the minister offer a comparison that would allow us

to have a sense of the size relative to some known geography?

Hon. Spencer Chandra Herbert : The treaty provides that K’ómoks lands would be approximately 33 square kilometres of treaty land. Now, that includes

approximately 2.898 square kilometres of former Indian reserves and approximately

30.386 kilometres of former provincial Crown land and 0.093 kilometres of former federal

Crown land.

Then, as well, in addition, if the member is doing some math, that comes out to more,

but there are 10.41 kilometres of K’ómoks private lands which will also be part of that. Then there are an additional 18.32

square kilometres identified as pre-approved additions to treaty lands. There are

approximately another….

That’s those treaty lands, and then the broader treaty area, of course, is much bigger.

K’ómoks treaty lands, to which they have exclusive rights, are less than 0.5 percent of the

overall treaty territory.

In terms of the comparison the member asks for, a local comparison in that valley

would be that the size of the Comox Valley regional district covers an area of approximately

1,683 square kilometres. K’ómoks lands would be about 1.7 percent of the size of the CVRD, with treaty territory covering

an area about six times that size of the CVRD.

[1:45 p.m.]

Jeremy Valeriote : I think I could probably dig it out through Hansard , in terms of the number of mentions, but just can I just have the number of how many

neighbouring First Nations overlap with the K’ómoks treaty area?

Hon. Spencer Chandra Herbert : Going through my notes — I’m doing some quick addition —23 nations have territories

which are overlapping to some extent with that broader treaty area that K’ómoks treaty includes.

Jeremy Valeriote : Thanks.

Just to be thorough — and I should have lumped it together — but how many neighbouring

First Nations overlap up with the treaty land?

Hon. Spencer Chandra Herbert : The largest overlaps with the treaty lands are with the Ligʷiłdaxʷ group of nations — Wei Wai Kai, Wei Wai Kum and Kwiakah — and that’s why we spent

such extensive consultations and have focused in those areas. Qualicum, as well, certainly

has territory in that area and has participated in some of those consultations on

the treaty.

I’ve mentioned the others earlier that have traditional territory but have not raised

significant concerns.

Jeremy Valeriote : I think I was quick enough. Sorry, 23 overlapping with the treaty area and four overlapping

with the treaty lands? Is that correct?

Hon. Spencer Chandra Herbert : That’s correct.

Jeremy Valeriote : Will the K’ómoks treaty prevent any other nation from negotiating hunting, fishing or harvesting areas

in agreements within the treaty area?

Hon. Spencer Chandra Herbert : The treaty harvesting rights are non-exclusive. They do not take priority over asserted

or established harvesting rights of other nations. They do not prevent other nations

from also exercising harvesting rights. That means explicitly that other Indigenous

peoples may also exercise their rights in those areas.

The only lands identified in the K’ómoks treaty that K’ómoks will have exclusive rights to are those identified as K’ómoks lands, which is less than 0.5 percent of broader treaty area, which K’ómoks will own in fee simple. But, really, that land is intended more for housing, businesses

and would not be likely areas that hunting or fishing might occur in terms of the

sense of at least most of that private land.

Jeremy Valeriote : Including what the minister just said, what assurances have been made to First Nations

who have argued that this treaty limits their

section 35 rights?

[1:50 p.m.]

Hon. Spencer Chandra Herbert : I mentioned earlier the Salmon River land use plan, which is one part of the response

to the issue the member has raised.

Of course, the treaty itself includes a clause stating, “Nothing in this agreement

will affect, recognize or provide any rights under

section 35 of the Constitution

Act, 1982, for any Aboriginal People other than K’ómoks,” but subsequent clauses set out a process that addresses where an overlapping First

Nation establishes

section 35 rights, through a court process or through the negotiating

of a treaty, to ensure that those

section 35 rights are not adversely impacted by

this treaty.

This is called the non-derogation clause. It’s important for situations where First

Nations can demonstrate, through a court process, that a treaty has impacted the exercise

of their rights. The non-derogation provisions state that nothing in the agreement

affects the

section 35 rights of any Aboriginal People other than the K’ómoks, so there’s no taking away of the

section 35 rights of other nations.

They further provide that where another Aboriginal People establishes

section 35 rights

that are adversely affected by the treaty, the treaty will operate and have effect

in a way that does not adversely affect the

section 35 rights. Or if that is not possible,

then K’ómoks, Canada and B.C. will make best efforts to amend the K’ómoks treaty to remedy or replace the provisions so that there is no adverse effect.

The B.C. Court of Appeal has described the operation of Nisga’a non-derogation clause, which is equivalent to paragraph 64 in the general provisions

of K’ómoks. I’ll just quote, to be clear and on the record, the B.C. Court of Appeal:

“The effect of these provisions is to ensure that the Nisga’a treaty does not affect

the

section 35 rights of other Indigenous groups. If an Indigenous group does establish

section 35 rights, either by final judicial determination or by negotiation with the

Crown and those rights are adversely affected by the provisions of the Nisga’a treaty,

the other rights will prevail, and appropriate measures will be negotiated to address

the diminished Nisga’a rights.

“These provisions provide significant protection for Indigenous groups, such as the

Gitanyow, that have not yet established the nation’s scope of their

section 35 rights

in a way that could permit enforcement. In my view, however, they are neutral in respect

of the Crown’s obligation to consult the Gitanyow and, if appropriate, accommodate

their concerns.

“They do not stand in the way of consultation by the Crown, nor do they require it.

It is when an Indigenous group’s

section 35 rights have been established by treaty

or land claims agreement with the Crown or, if necessary, by judicial determination,

that these provisions become operative.

“We interpret that provision, that instruction to mean, in the case of treaty lands

over which a final declaration of Aboriginal title has been made, that the lands will

no longer be treaty lands as of the final declaration of Aboriginal title. It is then

the work of treaty partners to address the loss of the treaty nation’s lands and interests

in those lands.

“In the case of harvesting rights, treaty harvesting rights and harvesting areas over

which Aboriginal title have been declared, any treaty harvesting rights that would

continue to apply to those lands would require the consent of the Aboriginal title

holder. If a treaty provision in respect of harvesting rights cannot operate so as

to not adversely affect the newly established

section 35 right, it would be the work

of the treaty parties to address the reduction to that treaty nation’s harvesting

right.”

[1:55 p.m.]

Jeremy Valeriote : Thank you for the example of the Nisga’a. Can the minister elaborate? In what other boundary dispute situations have non-derogation

clauses been drawn upon? Who paid the costs of pursuing this, and have they been effective

in protecting the rights of neighbouring First Nations?

Hon. Spencer Chandra Herbert : In the answer I previously provided, of course, I mentioned Gitanyow and Nisga’a in the context of that boundary dispute. The Gitanyow initiated a judicial review

of a provincial wildlife decision in the Nass wildlife area. Gitanyow were unsuccessful

in their challenge, as the court found that in relation to one of the provincial decisions,

total allowable hunt, the province was found to have met the duty to consult.

On the second provincial decision, the annual management plan, the duty to consult

was not triggered as there was no adverse effects to Gitanyow

section 35 rights, and

these conclusions were upheld by the B.C. Court of Appeal.

I’m getting some more information for the other part of the member’s question, but

if he wants to continue, certainly, we can.

Jeremy Valeriote : Yeah, it would be helpful to know what other examples we can draw on, but I’ll carry

on while that’s being compiled.

Are there any protocol agreements with neighbouring First Nations located within the

treaty lands?

The Chair : Can you repeat the question?

Jeremy Valeriote : Are there any protocol agreements with neighbouring First Nations located within the

treaty lands?

Hon. Spencer Chandra Herbert : There is an existing protocol agreement with the ɬəʔamɛn Nation that both nations agree needs to be updated, and they are working on that. K’ómoks

has nearly completed protocol agreements with Wei Wai Kai and Xwémalhkwu. K’ómoks has met with Wei Wai Kum, shíshálh and Qualicum and has made an on-the-record proposal to Kwiakah.

These agreements are still under development. Given that the expected treaty effective

date is at least two years away, that provides plenty of time for K’ómoks to finalize agreements with neighbouring nations before the treaty would come into

effect.

Of course, treaty effective dates are agreed upon by all parties once an assessment

of what’s needed for implementation is complete. The successful negotiation of protocol

agreements can be factored into the decision on treaty effective date.

Jeremy Valeriote : Just to add a note to the compilation of other boundary dispute situations. Particularly

interested in the length of these cases and the cost of them and who paid for that

non-derogation protection as it’s being compiled.

What avenues other than expensive legal cases are available to First Nations to bring

claims forward under these provisions and have them meaningfully considered and actioned?

[2:00 p.m.]

[The bells were rung.]

The Chair : Okay, Members, I’m going to call us back to order. The minister is going to be answering

the question.

Hon. Spencer Chandra Herbert : Thank you to the member for the question. I do not have the legal bill for the Gitanyow and Nisga’a discussion. That was quite some time ago, so I’m not able to access those dollar

figures for the member.

But certainly the non-derogation clause speaks to either action through courts or actions through treaty processes

or treaty-like processes negotiated between government and neighbouring nations. As

I mentioned, there is interest from neighbouring nations in terms of treaty discussions,

and we’re continuing to go in that path, whether by treaty or self-government agreements,

which could have an impact.

I would note that in terms of the question around

section 35 rights and the rights

of other nations, neighbouring nations, I found it useful that Wei Wai Kai put…. The

treaty society made a post to their membership to give them what they call clear and factual

information in response to what members may be hearing.

They say:

“What you may be hearing: territories are being taken, access will be lost, other nations

will gain control, projects will be blocked. These claims are based on a misunderstanding

of how treaties work.

“The treaty confirms existing rights. It does not create new control. The treaty does

not transfer Wei Wai Kai lands; has no impact on access to cultural or historical

sites; does not give other nations authority over Wei Wai Kai lands, decisions or

governance; does not impact Wei Wai Kai’s own treaty negotiations or land selections.

Your rights remain. Your access remains. Wei Wai Kai remains in control of our land.

“What this work does: through the protocol agreement with K’ómoks, it defines roles in shared areas, supports coordination and planning, protects Wei Wai

Kai’s interests, strengthens long-term outcomes.

“What this work does not do: does not restrict economic opportunities, does not give

other nations control over decisions, does not limit Wei Wai Kai governance. This

work is about protection and clarity, not restriction.”

So that’s just a, I think, helpful note to bring into the conversation so members

have a bit of notice of what one other nation says about this process.

Jeremy Valeriote : Apologies. I’m not sure if…. I’m just going to restate the question. I appreciate

maybe the costs…. We’re mixing two different things here, and I’ll try and keep them

segregated so I don’t have to stand up twice.

I appreciate the costs can’t be produced at this time, but I’m hoping the trial length could be produced for the Nisga’a-Gitanyow.

Then just to restate the question: what avenues other than legal cases are available

to First Nations to bring claims forward under the non-derogation provisions and have

them meaningfully acted upon?

[2:05 p.m.]

Hon. Spencer Chandra Herbert : I think I largely answered this question earlier, but really there’s the non-derogation

the member knows about.

What I haven’t addressed are the civil litigation directives, which really are about

trying to reduce court costs, minimizing the cost, the complexity and the length of

processes. So that’s new. Of course, that’s come about more recently, long since Nisga’a-Gitanyow, which really is meant to…. If you’re going to go through a court process, keep it

as tight to the question at hand and don’t extend it or add extra cost or challenge

to it.

So I’m not sure that the Nisga’a-Gitanyow discussion will really provide much illustration for the member in terms of this

issue, because the court process has changed considerably since that period in terms

of how the province approaches these things.

But I also mentioned, of course, protocol agreements and the treaty pathway or similar

agreements to treaty pathway, like the self-governing agreement that I mentioned.

Jeremy Valeriote : I’m nearing the end, and I’m aware I’m not making this easy. I’m trying to channel

my colleague, who has 25 years of experience in this area of law. That’s 25 more years

than I do.

I would just ask…. I asked about protocol agreements within the treaty lands. I’m

just wondering: are there protocol agreements that exist with neighbouring First Nations

in direct relation to this treaty? If so, what’s their status and purpose?

Hon. Spencer Chandra Herbert : As I stated earlier, they are very close to initialing with Wei Wai Kai, Xwémalhkwu as well. My understanding is they are also very close with ɬəʔamɛn at this stage.

Jeremy Valeriote : My understanding is that it’s a key aspect of the judicial process, that the uncertainty

of how a court might decide an issue encourages the parties to resolve the matters

amongst themselves. I’m open to being corrected on that, but that’s the way my non-legal

brain understands it. What impact does the ability to seek court resolution of issues

related to treaty have on the negotiations, from the minister’s perspective?

Hon. Spencer Chandra Herbert : Yes, the member is correct. As noted in the civil litigation directives: “A negotiated

outcome is always the preferred path forward for the Crown. Meaningful reconciliation

is rarely, if ever, achieved in courtrooms.” And “A strong and sophisticated government-to-government

relationship between the province and Indigenous Peoples is not achieved through prolonged

litigation, but through hard work, changes in perspectives and actions and compromise

and good faith by all.”

We believe, and we’ve seen, that negotiated outcomes provide certainty and predictability

of implementation for all parties

whereas court-imposed outcomes are uncertain and

can exacerbate divisions. Where appropriate, B.C. may negotiate with First Nations

engaged in litigation with the aim of resolving disputes and reaching a more comprehensive

and predictable negotiated outcome as quickly as possible.

As mentioned in an earlier answer, we’ve certainly offered support for facilitated

dialogue, discussion, to find a negotiated pathway between the nations involved.

[2:10 p.m.]

Jeremy Valeriote : It’s our assumption that there is there is a role for treaties in, if you will, solidifying

the history of the lands. Would the passing of this treaty legislation legitimize

the relationship to the Crown of one nation’s history of the land over that of another?

Hon. Spencer Chandra Herbert : While treaties do provide certainty on current land ownership, they’re not comments

on the history of the lands. The member will know, of course, that the history of

this province, of these lands, goes back long before the province of B.C., as we now

know it, existed. So the passing of the treaty does not legitimize the history of

one nation over another.

Through the B.C. Claims Task Force, of course, we recognize that treaty negotiations

The history and culture of the nation negotiating the treaty and other overlapping

nations are taken into account when determining what lands are selected and their

potential uses, of course. These factors are also considered when determining where

harvesting rights exist. Non-exclusive rights take historical use patterns into account

as well.

Jeremy Valeriote : What impacts has the province been preparing for in the case of passing this treaty

legislation at a time when overlap issues are outstanding and ongoing?

Hon. Spencer Chandra Herbert : The member may know that previous treaties have had not the same issues but similar

issues of overlap and concerns from neighbouring nations. Indeed, that’s why we’ve

worked hard to try and evolve our process to get to these issues earlier than they

were addressed in the past.

That’s why extensive consultation has gone on. That’s why modifications to treaty

and treaty lands have occurred. That’s why ongoing efforts to support nation-to-nation

discussions and protocol agreements continue.

We understand that there are concerns about overlaps — very much. We get that. That’s

why we put in the work. That’s why we’ll continue to put in the work for continuing

consultation and accommodation processes, which we’ll continue following should the

treaty pass. This is consistent with previous processes. In fact, we’re getting at

it earlier than previous governments did.

The treaty…. I should note that it won’t become effective for another two years at

least. There’s quite a bit of process still. Should the treaty pass here, it has to

go to the federal government, has to pass through their processes, and there has to

be ongoing discussion around treaty effective date as well, which I mentioned. Where

protocol agreements are at, how nations have come together are considerations at that

point as well.

We’ll continue to support protocol discussions between K'ómoks and neighbours. We have offered, as I mentioned, capacity funding to support those

discussions. The B.C. Treaty Commission is also very much involved in supporting those

conversations.

[2:15 p.m.]

Jeremy Valeriote : Last one on this topic.

I mean, it’s obvious from my questions and from the discussion that there’s a significant

amount of dissent from neighbours. These are really important agreements, as the minister

will know and agree. What steps is the minister taking to ensure that when they’re

brought in future, they’re not brought forward in this state of disagreement and discord

from neighbouring nations?

Hon. Spencer Chandra Herbert : I think there’s always room to learn, and there’s always room to improve processes.

I know the B.C. Treaty Commission has expressed interest, as has the First Nations

Summit, in looking at how we do more treaties in this province, how we can accelerate

treaty-making in the province. But also, how do we make sure that, through the processes,

we are bringing people together as opposed to creating concern and division?

That work is underway. I guess it’s not really a committee-stage question in the sense

of this bill itself, but I understand where the member is coming from, and certainly

through this treaty itself and the work ahead, we are endeavouring to do that work.

There’s been quite an improvement and change over previous treaties in terms of how

quickly we’ve got in there and responded, but I think I hear the member, and I hear

chiefs and councils about their desire to find a better way to address these issues

earlier.

Of course, this is on a case-by-case basis. Each nation brings a different set of

interests and neighbours as well, and a different set of histories. So they may be

addressed differently based on the circumstance.

Jeremy Valeriote : Thanks. I appreciate the thoughtful response.

Last one on clause 1, and it’s similar but worded, framed, differently.

As we mentioned at the beginning, the process developed as a response to colonial

harm, and I know there are some people who don’t agree with that. To me and to our

caucus, it’s self-evident. I understand the response about neighbouring nations, but

just on the whole, can the minister describe a little bit what actions are being taken

to assure that colonial harm isn’t recreated or repeated through these treaty processes?

[2:20 p.m.]

Hon. Spencer Chandra Herbert : I appreciate the question from the member.

Of course, the act of treaty itself is supporting the K’ómoks Nation to come out under

what I’ve heard many Chiefs and councils describe as the yoke or the oppressive arm of the Indian Act,

an act which is clearly racist in terms

of how it was created. In that sense, it’s lifting off that colonial harm.

I think the member’s getting at: how do we ensure that the self-determination, that

the interests of the neighbouring nations are not impacted through colonial harm of

introducing a treaty? I think that’s where we have to lean into both the processes

but also the continued work with those neighbouring nations to ensure that their self-interest,

their self-governing goals, their self-determination is respected, too, working to

create that community that network, that mesh that lifts us all up through that protocol

agreement, through self-determination agreements, through treaties and other means.

That’s really built right into the treaty itself but also through our other processes

beyond treaty. Of course, it’s not just…. We’re talking about the K’ómoks Nation treaty right now, but we could as well in future be talking about other nations’

treaties right around what is the K’ómoks treaty area, or enmeshed in other ways.

John Rustad : I want to thank my colleague from the Green Party for thoughtful questions on

section

We have some additional questions to be asked, both myself as well as my colleague

from Columbia River–Revelstoke.

Prior to our lunch break we were discussing how the treaty has defined

section 35

rights under the modern treaties that have come forward, and this one maintains

section

35 rights. I’m just wondering. I want to give the minister, if I may, the opportunity

to sort of explain the difference between the modern treaties and defining those

section

35 rights versus this current treaty, which seems to be a model of defining treaty

rights but maintaining

section 35 rights. What’s the difference between those two?

Hon. Spencer Chandra Herbert : To clarify that earlier answer, which was very short and could have led to certainly

more questions, the modification model for treaties that I mentioned was developed

in the Nisg̱a’a negotiations. It was intended as a way of achieving certainty without requiring Nisga’a to accept the cede, release and surrender model of the historic numbered treaties.

Modification was an innovation that worked for Nisg̱a’a and subsequent treaties with Tsawwassen, Maa-nulth and ɬəʔamɛn, but it was not universally accepted by all nations. Many First Nations, including

First Nations in the B.C. Treaty Commission process, argued that despite the intentions

that modification was not an extinguishment model, it still accomplished extinguishment

in effect.

Although this was not B.C.’s understanding of or intent with modification, the perceptions

became a barrier to further progress in treaty negotiations for many of the participating

First Nations, along with the perception of the modification model changes in the

common law, and specifically the declaration of title for the Tŝilhqot’in created growing interest from First Nations for a new legal framework for treaties

that was rooted in a recognition of rights, including title.

Working with First Nations, Canada and B.C., our government explored new options for

a certainty model that responded to the changing context for reconciliation. With

the significant involvement of B.C. and federal legal counsel, the model included

in this treaty, commonly described as the recognition and predictability model, was

developed.

[2:25 p.m.]

This model does recognize that First Nations come into treaty with rights and title,

and it does continue those rights. The model also creates certainty by setting out

the parties’ relationship to those rights and, in particular, providing agreement

on how those rights will be exercised in practice.

So the practical outcomes are the same although the legal mechanism has changed. This

treaty, like previous modern treaties, provides a clear understanding of the rights

that will be exercised by the treaty nation and the rights that won’t. The Crown’s

responsibilities to those rights…. The treaty similarly confirmed the Crown’s jurisdiction

and ability to make decisions about Crown lands and resources.

In

summary, why this change was made. It was made to address the changing context

we’re negotiating in, the ongoing evolution of our understanding as assisted by the

courts of the realities of Aboriginal rights and title. Certainty, of course, is still the objective, just as it was in the past, but reaching new agreements

requires new approaches that respond to realities of today and the concerns of First

Nations while still being legally sound.

In order to get to agreement, nations wanted to be recognized that they do have rights, that they do have title, and we found a way

to do that in a way that they feel is more appropriate while still achieving the same

outcomes that we had worked for in the other modern treaties that I know the member

was involved in and I supported.

John Rustad : I do appreciate the answer, and I actually appreciate the thoroughness of the minister’s

responses, both to the previous member’s questions as well as to that.

Although I would like, if I could push a little bit further on this, just an example.

I understand what the ministry has said is that they are they same, but they’re different.

I don’t understand quite where that difference lies other than just in word. So in

terms of practicality, in terms of legality, how those two models may differ.

Hon. Spencer Chandra Herbert : Practically speaking, what this change means is the nation agrees to only exercise

and assert

section 35 rights as set out in the treaty. Within the treaty statements,

recognizing a nation’s general Aboriginal rights, they’re paired with provisions regarding

which

section 35 rights may be exercised, their attributes, the geographic extent

of those rights and the limitation of those rights. The treaty does not extinguish

or modify any

section 35 Aboriginal rights of a nation.

However, to the extent that the right is not set out in the treaty, the treaty nation

agrees not to assert that right. The Crown also has no obligation in relation to that

right, including no obligation to consult. So this new approach no longer includes

provisions describing the treaty as a full and final settlement or that the treaty

exhaustively sets out the rights of the treaty nation. It’s very much what is included

is explicit, what is not included is not in the treaty and thus not actionable.

John Rustad : The reason for asking these questions, the reason for asking this sort of question

is if there are legal challenges that come forward — and these things happen, as we’ve

seen in previous treaties — it’s important to have an understanding of the intent,

which is what the discussion often in committee is referred to by the courts in terms

of looking at treaties and the process. That’s why I wanted to ask the difference.

Maybe I’ll make a statement here and see if the minister agrees with this. Essentially

what’s he’s saying is that the

section 35 rights are suspended. They’re not replaced.

They’re not eliminated, but they’re suspended, and only the treaty rights remain —

unless at some point in the future there’s a change, because this is a living document

of course. Ten years from now there’s a reopening, and some of those other

section

35 rights could be brought in should something change in the future.

[2:30 p.m.]

It doesn’t make sense to me that you’ve got rights but you don’t have rights. It’s

one of the two. You can’t have both rights because one is existing, and the nation

has agreed to not exercise other rights, which is equivalent to suspending those rights.

I just want to be clear that that is the intent of what the minister is saying here.

Hon. Spencer Chandra Herbert : We’ve worked hard to ensure that

section 35 rights of the nation are reflected in

the treaty. But where they are not, they cannot assert those rights or exercise those

rights, so, practically, they cannot action them during this period.

Really, if a provincial government never wanted to reopen a treaty, that would be

their right — or the federal government or the nation. To get to any sort of future

ten-year discussion would require agreement from all three parties.

But yes, this is very much about saying the rights that are acknowledged explicitly

in the treaty are the ones that are exercisable. If they are not explicitly recognized in the treaty, then they are not exercisable.

John Rustad : It’s interesting. It basically is the equivalent. It’s just worded differently from

the previous treaties. I get there’s some sensitivity with the nations, because I

remember having those discussions with the nations myself back a number of years ago.

I think that sort of clears that up as best as can be, from my perspective, in any

case, on that issue.

For the record, I think it’s important we get this and have the minister explain this,

because we are talking about

section 35 rights. I just need to understand the difference

between title and rights in terms of the context of this treaty.

Hon. Spencer Chandra Herbert : If I might ask the member a clarifying question — if he’s able explain a little bit

more clearly, because it’s a very broad question. Can he clarify what exactly he’s

looking to find?

John Rustad : The reason for asking the question…. Obviously, title infers certain rights that rights

alone may not have.

[2:35 p.m.]

As people ask me questions about the treaty, or if they’re looking and wondering about

the treaty and they want to know what sorts of rights extend across the entire treaty

area, not just in terms of the private land…. It’s just important for people to be

able to understand that difference between title and rights as it’s been defined through

the courts in

section 35 but also as it’s being considered as part of the treaty.

The intent of asking this question is just to have some of that clarity there, so

when people are listening at home, playing along with the game, they get to understand

a little bit about what we’re talking about when we’re dealing with these issues.

Hon. Spencer Chandra Herbert : In the case of treaty, Aboriginal title lands are expressed through treaty lands,

I’d say, in the sense that treaty lands are the lands negotiated by the First Nations,

B.C. and Canada to reconcile a First Nations claim to Aboriginal title lands.

In the treaty, the treaty lands are owned by the nation in fee simple, a form of title

that creates clarity of ownership, flexibility for the treaty nation to use the land

in the way it chooses, to support the nation’s economic and community objectives.

The Aboriginal title is expressed through the treaty lands, not outside of those treaty

lands in specific. That’s separate. That’s different. I was expressing to the House

Leader of the Green Party the difference between treaty area and treaty lands specifically,

just to be clear that there is a clear difference in terms of how the impacts are

felt in terms of the private K’ómoks-held lands versus the broader treaty area, where non-exclusive harvesting could occur,

those kinds of things.

John Rustad : I think I understand what the minister is describing with this. Just to be clear,

for title existing within this treaty, that applies to the private land component

as laid out in the maps and components. Rights would apply to the rest of the treaty

land.

I just want to make sure. My understanding is that’s what it means, between the two.

I, obviously, won’t bother asking you to go into the court

definitions, the difference

between them and all that kind of stuff. People can look that up if they’d like.

Hon. Spencer Chandra Herbert : Right. The member is correct. The treaty area lands are broader, where non-exclusive

section 35 rights would apply, just as they do to other nations. The treaty lands

themselves are what, I guess, could be termed the Aboriginal title lands or the expression

of the Aboriginal title lands.

John Rustad : Okay. That’s good just for clarity, because it’s important to know, especially when

we get to

section 3. There are some questions that come up with regards to that. So

I thank the minister for that.

Of course, as a colleague had raised, this issue of overlap is a big issue from various

nations. We’ve seen this over and over again throughout all the nations.

[2:40 p.m.]

We’ve seen it more prominently with Nisga’a than the other treaties, but there have

been some overlap questions that have been raised with other modern treaties. So in

the context, things have advanced. Obviously, court cases and things have advanced

and changed. There are still significant overlap issues, especially on Vancouver Island,

because there are so many nations. It’s so tight. There’s so much overlapping between

the various nations that are there on the Island.

I guess the first question I’ve got with regards to that is the overlap in terms of

rights. Now, you said treaty is non-exclusive rights, which means other nations….

I’m assuming that would mean that other nations then would have the rights to exercise

their Indigenous

section 35 rights within the broader treaty area, not necessarily

within the title or the treaty land, I guess you could say.

I’m struggling because I am not quite sure which is…. I always just call it title

versus rights, but obviously that’s not the way it is defined in the treaty. I want

to make sure that I am using the right language associated with it.

So with regards to the overlaps, if the minister can just confirm that any other nation that might have an overlapping

territory still has non-exclusive rights to be able to harvest and carry on their

activities of

section 35 — under their rights, I should say.

I guess it’s a two-part question. First, they have the right to do that, obviously.

I’ll just ask the minister to confirm that. Then is there some requirement in terms

of how, or is there some approval required from the K’ómoks Nation, given that it

is now defined as a treaty territory?

Hon. Spencer Chandra Herbert : The only land areas identified in the K’ómoks treaty that K’ómoks will be able to

prevent other nations from exercising their rights on are those identified very clearly as K’ómoks lands, which K’ómoks will own in fee simple.

Of course, any Crown lands in the K’ómoks traditional territory or the broader treaty

area could be considered for inclusion in a Wei Wai Kai treaty, for example.

John Rustad : The reason I’m asking is, obviously…. I’m drawing on experience from my own riding.

There were always protocol agreements between various nations on their rights to go

and hunt and fish, and there would be requests to come in into a particular area that

was maybe in dispute or an overlap and those sort of things.

Are those kind of provisions created in this treaty, or are they expected in this

treaty? Or is that just left up to the K’ómoks Nation to negotiate with its neighbours

in terms of how they would jointly utilize treaty lands?

Hon. Spencer Chandra Herbert : If possible, the member might want to check the Hansard , because we did go through the protocol and overlap issue quite a bit with the Green

House Leader prior to the member’s arrival here. In case he wants more detail on some

of those areas, I think that would be of interest.

Indeed there is consistent and steady work with K’ómoks and neighbouring nations around

the issues of protocol agreements, finding a path together.

The member was asking around

section 35 rights and other rights, and I just thought

I might draw his attention to what a neighbouring nation, Wei Wai Kai, has said around

this treaty in particular, in terms of questions around their rights. They say:

[2:45 p.m.]

“What you may be hearing: territory has been taken; access will be lost; other nations

will be in control; projects will be blocked. These claims are based on misunderstandings

of how treaties work. The treaty confirms existing rights. It does not create new

control.

“The treaty does not transfer Wei Wai Kai lands; has no impact on access to cultural

or historical sites; does not give other nations authority over Wei Wai Kai lands,

decisions or governance; does not impact Wei Wai Kai’s own treaty negotiations or

land selections.

“Your rights remain. Your access remains. Wei Wai Kai remains in control of our lands.”

They’re working on a protocol agreement with K’ómoks. They’re very close on that —

Xwémalhkwu as well, ɬəʔamɛn as well.

Through the protocol agreement with K’ómoks, Wei Wai Kai hopes to define roles in the shared areas, supports coordination and

planning, protects Wei Wai Kai’s interests, strengthens long-term outcomes.

What the work does not do…. It does not restrict economic opportunities, does not

give other nations control over decisions, does not limit Wei Wai Kai governance.

Really, our efforts have been to support those conversations. We worked, prior to,

of course, the introduction of treaty, very much to consult and then to accommodate

and to develop solutions that responded to concerns of neighbouring nations.

For example, on Sonora Island, there were lands identified, potentially, for the K’ómoks treaty. There were concerns from the Ligʷiłdaxʷ Nations. Those lands were not included in the package.

One area that has had considerable interest from the Ligʷiłdaxʷ Nations, of course, is the Salmon River watershed. It’s important to note that there’s

currently a K’ómoks Indian reserve in the Salmon River watershed, but as the K’ómoks will tell you, and Wei Wai Kai and Wei Wai Kum will tell you, they all have relatives

that are buried in that cemetery. They all have connections to that area.

That’s why the Salmon River land use plan has been put forward as, basically, a five-year

pause on any change to that area, to ensure that the Ligʷiłdaxʷ Nations and K’ómoks, which has Ligʷiłdaxʷ descendants, have a path on how to use that area properly, have a path on how to

respect each other in the use of that area.

I’ve heard it referred to as a potential common-use area, a tribal park, a way that

each one of the nations can find their space there and that respect for their common

heritage in that area.

John Rustad : I was here to hear that from the minister, but I appreciate the minister sharing that

a second time in terms of all that.

Now, the reason I was asking specifically about it in terms of whether permission

or whether there’s some sort of process. Through various discussions I’ve heard, for

example, from the current leader of the BCAFN, who talks about this co-governance

model that’s created in the province.

I’m wondering. In terms of treaty land, not obviously the area that I’m going to keep

defining sort of as title but the broader treaty territory.… Whether that is a true

co-governance model between the province and the nation or a governance model between

the province and multiple nations, how does that governance model work in terms of

the structure? What I mean by “co-governance” is joint decision-making between the

province and the various nations involved.

[2:50 p.m.]

Hon. Spencer Chandra Herbert : I’m trying to understand where the member is going here. I think if he’s referring

to the treaty area and in terms of if that gives some sort of exclusive right or co-governance

just with the one nation over, say, elk harvesting or something like that, the answer

is no. There are no exclusive rights in that broader treaty area for K’ómoks.

I think in terms of the treaty land itself, there is an agreement, the estuary management

agreement, that the member might be referring to, which is very clearly in the K’ómoks

territory in the sense that they surround it in terms of where their homes, where

their village sites are and have been. That would be one that I could take more questions

on, but that’s a side agreement to the treaty.

John Rustad : No, the reason for asking the question is I’m trying to understand the role that government

plays in making decisions, the provincial government, on the broader treaty territory.

Obviously, it’s different from the treaty lands, I think, as the minister calls them.

I would call them title lands but that’s fine — treaty lands. I’m trying to understand

the broader role that the provincial government plays in decision-making on those

lands.

For example, if there is a decision around harvest levels for elk or if there are

decisions around a road going through or if there are decisions around some other

activity happening within the area…. Who has those responsibilities to make those

decisions? Whether the province is the ultimate decision-maker, whether it’s the nation,

or whether it is any nation that may have a traditional territory overlapping — I’m

trying to understand the nature of how overlaps will be addressed when decisions come

up and what role the province plays.

Hon. Spencer Chandra Herbert : I realize there are many different rabbit holes we could go down or elk ruts or whatever

you want to make the case for. But in terms of the example the member gave, nothing

changes, in the sense that B.C. will continue in a role in decision-making, of course,

with obligations to the nations in and around the areas that we would be making decisions

in. That hasn’t changed, and I guess depending on where in the treaty area you are,

there’ll be different nations with different interests.

John Rustad : I’m asking this from a practical perspective because I’ve run into many cases where

we’ve had issues around the province where harvest levels of a particular thing….

For example, elk on the Island, obviously, is a very prestigious animal. There are

levels that are set, the harvest levels, and there may be disagreement between who

gets how many or how many should be harvested in a particular area.

[2:55 p.m.]

Ultimately, these decisions are going to carry on. I mean, they’ve had these decisions

historically up to now. Does anything change in terms of it? For example, if the treaty nation says “no, we should be able

to harvest 12 animals in this particular area” and the province says “okay, we’re

going to allow this” but another nation comes and says “no, it should be 15” or however

the portion….

Is the burden of making those decisions on the province where there may not be agreement

between overlapping non-exclusive rights with the treaty territory, or how is that

structured? What I’m trying to understand is really the difference between Crown land

without the burden or without a treaty decision being made versus the Crown land that’s

within the treaty territory. What is the difference in terms of how these decisions

will be made and how the rights of the treaty are respected in terms of the decision-making

process?

Hon. Spencer Chandra Herbert : I think the gist of the question is, is the province still the decision-maker? The

answer to that question would be yes.

John Rustad : I appreciate that, and that’s good to know, in terms of that. I’m assuming that —

or maybe I shouldn’t assume. I’ll ask the minister to clarify. That’s on all decision-making,

or that’s just wildlife decisions? Obviously, there’s a difference between environmental

and land-based decisions or subsurface decisions or these types of things, so perhaps

the minister could clarify that.

The next question…. Well, maybe I’ll let him clarify that, and then I’ll jump into

the next one.

Hon. Spencer Chandra Herbert : Aside from the estuary protocol, which I mentioned, everything will continue as it

is currently.

John Rustad : I’m a little confused, and I apologize for this. But if I’m wondering about this,

I’m sure those following along at home might be wondering about this as well. So I

should ask the question, which is: if nothing has changed in terms of managing the

treaty territory, why have we signed a treaty that’s covering the treaty territory?

What is the benefit that goes to the K’ómoks People and the difference between having the treaty versus not having the treaty,

in terms of their territory?

[3:00 p.m.]

Hon. Spencer Chandra Herbert : Well, of course there’s the broad treaty area the member’s referring to. I think many

of the members of the nation will speak to the much more focused treaty lands and

what opportunities that gives for governance, for one, but two, the ownership of those

lands and what you can choose to do with those lands — economic development, housing,

the financial benefits, a stable and enduring ongoing fiscal relationship, clarity

around law-making authorities within the specific treaty lands in terms of the broader

treaty area.

If somebody was elk harvesting within their elk allocation, and somebody questioned:

“Do you have the right to harvest here…?” “Well, yes, I do. I’m a treaty member in

this broader area.” That could be an example of how that might play out.

But very much, I think, when I speak with nation members, most have the interest in

the treaty lands themselves in terms of what they will be able to do in the broader

region.

John Rustad : I agree with the minister. Obviously, the treaty lands are where lots of the activity

and hope for building the future and prosperity are at. But like I say, it just sort of begs the question. Why are we…? Let me just take

a step back.

We’re talking about this in the context of overlaps, obviously, right? There are overlaps

with other nations. I think the concern may not be with what I call title and the

minister calls treaty land, but the concern is around the treaty area, because that’s

where the tremendous amount of overlap is.

There might be some overlap over treaty land, and that has to be addressed, obviously,

in terms of the concerns. But if nothing has changed, why is there concern with regards

to the overlap? If nothing has changed, why is there the need to have a defined treaty

territory?

Today, for example, the example the minister gave: if I’m going out hunting an elk

in my traditional territory or if I’m going out and hunting an elk in my treaty territory,

there’s no difference. I’m just trying to understand that structure because, quite

frankly, if I don’t understand it, the broader public’s going to be asking all these

questions as well, and they’ll need to understand it as well.

That’s why I’m asking about the differences that are there, and I’m trying to understand.

Certainly, there must be some difference between what’s currently happening today

on broader treaty territory…. Treaty land, I get. That’s according to title. That’s

a title case, or that’s the Tŝilhqot’in case or whatever that may be. But it’s that broader area that is applied for and

the rights that are defined under here in terms of their treaty rights that are applied

to it that I’m trying to understand what the differences are, in terms of decision-making

and process.

Hon. Spencer Chandra Herbert : I guess probably the easiest way to explain it would be that it provides the legal

clarity. If somebody was to argue or dispute that a K’ómoks Nation member had rights in the territory, in that broader area, they would have

clear treaty rights that are explicit that yes, they do have rights here.

Another nation member would be able to make the same claim if they had the same heritage

and connection to the land. The only issue that might come up would be that in some

cases, as the member knows, depending on what the issue was, there may be somebody

requiring or pushing that that person has to prove it.

[3:05 p.m.]

I don’t think that would be the case in most cases, because it’s pretty clear what

the history of that area is. But in this case, it just puts clarity around at least

that the one nation, K’ómoks, we understand, has treaty rights here. We also understand, of course, as I’ve mentioned,

that other nations have their

section 35 rights, and they may well be defined in future

agreements as well.

John Rustad : It’s curious because that wasn’t sort of how I understood other treaties, particularly

treaties like Nisg̱a’a . That’s my fault. I guess I’ll have to go and look at them, but I find that just

curious in terms of it.

I don’t want to be running out hypothetical scenarios and this kind of stuff, but

I need to understand whether this sort of thing is possible, because it’s a treaty

territory that has non-exclusive rights. It’s really no different than current rights

under

section 35 except it’s defined in terms of those components, the other rights

are not going to be exercised, according to the minister, within those territories,

because it’s defined what those rights are.

I may be…. Okay, the minister looks….

Hon. Spencer Chandra Herbert : You’re confusing two things.

John Rustad : No, no, I’m not, because I’m talking about the rights for the K’ómoks Nation, under

section 35 rights, which would apply, I’m assuming, to the treaty territory, not just

to the treaty lands. That is defined, those rights, under here.

Section 35 is…. They

said any other rights that they may have under

section 35, defined or undefined at

this point, they will not exercise. So that’s….

The minister is agreeing, so okay, we’re good.

This is what I’m curious about in terms of those treaty territories. Yeah, it’s given

now a defined territory as opposed to one that may have been in dispute for that.

The minister is still nodding, so this is good. I’m starting to be able to draw a

picture here.

It’s not really different from how anything is managed, but it’s a defined area in

terms of those rights, and those rights are defined in terms of what they can and

can’t do within those territories.

Is it possible, then, and I would assume it would be possible, that another nation

could have a treaty that could have overlapping treaty territory within this territory

because they would also have those non-exclusive rights? Is that correct?

Hon. Spencer Chandra Herbert : Yes.

John Rustad : I never thought of that, treaties as being mutually overlapping potentially. Obviously,

treaty land and what I call title wouldn’t be. Or maybe a question mark. Maybe it

could be.

Obviously, if there’s a title claim that goes forward saying that somebody has title

to a particular area that is already defined under a treaty in terms of a title land

or treaty land….

Maybe I’ll frame this in a different way. We understand that there could be overlap

in terms of rights. We get that. It’s not exclusive rights. There could be overlap

in terms of treaties. The question, I guess, to the minister is: is it possible to

have overlap of title or treaty land? Or does treaty land extinguish

section 35 rights

claimed by any other nation?

Hon. Spencer Chandra Herbert : I’d refer the member back to my earlier answers around the non-derogation clauses.

I think that will provide a fulsome answer to the question.

The question is: what happens if a nation establishes title over treaty lands that

have already been treaty lands? Well, the exact operation, of course, of the clauses

would depend on the circumstances in the lands in question and, of course, what a

court judgment was, so I can’t get into the hypotheticals too far.

[3:10 p.m.]

But as mentioned in the earlier comment around the non-derogation clause, there could

be a finding, for example, that would require the government to go back into negotiation

around either accommodating that need or that new title land and then having to replace

the land for the other nation if it was found that that title land should have gone

to one nation over another. That’s consistent, I believe, with other approaches we’ve

taken in the past.

John Rustad : That makes sense, in terms of…. So if there’s a case or something that comes forward,

there’s obviously going to have to be adjustments. In other words, it is exclusive,

but it could potentially change if there is evidence or if there’s a case that came

forward that may force an alteration to it. So, essentially, unless there is a negotiated

agreement of some kind, it is exclusive use in the title land, either through some

sort of shared agreement or through some sort of court action.

I’m just trying to make sure that I’ve got that right. I just want to make sure that

your staff are in agreement to that.

Hon. Spencer Chandra Herbert : If the member wants, I’ll state again that, yes, that if it’s the title land as he

refers to it, the treaty land explicitly, that is an exclusive use unless the nation

decided to use it in a different form. That’s correct.

John Rustad : I think I’m through most in terms of this, and this has been very helpful just in

terms of setting the context, because obviously when we get into the treaty itself

there are a ton of questions.

One of the ones that stands out, obviously, is in the treaty itself. It states that

rights and title exist throughout their traditional territory as opposed to within

their traditional territory. I’m curious in terms of what we’ve discussed here versus

what’s actually in the agreement. But we’ll get that when we get under

section 3 of

the treaty — or clause 3, I guess we’re supposed to call it — of Bill 20, that is.

I also need to understand, because there are not a lot of rights that really haven’t

been defined. I mean we’ve got fishing rights. We’ve got access. We’ve got hunting.

We’ve got traditional use things like spiritual use, these types of things.

We haven’t really defined in the province the subsurface rights or air rights, these

types of things. Those really haven’t been defined so much. So I’m wondering does

this treaty address any of those types of issues, both within the treaty territory,

as well as within the treaty land? I’m trying to use the same language the minister

has provided.

[3:15 p.m.]

Hon. Spencer Chandra Herbert : Well, there certainly are more details within the treaty as we get further along.

The treaty does address subsurface rights. It does not currently address air rights.

John Rustad : We will get into the subsurface rights and sort of what that means and components.

One I did forget to talk about was foreshore, because I do believe in the previous

agreements that foreshore was not included in any of the other modern treaties. I

may be wrong about that. I just don’t remember them being there. Foreshore’s inclusion

in this agreement, I believe, potentially has marked something new.

So if the minister could just confirm that this is something that is new in terms

of an added right that has been put into the K’ómoks treaty.

Hon. Spencer Chandra Herbert : The member can be forgiven. It has been a few years.

But yes, there were side agreements, and this is a side agreement around foreshore

in both ɬəʔamɛn and Maa-nulth. We’re staying with the same process as was negotiated in those treaties.

John Rustad : One of the things…. I remember talking with most nations years ago and they, of course….

Part of the treaty — and we’ll get to this in the treaty as well — is allotment of

water, subsurface as well as surface water — having the rights and access to it. One

of the questions that was raised by one of the nations many years ago, or more than

a decade ago, to me was: what if they wanted to export that?

Obviously, there are trade agreements between Canada and the United States in terms

of water. Water is one of the things specifically mentioned in that. So I’m just wondering.

How does a nation’s treaty rights…? How are they exercised in terms of other trade

agreements that Canada has with other jurisdictions, whether it’s international or

domestic?

Hon. Spencer Chandra Herbert : So, yes, the treaty must be in compliance with federal trade agreements. None of the

modern treaty nation agreements, for example, allow the large-scale export of water,

to the member’s question.

John Rustad : If I remember my reading of…. Obviously, reading through all of those agreements many,

many years ago now, I don’t remember it all. But I actually think the previous treaties

were silent on it, which is why I’m asking. I don’t recall the previous agreements

actually talking about conforming to Canadian trade agreements, whether domestic or

international. So that’s why I’m asking the question because I don’t recall that.

So I’m just wondering if there has been a difference here or what it would mean in

terms of absence. When I’m reading through this…. I may have missed it here. I don’t

recall seeing it in this agreement either.

[3:20 p.m.]

[The bells were rung.]

Hon. Spencer Chandra Herbert : In the water

chapter of the treaty, clause 3 speaks specifically to water and speaks

to the obligation of K’ómoks to follow provincial and federal law when it comes to water, and federal law does

not allow bulk export of water.

John Rustad : It’s actually not federal law that does require it. It’s the trade agreement that

doesn’t allow for it. I’m not sure if that’s locked into federal law or not. But regardless

of that, it’s fine to know. That’s all interesting in terms of the trade agreements.

I’m just trying to think if there was something else. I apologize. The ringing bells

have got me a little off track as I….

Interjection.

John Rustad : For whom the bell tolls.

Interjection.

John Rustad : We haven’t called division yet. We’re okay. We might just do it on division. Anyway,

sorry. It gets a little late in the afternoon.

With that, Madam Chair, if I may request a brief recess before we move on to the next

section.

The Chair : Okay, Members. You’ve heard that we’re going to be taking a recess till 3:30.

The committee recessed from 3:23 p.m. to 3:32 p.m.

[Susie Chant in the chair.]

The Chair : I call Committee of the Whole on Bill 20, K’ómoks Treaty Act, back to order. We are

on clause 1.

Clause 1 approved.

On clause 2.

Scott McInnis : So for clause 2, I just wanted to get a little clarification. We’ve had some back-and-forth

around some of the overlap challenges and how that would be dealt with and some of

the protocol around dealing with some of the overlap issues.

Clause 2 states: “The K’ómoks treaty is a treaty and land claims agreement within the meaning of

sections 25 and 35 of the Constitution Act, 1982.”

Within appendix A, there’s an area identified as the K’ómoks traditional territory,

and that highlighted traditional territory includes, according to the Wei Wai Kum,

80 percent of their asserted traditional territory.

The treaty and this bill…. It’s specifically related to clause 2, around this being a land claims agreement. It

obviously creates rights for the K’ómoks in the area that the Wei Wai Kum say the

K’ómoks didn’t have that historical presence in, specifically areas such as Heydon

Bay and Loughborough Inlet. So I have a couple of questions around that.

Just for clarification, what strength of claim did B.C. do for the K’ómoks territory

claim before the government decided to have this part of the K’ómoks treaty area encircled

within the map on appendix A?

[3:35 p.m.]

Hon. Spencer Chandra Herbert : Just to clarify, there are no treaty lands in those two areas the member mentioned.

That’s very much in the broader non-exclusive rights

section of the treaty.

Clause 2 approved.

On clause 3.

John Rustad : I think all three of us will have many questions on clause 3. Obviously, clause 3

is the actual treaty itself with the appendixes, so there’s a tremendous amount of

material to go through there.

Actually, just a point of clarity. When we started this off, I actually started asking

questions about the

preamble. I was told the

preamble needs to be discussed after

the rest of this is done. So I’m just wondering. Now that we’re going into No. 3 and

we’re going to talk about this, obviously, there’s that

preamble that’s embedded within

the treaty itself.

Is it appropriate that we have to go through the whole treaty before we start talking

about

preamble, or can we talk about that just in the context of

section 3 now?

Sorry. That’s a question to you, the Chair.

The Chair : Thank you. I shall take it under discussion and be right back with an answer.

So the Chair’s response, in conjunction with our wondrous staff, is that as long as

the discussion is around clause 3, okay? The

preamble is to the bill itself, and if

you are discussing it within the context of clause 3, I’m going to be able to go with

that. If it starts getting outside of clause 3, I will remind you that we are staying

within clause 3.

Very good. Thank you so much.

John Rustad : Just before I turn it over to my colleagues, now that I know what I can say, we’ll

have many questions on this clause 3.

Part (1) is: “The K'ómoks treaty is approved, given effect and declared valid and has the force of law.” So

that is this agreement here, to my understanding.

In the

preamble, it says, “We the K'ómoks People envision a prosperous and healthy nation,” something I think everybody in this

chamber would love to see and support, “in which we exercise our rights and title

throughout our territory, honouring our people, lands, waters, culture and language.”

I guess the question I’ve got to start with is…. It’s recognizing title throughout

the territory, which obviously is different from rights. So I’m just wondering why

that it says “throughout the territory” as opposed to title within the territory,

because the two have very different legal meanings.

[3:40 p.m.]

Hon. Spencer Chandra Herbert : I think the addition to the quote the member referred to, which is important, is “whereas

K'ómoks defines its vision as set out below,” and then the quote follows from there. That’s

their vision of where they want to see things go.

Obviously, when you’re entering into a negotiation, a party will set out a vision.

Then you do the hard work of trying to figure out how that vision might be expressed.

That’s where the treaty comes in, in terms of the defined areas, the defined lands

and the operations, which is set out in sections 31 and 32 under those general provisions,

in terms of how those rights are expressed.

John Rustad : Let me just see if I’ve got this right, then. What the minister has just said is that

the

preamble here is the goals and objectives of the K'ómoks, not necessarily what was agreed upon within the treaty.

Hon. Spencer Chandra Herbert : Yes. The

preamble sets out the vision, in this case K'ómoks’ vision. The rest of the treaty chapters define how we have come to agreement in

terms of making a treaty together around defined rights and responsibilities, etc.

John Rustad : I wasn’t able to ask this as part of Bill 20, but it’s, of course, being repeated

here in the

preamble for the treaty, which is: “This agreement advances the objectives

of the United Nations declaration on the rights of Indigenous People.”

Perhaps I could ask the minister. With regards to advancing that, is that in its entirety?

Is that part of it? How is that being implemented in the treaty? Obviously, there’ll

be lots of questions, because it is in other places within the treaty. But, in general,

what actually is meant by “the advancement of the Declaration on the Rights of Indigenous

People?

[3:45 p.m.]

Hon. Spencer Chandra Herbert : I was trying to answer what will become further questions from the member before he

gets to them, but I was reminded that I should make sure to leave the member time

to ask his own questions, as opposed to answering them all at once.

Really, in terms of the

preamble, it’s set out as a kind of goal document, similar

to what we referred to in my previous answer. In the sense of the treaty, the treaty

is fulfilling more than a few of the UN declaration’s rights — in the sense of self-determination,

lands, treaties as an agreement — but really, it’s a broad guide of what to aim for,

as referenced in the

preamble.

John Rustad : Further in that, it says: “Implementing the United Nations declaration on the rights

of Indigenous People in accordance with the Constitution of Canada.” This is why I’m

trying to wonder. We’re talking about advancing in one, and we’re talking about implementing

in another. I’m just trying to get a sense of what is trying to be achieved with regards

to a piece of a document that was not founded here in Canada but brought in from the

United Nations.

Hon. Spencer Chandra Herbert : I know I’ve heard many speeches talking about how UNDRIP is hard-wired or incorporated

or is going to rule the treaty. That’s not how it works. It doesn’t incorporate UNDRIP

in terms of the legal mechanisms. But what it does do is it identifies as the UN declaration

— which, I might add, was developed with the advocacy of B.C. Chief Ed John, just

to reference that it’s not some out-there agreement, and it has been endorsed by 194

countries….

It identifies in the

preamble that the treaty advances the objectives. It identifies,

in the

preamble, the implementation of the UN declaration as a common objective of

the parties for the agreement. That should be noted: common objectives are expressly

non-binding. It identifies implementation of the UN declaration as a basis upon which

certain side agreements to the treaty could be negotiated.

It does not give legal independent force to any particular

article in the context

of the treaty nor does it commit the province to anything related to the UN declaration

outside of the treaty relationship with K’ómoks.

John Rustad : It’s interesting in that, further into the agreement, it says: “The United Nations

declaration on the rights of Indigenous Peoples is an authoritative source for the

interpretation of this agreement.”

I wonder if, for clarity, the minister could describe just what is “an authoritative

source.” For example,

section 35 of the constitution is also an authoritative source.

[3:50 p.m.]

Hon. Spencer Chandra Herbert : Of course, the member is correct.

Section 35 is the source above any of these other

sources that we’re talking about in terms of

interpretation of treaties.

The UN declaration is used as one lens through which the treaty can be interpreted.

Other lenses that the treaty would be interpreted through — beyond, of course,

section

35 and then the UN declaration — would be modern treaty

interpretation principles,

including that the text is to be interpreted in light of this agreement as a whole

and that this agreement’s objective is consistent with the honour of the Crown and

having regard to the shared objective of advancing reconciliation between the parties.

So it’s very much similar, in that sense, to other treaties in terms of what the interpretive

tools are, but with previous treaties, of course, the UN declaration was not endorsed

by 194 countries at the time as an international legal instrument, and that’s why

they wouldn’t have appeared in earlier treaties.

John Rustad : I believe it was endorsed at the time. It just wasn’t implemented by governments of

the day. But I may stand corrected on that.

I want to pass it over to my colleague here. He’s got a number of questions that he

wants to start in on with regards to this. Obviously, there’ll be many hours of discussion

with regards to this in general.

Just for the record, if there is some future court challenge…. Obviously, they come

back and look at what is said during committee stage and debates as part of it. So

could the minister just clearly say for the record that the UN declaration on the

rights of Indigenous Peoples, as laid out and described in this treaty, is not legally

binding in terms of any potential court action that may be happening within British

Columbia or certainly within the treaty territory?

Hon. Spencer Chandra Herbert : I’ll say it again. It’s an interpretive tool along with a number of other interpretive

tools, but they do not give this…. The references to the UN declaration in the treaty

do not give independent legal force to any particular

article of UNDRIP in the context

of the treaty, nor do they commit the province to anything related to the UN declaration

on the rights of Indigenous Peoples outside of the treaty relationships with K'ómoks.

Scott McInnis : Just wondering if the minister could share with us, in relation to the treaty, since

we’re on clause 3 here, what legal analysis or opinion was relied upon to conclude

that UNDRIP is an authoritative source for

interpretation of the treaty. How does

that differ from merely being an interpretive aid?

[3:55 p.m.]

Hon. Spencer Chandra Herbert : Well, the use of the UN declaration and other international instruments as interpretive

tools is not new. It’s not a unique concept.

In fact, Canada’s collaborative modern treaty implementation policy does provide:

“Canada and Indigenous modern treaty partners acknowledge that the UN declaration

on the rights of Indigenous Peoples — which the federal United Nations Declaration

on the Rights of Indigenous Peoples Act affirms as a universal, international human

rights instrument, with application in Canadian law — is an authoritative interpretive

source for Canadian law and informs the implementation of modern treaties. The rights

and principles affirmed therein constitute minimum standards.” That’s

section 3.7.

Really, having this referred in the treaty is responsive to Canadian law and legal

changes at the federal level. Courts have been clear that international instruments,

including the UN declaration on the rights of Indigenous Peoples, are sources for

the

interpretation of laws in Canada. This is true regardless of whether any laws

were introduced within our province. International legal instruments can be relied

on in courts in Canada, but of course Canada has introduced its own law around the

UN Declaration on the Rights of Indigenous Peoples Act.

Scott McInnis : I think it’s just important that we analyze this as deeply as possible. Not to go

too far down memory lane here, but when the Declaration Act was brought in — I know

it’s not referenced in this treaty — it was sold as a guide and a framework or a banner

in the room, if you will, to refer to.

It has become very clear that it is not. So I think it’s very important that we dig

into, specifically, the language around here, so that in future years, as the law

evolves, as the treaty potentially evolves itself, we’ve covered off this important

information and asked the right questions here today.

My question to the minister is: why was the term “authoritative” selected specifically,

instead of terms such as “guiding” or “informative” being considered?

Hon. Spencer Chandra Herbert : Well, that language comes directly from Canada’s policy for collaborative modern treaty

implementation. That’s where the reference comes from.

Scott McInnis : Was it, then, the federal government that proposed the wording during negotiations

of this treaty?

[4:00 p.m.]

Hon. Spencer Chandra Herbert : It was a tripartite negotiation, and so I’m unable to go into what happened in the

negotiation room. But it was agreed upon by all parties, and that’s why it’s here

today.

Scott McInnis : Just to conclude on that, we’re not able to say whose idea it was to have it as an

authoritative source in the treaty itself. I want to make note of that.

Could the minister confirm that UNDRIP principles won’t be prioritized over the negotiated

treaty text, in cases, by the courts?

Hon. Spencer Chandra Herbert : Legally, it’s been very clear. Canada is clear, B.C. is clear that the text of the

treaty is what we hold up as the highest guide to how to interpret the text. Indeed,

Canada and courts have been very clear that the serious work that goes into drafting,

developing, consulting, accommodating and pulling together treaty text means that

it’s the paramount source for

interpretation — obviously, I would say.

There are other guides if there are concerns or questions about what’s in the text.

But the text has been found to be the authoritative source, more so than any other,

in terms of the

interpretation of how a treaty is meant to be played out.

Scott McInnis : Unless I missed something within the treaty document itself, I didn’t see any specific

relation of UNDRIP articles expressed in the treaty. But could UNDRIP articles not

expressly referenced in the treaty still influence

interpretation?

Hon. Spencer Chandra Herbert : Just to make the point again, the courts have been very clear. Modern treaties are

drafted and negotiated by well-resourced, professionally represented parties, and

courts should therefore pay close attention to the actual terms and provisions in

order to respect the hard work of the parties.

I know I look forward to getting through the actual

interpretation of the treaty itself

and the provisions in terms of how we are doing that work, because I think that will

help better define for the public and for the member in terms of how the treaty is

meant to work and has been negotiated to work.

The member’s reference to the UN declaration…. Again, as I’ve said, it’s an interpretive

lens. But the references to the UN declaration as a whole, including the

preamble….

Really, it’s contextual. How it might be used would depend entirely on the context.

[4:05 p.m.]

As I mentioned, it’s but one interpretive tool for the treaties that must be considered,

including others, which…. The modern treaty

interpretation principles, of course,

are paramount. The text is to be interpreted in the light of the agreement as a whole.

Really, our work is to do the best we can to define the treaty and how it’s to work

in the treaty itself because ideally, on the face of it, looking at it through it

and side agreements that you make, you know how it’s supposed to work, so you don’t

have to use another interpretive aid to understand what you are trying to do. In the

end, the text is what’s paramount.

Scott McInnis : My colleague from Nechako Lakes briefly touched on this. When we’re talking about UNDRIP and the quote of “advancing

the objectives of UNDRIP,” it’s important to note that UNDRIP doesn’t contain “objectives”

within the document itself, so it’s not extremely clear how that phrase will be interpreted

or what it will encompass.

I’m wondering if the minister could just clarify which specific articles of UNDRIP

are contemplated by the phrase “advances the objectives of UNDRIP” within the treaty.

Hon. Spencer Chandra Herbert : Of course, the document refers to the UN declaration on the rights of Indigenous Peoples

as a whole, so it’s looking at all of those rights. But very specifically, to be clear

around what this is forwarding,

section 37 speaks very directly to treaty-making with

nations. Clearly, a treaty fulfils that section.

Scott McInnis : I’m curious here. Were there any provincial or federal constitutional experts who

were consulted with on whether the wording in the

preamble could alter future

section

35 jurisprudence?

Hon. Spencer Chandra Herbert : If I might ask a clarifying question: is the member suggesting the treaty could change

the Constitution of Canada in

section 35? Is that his question? It does not.

Scott McInnis : That’s a good question, and the answer is no. I’m just wondering whether the minister

had consulted any experts in the field as to whether that wording could alter future

section 35 jurisprudence itself.

[4:10 p.m.]

Hon. Spencer Chandra Herbert : To be clear, this is very explicit to this treaty. We talked about clause 2, but clause

2 very clearly says that

section 35 rights are the rights that are expressed through this treaty. They are the rights.

The reference to the UN declaration, again, as I stated earlier, refers to it and other interpretive aids.

Again, it will not impact

section 35 rights of other nations, as I mentioned. It does not change the constitution. It does not impact that broader question, because the treaty is about expressing

the

section 35 rights defined in the treaty for the K’ómoks Nation specifically.

Scott McInnis : During the negotiation process, were there any written constitutional opinions submitted

to the commission about the use of UNDRIP?

Hon. Spencer Chandra Herbert : Obviously, the member will know we can’t share legal opinions in terms of client-solicitor

privilege, but what I can say is that just as Canada has done their legal work and

K’ómoks has done theirs, we’ve done ours to ensure that what we are bringing to you fulfils our legal obligations and does the work of ensuring this is a good treaty.

[4:15 p.m.]

Scott McInnis : No, I want to understand that…. The province has their intention just to create a

good treaty, and in our position, that’s what we want to see as well. I think I’m

just struggling because we’re a little bit out of balance here, with UNDRIP being

an authoritative source but really inconsequential within the treaty itself.

I’m still trying to square that circle a little bit. I think it’s just really important

that we get a really, really clear understanding here, as we’re going through clause

3, if in fact UNDRIP does not have any legal force and effect within the treaty, that

it just be made very clear here today. That would lead me into a series of questions

later about, well, why is it there? I think if there are any question marks around

whether it can be used to have legal force and effect, that raises a lot of questions

because it’s a very vague document.

So I’m just curious. During the negotiation process here, did the province invite,

or did any individuals that are legal experts present, any dissenting legal views

to negotiators as to why UNDRIP could be a problem in this treaty?

Hon. Spencer Chandra Herbert : Again, I won’t get into the legal referrals and decisions, but I can say very clearly

that Canada, B.C., K’ómoks, we all looked at these issues. We all looked at how the courts have interpreted

things, how internationally these things have been interpreted. What’s expressed in

the treaty, in terms of recognizing the UN declaration on the rights of Indigenous

Peoples, is recognizing the legal reality that already exists.

This is not a new thing. It recognizes that courts are using and have used, in Canada

and internationally, the UN declaration as an interpretive source. The treaty just

expresses what courts are already doing.

Scott McInnis : I think what I gathered from the minister’s answer was that, yes, there was a broad

spectrum of legal opinions that were provided during the negotiation process to the

K’ómoks and to the province to fully understand any potential legal implications around the

interpretation of UNDRIP in the treaty. That broad spectrum would have included those

with concerns, those who raised no concerns and everywhere in between. Is that accurate

to assume from the minister’s answer?

[4:20 p.m.]

Hon. Spencer Chandra Herbert : I’ll just reiterate. We listen to opinions from all points of view. We listen to opinions

and work through them, debate them, discuss them. The member knows there are lots

of legal opinions in the world. I think the job is to assess those, assess those based

on court actions, assess those based on jurisprudence and then find a path to agreement.

Certainly, Canada, the federal government lawyers, did that work, and that’s why they

signed off on it. B.C., we did our work. K’ómoks did as well.

Scott McInnis : I think, perhaps, where we’re getting to is that regardless of whether it’s an authoritative

source for the

interpretation of the agreement or not, UNDRIP has essentially no legal

force and effect within this treaty?

Hon. Spencer Chandra Herbert : I think I’ll need to repeat this again. The references to the UN declaration on the

rights of Indigenous Peoples in the treaty do not give independent legal force to

any particular

article of UNDRIP in the context of the treaty, nor do they commit

the province to anything related to the UN declaration on the rights of Indigenous

Peoples outside of the treaty relationships with K’ómoks.

John Rustad : It’s of great interest of, course, listening to this. The minister obviously must

understand the sensitivity and why these questions are being asked about UNDRIP, given

the situation we’re in, in the province with DRIPA and the court cases, the challenges,

the Supreme Court of Canada. Of course, DRIPA is the implementation of UNDRIP. So

there is sensitivity in terms of how this is interpreted and used as part of the treaty,

which is why these questions are being asked.

We need to have some clarity with this, and people need to understand. Obviously,

there’s a lot of fear in the province, given what is happening in British Columbia

through DRIPA which is, once again, the implementation of UNDRIP.

To that extent, there are a number of articles in DRIPA. I know the minister did talk

about

article 37. But one of the articles in here which is of particular interest

— and it doesn’t necessarily apply to K’ómoks because K’ómoks obviously is not a band associated directly with an international border — is

article

36, which gives rights to nations across international borders. International borders

are obviously drawn long after nations had established their traditional territories.

One of the sensitivities of asking about this is that this can’t be used to further

some band’s case for their rights across international borders. The minister, I think,

has been very clear in saying that this isn’t an effective law.

But I just want to give the minister an opportunity to say clearly that with situations

like that, the treaty and the implementation of UNDRIP as an authoritative source

would not add any strength to any of these types of claims.

[4:25 p.m.]

This will be more prevalent when we get closer up into the northwest, whether we’re

closer to Alaska and these types of things may occur. But I just want to understand

and to make sure the minister has a chance to get it on record.

Hon. Spencer Chandra Herbert : The text of the treaty is very clear that this treaty applies to the K’ómoks Nation members, the K’ómoks Nation treaty lands. Inasmuch as the UN declaration would be an interpretive tool,

we cannot foresee how

article 36 the member mentions could be in any way used in relation

to this treaty, specifically when it relates to the law and the treaty lands and the

members of the K’ómoks Nation to which this treaty applies.

John Rustad : I recognize that. Obviously, not in this particular scenario. This is why…. It’s the

question around an authoritative source and how much legal weight that potentially

has, because it could get drawn on by other cases to use as an example, which is why

I’m asking the question so that there’s some clarity. You never know how these things

will go. The unintended consequences we saw from implementation of DRIPA and the

Interpretation

Act have had significant impacts on British Columbia and where things are at.

I just want to ask one other — well, at least one more other — question associated

with this. In particular, I think about…. The intent of this treaty is to improve

the lives of the K’ómoks People, as well as the people in the whole valley and the province in general, through

creating these opportunities and stuff.

One of the articles in DRIPA talks about the right to develop other economic activities.

That obviously could include trade. That could include investments in types of activities,

maybe even power sources — for that matter, nuclear or natural gas — these types of

things.

I’m wondering, as this clause is looked at, clause 20, how that is implemented in

terms of the treaty, in terms of giving the nations the rights to pursue other economic

activities or economic activities within the province of British Columbia. What kind

of restrictions would be on that from, say, British Columbia or Canadian jurisdiction?

In other words, how far can they go? How far can they push to do things potentially

outside of our laws?

I’m thinking about that in particular when I think about Tsawwassen. When it came forward there was lots of controversy because

it was a lot of farmland that became treaty land, which of course then was removed

from ALR, and they went and they built warehouses and shopping malls and the other

types of things on that.

That’s not necessarily the case here, but where are the limits for the nation to be

able to pursue things? For example, we have restrictions in terms of CO 2 emissions, these types of things. How much of that applies versus

section 20, which

gives them the right to be able to pursue other economic activities?

Hon. Spencer Chandra Herbert : I don’t think the member intended to do it, but using the UN declaration to try to

suggest it’s a legal instrument, that we have to follow clause 20 because of…. That’s

not how the treaty is set up. That’s not how the legislation is set up.

Again, to be clear, the UN declaration is an interpretive tool, but it doesn’t have

that legal force to say we have to allow anything under the sun. That’s not how that

particular part of the agreement works. It’s the interpretive tool.

In terms of the economic development opportunities the member is talking about, of

course we want economic opportunity in the Comox Valley for the K’ómoks Nation. That

is referenced, of course, in the treaty elsewhere, so maybe I can draw the member’s

attention to some of those areas.

[4:30 p.m.]

But I’d say — we talked about this earlier — that K’ómoks must follow Canadian law,

must follow British Columbia law, and that’s how the treaty is set out in terms of

what legal obligations the nation has, in terms of what they might want to achieve

economically.

John Rustad : Thank you, and I appreciate that answer from the minister.

I know we’ll get into, in a short bit, I suspect, some of what you talked about in

terms of the legal obligations, because those are obviously laid out in the treaty

as we go further in.

I just look at it, and like I say, I’m just trying to clearly understand the authoritative

source versus the intention of the treaty and why it would be defined as that authoritative

source if it isn’t an authoritative source, in terms of their ability for these actions.

It seems to be that it’s more of a guiding principle than it is an authoritative source.

So I’m trying to…. This is why I’m grasping with these questions, because there are

things that are in the articles of the UN declaration which may be contradictory to

what’s necessarily laid out in the treaty, and if it’s used as an authoritative source

for

interpretation, does that then create the window for more flexibility than perhaps

what was intended as part of the treaty?

Hon. Spencer Chandra Herbert : To be absolutely clear, and I know I’ve stated it a few times now, the text of the

treaty is paramount. Interpretive tools cannot be used to rewrite the text.

In the example the member gave, Canadian law applies, and British Columbia laws apply.

The UN declaration could not be used to rewrite that obligation to such to say they

don’t apply. In the end, the text of the treaty is paramount. Interpretive tools interpret

text, but the text is what applies.

Scott McInnis : There are references in the treaty to free, prior and informed consent, which is UNDRIP

language, and these are written directly into the text of the treaty itself. So it’s

essentially writing the UNDRIP principles into the treaty as the treaty language,

not just an interpretive clause.

For example, paragraph 141, talking about lands, the Memekay horse camp and Salmon River gravel area. And 142, prior to issuing any authorization that may adversely affect K’ómoks interests under paragraph 141, British Columbia will consult with K’ómoks, with the aim of securing the free, prior and informed consent of the K’ómoks.

Further to that, the provincial

Interpretation Act standard legal principles require

every clause in a law or treaty to be given legal effect. Court would say that the

parties would not have inserted the UNDRIP reference into the treaty if they did not

intend to be relied on.

Can the minister confirm for me, then, that seeking the free prior informed consent

of the K’ómoks First Nation throughout this treaty would not have impacts on the

section 35 rights

of any neighbouring First Nations who may be impacted.

[4:35 p.m.]

Hon. Spencer Chandra Herbert : The member referenced the horse camp and the Salmon River gravel area. He should note

that where it says, “discussion of free, prior and informed consent,” it says: “with

the aim of securing the free, prior and informed consent.” In B.C., we seek consent.

We don’t always get it, and that doesn’t necessarily mean we won’t still proceed,

but we generally seek consent first before just barrelling ahead. Generally, that

works out much better and leads to better resolution for all considered.

To be clear. It’s about seeking.

To reference the member’s other question around: does that impact or could that impact

another nation’s

section 35 rights? No, it does not.

John Rustad : Just before we go further into this, I’ve just got a couple little questions that

have been bugging me, and I forgot to ask them as part of the initial questions, so

I figured I’ll just throw them in right now.

There was a statement that was made by the B.C. Treaty Commission when they did a

presentation to us, and I believe the statement to be false, but I just want to confirm

that there isn’t any validity to it. The statement they said is that any of the three

parties has the ability to be able to give a notice to withdraw from the treaty. That

doesn’t make any sense to me at all, so I just want to make sure that that is not

the case, just so that I can have that clarity — in case, at my next opportunity to

meet with the B.C. Treaty Commission.

Hon. Spencer Chandra Herbert : I won’t comment on what the member may or may not have heard from another source,

but I can confirm for the member that once the treaty is effective, there’s no withdrawal

provision.

John Rustad : That’s how I interpreted it when I read through the treaty. So it seemed to be odd

that I heard that. Maybe I misheard what the chair of the B.C. Treaty Commission said.

That’s why I thought it’d be worth clarifying, just to make sure when I read and understood

this that there wasn’t something going on here that I didn’t understand.

The second thing, actually…. This was a point I was going to ask right at the beginning

and forgot, but no time like the present to ask.

Obviously, the minister laid out the amount of land — the 33 square kilometres, plus

the 10.4, the potential 18 square kilometres of pre-approved additions, I believe,

is what the minister said. Obviously, there’s a cash component to this all as well.

So could the minister give a breakdown of the value that is being settled as part

of this treaty — both the value of the Crown land; the value of any private land associated

with the treaty; value of any potential land that would be, I think the minister described,

as pre-approved additions; as well as cash that would be applied up front; as well

as, separately, any cash that would be paid out ongoing, to support through the implementation

of the treaty?

[4:40 p.m.]

Hon. Spencer Chandra Herbert : There is a bunch of numbers here, and I’ll get into them.

K’ómoks, I’ve identified the land. One thing I should be clear about. The pre-approved lands

that I referred to — those are if K’ómoks chooses to purchase them. They’re not purchased, ready to just go. That’s something

that if they choose to, they can in future.

Interjection.

The Chair : If you could have the minister finish, and then if you want to clarify, we’ll do that.

Recognizing the minister.

Hon. Spencer Chandra Herbert : Yes, Member, the pre-approved would be purchased from the Crown, down the road.

When, what? I can’t tell. But in terms of the cash benefits, K’ómoks will receive a total of $89.8 million in one-time funding, which includes a capital

transfer of approximately $56.5 million, a fish fund of $5.7 million, self-government

funding of $7.6 million from Canada, approximately $20 million from British Columbia

towards forestry interests, sewer services, economic development and community priorities.

In terms of the question around ongoing self-government funding, that will be approximately

$6.8 million in federal funding and approximately $400,000 per year in interim annual

provincial funding for K’ómoks lands and resource management activities, approximately $1.6 million in provincial

funding to K’ómoks over 20 years towards park management for Sandy Island, Seal Islets and Wood Mountain.

I can go through how it breaks down for Canada and B.C., if the member would like.

I’ll ask and leave it there.

John Rustad : I appreciate the numbers. Being a bit of a number guy, I like to know what is being

included as part of this.

One of the questions I asked, though, is the value in terms of the land component

that is being assigned. I’m asking that for a reason, because if I remember correctly,

60 percent of the value of a treaty is covered by the federal side, and 40 percent

is covered by the provincial side. I’m just kind of wondering how that’s playing off

and whether there’s money coming from the federal government to the provincial government

for the land, or how those things accumulate.

In addition to that, as to what the minister had just provi