Proceedings in the

Douglas Fir Room

The House in Committee,

Section A.

The committee met at 2:57 p.m.

[George Anderson in the chair.]

Committee of the Whole

Bill 20 — K’ómoks Treaty Act

(continued)

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

On clause 3 (continued) .

Brennan Day : One more day to go in this session, and welcome back to the treaty team.

I’m going to start off with some questions on the estuary agreement. I do think, based

on the briefing we got, it’s fairly clear. I just want to make sure we have it on

the record.

I’ll begin with my reading that this treaty and the associated estuary framework contemplate

a significant foreshore-and-estuary-related governance structure adjacent to existing

K’ómoks lands. That matters not just locally, but I think it is also a matter of precedent.

We know there have been some foreshore conflicts in other areas, like the Sunshine

Coast.

The agreement itself is explicitly tied to the K’ómoks rights in the estuary and creates a consent-based decision-making process for Land

Act dispositions in that area. Can the minister explain whether the foreshore-and-estuary-related

structure contemplated here is unique to this treaty and whether the province has

assessed what precedent it may set for future treaties, particularly where foreshore

access and marine use issues are likely to become contentious in other parts of the

coast?

[3:00 p.m.]

Hon. Spencer Chandra Herbert : There are two different agreements or two different discussions in the member’s question.

There’s the delegated foreshore agreement, which is not the same as the estuary consent

agreement.

The delegated foreshore agreement. I’ll cover that one first. It’s very much like

a municipality having the right to make bylaws around foreshore issues — things like

you can’t light off fireworks here; you can’t have a big beach bonfire. Those kinds

of agreements that municipalities have — it’s very much similar to that. ɬəʔamɛn Nation has a very similar structure built into their treaty.

In terms of the K’ómoks estuary consent agreement, this is very particular to the realities of that estuary,

to the realities of K’ómoks history and heritage in that estuary. It is very limited, but it is about a consent-based

decision-making process.

It’s triggered by an application coming forward. It could be a lease, a licence of

occupation, an easement or right of way, under sections 11(1)(

a) or 32 of the Land

Act, within the estuary. To be clear, current operations there are grandparented into

the system, so they’re not impacted in the same way that maybe a future application

would be.

The application would first be collaboratively reviewed by a team of B.C. and K’ómoks representatives, who would attempt to reach consensus on a recommendation to provide

to the decision-makers for both parties. If that team can’t reach consensus, the parties

can seek assistance from senior officials to try to reach a consensus recommendation.

Once this team has done its work, K’ómoks would then provide B.C. with its written decision on whether it consents to the application,

which must be made in accordance with the agreed-upon principles set out in the estuary

agreement.

If K’ómoks consents to the application or does not issue a decision within a set time, the B.C.

decision-maker can then approve or reject the application. If K’ómoks does not consent, the B.C. decision-maker must also refuse the application and would

provide written reasons to the applicant for its decision, including information provided

by K’ómoks regarding the basis for its decision to not consent.

The agreement does set out clear timelines for each step in the decision-making process

as well.

Brennan Day : There is a dispute mechanism in there, but it does act as a bit of veto over use.

I guess the question, then, is: are any of the current users, leaseholders, rights

holders in that affected area…? Are there any known conflicts that have not been resolved

in that area?

[3:05 p.m.]

Hon. Spencer Chandra Herbert : The two current users or current folks who could be impacted, but won’t be, would

be the CVRD and Manatee Holdings. Both have been communicated with. There is no impact

now, there’s no impact in the future, and that’s been communicated very clearly with

them.

Just to be clear, this process ensures transparency, procedural and administrative

fairness, a few approaches. The agreement would be published in the Gazette before it becomes effective. Each applicant, of course, would be advised of the decision-making

process under the agreement. There are clear timelines, as I mentioned. The decisions

would have to be provided in writing and must include the basis for the decision if

there’s an agreement not to consent, if that is the decision.

If requested by the province, K’ómoks will provide documentation and rationale supporting any decision, which may be disclosed

to the applicant. If they do not issue a decision in a timely manner, B.C. may approve

or reject the application at its discretion. Applicants may also seek a judicial review

of decisions under the agreement, and it is intended that the Judicial Review Procedure

Act would apply to any such judicial review.

Gavin Dew : I’ll just talk about some potential future, you know.… Probably we could anticipate

some potential conflict here, just based on the boundaries that I see in the agreement

over the estuary area. Historically, the Courtenay River channel was dredged to maintain

the old mill site, which is now the Kus-kus-sum site, which is actually part of this treaty.

While it’s unlikely that works of that kind would be required again to the same scale,

there are still active marine access interests in the Courtenay River, which for all

the members paying attention at home, is — an interesting fact — the shortest river

in the world. This includes a federal marina at the Courtenay Slough and the airpark

marina. The question isn’t really theoretical. At some point, there will have to be

a decision made to either shut down those facilities or dredge the channel for access.

If future dredging, channel maintenance or related works were ever required for navigation

access or public infrastructure reasons, this agreement appears to create a new layer

of consent-based review in the estuary, which I don’t necessarily think is a bad thing.

But how would any future works, channel maintenance or marine access work in the estuary

be dealt with under this agreement?

While most of the channel itself is not in the estuary agreement — I think it’s probably

excluded for a reason — there certainly is a

section in front of the current KFN land

that is. So how would any future dredging channel maintenance or other marine works

in the estuary be dealt with under this agreement? Has the province assessed whether

the consent-based structure here could create delay, uncertainty or conflict for future

navigation-related works that may still be needed in the public interest?

Hon. Spencer Chandra Herbert : Well, certainly I understand the interest in the longer term and interest in timely

decision-making.

The Chair : Hold on for a second.

Member for Abbotsford South, you’re not to be on an electronic device during the committee meetings.

[3:10 p.m.]

Hon. Spencer Chandra Herbert : Just to say that we care about timeliness as well. I think that’s why we’ve built

into the agreement requirements for timely decision-making. They’re actually built in into the agreement.

We’ve also built into the agreement that principles like decision-making processes

must be predictable, transparent and administratively fair. Decision-makers must be

accountable for their decisions. The decision-making processes must be effective,

coordinated.

Of course, we’re trying to reach consensus where possible. But if this agreement didn’t

exist, similar requirements, and maybe not quite to the same extent, in terms of respecting

K’ómoks Nation’s

section 35 rights…. Of course, the member will know, it’s a very

rich archaeological area. Those impacts would have to be heavily considered for any

sort of dredging. Ecological principles around fisheries, etc. — those kinds of things would still have to be followed without this agreement.

This agreement, I believe, makes it a bit clearer in terms of how we are to approach

these issues and, I would argue, could actually lead to timelier response because the processes are clear with an administrative process with time

requirements for permitting.

Brennan Day : I think that’s the perfect lead-in to my next question, because

section 6.6, which deals with this consent and then the province going along with

it, I think is interesting.

We have had challenges. I know K’ómoks has in the past, and I don’t think it’s unique

to K’ómoks. They adopted the policy for archaeological permitting through KFN on lots in the identified potentially archaeological sensitive areas. When they started it, there was a huge delay. We have a shortage of archaeologists

in the province. K’ómoks has a limited capacity; they’re busy with treaty and many

other things. So it did become an issue. It has cleared itself up now, which is fantastic.

But I guess the question is: if one of the proponents, KFN or the province, does not

stick to the timeline, what’s the enforcement mechanism? At the end of the day, we need that sort of certainty

on the project timeline. So if, for instance, KFN was busy with other things — and

they certainly will be as they move into this executed treaty — how does that get

dealt with?

The Chair : Just a reminder to the member for Abbotsford South, again, to get off your electronic device. If not, we’ll be removing you from the

room.

Going once. Twice.

Clerk, can you please remove him from the committee room. Thanks.

[3:15 p.m.]

Hon. Spencer Chandra Herbert : The way I understand it would work is if there was a proponent wanting to come forward

— the member used the example of dredging, but it could be easements or something

like that as well — there would be an application made. It would be forwarded to K’ómoks.

My understanding, and I may have to correct myself, is that that starts a 40-business-day

process for K’ómoks to look at the issues. There then would be a meeting between the province and K’ómoks to look at what they’ve considered, the province shares our view and so on, at which

point that starts a 30-business-day period where K’ómoks could then have their ability to consider their decision, write it up, get it to

the province for decision, either pro or con. At that point….

After that 30-business-day period, if there was no response because somebody was too

busy, there’s an opportunity for a notice to go to the nation to say, “We’re waiting

for a decision here; we need to get going here.” That starts the clock on a 30-business-day

clock, after which point, if a decision has not come through, the province can then

make a decision and notify K’ómoks of the decision one way or the other.

Brennan Day : I think we need to put that kind of language in all permitting in the province. That

would certainly speed things up for a lot of people. So that’s great. Thank you for

clarifying that.

This agreement is largely procedural and ceremonial. I grew up in the Comox Valley.

I understand the importance of the estuary and the archaeological significance there.

But with Land Act dispositions, consent-based decision-making and the review structure

here, it also says it is not itself a treaty or a land claims agreement within sections

25 or 35.

Can the minister confirm clearly and on the record that this estuary agreement will

not in its present form give K’ómoks the ability to limit or close ordinary marine access through these waters? And if there is any scenario in which access through the estuary could be restricted

in future, what legal mechanism would govern that, and who would ultimately hold that

jurisdiction? It is a fairly big change.

Hon. Spencer Chandra Herbert : Yes, so this is a very narrow approach in that it’s very clear that nothing in the

agreement or in the treaty affects navigation. It’s clear that if, whether you be

a stand-up paddleboarder or a kayaker or a sailboat or whatever, you found your way in there, that is going to continue. That access is clear, and K’ómoks has been clear in their intent to continue that.

Brennan Day : I think my last question, then, is…. It’s only because I know the area pretty well

and do a lot of boating there. There has been a growing mooring ball field in the estuary for some time, in the bay. Some of them are legitimate.

Most of them are registered, but you know, anybody can throw a concrete block with

a rope on it into the estuary. But those are considered to be somewhat private property,

and there’s free access right now.

I guess the question would be…. There appears to be a substantial mooring field. There

is. If that’s correct, then the public is entitled to know what this agreement means

for the people who are currently using those mooring balls.

Appendix A shows a broad estuary area in and around the Comox Harbour, which there

is, and that’s where the mooring balls are located. And the agreement applies a consent-based

regime to certain Land Act dispositions within that area, as we’ve explained.

[3:20 p.m.]

Can the minister explain how existing mooring uses within the K’ómoks Estuary are expected to be administered going forward; whether K’ómoks would have the ability in future to require renter fees, which are not uncommon for

mooring fields in public or provincial parks; and whether the province has fully worked

through the jurisdictional overlap with the federal government over issues like moorage

in that area?

Hon. Spencer Chandra Herbert : Yes, I know the issue of mooring balls or mooring buoys, and you see them up and down

the coast. It is an issue that I know coastal communities struggle with, because sometimes

the clarity of provincial, federal — even in my neighbourhood in the West End — municipal….

If the boat washes up on the shore, how far up the shore is it? Those kinds of things

come in.

In this case, very clearly, this does not give K’ómoks any rights to charge rent for

mooring buoys. The issue still remains one outside of that authority. Whether or not

those mooring buoys are registered, whether they have the right to be there or not,

I couldn’t say. But that’s not in this treaty. It’s not in this side agreement, in

terms of giving it new authorities to deal with that issue. That’s an issue that continues

outside of this treaty.

Scott McInnis : I’m going to ask a few sort of high-level questions for clarity before my friend from

Nechako Lakes digs into a couple of more detailed pieces here.

When I was reading through just the beginning of

chapter six with lands, I had a couple

of questions. It could be just very simple clarification if I’m misreading something

here. Just hoping to get a little clarity from the minister on paragraph 2, which

I will read, and it’s referring to paragraph 1, (

a) to (d), talking about the actual

lands and the size of the land.

It says: “For greater certainty, the quantums in paragraph 1 will be finalized by

the completion and filing or deposit of adequate surveys under paragraph 110, and

the parties may update paragraph 1 in accordance with paragraph 103 of the general

provisions chapter.” I read that as, when we’re looking at the appendices and we have

the outline of the various land parcels, that there still needs to be kind of a final

survey to be completed.

So I’m just kind of wondering. I guess I’ll start with: is that in fact the case,

that there’s kind of an extra process to go through to finalize the actual boundaries

for the land? Is that in fact the case as I’m reading it?

Hon. Spencer Chandra Herbert : Should this treaty pass this House, at that point, survey work would be done because

some of the surveys are old, some of the areas have not been surveyed in the sense

of being absolutely certain of the corners.

[3:25 p.m.]

So there might be some slight shift. As the member knows, some of these areas are

certainly more rural and would not have had a traditional survey like you might have

had in the city for a city lot or something like that.

Scott McInnis : Okay, that makes sense. I did read the survey sections which are referred to here

with paragraph 110.

So just a couple of follow-up questions to that. Whose responsibility is it to actually

pay for the final surveys? Is that actually up to the nation, or is that a provincial

responsibility?

Hon. Spencer Chandra Herbert : The principle around who pays for which parcel is that the party that currently owns

that parcel pays for the survey of that parcel. So provincial Crown would be us. Federal

land would be them, of course. And then K’ómoks land would be…. Private land for K’ómoks

would be them.

Scott McInnis : That’s what I had assumed. Just reading through with my colleague here, I just wanted

to make sure that was certain.

Could the minister provide, perhaps…? How do I say it? Is there any possible variance

to the final hectare — hectarage? — estimates of 3,441.8 hectares? Could the minister

shed some light on, potentially, once these final surveys are done, plus or minus

how that final number would change from what we see here?

Hon. Spencer Chandra Herbert : The areas are currently based on GIS, so there is a possibility of some slight shifting,

which is not uncommon, I think. The other issue that could occur is that, potentially,

erosion could have slightly changed the bounds of certain sections.

It’s not uncommon. For example, in this House, I believe, there’s been a practice

for quite a few years where park boundaries get updated because of better technology,

because of potential changes. I know this House has dealt with this issue. They’re

usually very minor, and I would expect this to be the same.

John Rustad : Just to confirm, the minister has talked about who pays for the surveying, and I understand

that. It depends on who owns. Obviously, there is significant interest in the new

lands, the potential additions to the treaty, the 18.2 — whatever that is — square

kilometres, which is a tremendous size and area. I believe all that is currently provincially

owned land, but obviously there is going to be an attempt by the K’ómoks First Nation to purchase that land.

Typically, what I’ve seen in the private sector is that you purchase the land, you

go out, and you survey that land. It’s not necessarily the previous owner that’s required

to survey it prior to a purchase. I’m just wondering if there are any differences

between those additions to treaty lands in terms of how that’ll be handled in surveys

and costs.

The Chair : Just a reminder to members that there’s no eating whether you are virtual or in person.

Hon. Spencer Chandra Herbert : In the lands chapter, it talks about that specifically. Paragraph 87: “K’ómoks is responsible for the preparation of any adequate surveys required for the addition

of pre-approved addition lands to K’ómoks lands under paragraphs 71 to 84.”

[3:30 p.m.]

John Rustad : I appreciate the minister’s answer on that just for clarity purposes. As I was reading

through that, I didn’t notice that, so thank you for pointing that out.

One of the challenges, one of the issues, of course, is going to be the various standards

that British Columbia has and the responsibilities that K’ómoks will have. I was reading through, particularly, the

section on ecological lands and the responsibilities that would be undertaken by the K’ómoks Nation associated with those ecological lands. If I read this correctly, they’ll manage

ecological lands in a manner which protects sensitive, vulnerable or at-risk species

and their habitat.

It doesn’t mention anything about following provincial or federal laws that may apply

to what those standards are. I wonder if you can provide some clarity in terms of

how those laws will be created or applied with regards to ecologically sensitive land.

Hon. Spencer Chandra Herbert : Under this model, provincial and federal laws would still apply. However, I can also

add that the K’ómoks Nation has a consistent interest in preserving the ecological area that this refers

to, in part because it is a very important habitat for spotted frogs, which is a species

that needs extra protection in this province.

John Rustad : The reason for asking, of course, is obviously that rules, provincially and federally,

may change, and the K’ómoks Nation may then have to implement different rules based on what would change provincially

or federally.

I’m just wondering how that changes versus laws that K’ómoks may create with regards to any ecologically sensitive areas.

Hon. Spencer Chandra Herbert : The language in the treaty speaks to K’ómoks managing their ecological lands in a manner which protects sensitive, vulnerable or

at-risk species and their habitat. In terms of them updating laws or something like

that, it’s more about how they manage that land.

Of course, if there’s a provincial legal change or federal legal change that might,

for example, really impact the spotted frog, they would have to take that into account

and respond accordingly.

John Rustad : As land is managed, particularly ecologically sensitive land, accidents do happen, issues can arise, intentionally

or otherwise.

[3:35 p.m.]

I’m just wondering where the liability sits if, for example, for one reason, the nation

doesn’t manage it quite to the level that’s required or requires some alterations

to those ecologically sensitive areas for its own cultural or economic interests.

I’m wondering how that is managed, given that they are K’ómoks lands under the treaty.

Hon. Spencer Chandra Herbert : Of course, as I mentioned earlier, provincial and federal law applies, so if there

was an issue that triggered one of those laws, there could be action.

However, the member will also know that disputes can be responded to in a variety

of ways. There could be, if need be, moving to the dispute resolution

chapter where

the argument would have to be made that one of the parties wasn’t responding in good

faith or not following the terms of the treaty, and then there could be that process.

There could also be a variety of methods, whether partnership, engagement, education

or support in a variety of ways, because of course we’re partners in this. We in B.C.

want to continue to see the spotted frog, and I’m sure that is the same for the K’ómoks People.

John Rustad : Something I wanted to say…. I asked the minister yesterday, with regards to lands, why they chose fee simple

land rather than title land. The minister said it was a negotiation or a conversation

which is confidential and that he couldn’t talk about it, which I fully respect. I

understand that.

But as fee simple land — which is what the private lands are, and I’ll relate this

to the ecological side as well down the road — I’m just curious, are all the lands

held by the nation in trust for the people? Or will the members have an opportunity

to actually own their own land?

In other treaties, if I remember correctly, the land is being held collectively by

the nation. So I’m just curious as to how that structure would be for the K’ómoks.

[3:40 p.m.]

Hon. Spencer Chandra Herbert : Some of the land currently is owned by a corporation owned by the K’ómoks Nation. The land will be…. Some of that would maintain that, but the other parts

of the land would be owned by the K’ómoks Nation.

They haven’t decided yet on exactly how they will shape the land for their members

and how their members will have an interest in that land — exactly what approach to

take. I know there have been a number of approaches with previous treaties, so they’re

looking into that issue now.

John Rustad : The reason for asking is that it’s obviously a pretty important issue. I’m a little

surprised that the nation hadn’t determined the path that they were going to go, associated

with land, before they entered a treaty. I would have thought it would have been a

significant question from members of the K’ómoks People in terms of how the land will be managed, how it will be owned. Is it collective?

Is it individual? Is it structured in terms of how that may transfer?

The reason for asking this is…. Under the Indian Act, bands that are under that process

don’t own the land. It’s owned federally in trust for the nation, and because of that,

the nation decides who can live on the land and who doesn’t.

There was a case in my riding, for example, where there was an elderly lady whose

family had moved away, and her husband had passed on, and the nation wanted to move

her off her land — off the land that she had grown up on, she’d looked after and she’d

been part of — because they wanted it for another family.

I gave her a ride. She was hitchhiking of all things, and I just gave her a ride into

Prince George because she was going in to see a lawyer to see if there was any way

she could fight to be able to stay on the land that she was so connected with.

This is why I’m asking what this process is. Obviously, it’s not that, because that’s

what the Indian Act in federal was. But I’m curious as to how K’ómoks is going to manage this on behalf of its people, whether they will have a say or

whether K’ómoks will have a say in terms of who may occupy a particular piece of land at any particular

time.

Hon. Spencer Chandra Herbert : The example the member gave, I think…. K’ómoks wanted to be clear to their members that if a member…. “On the effective day, K’ómoks will grant or issue to each holder or joint holder of an interest set out in appendix

F-2,

part 1a, a form of tenure giving that holder at least the same rights with respect

to the described parcel of K’ómoks lands that individual held immediately before the effective date, modified to reflect

the ownership and law-making authority of K’ómoks over those lands.” That’s in the lands chapter, paragraph 47.

The meaning, of course, is that if you had, for example, a home on the K’ómoks reserve and your family was there and that was understood — that you had that form

of tenure — post-effective treaty date, you must give that holder at least the same

rights with respect to the described parcel that the individual held immediately before

the effective date.

But to be clear, the conversation of exactly what form is that tenure is what the

conversation is that’s going on. It’s not “Will there be tenure?” but exactly what form that will take.

John Rustad : I’ve got a number of other questions along this line, but maybe just a simple question.

Is K’ómoks planning to utilize the services of the B.C. land assessment or the B.C. land title

office in terms of how it will register this, or is it going to create its own process

similar to…? I know some of the other nations have taken different approaches in terms

of what they’ve been thinking about doing.

[3:45 p.m.]

Hon. Spencer Chandra Herbert : They intend to use the land title office.

John Rustad : I appreciate the minister’s willingness to be prompt in terms of these questions,

because obviously there’s a lot of material that we’d like to get through associated

with, certainly, the land side but with so many other components of this treaty as

well.

Under, page 91, where it says, “the creation and disposition of interests in K’ómoks lands,” it states in here that: “Subject to this agreement, the K’ómoks constitution and the K’ómoks laws, K’ómoks may, without the consent of Canada or British Columbia, dispose of its fee simple

estate in any parcel of K’ómoks lands to any person.”

I’m just wondering. Any person — does that mean foreign interests, a non-member, members

only? Is there some structure that’s put in there? I’m trying to understand how they

plan to manage these lands collectively or individually.

Hon. Spencer Chandra Herbert : The answer is that, yes, K’ómoks would be able to sell land that is part of their treaty land. The member said: “to

any person.” Any person that would be eligible to buy land in B.C. would be able to

purchase that land.

Now, to be clear, it would still stay K’ómoks land, just as if in New Westminster, the city was selling a lot, it would still stay

part of New Westminster. Of course, this is the nation instead of a city or district,

but the connection is the same.

John Rustad : I appreciate that it remains as K’ómoks land so that the treaty land itself will not change — how it’s considered in terms

of used or owned within that — and the laws, as such, apply.

Obviously, one of the interesting components, of course, is that K’ómoks can create laws that could impact those properties. Those properties could sell to

somebody other than K’ómoks members, and they still wouldn’t have a vote or say in terms of what those laws are.

But I know there’s a dispute process and all those sorts of things that go on. It’s

just an interesting component.

The reason why I was particularly just looking at that is because I don’t recall seeing

that in previous treaties. There was always a significant concern about the dilution

of treaty land to other interests and how that may impact the treaty nation’s interests

and how they want to develop things. That’s why I was specifically asking about that,

because I don’t remember seeing that. Maybe I just missed it.

If the minister has an opportunity, is this similar to what has been in other treaties,

or is this something that is new for this K’ómoks treaty?

Hon. Spencer Chandra Herbert : The member didn’t remember it, but it is there in the ɬəʔamɛn treaty — a similar approach to what we’re discussing here.

In terms of his statement about how if somebody purchased land but they weren’t a

K’ómoks member, they might not have a say…. They do have a say if the matter impacts them.

As we discussed, I think it was, yesterday or the day before, if there is a matter,

a bylaw or a law that K’ómoks is looking to make that has impact on non-K’ómoks members in that area, there is a provision to require consultation — more so if it’s

deeply impacting the person, less so…. Then of course the member did mention the dispute

resolution process.

[3:50 p.m.]

Rob Botterell : It would be helpful, just for my understanding and following on the questions my colleagues

just raised….

[Darlene Rotchford in the chair.]

I know in the case of the Maa-nulth treaty, and the Huu-ay-aht Nation in particular, that the treaty lands are held collectively.

Then the citizens of the nation, through their elected representatives and so on,

developed a land act and that the land act set out the ways in which tenures could be granted.

In the case of Huu-ay-aht, there was an approach taken, which I’m not saying is going to happen here, where there would be 99-year leases. In

order to facilitate financing, you could mortgage the lease. If you defaulted on the

payments, for the balance of the 99 years, that land could be made available to somebody

who is not Huu-ay-aht.

I guess it’s a big question, but is the approach being taken in the K’ómoks treaty generally in line with other prior treaties, or is there something quite unique

and new in terms of the land provisions?

Hon. Spencer Chandra Herbert : It’s certainly not unique to this treaty. I mentioned the ɬəʔamɛn treaty, for example. The member mentioned, in the example he used, about how there

was a consultation with the Maa-nulth government, how he did that work.

In this case, subject to this agreement, the K’ómoks constitution and K’ómoks law, if there was a disposition choice, certainly it would have to be made at the elected

level, representing the reality of the K’ómoks treaty — the treaty, obviously, but the constitution as well.

Certainly, I guess it would be under law-making authority, the land section. It, of course, talks about fee simple estates, any lesser estate or interest, mortgages,

leases, licences, permits. There are a range of conditions in here that K’ómoks has the right to create on their treaty lands.

The Chair : Member for Nechako Lakes.

John Rustad : I appreciate that, hon. Chair. You’re welcome to come visit Nechako Lakes sometime.

It’s a beautiful area to come. Great for fishing, for camping, for families. It’s

an absolutely fabulous region of the province.

I was looking at the law-making authorities associated with land. There was a disturbing sign that I had noticed

many years ago — I don’t even know if it’s still there — down in the Okanagan Lake

area, which restricted…. The sign was basically limiting people’s access to the band

members only. It was a foreshore, a beach area, and obviously, there was a little

bit of controversy around that.

The K’ómoks Nation can make trespass laws or those sorts of things. I’m just wondering if they

have the ability to restrict access to treaty territory or treaty lands, associated

with who may access it or at what time of year they may be able to access lands that

may otherwise normally be accessible by the public.

[3:55 p.m.]

Hon. Spencer Chandra Herbert : Treaty land, and I think we, again, need to be very specific with our language…. We’re

not talking treaty area; we’re talking treaty land. The K’ómoks Nation does have the right to set trespass

laws. As we know, a number of nations, for example, during COVID said: “We don’t want

just anybody coming into our community.” So they said: “We’re going to do some restrictions

on that.”

But we’d already discussed the issue of under the high-tide line — that that’s still accessible. That’s not impacted. We discussed a number of the parks

and wood areas that will continue to allow public access.

Really, when we talk about some of these areas of private access, K’ómoks-Nation-member-only

access, it really will be at their discretion, as it is currently. So that would continue.

John Rustad : In speaking with K’ómoks, that reiterates what their intentions certainly were around

that. But just because there have been a number of controversies around closures of

parks and these types of things for cultural purposes, I didn’t know if K’ómoks had

any intentions or any thoughts around that in terms of their lands or within their

area. So that’s why I particularly asked the question.

Like I say, I didn’t have any indication from them that this would have been an issue,

but I thought maybe I should ask the minister just to get it on record. With that,

I’ll pass it over to my colleague.

Scott McInnis : Again, just some clarification on a couple of pieces here.

With the provincial expropriation of K’ómoks lands, 119 talks about that generally

there won’t be expropriation of land but that the province holds the right to do so

if needed. I’m assuming a provincial expropriating authority would be things like

utilities or roads.

I’m just wondering, because I don’t think it says it here. In that case of an expropriating

authority using treaty land for some sort of provincial interest, is there any type

of compensation model for that? Because obviously, if there’s a roadway going through,

it’s taking away some of that treaty land.

I’m just wondering if the minister could shed some light on what that looks like if

there has to be land expropriated for something and what terms or agreements are in

place to ensure…. Is there land that’s transferred elsewhere, or cash? How does that

look?

Hon. Spencer Chandra Herbert : It’s a bit technical, so if the member is okay, I’ll refer him, since it is a publicly

available document, to appendix O-1, paragraphs 16 to 18. It goes through the formula

around how expropriation would be done and how compensation must be met.

[4:00 p.m.]

But the member is right. Looking at things like utilities…. That’s traditionally what

we look at, and that’s common in modern treaties.

Scott McInnis : I appreciate the minister just clarifying that.

Just moving on to the K’ómoks water lots. I’m just interested in what this looks like

and the process therein. As I see it, the province, essentially, leases the specific

area of water highlighted. I’m looking on page 519 of the appendices related to the

Gravelly Bay area, a 99-year water lease that’s provided to the K’ómoks from the province

around that.

I guess really quickly…. It looks to me like the extent of those boundaries is not

finalized yet, as some of the other boundary areas, as the minister described earlier,

are not dialled quite in exactly as of yet.

I’m just curious sort of the relationship between this specific water lot and the

estuary and sort of the differences or similarities when it comes to things that my

friend from Courtenay-Comox raised around pieces like any access, anything around mooring buoys or anything like

that. Is there anything that changes under the lease that’s different from the estuary

agreement itself?

Hon. Spencer Chandra Herbert : My understanding is there are two water lot parcels.

One of them is currently in use by the Department of National Defence. Through our

work with K’ómoks in the treaty, K’ómoks will continue to allow that use for that

water lot for Department of National Defence. They are in negotiations with DND in

discussion around that water lot, but that use will continue.

The other water lot is a very small lot in Gravelly Bay on Denman Island close to

the ferry terminal. Its use is for access of kayaks or canoes for K’ómoks Nation members

to get onto the island. So it will not impact or impede others’ abilities to access

if they have property in that area or other use of that bay.

Scott McInnis : I’m just curious. With that specific water lot, Gravelly Bay, I’m just wondering what

the reason is behind creating a specific water lot there.

[4:05 p.m.]

The minister alluded to allowing members to enter. As far as I can see here, there

is a parcel of land at the bottom, at the south end, which would be K’ómoks land.

Why was it necessary to carve out a specific water lot for that access? Could it not

have been accessed as just, you know, regular water? Or why was that necessary?

Hon. Spencer Chandra Herbert : This probably is a gravelly bay. I think it’s — actually, I did a quick look —because

of what the bay looked like. It was gravelly. There you go.

It’s actually about economic development. K’ómoks Nation wants to start a kayak-canoe rental business on that location, and so to have a dedicated water lot…. They could

have done it in another way. They didn’t have to do it through treaty, but they wanted

the security of the long term, that they can work there long term.

That water lot is going to be used for a kayak rental business, to get people access.

You know, sit and have a coffee as they wait for the ferry. Then, maybe, instead of

taking the ferry, they can kayak over to the other side.

I don’t know. I wouldn’t do that. That channel can be a little strong. But there you

go.

Brennan Day : I appreciate the minister clarifying some of that around Gravelly Bay, the water lot.

It is a small area, 0.3 of a hectare. It’s not a large tract of water for this lot. I’m just more curious as to the intent

of the use of the area. The minister was talking about K’ómoks perhaps setting up

a kayak rental, canoeing business, maybe, on the shore on that small parcel of the

K’ómoks land there.

Again, is the intent to have that water lot to…? Is it more of, like, a safety zone

for some of that recreational use and to identify that, maybe, power boats and things

like that should stay out?

I’m just, again, trying to get to the bottom of that. I don’t want to call it an exclusion

zone, because that’s not what it is. But let’s call it a safe zone. Yes.

Hon. Spencer Chandra Herbert : Of course, it’s not just water for moving around and boating in, but likely a dock

would be built there. Obviously, if a dock is there, somebody else can’t use that

area. They may want to ensure exclusive access use for that dock so that not just

anybody showing up with a boat can pull in there and take over the use when you’re

trying to get a kayak in the water or something like that.

It is an interesting history on Denman Island, of course, for the K’ómoks Nation.

This idea of coming home is what I’ve heard it referred to, for some of them, with

the Pəntl’áč People and that history within K’ómoks. It’s a fascinating history.

Sorry. I should sit down. I just get excited about learning about this stuff.

Scott McInnis : Maybe just another question or two about this. Again, I’m just trying to wrap my head

around the use and reasons behind the water lot. It’s not something I’m overly familiar

with.

Again, the K’ómoks would reserve, with that lease from the province, exclusive use

and occupation of the water lot, which would in turn provide any sort of exclusive

decision-making within that water lot as well. Am I correct in saying that?

[4:10 p.m.]

Hon. Spencer Chandra Herbert : It’s still provincial law. How a water lot can be used by K’ómoks is the same as how a water lot can be used by any other person that has a water lot.

John Rustad : Earlier here we were just talking about the surveying and who covers the cost, whether

it’s the province or the federal government or K’ómoks in terms of the surveying costs. I can remember in my days of being in this ministry

when we were talking about the need to do some surveying, particularly when it came

to one of the other land agreements, that cost can be pretty significant on the area.

I was just curious. Since the cost of surveying the provincial land is going to be

borne by the province, what is that cost associated with implementing this treaty,

for surveying the provincial lands?

Hon. Spencer Chandra Herbert : Getting those surveys done is a competitive process. I don’t want to give the member

a figure and then in estimates, in a year or two years from now, have him say: “Well,

you promised it would be this amount, and it’s actually that amount.” I can’t give

him a figure around exactly how much it will cost because we don’t have those costs

yet.

John Rustad : I understand, obviously, going through that, that you don’t have a direct budget in

terms of doing this, but it is significant. You’re going to need to go to Treasury

Board and ask for that. Now, the implementation date is still down the road, so there’s

still a little bit of time, but surely you must have some sort of estimate, maybe

on a per-kilometre basis or per-hectare basis or whatever the case may be, of what

normal surveying would be.

The reason I’m asking this question is that there was some debate a decade ago in

terms of the process that could be used and recognized for surveying, whether it had

to be ways and means of going through and cutting and all this kind of stuff or whether

it could be done through more modern technology, in terms of how it was laid out.

I don’t know whether that conversation advanced at all, so I’m trying to understand

what the potential liability to the province is in terms of the cost, which could

be significant.

Then the next follow-up question is the technology that is being considered to be

used or considered to be acceptable. Part of this, of course, is that there may need

to be a change in some regulations associated with what would be acceptable for surveying

costs. That’s why I’m asking.

If the minister can at least give some sort of idea of the process that’ll be used

and a rough cost, that would be good. We can extrapolate from there. I can promise

the minister that two years from now, I won’t be going through the estimates process

with him and saying: “But you said.”

[4:15 p.m.]

Hon. Spencer Chandra Herbert : The first thing that would have to be done in terms of surveys and land surveys to

address this question is…. Well, the treaty would have to pass, but then what would

occur would be an assessment of the lands and a look at exactly which ones had the

appropriate surveys done in terms of what time, when they were done, if there could

have been an issue of erosion — those kinds of things. What areas don’t have appropriate

surveys?

I think the member can appreciate this. Instead of me trying to guess at which ones

were surveyed, which ones weren’t, what the cost approximately per hectare would be….

That would probably not be the right approach. Because if we are in a competitive

process and I say that the government is willing to spend X dollars for each hectare,

well, then it’s not a competitive process anymore, in the sense that people will be

able to bid to what I’ve said.

Interjection.

Hon. Spencer Chandra Herbert : Right. Then it becomes the floor, exactly. The member well knows how things can work

with government and private procurement sometimes. We’re going to be careful about

that.

In terms of the question around what technologies and surveys would have to be done

with instructions issued by the surveyor general, lidar currently does not replace

legal surveys. It’s useful, no question, but in terms of the standards, it can’t be

the technology that would replace the legal surveys, even though I know the member

has made a passionate effort in that regard.

John Rustad : Which I did a decade ago, and I will still continue to argue the case. Part of it

is that I’ve actually gone through the old survey books from the late 1800s, early

1900s and gone and found corner posts and gone through notes and all that kind of

stuff. It’s a very expensive process, which kind of…. There’s, like I say, better

technology today, but somehow we’ve got to get thinking outside of that box.

That’s not the minister’s job, and it’s certainly not associated with this treaty,

although I would ask him to consider joining me and asking for that to be approved,

to drive down those costs down the road.

Moving on from that survey cost…. I understand the minister’s reluctance to be able

to provide a number. I suspect it’s in the tens of millions in terms of what those

costs will be, the surveying costs, but in any case, we’ll find out in the future.

Now I guess I will have to ask the minister specifically about this down the road.

The minister said that after the treaty is passed through this House — I assume he’s

also saying after it is ratified by the federal government — there would be a process,

then, to start trying to do the assessment of what that cost would be and scheduling

it. Can the minister kind of detail a timeline in terms of that?

Obviously, there’s relatively limited capacity in terms of surveying within the province

and the work that needs to be done. We’ve got this treaty. We also have the Kitselas

and Kitsumkalum treaty, which may be coming to a legislature near us soon, assuming

the Legislature might be sitting this fall. There will be a tremendous amount of work

that would be required associated with all these treaties, so I’m just kind of wondering

what that process is in terms of timing.

[4:20 p.m.]

Hon. Spencer Chandra Herbert : I know there’s a real interest in getting this done soon. It’s a negotiation, but

it would be.… Certainly, K’ómoks has an interest in doing this, even before it goes to the federal process, so that

the land could be properly registered in the land title office at effective date.

In talking with the team, there’s very clearly, I think, an orders-of-magnitude difference

between the member’s view of what it would cost to survey and what the team thinks,

in the sense that we don’t estimate it would be tens of millions of dollars.

That’s for a few reasons. It’s a smaller land package, with a number of them already

surveyed appropriately. It’s not starting from scratch. We think that it’s more manageable

and that it will be a more efficient process, so it shouldn’t take that long to have

prepared. In terms of “will it be done by X date?” — I don’t have that information

today.

John Rustad : That’s fair enough. I must admit I keep thinking about the 18-point-etc. square kilometres of potential additions. Sorry, you’re right; it’s only

1.04 square kilometres, so that isn’t as large as what’s been going through my head,

which is that bigger number.

I just need to confirm with the minister, just in terms of lands.… One of the big

issues that came up many, many years ago was a case where land was transferred to

a First Nation, and there was a significant environmental issue with the land. The

remediation, the work that needed to be done, was very, very expensive and borne by

the province.

I just want to understand. I think it’s laid out in here, but I think it’s important

for the minister to put it on record so that if there is a significant environmental

issue which may come up, which is unknown at this time in terms of land that is transferred

and becomes K’ómoks land, the liability for any remediation or issues that may come up would not be with

the province but would actually be with K’ómoks.

[4:25 p.m.]

Hon. Spencer Chandra Herbert : There are a few answers there. There are two parcels that we have identified as currently

needing remediation or previously needing remediation as we have continued through

this process.

One of them, I understand, had some remains of an old ski operation. K’ómoks members

actually went up and volunteered and spent a good amount of time cleaning that area

up so that it’s to a standard that we would feel good about transferring.

The other one, Kus-kus-sum…. We, as well, will require a certificate of compliance

before transfer could take place. There is significant remediation work going on there

as well. The agreement states that B.C. is not required to prepare or provide a site

profile for any lands transferred to K’ómoks in accordance with the agreement. We’ve

done our best to make sure that we can find any potential issues that might need remediation.

However, down the road, if something was discovered, if it was B.C.’s fault — like,

we did the damage — we would still be held liable for it as we would previously, I

believe. If it is some other company or another organization that caused the damage,

we would work with K’ómoks to go after them for the remediation that they would be

required to do under provincial or federal law.

John Rustad : Before I get into the next line of questioning on this, I request a brief recess.

The Chair : I will give you a five-minute recess.

Interjections.

The Chair : Okay. Because both sides are being nice and agree, it’s ten minutes.

The committee recessed from 4:26 p.m. to 4:37 p.m.

[Darlene Rotchford in the chair.]

The Chair : Okay, we will call the committee back. Just as a reminder, we are on clause 3.

John Rustad : As we’ve been talking about all the lands that are becoming treaty land, K’ómoks land, I’m wondering. As I look at it, it appears this way, but I think I want this

on record as well. Are transportation and utility corridors excluded from the definition

of K’ómoks land?

Hon. Spencer Chandra Herbert : I guess what we colloquially call Crown corridors, so highways and those kinds of things, are usually excluded. There is a provision that

the member might be interested in…. I say “usually” because they are in most cases,

in this treaty.

The one area that is a little different is…. B.C. Hydro worked out an agreement with

K’ómoks prior to treaty in terms of statutory right-of-way access and so on for B.C. Hydro

lines. That’s referenced as one of the appendices to the treaty.

[4:40 p.m.]

John Rustad : I noticed those in the appendices. I was kind of wondering a little bit about that.

The major highways, rail corridors and those things are excluded, which is good to

know. The question is more now as you get into more of the side roads. It’s not necessarily

a highway. It wouldn’t necessarily fall under highway. It might be a regional district

road that would go through.

Obviously, there are a lot of them throughout the whole territory, but also, there

would be a significant number that would go through the treaty land. I’m just wondering

if all those sorts of roads are excluded or whether there is some sort of provision.

Hon. Spencer Chandra Herbert : Under

chapter 10, “Crown Corridors and Rights of Way,” paragraph 19, K’ómoks roads are part of K’ómoks lands, as the member mentioned.

“K’ómoks is responsible for the maintenance and repair of K’ómoks roads. Subject to the terms of this agreement, K’ómoks roads are open to the public unless designated otherwise by K’ómoks. They may temporarily close K’ómoks roads for safety, public order or cultural reasons.

“K’ómoks may permanently close a K’ómoks road. Before K’ómoks permanently closes a K’ómoks road, K’ómoks will (

a) provide public notice and an opportunity for affected persons to make representations

to K’ómoks and (

b) notify the operators of public utilities whose facilities or works may be

affected.”

Then just in terms of the public utilities question the member asked earlier, for

his reference, in “Crown Corridors and Rights of Way,” paragraph 25 talks about some

of the abilities for a public utility in terms of how they would work on K’ómoks lands.

John Rustad : Thank you for that, Minister.

I’m just looking at one map here in particular, but I was looking through the other

maps. It does say on the maps quite clearly “Crown corridor,” where we do have the

roads and the rights-of-way.

I’ve run across, throughout time…. I’m saying that liberally because there are many

things that I’ve looked at over the years where there are lots that have gazetted

access, but it actually hasn’t got a road or a corridor built yet. So this is something

that may not actually show up on a map but may have been originally intended to have

land access and a corridor or road built to it.

I’m just wondering, in situations that will come up — if not this treaty, it may be

in other treaties — where there is private land held that is not developed and there

is a note with regards to potential access that may not have been in here, how that

would be handled in terms of the guaranteed access to the lands that may not have

been identified as part of the exclusion from the actual treaty land.

In other words, you may have a situation where it has become treaty land. However,

there may have been some commitment in prior years, prior decades, to being able to

allow for access to that land. How would that be dealt with?

[4:45 p.m.]

Hon. Spencer Chandra Herbert : Under

chapter 9, the access chapter, it speaks to access to estates and fee simple.

Where we know…. Paragraph 15: “K’ómoks will allow reasonable access to at least as favourable as that which existed immediately

before the effective date across K’ómoks lands, at no charge, to the land set out in appendix F-3

part 2 or to any subdivided

portions thereof.”

Paragraph 16: “Where no other reasonable access exists across Crown land, K’ómoks will allow reasonable access across K’ómoks lands to any fee simple estate adjacent or in close proximity to K’ómoks lands.”

John Rustad : I’m glad to hear that. I’m glad we have that on record, because there are obviously

lots of people that are concerned about access and that side of things, so it’s important

to have that on record that there is that commitment by the K’ómoks People and that it’s actually been considered through treaty with the province and

the federal government in terms of access for these lands.

There are also many areas where…. Well, perhaps not many areas, but there are a number

of areas that are considered now to be, or would be once this treaty is passed, K’ómoks land, treaty land…. It’s so much easier to call it “title,” but anyways…. K’ómoks land that may have been used as trails, recreation, people out walking the dog or

going out horseback riding or these types of things through those lands.

I’m just curious in terms of: will people still be able to access it? Obviously, if

K’ómoks makes a decision to develop and to change the nature of the land, that would change

the trails. But in the meantime, if K’ómoks does not do any development on those areas,

would people still be able to carry on with the activities that they normally would

today, which is to be able to go out and walk the dogs or ride a horse or these types

of activities that they like to do?

Hon. Spencer Chandra Herbert : In the “Public access to K’ómoks public lands and K’ómoks tribal parks” — that’s the

heading; it’s in the access

chapter — paragraph 21 speaks to allowing reasonable public

access to K’ómoks public lands and K’ómoks tribal parks for temporary recreation and

non-commercial purposes, and then it has a list of some of the things that wouldn’t

be allowed, so mischief, nuisance, those kinds of things on those lands.

In terms of the K’ómoks private lands — the current reserve, for example — the nation has the right currently,

as they would have the right in treaty, to decide how those lands are used.

So I can’t speak to a specific horseback riding trail or something like that because

I don’t know the land well enough to describe what they might intend for each portion,

but certainly public lands…. We’ve spoken about parks. We’ve spoken about Wildwood

Forest. We’ve spoken about some of those other things in previous questions.

John Rustad : A lot of this comes from people not understanding what treaty is, what treaty isn’t,

access — those types of things. But there is the potential that the sale of land might

be more challenging, that the sale of a lot by private individuals might be more challenging or that there could be an impact in terms of home prices

or land value because of just the fear of the unknown.

I think the treaty is good in terms of laying this thing out. I think the minister

is being very clear in terms of this. Is there going to be an effort to make sure

that this information is out to landowners so this sort of fear of the unknown can

be dispelled? How is this process going to be undertaken for non-K’ómoks members that

are within the territory and might have land adjacent to what will ultimately become

K’ómoks land?

[4:50 p.m.]

Hon. Spencer Chandra Herbert : Certainly, I would appreciate the member’s help, the member from the Comox Valley,

in helping to educate his constituents around these issues and how they work. Certainly,

people look to us as leaders to help identify what the real risks are. I know it’s

the job of the opposition to raise questions and ask questions that I’d appreciate

your help in providing answers to.

But in terms of what we plan to do and what K’ómoks Nation plans to do, we’ve already

written to landowners that are adjacent — so that has already occurred — to give them

a heads-up about what’s going on. We certainly have responded to questions and will

continue to do so.

Should the treaty get to the effective date, I’m sure that K’ómoks Nation will also continue to do their outreach to neighbours. They work very hard

to build those relationships. We’ll continue to do our work of both helping educate

the broader public about what treaty means and impact on private property rights.

I’ve heard from some realtors who have said that they would love to be able to say

that they were selling land in a treaty area, that they were selling homes in a treaty

area, because they can speak to the certainty on the land in terms of K’ómoks rights being respected and a treaty has been signed in terms of how those

section

35 rights are to be expressed on the land and in that broader treaty area for the

K’ómoks People.

So I think, in fact, it’s a very good-news story, and it’s one that I hope more people

will identify with and understand, because this is what we’re doing in treaty. It’s

building that certainty and building through the work and through heavy work — there’s

still work to be done — of negotiation, conversation, collaboration.

I might mention…. It might be useful now. There had been earlier questions. It’s slightly

a bit of a shift, but just to say it now because I’m not sure if I’ll get an opportunity

to.

The member mentioned, I think it was on Monday or maybe last week…. Anyway, Chief

Roberts was here with Wei Wai Kum First Nation. I thought I should just share with members, because there is interest.

They have proposed an alternative approach to resolve overlap issues, and we’re considering

their draft proposal that they brought to us for looking at the treaty disputes using

Indigenous law.

We’ve met with them to discuss their proposal. We followed up, summarizing some of

the takeaways from that discussion. They have responded with modification based on

that discussion to their proposal, and our teams are looking forward to scheduling

another discussion with them after we’ve also had a chance to discuss their proposal

with K’ómoks this week.

The proposed process involves other parties, Canada and K’ómoks as well. They will each need to decide whether they would participate, and we certainly

are encouraging them to do so. We’ve met with Canada to discuss the proposal. We met

with K’ómoks this morning. They had questions regarding the proposal. We’ve also emailed and connected

with Wei Wai Kum legal counsel to request meetings and further follow-up to discuss questions.

To be clear, if this bill passes, it does not reduce or detract from our intent to

continue to explore this proposal with Wei Wai Kum, Canada and K’ómoks, because we are serious in our intent that we want to make sure that treaty helps

raise everybody up, that it doesn’t lead to further conflicts, that we do consider

each other’s and each nation’s interests here.

So just to put that on the record. I didn’t want this to be a surprise, that these

kinds of conversations are continuing. I think it’s, in fact, important that as we

discuss legislation relevant to the treaty, we also understand that these processes

continue.

John Rustad : I very much appreciate the minister providing that information.

Two questions. I want to talk a little bit about the information the minister just

provided.

[4:55 p.m.]

But just prior to doing that…. Obviously there needs to be an authoritative source

in terms of answering questions about treaty, particularly things like access and

property values and these types of things, property protection.

One of the things about this, of course, is that it’s defining K’ómoks

section 35 rights, what they will and what they will not exercise. A big part of that

is they will not have the ability to put a title claim forward impacting private property.

There’s a definitiveness that comes from that for people’s protection.

I think it’s important that there’s a definitive source that people can go to that

answers questions, maybe even be able to pose questions and get the answers and that

kind of stuff.

Is the government considering setting up some sort of site, a website or some other

and certainty to people that might have these questions?

Hon. Spencer Chandra Herbert : We agree with the member that education is very much important around treaty, how

they work, what impacts could be positive, negative, any sort of impact. The reality

is, I think, both.

We currently have an Engage B.C. website — which was set up, I think, initially for

discussion probably five, six years ago now — where a treaty is posted, where you

have information around the maps, those kinds of things. There’s an active email inbox

that people can send their questions to, and the team works hard to respond.

We’ll continue to do that work with local governments too, to help share that information

— myself, if there’s a need to go and discuss with locals. Certainly if the MLA is

interested in further education, further discussions, so that he can share that information

too, we’re keen. I know K’ómoks Nation is as well.

I believe the MP for the area — we’ve briefed him. We’ve had an extensive briefing

with him, sharing how the treaty works, that there is no impact on private property.

I understand there have been some requests where he said he needs a briefing, because

he thinks there’s a concern for private property. Well, he’s had his briefing, and

he was told at that time that private property was not impacted.

I know it makes good political theatre, but that’s not, in fact, the issue, as he

was told at that briefing.

John Rustad : You know, the minister mentions he’s interested, if available, to go out and do something

in person. Perfect. Can we arrange it for tomorrow afternoon, just before the budget

vote?

It’s getting later in the afternoon. I can’t help but try to get a chuckle out of

the minister.

I’d just like to make a suggestion. Make sure you’ve got a link for K’ómoks treaty, so it makes it simpler for people to go and directly be able to find it. I’m

pleased to see that that’ll be available, because hopefully, it makes it easier for

us to get out there to public and just simply say: “Here is where you can go for authoritative

source of information in terms of it.”

Regarding the information that the minister provided in the process with Wei Wai Kai on the overlap, I’ve got a bit of a curious question.

Obviously, the goal here is to have treaty with K’ómoks but also treaty with the other nations. That’s a process that’s been ongoing. Is

it possible to have treaty territory overlap?

For example, one nation has said that 80 percent of their territory is within the

K’ómoks treaty territory. Obviously, there are significant overlaps of interest. There are

significant overlaps of interest today in terms of

section 35 rights. Is it possible

that, through a treaty, you might actually end up with treaty territory — not treaty

land, obviously, because that’s different, but treaty territory that could actually

be overlapping one another?

[5:00 p.m.]

Hon. Spencer Chandra Herbert : The answer is yes. In fact, in this treaty specifically, we know ɬəʔamɛn and K’ómoks have overlapping areas. They have a protocol agreement, so this treaty would overlap

with their treaty area in that way.

Also, whether it’s Wei Wai Kai or Wei Wai Kum, their interest in treaty, for example, could still be upheld. We’re certainly interested

in their interest in treaty, too, and understand that, yes, you can have those overlapping

areas.

The other thing just to mention. I talked about the Engage B.C. site. I should also

mention the B.C. Treaty Commission as a very authoritative source for people to better

understand treaty. Certainly, working with Chief Commissioner Abbott and all commissioners….

We’re interested in how we can support the B.C. Treaty Commission to do even more

education work because of course they are a very authoritative source on how treaties

are made.

Scott McInnis : I might be…. Oh, maybe not. I was going to say I may be cutting the grass of my friend

here, but I want to look at some of the subsurface resource components here and just

dig in a little bit to what is in the treaty versus the appendix and try to draw some

connections. We may flip through this fairly quickly.

I see on the appendix K-1 that certain sections of parcels have “all subsurface resources.”

Others are subject to certain provisions.

Just really quickly to start off: are there any subsurface resources here, specifically

in the areas that say “all subsurface resources”? Is there anything that’s excluded?

I mean, we’re looking at minerals, sand and gravel, natural gas, petroleum, potentially.

Is there anything which would be excluded from that definition of “all subsurface

resources”?

Hon. Spencer Chandra Herbert : K’ómoks will own formerly Crown-owned subsurface resources under treaty land, but

existing subsurface tenures can continue under provincial law. There is a new policy

approach to subsurface resources in the K’ómoks treaty because of the E&N land grant,

specifically, to resolve the uncertainty of ownership and enable the province to be able to

transfer whatever subsurface resources it does own to K’ómoks. An independent adjudicator

process will be established to assess subsurface ownership claims under K’ómoks land

within the E&N land grant area.

Operational details remain to be developed by staff with the Ministry of Attorney General, my team and the Ministry of Mining and Critical Minerals. Valid claimants would of course retain their ownership. Where no valid claimant

is found, those subsurface resources will first be vested in the Crown and will then

be included in K’ómoks lands after the adjudicative process is complete.

We commit to completing this process within five years after the effective date of

the treaty, unless otherwise agreed to by the parties.

Scott McInnis : I’m just curious. And like I said, we may whip through some of this really quickly.

There are just a few components here that, due to my own fault…. I didn’t do, perhaps,

enough due diligence on

chapter 8, so I’m just looking for some clarification.

[George Anderson in the chair.]

Are third parties able to purchase subsurface rights from the K’ómoks Nation? I’m

just wondering if other outside parties are able to come in and purchase those rights

for the resources.

[5:05 p.m.]

Hon. Spencer Chandra Herbert : Yes. K’ómoks can sell subsurface rights under the land. They can also do things like collect

royalties — do the kinds of things that you would expect if somebody was involved

in mining.

Scott McInnis : Thank you to the minister for that.

I’m just curious. There has been a conversation around mineral exploration and some

of the changes because of Supreme Court decisions around consultation frameworks,

etc. Would there be any circumstance where prospectors could — obviously it would have to be with the permission of the K’ómoks — stake claims

to mineral rights and go through that process that currently exists off treaty land on Crown land?

Is there anything within

chapter 8 which alludes to non-members from outside the community

coming in and participating in mineral exploration? Obviously, again, it would have

to be under some sort of agreement with the K’ómoks. Is there any such agreement that exists, or is the mineral exploration component

only exercisable for K’ómoks members themselves?

Hon. Spencer Chandra Herbert : If K’ómoks owns the subsurface rights, it would be their choice if they wanted to sell them.

If they wanted to invite a miner in for exploration, they could charge fees as they

would want to or not, as the case may be. It doesn’t have to be a K’ómoks member who does that exploration. Really, it would be a matter for the K’ómoks Nation government to make those sorts of decisions.

Scott McInnis : It makes total sense to me that there could be, perhaps, some sort of K’ómoks law that is drafted to allow mineral exploration from others if that was to be the

case.

I’m just wondering if the minister could enlighten us, on the record, about

chapter 8 and the ownership of subsurface resources. Is this a new provision

in modern treaties, a new chapter, to have the treaty nation actually have full ownership

over those subsurface resources?

Hon. Spencer Chandra Herbert : No. It’s not new. It does happen in other modern treaties. The only difference is

the E&N land issue and the adjudicated process, because it’s not completely clear

on certain pieces around: “Is there a valid claimant?” That’s why the adjudicated process exists.

[5:10 p.m.]

Otherwise…. In other treaties, that process wouldn’t be there because it’s much more

clear, in those cases, who the claimants are, who has the land rights,

whereas the E&N is a specific circumstance we have to deal with, with his treaty.

Scott McInnis : Just looking through here, and I made a note of it somewhere.

Maybe the minister can just clarify that under an agreement with a resource extraction

company, a producer that’s brought in, if something is found, the K’ómoks can receive fees, rents, royalties or charges other than taxes.

I’m assuming the answer is no, but under this arrangement, the province holds no jurisdiction

to collect any sort of mineral tax revenue from those resources whatsoever?

Hon. Spencer Chandra Herbert : The tax treatment…. When it comes to mineral resources, the province would vacate

that room. Like, we would not be charging provincial taxes on that. That would be more about the economic

development potential, for example, for K’ómoks, if they chose to pursue that path.

Scott McInnis : Obviously, there are some important questions here, because subsurface resources and

the potential extraction of those resources are a complex and complicated space. Just

trying to understand the K’ómoks law-making authority versus some of the existing provincial legal authority that exists.

I’m assuming the answer is yes, but when it comes to development of any potential

resources within the K’ómoks lands, again, I would assume that K’ómoks does not have the ability to create K’ómoks laws around environmental assessment processes or anything like that. That would still

fall specifically under existing provincial legislation when it comes to the environmental

assessment process?

[5:15 p.m.]

Hon. Spencer Chandra Herbert : In

chapter 6, the lands chapter, it says that notwithstanding paragraph 67, federal

law, or provincial law in respect to subsurface resources, prevails to the extent

of a conflict with K’ómoks law under paragraph 65. So some elements continue to be subject to provincial and

federal law.

In terms of the environmental assessment process, the process outlined in the K’ómoks treaty is generally in alignment with the process available to all First Nations

that are participating Indigenous nations in the Environmental Assessment Act. These

provisions align with what’s generally provided to First Nations at the deep end of

the consultation spectrum.

It was updated to increase clarity of understanding on what K’ómoks can expect when consulted in relation to projects that require a provincial EA in

their territory — so the broader territory, not speaking just to treaty lands but

to the treaty area.

Scott McInnis : Just really quickly, if the minister could answer, does K’ómoks hold any specific ownership of subsurface resources beyond treaty land and into treaty

territory?

Hon. Spencer Chandra Herbert : No.

Scott McInnis : I appreciate that. I knew, 99.9 percent, that that was the case. Perhaps it is getting

late, and we’ve had a lot of debate on certain things, and I may have misheard the

minister in the previous answer about the environmental assessment process.

He touched on consultation with other affected nations, perhaps, but I was just, more

generally, speaking broadly about the entire environmental assessment process that

one needs to go through, say, somewhere else on the Island that’s not on treaty lands.

It’s quite robust. Obviously, it takes quite a long time.

Would that existing regime — I’m not pretending that I’m an expert in the environmental

assessment process, because I’m not — continue on treaty settlement lands, just as

it exists outside of treaty settlement lands?

Hon. Spencer Chandra Herbert : I’ll try to say it again. I think I got it before, but I’ll try this time.

On the treaty area, the environmental assessment process would continue as it currently

does. We would just be, through this, making sure that K’ómoks understands and is treated in this way, as being on the deep end of the consultation

spectrum. That doesn’t affect other nations in terms of how they might be impacted,

but that’s specific to the treaty here, being clear that on this treaty area, they

will be treated on the deep end of that spectrum of consultation.

[5:20 p.m.]

Scott McInnis : I appreciate the minister speaking to that, because it does clarify the piece around

the consultation within the treaty area itself, treating the K’ómoks on the spectrum of having deeper consultation within that.

How, potentially, would that affect…? If we’re, again, looking at the spectrum of

consultation within the treaty area, with disputed territory, is there any framework

set up to deal with neighbours, in the consultation process, for some of those subsurface

resource rights?

Hon. Spencer Chandra Herbert : I think we kind of answered this question a couple of days ago in a roundabout way,

in that the treaty area that other nations may have and do have interest in and do

have rights,

section 35 rights, in those areas…. They have the right, based on their

history and heritage, to be consulted as appropriate, based on their history in that

area.

If they have strong rights because of strong heritage and connection to that area,

through the environmental assessment process, there is a deeper end of that spectrum

of consultation required, in the same way that K’ómoks has a deeper consultation level required.

Now, to be clear, if a neighbouring nation entered into treaty or a treaty-like arrangement,

they could have a similar arrangement in the sense of what K’ómoks has here, where it’s clear that they are consulted on the deep end. But I know the

environmental assessment process in that act is separate from this legislation, so

very detailed questions on environmental assessment probably…. I can try my best,

but that’s not what we’re here for.

Scott McInnis : I’m just wondering about third parties, for a second — purchase agreements. Perhaps

this is something that would be solely up to the K’ómoks later. Just around any sort of renewal rights or anything to subsurface resources

that would be purchased by third parties.

Is there anything set out in the treaty which would guarantee any renewal process?

Or is that something that would come later in negotiation with the K’ómoks, as far as specific regulations drafted by the K’ómoks or other laws from the K’ómoks that would relate to that?

Hon. Spencer Chandra Herbert : Moving from the broader treaty area back to the treaty land, if K’ómoks own those rights, they would have the right to make a contract with a third party,

as would be expected, as any landowner who held the subsurface rights would be able

to do. Whether that had a renewal clause, how that worked, that would be up to them.

Scott McInnis : I just have one more question before I pass it off to my friend from Nechako Lakes.

Just to clarify, the subsurface resources are wholly owned in the treaty lands by

the K’ómoks, so there is no obligation whatsoever for the K’ómoks for any type of revenue-sharing agreement with the province, any royalty agreement

with the province. That revenue and those fee structures, whatever that looks like,

are solely for the K’ómoks Nation?

[5:25 p.m.]

Hon. Spencer Chandra Herbert : I think the member is mostly correct. I would differ in that, on the treaty land….

I mentioned the issue with the E&N land grant and some of the questions around ownership for some of those subsurface rights. Where it’s clear that ownership is there, that would be the case. Then there’s

the adjudicated process that I mentioned, which would have to take place before declaring clarity

on some of those subsurface rights because of the E&N land grant and what has played

out with that.

Scott McInnis : I just wanted to jump in for one more before my friend takes a line of questioning.

Just to be clear, and I think I know what the answer is, that revenue-sharing obligation or structure of any sort of fee allocation would not apply in the broader treaty area. That would be not under the sole ownership of the K’ómoks Nation.

Again, in the broader treaty area, there still would be the opportunity for the province

to collect mineral tax revenue. There could be revenue-sharing agreements, based on what the project is and who the proponent is that’s doing the

work on the land base. But it’s only the treaty settlement lands, which have subsurface resource rights

fully owned by the K’ómoks Nation, for which there is no obligation to share or any

sort of revenue-sharing structure. Is that right?

Hon. Spencer Chandra Herbert : I could say, short answer: yes. The lands that are the treaty lands of K’ómoks, the

subsurface rights — if they were to do mining in that area, there’s no obligation

on them for revenue sharing within those very specific treaty lands.

John Rustad : I’m curious a little bit. I think we talked about this a little bit during the estimates process earlier this spring, but when we talk about subsurface rights, what’s the precedent that has been set

in British Columbia allowing Indigenous People, whether it’s through treaty or otherwise, to be able to have subsurface rights

assigned to them?

Hon. Spencer Chandra Herbert : Well, similar to when the member opposite sat over here, subsurface rights have always gone along with modern treaties in those

packages, so it’s the same with the other modern treaties. That has been government

practice.

John Rustad : And in terms of subsurface rights, just to be clear, the subsurface rights only apply

to the treaty land, not to the treaty territory.

Hon. Spencer Chandra Herbert : That’s correct.

John Rustad : It’s interesting when I think about the subsurface rights and the fees and payments.

Obviously, under regular Crown land, when there’s subsurface rights or subsurface activity of a mine, the province

collects a royalty. Often, there’s revenue sharing with the First Nation whose traditional territory is in there. I assume that that would be in place for within the territory of the treaty.

I know my colleague was asking about this. I didn’t quite hear, or I didn’t quite

pay enough attention, so I just want to ask it again, just in terms of how that would

be split, in the revenues generated. Are there revenues that would be assigned to

the Crown, to the province?

[5:30 p.m.]

Or, assuming there’s some subsurface activity that would be happening, would all the

revenues go to the nation, as opposed to being split, the way it would be under, say,

territory out in Crown land?

For example, if I’ve got a coal mine, if I put in a coal mine, the revenues…. As a province, we charge a royalty associated with the coal being extracted, and often we’ll sign an agreement with

the First Nation with a share, a portion, of those revenues to the affected nations

of that coal mine.

I’m just wondering how it works if it is an activity that is happening underneath

title land in terms of…. Is there any expectation of a share with the province, or

is 100 percent of that under the nation’s ownership?

Hon. Spencer Chandra Herbert : I think I’ve answered this three or four times now.

It very much is that if it is the treaty land itself, should there be a mining project

that the nation agrees to see proceed in those treaty lands, those royalties, revenues,

rents, etc. go to the nation.

John Rustad : One of the reasons, obviously, for a revenue share between the province and the nation

in areas that aren’t on treaty lands, on areas that are out on Crown land or that

sort of thing, is because there’s an impact to the treaty nation for the rights. But

a mining activity would have an impact on the province in terms of the things that

need to be looked after and issues that need to be done.

I’m just surprised that there isn’t an opportunity for a revenue share to go to the

province for any subsurface activity. But that’s probably the same in all the treaties. I don’t know if it is or not. It’s one of the things I just want to highlight that

should have been a consideration that I guess we should consider for future treaties

or change to treaties just in terms of how that’s addressed.

Under “Subsurface Resources,” it says, “nothing in this agreement confers authority

on K’ómoks to make any laws in relationship to,” and it has a list here, including subsurface

tenures, closure, reclamation, all these types of things. So, obviously, it has to

follow provincial laws associated with that.

One of the things that’s not talked about — at least, I haven’t noticed it yet, and

I may have missed this in other chapters of the treaty — is, for example, carbon emissions,

carbon tax, those types of things associated with mining activity. Obviously, when

there’s a mine or where there’s some sort of extraction of a subsurface resource,

often there’s CO 2 associated with it. Or if, quite frankly, there’s any industrial activity, there’s

CO 2 associated with it, and we have an industrial carbon tax that’s put in place. We

have, obviously, emission targets that have been set in place, working towards net

zero and all these sorts of things.

How does that apply to the treaty, and can the K’ómoks Nation override or write its own rules associated with the emission of CO 2 ?

Hon. Spencer Chandra Herbert : I’ll respond quickly and then respond again to the carbon one.

I just want to make sure…. I’ll have to keep this in my head. So to correct the record,

K’ómoks does….

[5:35 p.m.]

Sorry. In the “Subsurface Resources” chapter: “paragraph 2 does not limit B.C. from

collecting and receiving fees or other payments for administering the exploration,

development, extraction or production of subsurface resources from K’ómoks lands under provincial law.”

That’s different than a royalty. But if there was a provincial cost for doing that

administration, that could be charged. So that’s one side to that.

And then in the “Lands” chapter, under “Law-Making Authority”: “Notwithstanding paragraph

67, federal law or provincial law in respect of subsurface resources prevails to the

extent of a conflict with a K’ómoks law under paragraph 65.” Again, speaking to their….

It can’t just be any sort of mine. The provincial standards, federal standards would

prevail.

K’ómoks tax-making authority. When it comes to something like a carbon tax, they have

the right to do a direct tax on their members but no one else in that relation.

John Rustad : Yeah, I understand they have the right in terms of the taxation. What I was actually

wondering about is: do they have to follow emission targets, environmental emission

targets and things that are set up, or can they create their own stand-alone climate

strategy, if you want to call it that?

Hon. Spencer Chandra Herbert : Same answer, that federal or provincial law would prevail, would apply. So if there

are emission caps, emission targets, climate plans, climate actions which require

X amount of carbon or lower, those laws would apply on K’ómoks lands as well.

John Rustad : I don’t have any other questions on subsurface. That’s good for now.

But I was looking here at “Access.” We’ve covered off a bunch of those questions already

in terms of it, and I appreciate the fact that the minister is allowing us to wander

around through the treaty somewhat.

Interjection.

John Rustad : But that’s fine. I just appreciate that you’re humouring us with it.

When I looked at it, “Access”…. Often many people on Crown land, when you have a fire

that goes through or something like that, might go out picking mushrooms or other

types of things — berries, those types of things — on lands. So I’m just wondering

whether people have that same sort of right of access or whether that’s something

that would have to be regulated or permitted by the K’ómoks People, both within their

traditional territory as well as on K’ómoks lands.

Hon. Spencer Chandra Herbert : K’ómoks public land — public access would continue. K’ómoks private land, as we discussed,

could be default private unless K’ómoks wanted to make sure that people could continue

to access that K’ómoks private land.

[5:40 p.m.]

But to be specific, under the “Access” chapter, paragraph 21 does speak about allowing

“reasonable public access to K’ómoks public lands.” But it does specifically say,

“harvesting or extracting resources owned by K’ómoks, unless authorized by K’ómoks

or in accordance with the agreement” is not included.

So you can’t just go on to K’ómoks public land, Seal Islets or one of those parks,

and just start taking stuff, which is the same as a provincial park in that sense.

You can’t cause mischief or nuisance. You can’t cause damage to K’ómoks public lands

or K’ómoks tribal parks or resources on those lands. You can’t interfere with other uses authorized

by K’ómoks or with the ability of K’ómoks to authorize uses or dispositions of K’ómoks public lands or K’ómoks tribal parks, in accordance with this agreement. Public access does not include those

things.

John Rustad : Yes, I read through that. It’s one of the reasons why I looked at it, because when

I hear — maybe it’s just from coming from the North — resources I think timber or

rock, mines, maybe water, those types of things. I don’t often think of food as a

resource, and maybe I should.

When it says here “harvesting or extraction of resources,” does that include food

substances like berries, other herbs or things like mushrooms — those types of things

that would grow wild, obviously not cultivated, but would grow wild and be available

in those areas?

Hon. Spencer Chandra Herbert : Generally speaking, those that own the land own the resources. A mushroom growing

on your private land…. Even if it’s stated as public land in this sense, it’s still

owned by K’ómoks. People would have the right to use those lands and go and enjoy them, but they couldn’t

go cut down their Christmas tree, for example.

John Rustad : I guess where I’m stumbling here a little bit with the minister’s answer on this is

that I understand K’ómoks treaty lands. I understand K’ómoks land, which we can call private land or title or whatever we want to call it in terms

of it. But K’ómoks land is the terminology that we’ve decided to call it through this process, which

is probably the right terminology that I’ve learned from the minister.

I don’t understand what K’ómoks public lands are. Is that treaty land, which would be the same as Crown land in many

respects in terms of going out and carrying on these activities? Or is that talking

about treaty land as opposed to treaty territory?

Hon. Spencer Chandra Herbert : Sorry, I was providing a distinction within the treaty land section. So there’s treaty

land. Within the treaty land, there is public treaty land and there is private treaty

land. Outside of that, there’s the broader treaty area, but that’s not what we’re

talking about here. We’re talking about the public land within the treaty land.

That public land…. You can use it, but you can’t go harvesting mushrooms. Sorry.Maybe

K’ómoks would change their mind if you asked very kindly. I don’t know. I would say, though,

that it’s very clear that they own that resource.

When it’s beyond that, so that broader treaty area though, the current rules, current

protocols still stand.

John Rustad : That’s good to clarify because I had — sorry — forgotten that some of the treaty lands,

which is the private land component, will be made public lands, available even though

it is treaty land, equivalent to private land. Yeah, okay. So that clarifies that

in terms of stuff.

The next series of questions I have, and I just want to check with my colleague here,

is going to go off onto the harvesting rights and fisheries.

I’ll pass it over to my colleague.

Scott McInnis : We briefly touched on this. I don’t even know what day it was. I just want a little

bit more clarification. So K’ómoks does retain the authority to restrict access. It

could be for safety or cultural reasons and what have you.

[5:45 p.m.]

I’m just wondering about how that looks in the case of an emergency. If there is an

access restriction, but there is an emergency which requires outside support — it

could be a wildfire, what have you — how will access…? If it’s physically restricted,

how will we ensure that provincial services are able to access treaty land, if needed,

when there is restricted access, physically, that you can’t actually get there?

Just wondering, in the case of an emergency, which I think is fair to think about

with flooding and fires and these other things, how we would overcome potential closures

in order to deal with those emergencies.

Hon. Spencer Chandra Herbert :

Chapter title, “Access,” paragraph 7, speaks to the issue and speaks specifically

that access can be carried out to respond to emergencies and natural disasters. There’s

more text here, but the member can see it.

Scott McInnis : I think we’ll move into some harvesting rights here, if we may. I’ve just got to get

my ducks in a row here, real quick.

Just curious…. Maybe I’ll jump to the back first, when we’re looking at fisheries.

I believe it’s page 160. We have a nicely laid out table with annual allocations,

which is displayed in, I believe, pounds. I had that here a moment ago, which would

make sense if it was in kilograms. Maybe the minister could just correct me if it

is pounds or kilograms. It’s not a big deal necessarily.

Just wondering. I’m interested in the process for the allocation of some of these

annual species. There’s obviously, for specific species — chinook salmon being one

that’s quite a bit less, as far as poundage, as opposed to something like herring,

which is much more readily available….

Just curious, the process to how the K’ómoks and the province came to these determinations around maximum annual allocations for

the fishing harvesting.

Hon. Spencer Chandra Herbert : These areas, specifically, are under federal jurisdiction, so there are no B.C.-managed

fish allocated under the treaty. In terms of how those allocations were done, that

was a negotiation between K’ómoks and the federal government.

Scott McInnis : That makes sense, because when I’m looking at the species, those are all saltwater

fish.

That would make total sense to me, which actually would lead me away from my second

question, just about the flexibility around some of those numbers — if there were

studies done about the sustainability of some of those fishing numbers.

Could the minister perhaps just talk for a moment, give us a little insight into some

of the scope of the fishing rights? How are those rights exclusive or shared or priority-based

relative to other users? I’m thinking of neighbouring First Nations.

[5:50 p.m.]

Hon. Spencer Chandra Herbert : It’s a non-exclusive right in that others get access. Other nations will have the

same access, or same rights, I should say, to fish in those areas. But it’s managed

by the federal Minister of Fisheries and Oceans, so they have final authority on all

fisheries for federally managed fish, which does account for the vast majority of

fishing pursued by treaty nations. Salmon for sure. I know crab is in there, as well,

and a couple others.

Of course, K’ómoks will participate in the management of the domestic fishery through the preparation

of annual plans that would be submitted to the minister and will inform the K’ómoks harvest documents, membership on a joint fisheries committee, designating and documenting

persons authorized to harvest and through negotiation of enforcement agreements, but

it’s very much federal and K’ómoks in terms of that relation.

John Rustad : I recognize that this is more of a federal issue than it is a provincial issue, so

the minister might not be able to answer these types of questions, but I appreciate,

once again, the minister making best efforts.

Just some language. Sorry, this is just me trying to figure this out. Where, for example,

it says “the K’ómoks fishing rights is held by K’ómoks and cannot be alienated,” I’m just curious, sort of, how that…. What do you mean by

the definition of “alienated”? What would constitute being alienated?

Hon. Spencer Chandra Herbert : The K’ómoks fishing right is a communal right, held collectively by K’ómoks, so that right cannot be sold, transferred or given away. So that would be alienated.

John Rustad : That’s what I kind of thought it was. They can exercise those rights and can sell

the products that are harvested, but the right itself cannot be transferred, which

is good to know.

It also says “the agreement does not alter federal law or provincial law in respect

of property in fish and aquatic plants.” I’m just kind of wondering what that means.

It doesn’t quite read right to me, so I’m just curious what was meant there.

Hon. Spencer Chandra Herbert : To clarify something the member said …. He said that K’ómoks will have the right to sell their fish. There’s a very limited ability to do that.

There’s a bunch of provisions in here around that.

I think his other question around aquatic plants…. We are trying to be as clear as

we can under the fisheries

chapter that it doesn’t alter federal law or provincial

law in respect of property in fish or aquatic plants. As the member knows, sometimes

things that move can be somebody’s property when it does one thing and somebody else’s

property when it does something else in terms of the federal or provincial laws, where

they apply, and that’s what that speaks to.

John Rustad : I thank the minister. Yeah, I recognize there’s only a portion that would be allowed.

Most of the harvesting, obviously, is for internal use by the nation. But it’s still

an important component.

I want to ask a little bit about 19, under the fisheries, which is that nothing in

this agreement precludes K’ómoks members from harvesting, fish, etc. So if I read this right, they have the ability

within the treaty to access, but beyond that, they would be able to fish in accordance

with provincial or federal laws. In other words, they could do additional fishing

if they had licences and permits to do so. Their treaty doesn’t limit them from participating

outside of what would be considered the treaty rights.

[5:55 p.m.]

Hon. Spencer Chandra Herbert : Yes. They would still have the ability to purchase a licence to go to the salmon derby

somewhere or the fishing derby somewhere else just as British Columbia citizens. They,

of course, are B.C. citizens and have that right.

John Rustad : When I look at the list under

schedule 1, prawns and crabs are included. What’s not

included in here are things like clams, mussels, geoduck, other oysters, other types

of shellfish that typically have made up, for the K’ómoks Nation, part of their diet, part of their traditional ways but also economically

in terms of what they’ve been going after.

I didn’t see that listed under

schedule 1, and I’m just wondering if that’s being

excluded from the treaty. Or is there some component I’m missing in terms of their

rights and ability to carry on those activities?

Hon. Spencer Chandra Herbert : While there is not an explicit “you can take this amount of shellfish” listed — there’s

not that designation in here — they do retain the right to continue shellfish aquaculture.

They have a number of aquaculture operations, as the member mentioned. They have retained

the right to continue to do that sort of harvesting, and it is important to that culture

for sure.

John Rustad : I’m just curious, because that is something that I’ve talked over the years with….

The K’ómoks Nation is very proud of the work they’re doing and particularly in the harvesting

of those shellfish opportunities.

I was a little bit surprised when I didn’t see it mentioned in here. I was like: “Well,

wait a second.” So that’s basically just under the federal, provincial laws that currently

exist and the activities that they’re carrying on with. That’s interesting to see

in terms of it, but that’s just an interesting thing to see. It doesn’t particularly

impact the treaty.

I just want to clarify, as well, because obviously there are areas that are defined

as K’ómoks fishing areas within their treaty boundaries. I just want to confirm, so that people

know, that the public still has the ability to go in and access and to fish within

those fishing areas as well as other nations, of course, under their

section 35 rights.

Hon. Spencer Chandra Herbert : Fish is inclusive of shellfish, just to put that on the record, and yes, people would

still be able to do their fishing as long as they had a licence.

John Rustad : Of course, unless you’re Indigenous.

Hon. Spencer Chandra Herbert : Unless you have that treaty right.

John Rustad : Or Indigenous right,

section 35 right.

I appreciate the fact that we’re being pretty casual in terms of our discussions back

and forth, so I appreciate your lenience, hon. Chair, but a quick question to the

minister.

[6:00 p.m.]

Associated with this is commercial fishing as well. I didn’t see anything really referenced

in here, so I’m assuming there are no restrictions, but I just want to make sure it’s

on record in terms of the ability of commercial fishing within the K’ómoks treaty areas.

Hon. Spencer Chandra Herbert : That process is managed by the federal Department of Fisheries in terms of priority

access, what you do based on the number of fish you have — those kinds of things.

That would be a process managed at that level.

Scott McInnis : I’m hungry, hon. Chair. I could go for a crab cake after all that discussion of seafood.

But in all seriousness, moving on to wildlife, migratory birds and plants — a lot

of similar language related to fisheries about harvesting and the ability to barter

and trade meat among not only K’ómoks members but Indigenous people in general, which

I know is a really important part of culture for Indigenous People, that ability to

barter and trade in food.

One thing I didn’t notice in here, and perhaps the minister could please correct me

if I’m wrong…. I just didn’t see anything, at least that I had highlighted. Perhaps

this is a process that’s undertaken under the drafting of specific K’ómoks laws, which

is why it’s not in here, at least that I saw — any sort of harvest levels of any specific

migratory birds or wildlife.

Obviously, for non-Indigenous people, bag limits are strictly adhered to. I’m just

curious if there is a provision that I’ve missed or, again, if that’s something that’s

coming later which the K’ómoks would draft through K’ómoks law, as far as harvest

levels and bag limits and things like that on various species.

Hon. Spencer Chandra Herbert : This is under the “Wildlife, Migratory Birds and Plants” chapter. “The K’ómoks right

to harvest is limited by duly authorized measures necessary for conservation, public health or public safety.” The Ministry of Water, Land and Resource Stewardship will still have an obligation to…. If there was an issue with a certain harvestable

species, they could still put limits and intervene as necessary for conservation,

public health or public safety.

There are specific allocations when it comes to elk. I don’t know…. I can go into

those, or the member….

Oh, he has got them. Okay.

Scott McInnis : Thank you to the minister for that. I did see the component — and I didn’t mention

that in my

preamble — about the Roosevelt elk specifically.

Yeah, that’s nice to hear, that there still is some jurisdictional authority. It’s

not so much the authority. I think it’s that the ministry has the resources available

to monitor species numbers.

[6:05 p.m.]

The minister said something interesting, which I actually didn’t think of, but it’s

the top of mind now, around health and safety for the public and for K’ómoks members around what could be potential issues around things like chronic wasting

disease, etc., which would be helpful for the ministry to continue to monitor and

potentially restrict access if something like that comes up.

I just wanted to pass it back over to my friend. I think he had one more question

around fisheries.

John Rustad : I very much appreciate my colleague just passing it back over to me.

It’s actually under “Wildlife, Migratory Birds and Plants.” In particular, one of

the issues that has come up and been mentioned by many First Nations to me is predators.

In particular, sea lions and seals can consume a tremendous amount of salmon and have

a significant impact, especially in places like the mouth of the Fraser River, where

they hang out. All the salmon are coming down, and they consume many, many tonnes

of wild salmon that go through the area.

There has always been this bit of friction, the desire to be able to manage predators

like sea lions and seals in terms of things. I guess what I’m asking is: do they have

the right or ability to be able to go in and manage a predator like that, or are there

some other restrictions, both provincial and federal, that would prevent them from

undertaking those kinds of operations?

Hon. Spencer Chandra Herbert : Well, it would depend on the critter. It would depend on the animal that we’re talking

about, but also, federal and provincial laws would still apply. There is nothing that

we can see in the treaty that speaks to a specific right to do predator control in

that sense.

However, I know there’s a joint fisheries committee that could be looking at those

issues, for example, in conversation with the federal or provincial minister, whether

it be a land-based or ocean-based issue. Of course, that predator control…. I understand

the interest, but there’s no new processes within this that would change how that’s

being treated.

John Rustad : I appreciate the answer from that. It’s one of those things that is always out there

and being talked about, but everybody is kind of afraid to talk about it too much

publicly because, obviously, there could be some pushback in terms of it. But it’s

not an insignificant issue in terms of wild salmon and wild salmon stocks. That’s

why I was wondering whether something like that would be in the treaty. But if it’s

not, that’s fine. That might be one of those things that’s negotiated ten years from

now. Who knows?

I found it curious, in terms of law-making, that the K’ómoks may make laws in relation to K’ómoks rights to harvest in respect of designating K’ómoks members who may exercise the K’ómoks rights of harvest.

The reason why I’m wondering about that is because, obviously, under

section 35 rights,

Indigenous People have the right to harvest. Does this mean that K’ómoks itself as a nation may restrict its own

section 35 rights upon its own members?

[6:10 p.m.]

Hon. Spencer Chandra Herbert : Harvesting, the right to harvest, is a collective right held by K’ómoks. K’ómoks law and the treaty do allow for them to create laws around how that right

is exercised. It’s not uncommon for nations to do that.

Because it’s held collectively, it doesn’t mean that any individual could just go

and harvest. They could create requirements around training, cultural protocols. They

could create requirements around licensing. “Do you know what you’re doing out there?”

Those kinds of things are certainly thought about in why this is in the treaty in

the way it is.

John Rustad : I do find that curious, though, because it’s something that, because it is a right

under

section 35…. It makes sense, obviously. I think that’s sort of the way it should

be, but I do find it curious in terms of how that would be applied and how they’ve

decided to structure that to support their own people.

For the harvesting agreement for migratory birds…. There are ducks, there are geese,

and there are other migratory birds that go through. It says the K’ómoks will negotiate

and attempt to reach an agreement on a designated harvester agreement for migratory

birds.

Is that something that would be within the provincial or federal or both in terms

of how that’s structured? Have those discussions started, or is that something that’s

to be done after the treaty implementation date?

Hon. Spencer Chandra Herbert : It would be a negotiation with the federal government. It hasn’t started yet. It would

take place after the treaty effective date.

John Rustad : When I look at the trade and barter component, it’s interesting that they can trade

and barter wildlife, carcasses, migratory birds, plants and other goods made, within

the people and also with other Aboriginal People. Historically, after contact, they

had that right, and they did that with non-Indigenous people.

I’m just wondering why there doesn’t seem to be a provision there in terms of their

ability to trade and barter or whether trade and barter doesn’t include certain outright

sale, which would be something different, with non-Indigenous people.

[6:15 p.m.]

Hon. Spencer Chandra Herbert : I got a lot of good advice that I’m trying to sort through in my brain. There are

a few things.

K’ómoks and K’ómoks members may, in accordance with federal law and provincial law, sell wildlife carcasses

and plants harvested under the K’ómoks right to harvest. They have that right in accordance with federal law and provincial

law.

On trade and barter, my understanding — I’m sure there are legal scholars who could

explain it in a much better way — is that the right to trade and barter existed pre-contact

between other nations. At contact, that’s when it shifted, in the sense of sale to

non–First Nations. That’s why the right of sale is there, but the right of trade and

barter was with other nations at the point of contact.

That’s, I think, the legal understanding. I’m sure there are probably more than a

few cases in case law that the member could peruse at his leisure.

John Rustad : Trade and barter. It’s just because it was specifically in here as trade and barter.

Obviously, that doesn’t fall within our normal sale, recorded as sale, taxation of

sale, all that kind of stuff, which is why I looked at it and went: “Hmm, this is

kind of interesting.”

Is there anything in here in the treaty — whether it’s from the harvesting of fish,

of wildlife or migratory birds or the components that come from that, down to other

types of things that may be a product or a by-product — that gives the nation the

right to be able to sell that in an export market, beyond what the laws of Canada

may state?

In other words, do they have that right to export, or does it have to go through whatever

sort of Canadian laws or structure that might be in place?

Hon. Spencer Chandra Herbert : There’s a difference between transport and export, and this paragraph speaks to the

export. If the member wants to know about the transport, he can also look in the “Wildlife,

Migratory Birds and Plants” chapter. This is

chapter 56.

Chapter 53 speaks to the

transport.

Any export of wildlife carcasses, migratory birds or plants harvested under the K’ómoks right to harvest will be in accordance with federal law and provincial law, so it

must fit within the jurisdiction, procedures and policies.

The Chair : We’re on clause 3. Recognizing the member for Nechako Lakes.

John Rustad : We might be on clause 3 all night, but I appreciate that, hon. Chair.

I appreciate that answer. I was just trying to understand because, prior to contact,

there was trade outside of Canadian boundaries. That’s why I was wondering whether

or not, as part of the treaty, there was an agreement to follow within Canadian laws

or whether it had given them the ability to be able to move outside of Canadian laws.

One more question. Because the K’ómoks Nation has the right to be able to create laws associated with harvesting, around

this I’m just wondering whether they have the right to be able to restrict, limit

or actually prevent the harvesting of any kind of wildlife within the area outside

of the provincial law.

For example, the province may say that X number of a species may be taken. They may

say: “No, we want to take conservation measures and prevent any harvesting.” Is that

allowed?

The next question, following up on that, is non-Indigenous people’s right to be able

to go within the treaty territory or, for that matter, treaty land, which, of course,

is a little different in terms of their ability to be able to harvest migratory birds

or other wildlife.

[6:20 p.m.]

Hon. Spencer Chandra Herbert : K’ómoks legal-making authority on this question is in respect to their own members. I think

it speaks to the methods, timing and location of the exercise, the K’ómoks right to harvest. So they could certainly make decisions, as we discussed earlier,

in relation to restricting access for their members to do the harvest. They could

say, “You just can’t harvest these ones,” but that doesn’t impact others in that broader

treaty area.

Of course, we already talked about the public land within treaty land and the implications

on those ones, which are different.

John Rustad : One last question, and then I’d like to ask for a recess.

The last question is just in terms of…. Obviously, there can be some discussions around

harvest levels of various species that often happen between the province, between

First Nations, between the Wildlife Federation and the guide-outfitters, these types

of things. Is there a specific table that is set up for the treaty territory that

would have those partners included in terms of how wildlife should be managed?

Hon. Spencer Chandra Herbert : The member is likely referring to paragraph 58 in the “Wildlife, Migratory Birds and

Plants” section, which speaks to meeting “at least once each calendar year to share

harvest level information and to discuss and, where appropriate, make recommendations

to the minister regarding wildlife management and enforcement issues within the K’ómoks harvest area.” It goes on to express a couple of the other areas that could be discussed

in such a meeting.

Beyond that, of course, the Ministry of Water, Land and Resource Stewardship, I know, works quite extensively in the area to look at harvest levels, to look at

allocations, to look at impacts and how the nations in that area and how other harvesters

and others interested in hunting and harvesting in that area could be impacted — looking

at all of those kinds of inputs to come up with the best decisions for ongoing support.

The Chair : Recognizing the member for Nechako Lakes.

John Rustad : I’m jumping the gun. I apologize, hon. Chair, but I would like to ask for a recess.

The Chair : Okay. Minister, you’re okay with that?

We will take a brief recess and return at 6:35 p.m.

The committee recessed from 6:24 p.m. to 6:36 p.m.

[George Anderson in the chair.]

The Chair : Good evening, committee members. We’re calling the committee back to order on Bill 20, K’ómoks Treaty Act, and we are on

clause 3.

Recognizing the member for Nechako Lakes.

John Rustad : I appreciate that, Hon. Chair. Thank you for the brief break. I think we all got a

chance to have a little bit to nibble on, which was always good because at this time

of night, especially working through dinner, it can create some challenges.

The Chair : You don’t have to work through dinner.

John Rustad : That’s true. Well, actually, if you’d allow me to eat in here, we’d be all good.

On to clause 3. I’m just curious in terms of when we’re developing the management

framework for co-management agreement negotiations and, in particular, thinking about

forestry…. There are many other components, but I just want to ask the question around

forestry directly.

My concern is some of the agreements that have been done historically between First Nations and

the province have not included the requirement to manage forestry operations sustainably.

There have been times when there has been overharvesting, dramatic overharvesting,

and there have been times when a First Nation has made a decision not to do any harvesting.

Obviously, there’s a lot of volume of timber and potential forestry volume within

the treaty territory.

The question I have for the minister is: as part of the agreement is the solid commitment there between the K’ómoks Nation and the province to be able to carry

on forest operations at a sustainable level and not overharvest or not prevent harvesting,

so that the forest operations in the area can count on a reliable supply, managed

appropriately, from the treaty territory?

Hon. Spencer Chandra Herbert : I think when we were talking about the co-management agreement discussion a couple

of days ago now, it was clear that we don’t have any co-management agreements with

K’ómoks specifically through this treaty for forestry at this time.

[6:40 p.m.]

That’s something that could be arranged in the future, perhaps, but it’s not currently

live.

Now, to be clear, K’ómoks does have a forestry tenure that it manages in partnership with Wei Wai Kai, Wei Wai Kum and Ławit’sis and a woodlot as well. So they are very much involved in forestry.

But the treaty area lands — not the treaty lands, but the treaty area; treaty territory,

as the member calls it, but I think we call it treaty area — are still managed by

Ministry of Forests.

John Rustad : For lands that may be purchased, pre-approved additions to the treaty lands, obviously

that’s a significant area — 18-point-some-odd square kilometres. There are a lot of

forest resources within those lands and on those lands.

As part of the treaty, is there an agreement already in place that if those were purchased,

they would be managed as forest managed lands, or is that up to the nation to decide

what they want to do with it?

Obviously, if you’re taking that land out, 18-point-some-odd square kilometres out

of the total 34 square kilometres, that’s more than 50 percent of the area. That would

significantly impact the amount of volume that is being made available for forestry

from within the treaty area, as the minister calls it.

[Stephanie Higginson in the chair.]

Hon. Spencer Chandra Herbert : Should K’ómoks decide to purchase those pre-approved areas and add to the treaty lands, they would

then retain the right to make decisions about what to do with those forest resources.

They are, I’m told, quite small in terms of total area for allowable cut, total amount

that you could pull through them. They are, though, of course, currently woodlots,

so there is timber value, no question. I know K’ómoks currently is operating a woodlot as well, and we’re talking about three additional

woodlots.

It’s similar to the discussion around resources, that they would have that right to

make decisions about those resources that they own.

John Rustad : I guess one other question that’s come to mind just in terms of the forestry and forestry

side of operations is, obviously, log exports, in terms of log exports not being restricted

from private land, or not as restricted in terms of private land, versus off of Crown

land.

I’m assuming, under the treaty lands that they currently have, which, obviously, don’t

have a whole lot of forestry on them…. The potential additions to K’ómoks land could potentially have some opportunity for export of trees, if that’s what they

so desired.

I’m just wondering if there are any provisions around that or whether that just falls

to the federal and provincial laws.

Hon. Spencer Chandra Herbert :

Chapter title, “Forest Resources,” paragraph 8: “K’ómoks, or a person authorized by K’ómoks, may export Logs harvested from K’ómoks Lands in accordance with Federal Law and policy.”

John Rustad : That’s what I thought, so I just wanted to make sure that was on the record in terms

of it.

[6:45 p.m.]

In terms of