2007 Legislative Session: Third Session, 38th Parliament

HANSARD

The following electronic version is for informational purposes

only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

MONDAY, OCTOBER 22, 2007

Afternoon Sitting

Volume 22, Number 12

CONTENTS

Routine Proceedings

Page

Introductions by Members

Statements

Maa-nulth First Nations treaty

Hon. M.

de Jong

Introductions by Members

Tributes

Norman Joe Sr.

D. Routley

Statements (Standing Order

25 B )

Breast Cancer Awareness Month

C. James

Land use agreements in Sea to Sky

area

McIntyre

Waste Reduction Week

Simpson

Captain George Vancouver Week

J. Yap

School libraries

Cubberley

Small Business Month and Langley

business awards

M. Polak

Oral Questions

Removal of land from tree farm

licences on Vancouver Island

C. James

Hon. R.

Coleman

Horgan

Simpson

Treatment of seniors in health

care facilities

C. Wyse

Hon. G.

Abbott

Gentner

Eviction of tenants in Fernie

Macdonald

Hon. R.

Coleman

Withdrawal of housing subsidy for

Vancouver tenant

J. Kwan

Hon. R.

Coleman

Petitions

S. Fraser

C. Wyse

Committee of the Whole House

Adult Guardianship and Planning

Statutes Amendment Act, 2007 (Bill 29) (continued)

Trevena

Hon. W.

Oppal

L. Krog

Reporting of Bills

Adult Guardianship and Planning

Statutes Amendment Act, 2007 (Bill 29)

Third Reading of Bills

Adult Guardianship and Planning

Statutes Amendment Act, 2007 (Bill 29)

Second Reading of Bills

Tsawwassen First Nation Final

Agreement Act (Bill 40) (continued)

Routley

Hon. T.

Christensen

Sather

Hon. C.

Hansen

C. Wyse

R. Lee

Chouhan

[ Page 8687 ]

MONDAY, OCTOBER 22, 2007

The House met at 1:34 p.m.

[Mr. Speaker in the chair.]

Introductions by Members

C. James: It is my great pleasure to introduce two very

special women who have travelled a long way to be with us today. Phelda Kayola

and Matilda Mwenda are part of a larger group of African grandmothers promoting

the Stephen Lewis Foundation's premiere of the documentary entitled Women:

The Face of AIDS .

Phelda Kayola, whose husband died of AIDS, is the mother of six

children and also cares for her late brother's children. She is a registered

nurse, a midwife trained in palliative care and the manager of Ranchod Hospice

in Zambia, where she looks after dozens of children.

Matilda Mwenda is the mother of seven children and cares for eight

orphans in her home. She has lost two children, four brothers and one sister to

AIDS and HIV. Matilda is in charge of the children's day care centre at Ranchod,

where she looks after over 60 children. She is trained as an HIV/AIDS counsellor

and home-based caregiver. Both Phelda and Matilda are involved with Busy Bees, a

support group of grandmothers engaged in income-generating activities and peer

support.

[1335]

Accompanying Matilda and Phelda today are Margaret Wright, the

director of operations for the Stephen Lewis Foundation, and Linda Hallett, a

former volunteer with Stephen Lewis Foundation who now works with the

organization Carry On Grannies here in Victoria. Please welcome them and thank

them for their amazing work.

Hon. W. Oppal: I would like to introduce Ab Berar,

president of the Indo-Canada Chamber of Commerce and director of the Fraser

River Port Authority. Ab is a prominent member of the South Asian community and

the community at large. His family has been in British Columbia since 1907. Will

the House please join me in welcoming Ab Berar.

M. Sather: Joining us is in the gallery today is Harold

Steves. Harold is a longtime city councillor in the city of Richmond and really

is the architect of the agricultural land reserve. There's a really interesting

story of how that came about, starting with the application to renovate the

family's farm. His father made an application way back then. It's a very

interesting story, and I hope somebody writes a book about it someday. Will the

House please join me in welcoming my hero Harold Steves.

Statements

MAA-NULTH FIRST NATIONS TREATY

Hon. M. de Jong: Just to indicate that we are celebrating

today notification last night that the five member nations of the Maa-nulth

treaty negotiating team have successfully ratified their treaty.

Congratulations to the Huu-ay-aht, Toquaht, Ucluelet,

Ka:'yu:'k't'h'-Che:k:tles7et'h' and Uchucklesaht Nations. We'll look forward to

seeing their legislation and them here in Victoria.

Introductions by Members

S. Fraser: It gives me great pleasure to introduce two

constituents from Qualicum Beach. I had the pleasure of having lunch with Karen

Graham today for the first time, and she's accompanied by Neil Horner, who I've

known longer. He's the assistant editor of the Parksville Qualicum Beach News .

It sounds like a desk job, but when he does a story on a mountain that needs

protecting, he climbs it, or a cave that needs protecting, he reports on it from

a kilometre underground.

With that in mind, not just a welcoming — it was Neil's birthday

yesterday. Would you please join me in wishing a happy birthday to Neil Horner.

D. Cubberley: Today in the gallery, with us from Pacific

Christian School in sunny Saanich, is Mr. Tim Kamsteeg and 12 of his grade 11

students. Would the House please join me in making them welcome.

Tributes

NORMAN JOE SR.

D. Routley: It's with sombreness and sorrow that I bring to

the House the news of the passing of another Cowichan elder. Norman Joe Sr.

passed, and it's particularly sad for me, as I've known Norman since I was a

pup. His son Norman Jr. and I were dear friends in school and still are very

close. The Cowichan people are struggling to regain their language and reconnect

their young people to their culture. Norman Joe Sr. was a real beacon in that

effort. It's with great sorrow that I announce his passing.

Statements

(Standing Order 25

B) BREAST CANCER AWARENESS MONTH

C. James: Every year an estimated 23,000 women in Canada

are diagnosed with breast cancer, and 5,300 will die from it. Breast cancer is

the most common form of cancer among Canadian women, and there are few lives

that this disease has not touched.

In my own family, my mother was diagnosed with breast cancer two

years ago. My mother is a survivor, and she fought cancer with grace, with wit

and with determination. Like other women, my mother benefited incredibly from

the work of dedicated health professionals, from a strong network of family and

friends, and from organizations like the Canadian Cancer Society, which has done

so much to raise awareness of this disease.

[1340]

[ Page 8688 ]

October is Breast Cancer Awareness Month. Throughout British

Columbia and Canada, communities are coming together in the fight against breast

cancer and to support women facing the struggle of their lives. I was proud to

participate in the Victoria Run for the Cure that was held on September 30 at

the University of Victoria. We were joined by thousands of British Columbians in

ten other communities that raised $3.4 million for breast cancer research and

awareness.

In that effort, I want to remind women about what they can do to

ensure early detection and treatment. The Canadian Cancer Society recommends

that women have a mammogram every two years if they are between the ages of 50

and 69. Younger women should talk to a health professional about their risks and

the benefits of mammograms.

In addition, if you're over 40, it's important to have a clinical

breast exam by a trained health care professional at least every two years. Just

as importantly, all women should take care to know their bodies and breasts and

report any changes to their doctors.

The fight against breast cancer can and will be won. I ask all

members of this House to join me in acknowledging October 2007 as Breast Cancer

Awareness Month.

LAND USE AGREEMENTS IN

SEA TO SKY AREA

J. McIntyre: I rise to ask the House to join me in

celebrating the fact that two historic land use agreements were signed in July

of this year to help harmonize the Sea to Sky land resource management plan, or

LRMP, with the vision of first nations for land stewardship.

A new land use agreement in partnership with the In-SHUCK-ch

Nation — which are the Douglas, Skatin and Samahquam, who are in the final

agreement stage of treaty negotiations — will protect sensitive areas for the

establishment of cultural management areas and conservancies and will provide

both a kick-start and greater certainty for economic development in the plan

area.

Similarly, a land use agreement was signed with the Squamish

Nation to protect cultural areas through the establishment of new conservancies

and by creating a framework for collaborative and sustainable land management.

Government-to-government negotiations with the Squamish Nation continued for

almost two years, developing a common vision for land use in their traditional

territories. The plan protects first nations interests and establishes certainty

principles for the natural resource sectors in the plan area.

Complementary to the land use agreement, the Ministry of

Environment and the Squamish Nation signed a collaborative agreement for the

management of protected areas in their traditional territory. It sets up a

collaborative process for management of protected areas as well as for the

existing provincial parks. One of the highlights, of course, is that the

uniqueness of the Squamish wild spirit places was recognized.

These two agreements represent important steps along the path of

reconciliation, and they illustrate the extent to which our new relationship can

be effective in achieving common goals. Completion of discussions with other

first nations shortly will allow the province to complete the LRMP plan and move

to implementation. So all the stakeholders, who put in years of effort and

dedication to develop a sustainable common vision for the region, deserve our

heartfelt thanks.

WASTE REDUCTION WEEK

S. Simpson: October 15 to 21 this year was Waste Reduction

Week in Canada. Waste Reduction Week, whose slogan this year was "Too good to

waste," is all about reducing the production of solid waste and reducing the

waste of water and energy. Much of the focus of Waste Reduction Week is about

the three Rs — reduction, recycling and reuse — as well as the promotion of

composting.

Over 20 municipalities in B.C. adopted proclamations supporting

these efforts this year. These included communities as small as Hudson Hope and

up to and including Vancouver. These proclamations recognize the following: that

the generation of solid wastes and the needless waste of water and energy are

significant global environmental problems; that municipal governments have an

important role to play in promoting waste reduction, recycling, composting and

other conservation measures; and that many communities, businesses and

organizations across Canada have committed to working together to raise

awareness on these issues.

Local governments were not alone in their efforts. Many businesses

also joined in with initiatives, including waste audits of their own operations

and the promotion of better practices by both their employees and customers.

Schools also joined in with waste audits of their own and programs that helped

kids to learn more about the importance of conservation and waste reduction.

I am sure that I speak for all MLAs when I say congratulations to

all the municipalities, businesses, community organizations and schools that

initiated and hosted events for Waste Reduction Week. B.C. has done well, but we

can do better.

[1345]

I would encourage all MLAs to promote Waste Reduction Week 2008

with their local governments as well as business, community groups and schools.

Let's increase participation with these important efforts, and all of us will

benefit.

CAPTAIN GEORGE VANCOUVER WEEK

J. Yap: I rise today to bring attention to an event I was

proud to be a part of this past summer. It was a great honour for me to announce

on behalf of the provincial government that the week of June 22 would be

proclaimed Captain George Vancouver Week in British Columbia.

It's easy for us to recognize the impact of Captain Vancouver. All

we need to do is look at the Island we are now on or the city many of us

represent. His exploration and discoveries helped to shape where we live

[ Page 8689 ]

today, and it only seems fitting to bestow this honour upon him.

I was proud to be able to present the official proclamation to the

British High Commissioner on the 250th anniversary of Captain Vancouver's birth

at the June 22 celebration at the Vancouver Maritime Museum. But none of this

would have come to fruition without the passion and dedication of one of my

constituents, maritime artist John Horton.

A professional artist for the past 40 years, John is a

world-renowned marine artist with a passion for highlighting Captain Vancouver's

accomplishments. His love for depicting the high seas led him to become a

founding member of the Canadian Society of Marine Artists. He has the special

distinction of having had one of his drawings, The Ketch , made into a

special edition ten-cent coin by the Royal Canadian Mint.

A truly talented artist, John became recognized for his realistic

portrayals of historical maritime events. This led him to begin a series of

paintings focusing on Captain Vancouver's historical discoveries along our

coast, presenting the natural beauty and wonder of discovery on canvas. It was

John Horton's respect and admiration for Captain Vancouver that brought

attention to this important anniversary that properly paid respect to the great

explorer.

I'd like to thank John Horton and all those who continually remind

us of the importance of our heritage.

SCHOOL LIBRARIES

D. Cubberley: On Friday I had the opportunity to join over

700 people at the Speaking of Kids Conference at Killarney Secondary. The place

was bursting and the buzz infectious as we waited to hear from Henry Winkler —

a.k.a. the Fonz — about his unhappy days growing up with dyslexia.

Winkler, now a co-author of best-selling children's books, handled

the topic of struggling kids with wit and self-deprecation but pointedly

reminded us, with the defiance of one long baited as dumb, that every child has

talents that can be released.

Winkler's plea for the arts as a vehicle for learning was deeply

moving. But the high point of my day actually came in conversation with a young

teacher-librarian keen to express his enthusiasm for kids' learning potential. A

self-described techie who teaches distance education courses, Aaron Mueller's

true passion is the library, which he was eager to show me.

Being pro-D day, the place was strangely still, without the

animation of kids excitedly searching in the cornucopia of choices around them.

What an impressive library. How sad that Aaron cannot be a full-time

teacher-librarian, his true passion.

Why, I ask provocatively, do we need physical libraries at all?

Why not just have kids go on line?

"Because," he said, without missing a beat, "the library is the

hub of learning, the place where kids come to discover new books and resources,

to seek guidance on where to look and what to find. I wish you could experience

it with the kids here," he said with pride. "I love every minute I get to spend

connecting kids to learning."

Today is National School Library Day, a time to honour the role

libraries play on the road to literacy and lifelong learning, to honour those

whose calling it is to engage young readers. It's also a time to ask whether,

for the sake of literacy and the love of reading, we can't do more to put a

physical library with a skilled librarian within reach of every child in B.C. —

not a 0.2 or 0.4 librarian, not a clerk to handle the book returns, but a

living, breathing, full-time teacher-librarian.

SMALL BUSINESS MONTH AND

LANGLEY BUSINESS AWARDS

M. Polak: October is Small Business Month, and in B.C.

there's an awful lot to celebrate about small business in this province.

In Langley we're celebrating business excellence. This past

Saturday night I was privileged to attend the Greater Langley Chamber of

Commerce Business Excellence Awards. Hosted by Gloria Macarenko, members from

Langley city and the township of Langley gathered to honour the best and

brightest of small business in our community.

[1350]

Congratulations are in order for Sarah Vandekerkhove of Feminine

Form, who was the winner of the New Entrepreneur Award; Langley Toyotatown,

winner of the Customer Service Award; Harbour Air seaplanes, winner of the Small

Business of the Year Award; Super 8 Hotel Langley, winner of the Medium Business

of the Year Award; and Otter Co-op, winner of the Large Business of the Year

Award.

But the Greater Langley Chamber recognizes that business

excellence is not just evident in the financial success of an enterprise. True

success includes dedication to the community and a dedication to outstanding

business excellence. The George Preston Memorial Businessperson of the Year

Award recognizes an individual who has displayed these exceptional qualities.

This year Brian Bury of Brian Bury Photography was recognized for a seemingly

endless list of contributions and innovative programs that benefit our

community.

I ask the House to join me in recognizing these outstanding

Langley businesses and indeed all small business owners as we celebrate Small

Business Month in B.C. and remember that in B.C., small business is big

business.

Oral Questions

REMOVAL OF LAND FROM

TREE FARM LICENCES

ON VANCOUVER ISLAND

C. James: In 1999 there was a thorough public consultation

about the proposed release of private lands from tree farm licences on Vancouver

Island. Here's what the Forest Practices Board had to say in opposition to that

proposal. There would be no protection for community watersheds. There would be

no guarantee

[ Page 8690 ]

of public involvement in managing those lands. There was no guarantee of

sustainable forest management. And the last one: "Once land is in private hands,

there is no turning back."

The overwhelming response from the public was no, and the lands

weren't released.

My question is to the Minister of Forests and Range. Who did he

consult before he released Western Forest Products private lands, creating the

mess that we have in Jordan River today?

Hon. R. Coleman: Under the Forest Act, companies can ask

for removal from tree farm licences. Each request is examined on its merits. My

staff looked at this and made a recommendation to the minister, which was to

allow this exclusion. Part of the consideration taken at the time was, quite

frankly, that there are 3,300 people working for a significant company on the

coast as it's trying to restructure its company and save those jobs in British

Columbia.

If the Leader of the Opposition doesn't care about those 3,300

families and their jobs in British Columbia, that's sad. I do.

In addition to that, the member should be aware that anything that

happens with these lands outside of forest management will go through a public

process just like any other piece of land through a community would for any

rezoning or community development.

Mr. Speaker: The Leader of the Opposition has a

supplemental.

C. James: Well, it's a bit rich for the minister to talk

about public consultation. Public consultation means just what he did — gave the

land away without any discussion with the communities. None.

In 2003 senior officials advised the then Minister of Forests

against releasing over 70,000 hectares of land, because the law didn't allow it.

So what did the government do? They changed the law so they could actually start

giving away the land. This created a nightmare for Port Alberni, forcing the

minister to send in a team of consultants to deal with the mess that his

government created.

Knowing that, who did the Minister of Forests consult with before

he released thousands of hectares of land in Jordan River to Western Forest

Products?

Hon. R. Coleman: Maybe you could actually couch your

statement with regards to removal from a tree farm licence, because nobody gave

away any land here. The land belonged to Western Forest Products. It's private

land. It's owned by that company and not by the Crown. You should actually get

your terminology straight on this particular.

Interjections.

Mr. Speaker: Members.

Hon. R. Coleman: The considerations are there. The minister

can make the considerations. My staff reviewed it. They made a recommendation to

me, and I followed through on that recommendation.

[1355]

Mr. Speaker: The Leader of the Opposition has a further

supplemental.

C. James: While the minister sits and looks at his

terminology, the communities are the ones that are suffering because of this

government's decisions. In 1999 the Forest Practices Board said that once

private lands are released, "any ability to ensure protection of public values

and benefits to local communities will be lost forever."

We know the minister chose not to consult. Why did he choose not

to consult? Because he knew what the answer would be back from the public. The

answer would be no, don't give away those lands.

My question, again, to the minister: will he commit to act in the

public interest — the public interest that he seems to have forgotten in all of

this issue — stop the sale of lands in Jordan River and actually consult with

first nations communities and workers in those communities?

Hon. R. Coleman: None of the 3,300 jobs at Western Forest

Products are being put at risk by this. In fact, it may actually enhance their

stability long term, but the company is not doing any cutbacks because they

happen to have some land come out of a tree farm licence.

The reality is that I know you don't like the fact that maybe some

company and private land rights exist. I know you may not like the fact that

maybe 3,300 people's jobs are important to the economy of the coast of British

Columbia and those communities. I believe they are….

J. Horgan: Well, we know why the minister didn't consult —

because he knew what the answer was going to be. It was going to be a resounding

no.

In 1999 the Forest Practices Board said the following: "While

government has some say in the transfer of rights to harvest timber on public

lands, it would have no such input once the lands become private. Any ability to

ensure protection of public values and benefits to local communities will be

lost forever." That's the Forest Practices Board.

The minister says that he took advice from staff. Well, a briefing

note in 2003 to the former Minister of Forests said they preferred option 3,

which was: "Defer consideration of a Weyerhaeuser deletion request. Do not

follow through." The minister of the day ignored that advice.

We get a third briefing note. I'd like to quote from it, but it's

heavily severed. I'll read the following for our first nations friends. Maybe

the minister will have something to say about that. "The province's position is

that it is not obliged to consult with first nations regarding issues arising on

private land. However, the provision of notice to potentially affected first

nations is prudent, considering the fact that the Hupacasath and the Tseshaht

First Nations commenced legal proceedings against the province when we deleted

it last time."

[ Page 8691 ]

My question to the minister is…. You didn't consult with anybody

because you knew what the answer would be. Give us one group, one first nation,

one community that you talked to before you sold the farm.

Hon. R. Coleman: I don't have the list in front of me, but

I will provide it to the member after question period. Consultations with all

the first nations took place, and they had an opportunity for input.

Mr. Speaker: The member has a supplemental.

J. Horgan: You'll forgive me if I don't hold my breath

waiting for the minister to provide documents. You gave me the same commitment

six months ago. I haven't seen a blank piece of paper from your office, so I

won't hold my breath.

Perhaps the Minister of Community Services might want to get in

the game. She'll be well aware of the lack of capacity to manage development

growth on southern Vancouver Island. I've raised it with her numerous times

since I was elected in 2005. The CRD board is saying they want a moratorium on

development. The communities are saying they need governance structures in

place.

Can the Minister of Community Services say that she stood up in

cabinet and said to the Minister of Forests: "Are you crazy? What are you giving

this land away for?"

Hon. R. Coleman: You know that local government controls

zoning. You know that they can decide what they want to do with the land.

I find it absolutely incredible. You don't want any land out of

the private forest land that might go for some development that could actually

create some opportunities in housing in British Columbia, yet you'll carry on

about the fact. You don't want anything affordable.

[1400]

Interjections.

Mr. Speaker: Members.

Hon. R. Coleman: The next thing out of your mouth is…. You

say you need to do some more subsidies in housing, but because it's too

expensive to have a home on southern Vancouver Island…. Why don't you get these

people to plan for some densities and make changes so we can have a future in

housing in British Columbia as well?

Interjections.

Mr. Speaker: Members.

Just take your seat, Member.

Just to remind members: listen to the question, and listen to the

answer.

B. Simpson: I have to say that's rich — that all of a

sudden the Jordan River land…

Interjections.

B. Simpson: Yeah. No pun intended.

…release is all about housing and building housing in British

Columbia. It helps me understand the relationship between Minister of Forests

and Range and Minister Responsible for Housing. I've been confused about that

ever since the minister was appointed.

Aside from that fact, prior to this housing announcement we got in

here today, the minister's only justification for disregarding the public good

in this case was his heartfelt concern for 3,300 jobs at Western Forest

Products.

Interjections.

Mr. Speaker: Members.

B. Simpson: It was so heartfelt that in the letter to

Western Forest Products on January 24, there is — shock — absolutely no mention

of securing investment in British Columbia or securing the jobs — no mention

whatsoever in the letter.

My question to the Minister of Forests is this. What guarantee did

he get from Western Forest Products that the money from the land sales will be

invested in British Columbia and that Western Forest Products will be able to

continue to employ those 3,300 jobs that he cares so much about?

Hon. R. Coleman: I said the next thing you would be doing

is talking to me about housing. I didn't say it was relative, necessarily, to

Jordan River by itself.

The fact of the matter is — and I know you don't like this…. I

know you don't like the fact that Western is trying to restructure its business

to save jobs on the coast of British Columbia. I know you don't like that. I

know you don't like the fact that somebody is going to do something with some

private land. I don't know why you're so opposed to people being able to do

something with land they own in this province.

I don't know why you don't admit that any logging that would take

place would still be governed under the Private Forest Land Act, and it has to

still meet the environmental issues and all the rest of it. It's because you

want to focus on one little issue and forget those 3,000 people on Vancouver

Island who need this company to succeed.

Mr. Speaker: The member has a supplemental.

B. Simpson: What I don't like, what we don't like on this

side, is a minister who fails to act in the public interest. What we don't like

on this side is a minister who continues to say whatever he wants to say in this

House and then does not translate it into action outside of this House. That's

what we don't like.

Mr. Speaker, not only did the January 25 letter mention nothing

about investment in British Columbia or holding jobs, two weeks later — two

weeks after these lands were released — Western Forest Products closed down the

New Westminster mill, a profitable

[ Page 8692 ]

mill, and 300 people were put out of work. Again, no guarantee for what he

says he cares about.

[1405]

My question is this: if he cares so much, will he attend a public

meeting in Shirley tonight, stand in that public hall and explain to people why

he did not act in their interest, stand in that public meeting and say that he

will hear what they have to say and will stop this sale now so that they can

have a say?

Hon. R. Coleman: We removed some lands from a tree farm

licence that were private lands. I'm not selling them. The reality is this. You

know, the member goes out and goes on about the thing in New Westminster. Why

don't you also admit to the member for Cowichan-Ladysmith that at the same time

that mill was closed, they opened another mill in Cowichan-Ladysmith and put

jobs there because they're repositioning their company to protect the base of

3,300 jobs on the coast?

TREATMENT OF SENIORS IN

HEALTH CARE FACILITIES

C. Wyse: Retirement Concepts sent a letter to all residents

and families warning that complaining to the proper authorities could result in

consequences.

About four weeks ago Judy Alsager used to take her mom Irene to a

Williams Lake facility. Why is Irene no longer welcome? Judy complained to the

facility about the quality of her mom's care, and now her mother can't go back.

My question: will the minister order an independent review

regarding seniors care in facilities operated by Retirement Concepts and in that

review include why Williams Lake seniors care became a monopoly?

Hon. G. Abbott: I have a copy of the letter from Retirement

Concepts that I understand was distributed to the families of clients in their

residences in British Columbia. I am glad to share a copy of the letter with the

member. He may not have the full letter. I'll leave it to others as to whether

the language is appropriate or inappropriate. As I understand from the

operators, it was a letter that was intended to be constructive, but as I say,

I'm glad to share the letter with the member and have people form their

conclusions.

It's interesting that very recently in the Williams Lake

Tribune there was a letter published from the staff at Williams Lake Seniors

Village which says, among other things, what the Leader of the Opposition is

doing, and that is: "Turning these allegations against Retirement Concepts into

a political crusade."

To continue a quote from the letter: "Her statement calling for an

investigation into all facilities run by Retirement Concepts, and then look at

seniors care in B.C. in general, is no better than scapegoating for the sake of

getting her face in the news."

Interjections.

Mr. Speaker: Members.

The member has a supplemental.

C. Wyse: The issue here is looking after the care of our

seniors, regardless of where they may be in British Columbia. That

responsibility rests here amongst the 79 of us and directly with the Minister of

Health.

In addition to the previous case, the Mitchells of Williams Lake

describe the treatment Marlene's mother received at Retirement Concepts up to

Eva's death in September 2006. The letter describes inadequate bathing,

inadequate feeding and dehydration. They describe hallways that reeked of urine

and feces. The Mitchells were told that if they complained too much, they would

be told to take their mother elsewhere.

My question: does the minister agree that families should not fear

their loved one's level of care being reduced if they complain publicly and,

further, that he order an independent investigation into the level of care for

seniors, including how seniors care became a monopoly in Williams Lake?

Hon. G. Abbott: As I've said in the House a number of times

now, anytime we have a complaint or an allegation against a facility, it is

followed up in the most rigorous and comprehensive way by the licensing

officials at the appropriate health authority.

[1410]

In the case of Williams Lake Seniors Village, I understand from

Interior Health that there have been for the last 18 months no substantiated

concerns that have been raised in that facility. In terms of the facility

itself, though….

Also in the Williams Lake Tribune of October 16, a letter

by Cynthia Wilson, whose mother is in care at Williams Lake Seniors Village.

I'll just read a short extract from it: "My mother lives at the Seniors Village

in the comprehensive care area in a suitable room subsidized by the government.

She enjoys the home environment. The staff are kind, caring, helpful, empathetic

and quick to respond to her needs. The nurses and staff have communicated with

me often on site and at home when there was a need or a health issue."

G. Gentner: Oh, the ghosts of Bill 29. Seniors across this

province are suffering at the hands of this government. But now seniors are

being gagged. After the opposition brought to light the tragic situation at

Beacon Hill Villa, Retirement Concepts wrote its victims and their families

advising them to "raise concerns with us first."

The letter went on to tell seniors and their families that if they

took their concerns to licensing authorities, this could "lead to a delay in our

efforts to address concerns and improve the quality of our care at our sites."

My question to the Minister of Health is simply this. Does he

condone this type of bullying?

Hon. G. Abbott: As I said to the member for Cariboo South,

I am glad to share this letter with him, with members of the press gallery and

with every member of this House. Again, I will leave it to them

[ Page 8693 ]

to decide whether the language used in the letter is appropriate,

inappropriate, constructive or unconstructive.

What I think is entirely inappropriate and entirely unconstructive

is the deplorable rhetoric that I hear from that member on that side of the

House. It is entirely inappropriate.

As the staff said…

Interjections.

Mr. Speaker: Members.

Hon. G. Abbott: …at Williams Lake Seniors Village: "The

allegations against the staff at WLSV are not only petty but unfounded and

unsubstantiated. The people that are making these claims are doing so for their

own personal gain. To make these claims against WLSV is nothing short of

slander."

The member should keep those kinds of things in his mind when he

makes his deplorable statements.

Mr. Speaker: The member has a supplemental.

Interjections.

Mr. Speaker: Members.

Just wait a second. Continue, Member.

G. Gentner: What is deplorable is the neglect, the abuse

and the intimidation that seniors are undergoing through this province. Perhaps

the minister should rename Retirement Concepts to "retirement consequences,"

because that's what's happening in this province. This has got to stop.

Home and community care service agreements clearly state that

residents have a right to raise their concerns without fear of discrimination.

That's not what's happening in this province. So my question to the Minister of

Health is this. Is he so concerned about Retirement Concepts' bottom line that

he won't tell the care provider chain to follow the rules?

Hon. G. Abbott: I am entirely indifferent to the bottom

line of any operator in this province.

Interjections.

Mr. Speaker: Members.

Just take your seat, Minister.

Continue.

Hon. G. Abbott: Whether the bottom line of any given

company is good or bad is not a concern of ours. The care they provide to the

often vulnerable seniors that they provide for is exactly what we are concerned

about on this side of the House.

[1415]

The members on that side can rail on disgracefully as they are,

irresponsibly as they are, about the exceptional care that seniors receive in

this province. They can try to prompt fear in the heart of every senior in this

province, entirely inappropriately. Every complaint, every allegation that is

tendered in this system is followed up rigorously, thoughtfully and

comprehensively. For the member to suggest otherwise is untrue and entirely

irresponsible.

EVICTION OF TENANTS IN FERNIE

N. Macdonald: My question is for the Minister for Housing.

On October 31, 50 renters in Fernie are being evicted. This is because their

apartments are being changed into what are essentially condominiums, using a

loophole this government very deliberately created. These are people born and

raised and working in Fernie, and they're being pushed out by this government.

My question to the minister is this. What is the minister going to

do to close the loophole, or like his compatriot there, is he indifferent to the

situation?

Hon. R. Coleman: The situation in Fernie…. There are 24

units in a building. The landlord wants to renovate. There are six people left

that are working with B.C. Housing to rehouse during the period of time that the

renovations would take place. The rest, I understand, have already found

accommodation. We are working with them. When the building is completed, if they

wish to move in and the rent goes up, we will help them with rental assistance.

Mr. Speaker: Member has a supplemental.

N. Macdonald: I do. What the minister knows or should know

is that these will not return to a rental market. They will go to hundred-year

leases, something that this minister deliberately allowed to take place. There's

nothing local government can do to stop that — again, something this minister

deliberately put in place.

You have two cousins living together in those apartments. They

will not be going back there. Raised in Fernie and working in Fernie. The Dairy

Queen they work for needs them. There's a shortage of workers there.

A mother and adult son. They have lived in Fernie for 23 years.

They will be gone. The minister knows that or should know it.

These evictions are directly the result of this minister's

policies — directly the result. So what is the minister going to do to stop

these evictions now?

Interjections.

Mr. Speaker: Members.

Hon. R. Coleman: To the member: I might caution him on

telling me what I did and did not do. He might want to go and check out with

regards to 99-year lease and strata leases. They are governed under rules with

regards to conversion that municipalities deal with, with regards to allowing

those to take place. Those have not been changed under this government.

[ Page 8694 ]

Interjection.

Mr. Speaker: Member.

WITHDRAWAL OF HOUSING SUBSIDY

FOR VANCOUVER TENANT

J. Kwan: My constituents Mila Kwan and her son lived in a

B.C. Housing subsidized apartment for 13 years. Ms. Kwan's subsidy was withdrawn

in July 2007 because the affordable housing society judged her family income to

be "not sufficient, as it is not possible for two people to live and go to

school on $325 a month."

After Ms. Kwan was deemed to be too poor to receive a housing

subsidy, her rent was re-increased from $190 to $947. When she could not afford

her new rent, she was evicted.

I thought the role of B.C. Housing's rental subsidy program is to

assist low-income people and not to throw them out on the street. Can the

Minister for Housing tell us why B.C. Housing allowed affordable housing to

withdraw Mila Kwan's rental subsidy so that she's faced with a 400-percent rent

increase?

Hon. R. Coleman: I am very disappointed in this question

coming from this member, because this member has been made completely aware of

the entire chronology and the issues regarding this tenancy.

She has been aware of the chronology. She's aware of the fact that

the individual has not met the rules that are laid out in the contract with

regards to the disclosure of income and that they have been repeatedly asked to

do so. We have given them assistance to try and accomplish that. Affordable

housing, who operates the facility, went through the proper legal processes.

[1420]

We actually tried to deal with this item, and the member knows

that. It's fine to bring it up in the House, but I am disappointed knowing that

she knows how it is unfair if somebody refuses to produce income statements in

affordable housing in British Columbia — why they think they should be allowed

to do that when other people are asked to do it because they only get charged 30

percent of their income in rent. It is not a big stretch to ask people to follow

the rules, and the member knows very well that B.C. Housing and everybody else

has been very, very diligent in trying to solve this issue.

Mr. Speaker: Member has a supplemental.

J. Kwan: The minister is dead wrong with that information.

Mila Kwan and her family submitted the information with her bank statements, the

cheque stubs — all the information that was required to ensure that she gets her

subsidy.

But you know what? I wrote to the minister asking for assistance.

Two letters were sent. Telephone calls were made, and the minister chose not to

respond. The B.C. Supreme Court ordered that the order possession that was

issued for Mila Kwan and her family be stayed. Affordable housing chose to

ignore that court order. She is now sleeping in a car and in shelters, and her

son is surfing the couches with friends.

The homelessness rate has more than doubled under this government.

Instead of increasing the rate of homelessness, will this minister tell

affordable housing to abide by the law and follow the court order? And will this

minister commit today to reinstate Mila Kwan's housing subsidy retroactive to

July so that she can afford to live and go back to her home that she's been in

for 13 years?

Hon. R. Coleman: The member opposite knows that on March 6,

2007, the DIA was requested. It wasn't responded to. Additional letters were

sent later on in July of 2007. Information was not provided.

Interjection.

Mr. Speaker: Member.

Hon. R. Coleman: She's aware of the fact that the process

that affordable housing went through is relative to the operating agreement that

these non-profits are to abide by. She's aware of all that. She also knows that

we've tried to work with this individual unsuccessfully, and I'm sure that we

will try and find a solution for Ms. Kwan, in addition to having to deal with

protecting the other people who pay their rent in British Columbia according to

the rules.

[End of question period.]

S. Fraser: I seek leave to submit a petition.

Mr. Speaker: Proceed.

Petitions

S. Fraser: I have a petition with thousands of signatures

from across the province in support of the promotion of safe antifreeze bill, to

join 15,000 other signatures already in here that may or may not be listened to.

C. Wyse: I seek leave to present three separate petitions.

Mr. Speaker: Proceed.

C. Wyse: First petition: 83 names seeking a fair and stable

price for gasoline.

The second petition: 413 names from Ashcroft seeking relief from

the bylaw banning smoking in legions, given the expense invested in creating

non-smoking areas in their building.

The third petition: 234 names from the Chilcotin requesting basic

health care of a doctor, clinics that are open and a working ambulance.

[ Page 8695 ]

Orders of the Day

Hon. M. de Jong: Just a reminder to all members that we

don't need leave to present petitions at this stage in the proceedings. They can

just be presented.

I call committee stage debate on Bill 29, Adult Guardianship and

Planning Statutes Amendment Act, 2007, to be followed, if we get there, by

second reading of Bill 40, Tsawwassen First Nation Final Agreement Act.

[1425]

Committee of the Whole House

ADULT GUARDIANSHIP AND PLANNING

STATUTES AMENDMENT ACT, 2007

(continued)

The House in Committee of the Whole (Section

B) on Bill 29; S.

Hammell in the chair.

The committee met at 2:28 p.m.

section 4 (continued) .

C. Trevena: I'd like to pick up where we left off on

Thursday, on

section 16 and the Attorney's reference in this. We were very

concerned about what "best intentions" meant and who was going to make the

decision.

At that stage, the Attorney kept talking about the fiduciary duty

of the guardian. But we are here talking in

section 16, the powers of a personal

guardian, and referring to

section 20, there are no fiduciary duties in the

personal guardian. There are fiduciary duties, in

section 21, of a property

guardian. I would therefore like more clarification from the Attorney General on

this section.

[1430]

Hon. W. Oppal: There's a difference between personal

guardian and a person who has a fiduciary duty. This

section 20 sets out the

duties specific to a personal guardian. It states that the personal guardian

must comply with the latest pre-expressed wishes or instructions made by the

adult, when capable, unless it would be inconsistent with a court order.

The duty,

section 20(3), talks about: "If there are no

pre-expressed wishes relevant to the decision to be made, a personal guardian

must act in the adult's best interests, taking into account…." Then the

subsection relates to certain factors that they must consider.

The duty to act in the adult's best interest is well established

in case law. The provision expands the duty by establishing a test for

determining the best interests, including the requirement to take into account

the adult's known beliefs and values, which follows modern guardianship

principles. If additional criteria are required, then they can be added by way

of regulation.

C. Trevena: I just wanted a clarification because at the

last discussion of this at the end of last week, the Attorney was saying that

the personal guardian had fiduciary duties, and now it's very clear that the

personal guardian doesn't have the fiduciary duty. The personal guardian is

acting in the best interests, and best interest is defined by case law.

Hon. W. Oppal: As well as the factors that are set up in

section 20.

L. Krog: Again, on

section 4,

part 16. In that

section it

talks about in subsection (2): "Unless the court provides otherwise, a personal

guardian must not…interfere with the adult's religious practices."

I'm just wondering: what's the opinion of the ministry on the

constitutionality of that section? It strikes me that no court could ever

provide that a person's religious practices could be interfered with, and the

very wording of that

section seems to contemplate that.

Hon. W. Oppal: I think the words of the section, perhaps,

are instructive. It states that unless a court provides otherwise, a personal

guardian must not give or refuse consent on the adult's behalf to any type of

health care prescribed under the sections or interfere with the adult's

religious practices, unless there is a court order to do so. I think that's the

best way I can answer that question.

L. Krog: I understand that's the point, but I'm questioning

the constitutionality of a

section that would purport impliedly to give the

court the power to interfere with a person's religious practices.

Hon. W. Oppal: I'm afraid I don't understand the question

from the perspective of the constitutionality of the section. Is the member

referring to property and civil rights under

section 92 of the BNA Act? Is that

the question? Perhaps the question could be clarified.

[1435]

L. Krog: Well, the Charter of Rights and Freedoms

guarantees the right to practise one's religion in this country. This

section

says that unless the court provides otherwise, a guardian must not interfere

with the adult's religious practices. By implication, it's saying that the court

could make an order that allows a guardian to interfere with a person's

religious practices. That, to me, offends the Charter of Rights and Freedoms,

and that's my point.

Hon. W. Oppal: I think what you have to do is look at the

spirit of the legislation and the basic philosophical basis of the legislation,

and that is that the guardian has a duty to act in the best interests of the

adult. It says that unless the court provides otherwise, a personal guardian

must not interfere with the adult's religious practices. There may be rare

instances — giving of or taking of a blood sample or matters of that nature —

that, while they may contravene someone's religious practices, may be in the

best interests of the person as far as the health and well-being of that person

is concerned. I'm speculating.

[ Page 8696 ]

I would assume that the purpose of the section, the import of this

section is to give the court the power to deal with the best interests of a

person where religious practices may interfere with that. In other words, you've

got a clashing of the two objectives. One is that we have to care for the best

interests of the person involved, but that may contravene or run counter to his

or her religious practices, and this gives the court the power to deal with

that.

L. Krog: I think I've made my point about this

section with

the Attorney General. I think it's going to provide some legal difficulty down

the road, and it is going to get challenged.

With respect to

section 4(17), this is a new provision and very

specific, and I understand the purpose of it. Subsection (5) on page 11, that a

property guardian may make a gift or loan or charitable gift, etc., if the court

order permits it or if the adult will have sufficient property remaining, "the

adult, when capable, made gifts or loans, or charitable gifts, of that nature,

and (

c) the total value of all gifts, loans…" etc., is less than the prescribed

value….

I read this

section as saying that if dad was giving a thousand

bucks every Christmas to his children, then the property guardian would be

entitled to do the same thing. But what I'm looking at — and it's my criticism

from the other day when we discussed this bill — is that it's being left to

cabinet to decide what is the prescribed value.

Can the Attorney General give me any assistance today as to what

we're looking at in terms of a prescribed value — what range? I mean, if I'm

Bill Gates, perhaps a million bucks at Christmas isn't a lot of money; but if

I'm Sally who's living on a $10,000-a-year pension, perhaps $500 is.

[1440]

Hon. W. Oppal: Before the regulations are adopted, there

will be public consultation. The regulations will take into account the total

value of all the gifts, loans, etc., — that the "gifts in a year is equal to or

less than a prescribed value," as the words suggest. So these are things that

will be addressed with consultation with all stakeholders in adopting

regulations.

The Chair: Member, on paragraph 17.

L. Krog: With particular reference to sub (9) on page 12,

which says: "A person must not deliver, to an adult's property guardian, a will

made by the adult if the adult has given instructions to a lawyer who holds the

adult's will, or the will contains instructions, prohibiting delivery of the

will to the property guardian." I'm just wondering: why does this

section apply

only to lawyers, as opposed to, say, trust companies or notaries or other

persons? If so, what's the point?

Hon. W. Oppal: Well, sub (9) reflects the standard practice

that is in place now.

L. Krog: I don't wish to belabour the point, but what

practice, what statute, governs this standard practice? It just strikes me that

if I've given instructions to a notary or trust company and a will has been

prepared, why would this only apply to those in the control of a lawyer as

opposed to a trust company, who are often appointed by wealthy individuals?

Hon. W. Oppal: The legislation is as it is. It may well be

that after experience, it may be necessary to insert the words "or a trust

company or any other person of similar standing."

L. Krog: Referring specifically to the

section on accounts

— that's

section 4, paragraph 22 on page 14 — it provides that a property

guardian must apply to pass the accounts before the court, if ordered to do so,

or the Public Guardian and Trustee, if ordered to do so by the court or

requested in the form required.

[1445]

Do I take it that this

section will allow the Public Guardian and

Trustee to pass accounts of guardians, as opposed to the law as it is now, which

requires that if accounts can be passed, they be passed by the registrar of the

court pursuant to court order? In other words, is this a somewhat easier out,

and will property guardians be able to deal now strictly with the Office of the

Public Guardian and Trustee?

Hon. W. Oppal: This really is a provision to streamline and

modernize the statute. It may be that it will be required in a particular case

to go before a court, but the purpose is to give the authority to the Public

Guardian and Trustee so as to expedite matters.

The Chair: Member, on paragraph 22.

L. Krog: No, I'm actually on paragraph 24 now. I don't

intend to drag the Attorney General through every

section of the bill this

afternoon, much as I know he would be interested in doing so.

The Chair: Member, on paragraph 24.

L. Krog: On 24 it says that a personal guardian "must not be

remunerated for acting as the adult's personal guardian," except for expenses,

but provides that a property guardian may be remunerated. Again, it talks about

"in accordance with" the regulations if it's the Public Guardian and Trustee or

in accordance with the regulations generally.

I'm wondering: is the Attorney General contemplating a different

fee scale between the Public Guardian and Trustee's office and individuals who

are appointed property guardians?

Hon. W. Oppal: I would expect it to be the subject of

further consultation because there is a likelihood that there would be a

difference in the fee schedules. This would be something that we would be

consulting on.

L. Krog: My second question on this

section is: why are we

going to remunerate someone who is looking

[ Page 8697 ]

after property, but someone who may be spending a great deal of time

providing direction and assistance around the adult's personal care isn't going

to be remunerated, other than to simply allow for the payment of expenses?

Hon. W. Oppal: The

section states that a personal guardian

cannot be remunerated for acting as guardian but may be reimbursed for

reasonable expenses incurred while acting as guardian. The

section also protects

against for-profit personal guardians, but a property guardian may be

remunerated, unless the court orders otherwise. The regulations will establish

the amount of the fees, and there may in any particular circumstances be

reimbursement for reasonable expenses.

L. Krog: In reference to what is

section 4. That's division

section 30, on page 20. This provides that if they have reason to believe

that a guardian has failed or is about to fail to comply with the guardian's

duties, the Public Guardian and Trustee may conduct an investigation and, after

conducting an investigation, may apply to the court for a review.

[1450]

I'm just wondering: can the Attorney General give some assistance

as to what he would see as an example of the lowest standard that would give the

public guardian reason to believe…? In other words, can I simply make a phone

call to the Public Guardian and Trustee? Is it a letter? What's contemplated by

this that would, in fact, hopefully initiate this process?

Hon. W. Oppal: The Public Guardian and Trustee, as the

member well knows, is an officer of the Legislature. There is discretion…. I'm

sorry; I stand to be corrected. If he has sufficient reason to believe that a

guardian has failed in his or her duty or is about to fail, then the guardian,

upon whom we place trust, may conduct an investigation into circumstances.

There's no minimal standard as such, except that the words "has reason to

believe" I think are instructive in that he cannot do it capriciously, at a whim

or for reasons that cannot be articulated.

L. Krog: With respect to

section 31 on page 20, it says:

"Subject to any limitation or condition set out in the regulations, a person who

(

a) is authorized by judgment, decree or order of a court or tribunal to act

outside British Columbia in a manner similar to a guardian, and (

b) complies

with any prescribed requirements may exercise powers and perform duties in

British Columbia in respect of the adult for whom the person is acting…."

I'm wondering: is the government contemplating some kind of

registry? I mean, how does one start to exercise one's authority in British

Columbia?

My concern is this. For instance, you have someone in Alberta who

has been declared incapable under what we'll call the equivalent of the existing

Patients Property Act. The daughter, who is appointed, brings them home to

British Columbia. The daughter is appointed in Alberta, and everything has been

brought into British Columbia now. Is there going to be some kind of process, or

can they automatically assume, or do they have to get a legal opinion? In other

words, how is this process going to work that a guardian, if you will, from

outside the province gets to act in British Columbia safely and in compliance

with our law?

Hon. W. Oppal: Again, this provision will modernize and

streamline the practice. It allows a guardian authorized under an

extrajurisdictional guardianship order to act in B.C.

You see, right now an order-in-council is required to do that.

This will remove the necessity for a guardian to obtain an order-in-council to

deal with B.C. assets or a B.C. court guardianship order if the adult is moved

to B.C. The regulations establish the requirements to be met for the guardian to

be able to act.

We would expect that the regulations will provide that the scheme

for such recognition would be based largely on the recommendations of the B.C.

Law Institute. What the purpose here is that the framework would permit orders

from other Canadian jurisdictions to be registered in B.C. under the Enforcement

of Canadian Judgments and Decrees Act. However, the order would have to be

confirmed if the adult moved to B.C.

This really is a

section that deals with cross-border issues.

That's the purpose of this. As I said a moment ago, now these types of scenarios

and these types of issues have to be dealt with by way of cabinet order.

L. Krog: I want to confirm my understanding of the Attorney

General's response, which is that it will be dealt with by way of regulations.

In other words, I'm not going to have to go to court or make a court application

or petition the court or apply for an order-in-council. It will be a regulatory

scheme, I would presume, administered by the Public Guardian and Trustee's

office. I'm just wondering if the Attorney General could comment.

[1455]

Hon. W. Oppal: That's a correct

interpretation. That is, it

would be done by way of regulation, and there will be no need to administer it.

Again, it's a move towards streamlining the practice.

L. Krog: Moving on to

section 4, paragraph 32 on page 21….

That's

part 2.1, statutory property guardians. It says: "If a person has reason

to believe that an adult may be incapable of managing the adult's financial

affairs, the person may (

a) if the person is a health care provider, request a

qualified health care provider to assess the adult's incapability, or (

b) in any

case, notify the Public Guardian and Trustee of the person's belief, and the

Public Guardian and Trustee may request a qualified health care provider to

assess the adult's incapability."

It then goes on to talk about if you receive a report under (2)….

We discussed this indirectly around the definition

section in

section 4, as to

who was a qualified health care provider. What we're saying is that those

opinions will in fact possibly be from individuals other than medical

practitioners, in theory, because they will be prescribed by regulation.

[ Page 8698 ]

In other words, the existing law — not practice, the law — is now

that I have to get the opinion of two members of the B.C. Medical Association,

qualified College of Physicians and Surgeons, to certify. What we're saying is

that now this is opening up the possibility of, in fact, it being some nurse or

some other qualified health care providers.

Hon. W. Oppal: As the member quite correctly notes, this

legislation will obviate the necessity of going through the procedures that are

now set out in the Patients Property Act of requiring two medical practitioners

to make the order.

Here, the new

section will permit an assessment to be made where

an adult is incapable of managing the financial affairs, to be completed by a

qualified health care provider upon request by the provider or the Public

Guardian and Trustee. The assessment must be done in accordance with the

procedures that will be set out in the regulations and will capture the best

practice, including a test of incapability. That will be the governing factor.

If an adult is, for instance, incapable, the health authority

designate — it may be a director of the mental health centre — may complete a

certificate of incapability and forward that to the Public Guardian and Trustee.

There are five criteria that must be met before a certificate is issued. The

trustee may accept the certificate of incapability, whereupon the trustee

becomes the adult's statutory property guardian after those steps have been

complied with.

The

section will not apply, obviously, if the adult has a property

guardian appointed by the court. So in those circumstances, it wouldn't apply.

L. Krog: With respect further to paragraphs 32, 33, 34, 35

and 36, I read this scheme, and I'm simply asking for confirmation, to say that

the Public Guardian and Trustee — having received an assessment, if you will —

will step in and can step in automatically as a property guardian for that

individual if there's a certificate of incapability issued. Then the statute is

essentially contemplating that at that point — perhaps because it's an emergency

situation, for instance, although it doesn't have to be — some other person can

apply to be appointed as property guardian.

[1500]

The reason I raise this — and with great respect to the Public

Guardian and Trustee's office, much as I appreciate the good work they do — is

that there are often family members who do not see it that way and would prefer

to actually act on behalf of a person who's been declared incapable. The way I

understand this

section is that we're essentially saying that the Public

Guardian and Trustee can step in without the necessity of a court application,

but then I'm certainly free as a family member or an interested party to step in

and have the Public Guardian and Trustee replaced, if you will.

Hon. W. Oppal: The

section obviously deals with replacing a

statutory property guardian. Subsection (3) states that the application may be

granted if the Trustee is satisfied that the applicant is suitable and a plan

submitted under (2)(

b) is appropriate to manage the adult's financial affairs.

This

section is obviously put in so as to provide more flexibility and provide a

change if a change is warranted for whatever reason.

L. Krog: What I understand from these sections,

particularly 36 and 37, is that now the only way you could step in as an

individual is if a court appoints you to be a committee of a patient,

whereas

this statutory scheme, as proposed in this bill, allows the Public Guardian and

Trustee to step in and become a property guardian. Then if they're satisfied

that the son, the daughter, the wife, the husband, the cousin or the best friend

is capable and has a plan, the Public Guardian and Trustee on their own, without

application to court — without a court review, if you will — can in fact appoint

that person who would have all the same authority as a court-appointed property

guardian and be able to carry on managing those affairs.

Further, as I understand it, if it is granted by the Public

Guardian and Trustee, the Public Guardian and Trustee, also in

section 37 sub

(1) on page 25, can rescind the grant of that authority. In other words, the

Public Guardian and Trustee's office becomes a bit of a mini-court in comparison

to what we're doing now.

Hon. W. Oppal: The short answer is yes. This

section is

obviously put there so as to avoid the necessity of going to court when a change

is necessary.

L. Krog: I just want to confirm. In discussions — and I

presume they took place with the Law Society of British Columbia, Society of

Notaries Public, etc. — was there support for this particular revision and

reform, if I may call it that?

[1505]

Hon. W. Oppal: There was extensive consultation, and the

proposed legislation was exposed for public consultation for two years. There

were no objections to this provision.

L. Krog: Further on

section 37, particularly sub (6) and

(7), which provides a continuance of the property guardian's authority in the

case of a deceased patient, if you will, until such time as letters of

administration or whatever are granted. It then goes on to talk about: "If no

letters probate of the will or letters of administration of the estate of the

adult are granted, the statutory property guardian may apply to court for an

order that subsection (6) does not apply."

I'm just wondering. What's the scheme that's contemplated here? We

have a situation where the estate is small, for instance, and probate is not

required or letters of administration are not appropriate. It's not necessary.

In other words, why go to the expense? Is it contemplated, then, that the

property guardian will be enabled, if you will, to then simply wind up the

affairs of the estate in accordance with the will, if any, or in accordance with

the Estate Administration Act,

[ Page 8699 ]

without further court order or application, or is a court order going to be

required?

Hon. W. Oppal: A person may apply to the court for an

order, but it's not mandatory. The sufficient safeguards are there by having

the…. Well, the

section contemplates an avoidance of having to resort to go to

court.

Sections 4 to 16 inclusive approved.

section 17.

L. Krog: Referring to

section 17, in particular, paragraph

62.2 on page 29: "Nothing in this Act (

a) limits the inherent jurisdiction of

the court to act in a parens patriae capacity, or (

b) deprives a person of the

right to ask the court to exercise that jurisdiction."

It then goes on to say: "On application by a guardian, the court

may (

a) give directions regarding the scope of the guardian's powers and duties,

and (

b) make any order in the best interests of the adult."

Do I take it from my reading of this

section that in fact, in

theory, the Supreme Court could override the specific provisions of this act,

exercising its parens patriae jurisdiction, or is the reverse true? If it

is prescribed by the act, then in fact the court's power is limited?

Hon. W. Oppal: What this subsection does is affirm the

overarching authority of the court in relation to the protection of incapable

adults and clarifies that there is nothing in the legislation that stops a court

from acting in this particular capacity.

[1510]

Really, it clarifies that the Supreme Court maintains its

parens patriae jurisdiction. That's what it does.

L. Krog: On paragraph 63, this runs for literally four

pages and gives Lieutenant-Governor-in-Council the power to make regulations

referred to in

section 41 of the

Interpretation Act. I can't let this

section

pass, as I've emphasized in this and other bills before this House.

Remarkable authority is given to cabinet under this section. I say

"remarkable" in the sense that we all understand the power of cabinet to make

regulations pursuant to a statute that's passed by this House and proclaimed

into law. None of what will be approved by cabinet is going to come back before

this Legislature. There will be no public debate. There will be public

consultation as promised. There will be discussion, but candidly, it will not

endure the question of opposition members. It will not endure the kind of public

view that this Legislature is supposed to bring to regulations.

I want to say to the Attorney General that I can understand the

ease that it may provide to government. The public service may enjoy the ease of

not having to pass things up through the channels and get them approved by

cabinet and get them submitted to the House. But at the end of the day, to use

that timeworn phrase, it is taking out of public scrutiny matters which I would

suggest to the Attorney General are important.

When we reviewed

section 4, paragraph 16, which gives, very

specifically, remarkable powers to a person who is appointed guardian, including

the right to physically restrain and move the adult and decide whether or not

they can associate with other people…. All of the regulations that may flow from

all of this are never going to see the light of the Legislature, if you will.

Before we pass this section, I want to go on record saying that I

think this is a bad practice. It is bad legislative practice. It is not in the

interests of British Columbians, and I would encourage the government to

reconsider its position when it's bringing bills of such importance to this

House. Whether those bills are seen as a reform or not, it is not, in my view,

what legislatures should be doing.

Having said that, I've concluded my questions on sections 17 and

Sections 17 and 18 approved.

section 19.

C. Trevena: It's

section 19 in "Planning Statutes

Amendments," and the question is about advance directives. I've got a number of

questions about advance directives and just, really, wanted some clarification.

Initially, I think, in

section 19(

b) on the definition maybe the Attorney

General will be able to help me on a number of my questions by telling me

whether there is a specific form used or how the advance directive is written so

that it is consistent for every individual.

Hon. W. Oppal: The issue regarding the use of a mandatory

form was discussed, and the conclusion that we came to was that it would be too

restrictive. It would be too limiting and would perhaps prohibit effective

planning.

[1515]

As well, no other jurisdiction imposes a mandatory form, just as

none will be required for other planning instruments, representation agreements

advance directives are easy to make.

It should be noted that Bill 29 does require an advance directive

to meet certain content and certain requirements, so there is a statutory

requirement scheme. It also provides for authority for standard optional forms

to set out in its regulations, and standard forms will be developed with the

benefit of consultation. That may be of some assistance to people who are

contemplating this. They may well provide guidance, as I expect they would, for

those who wish to avail themselves of their use.

C. Trevena: So the Attorney is saying that there isn't a

standardized form, but there is a form for guidance that could be used for

people?

Hon. W. Oppal: There's no mandatory form, but there will be

a standardized form that I would expect would be useful to persons.

[ Page 8700 ]

C. Trevena: I wonder if the Attorney could explain, then, what

would be in the form. What would be expected to be there in an advance

directive?

Hon. W. Oppal: Well, the standard form will, of necessity,

refer to those matters that are set out in 2.1, and the forms would be developed

after meaningful consultation.

C. Trevena: So it would just be giving guidance for

somebody to fill in on behalf of someone else. But what would be expected to be

included — everything we've been discussing previously about the ability to move

someone, and so on? What is it we are exactly talking about?

Hon. W. Oppal: We're talking here about advance health

directives. That's what we're talking about here.

C. Trevena: I realize that, but I was wondering if the

Attorney could explain a little bit more about what would be included there that

an advance directive, the guidance for people…. What would have to be included

in this to make sure that it was going to be followed with the security that the

person who was not capable of enunciating their own wishes — that we're going to

have that security there? As I understand it, this is a large part of what this

bill is about.

[1520]

Hon. W. Oppal: I think the best way I can answer is that

only a capable adult can complete the documentation, can complete the directive.

C. Trevena: I will move on. I don't think I'm really

clearly explaining myself very well here, because I wanted to know what the sort

of prescriptions would be within the advance directive.

Maybe if we move on

section 19.6, page 38, the changing of the

advance directive. We're obviously talking about people who need to hand over

some authority to someone else for their needs, and often it's going to be for

their health care needs. They have to basically say at a certain stage: "I'm not

going to be capable. I want this to happen." What I wanted to know in my

previous question was: what issues would be included in that? What would be

included in the advance directive?

I'll move on to 19.6, where we have the issue of somebody changing

the advance directive unless they are "incapable of understanding the nature and

consequences of the change or revocation." How would an advance directive be

changed by somebody who doesn't have the capacity to change it themselves?

Sections 19 to 28 inclusive approved.

section 29.

L. Krog: This does set, in my view, the power of a person

to make an advance directive unless incapable, but the standard set it talks

about is: "Unless the adult is incapable of understanding the nature and

consequences of the proposed advance directive." Then it goes on to define what

that is. It says in sub (2): "An adult is incapable of understanding the nature

and consequences of the proposed advance directive if the adult cannot

understand (

a) the scope and effect of the health care instructions set out in

the advance directive, and (

b) that a person will not be chosen under

section 16

to make decisions on behalf of the adult about the health care described in the

advance directive except in the circumstances set out in

section 19.8."

[1525]

Who is going to make the determination, if you will, that a person

is capable or incapable within the meaning of that section? Are we looking at a

doctor? Are we looking at a health care professional? Are we looking at

assessments, opinions? Or is it just a judgment call?

If I am, for instance, an admitting person in a long-term care

facility and a new patient has arrived, am I going to be in a position to sit

them down with it, satisfy myself, and if I'm satisfied, then away they go?

Because my understanding, and the concern of this legislation, is that there

have been persons signing these advanced directives when there was no statutory

authority for them and that the passage of this bill will in fact, if you will,

legitimize documents that have had heretofore no legal basis. What I want to

determine is: who's going to make that decision?

Hon. W. Oppal: Well, there's a presumption of validity, and

if that presumption is…. It requires two witnesses. It's presumed that the

person who makes the advanced directive is capable.

In 19.8 it sets out the factors as to when an advanced directive

does not apply, and it sets out certain circumstances that a health care

provider should not follow directions of an advanced directive if the provider

believes that the instructions are not relevant or not clear; that the wishes of

the adult have changed once a directive is made; that since the adult made the

directive, significant medical advances are relevant to the care and might

substantially benefit the adult; and any number of factors that are set out in

19.8.

[K. Whittred in the chair.]

L. Krog: Referring to 19.5, and in particular on page 38,

it provides that if the witness is a member of the Law Society — in other words,

a lawyer — or a member of the Society of Notaries Public, then only one

individual is required to witness. I can appreciate the logic behind that,

assuming the notaries will have some training in the area.

It then goes on to say: "The following persons must not act as a

witness to the signing of an advance directive: (

a) a person who provides

personal care, health care or financial services to the adult for compensation,

other than a practising member of the Law Society of British Columbia or a

member of the Society of Notaries Public of British Columbia; (

b) a spouse,

child, parent," etc.

When I'm reading that section, I read it to mean that if a person

is providing personal care — I would take it that would include, for instance,

staff at a facility — they can't witness it, as opposed to reading it in

[ Page 8701 ]

conjunction and saying a person who provides personal care to the adult for

compensation.

Hon. W. Oppal: This is deliberately done in order to

address the concerns of those persons who came to us and were concerned about

undue influence being exercised by health care providers.

[1530]

What this

section does is set out the requirements for a

directive, which are basically the same as those for a representation agreement

and enduring powers of attorney. It sets out, you will notice, that the

directive be in writing, signed by an adult and two witnesses. To summarize, it

is there to prohibit undue influence and to prohibit certain persons from acting

as witnesses because of that.

L. Krog: Just to be clear, my point is this. If you look at

(5)(a): "…a person who provides personal care, health care or financial services

to the adult for compensation…."

In other words, I read it to mean that a person who provides

personal care…. So if I'm in a public facility, we'll call it, or a non-profit,

anyone who works there cannot be a witness. Anyone who provides health care to

me can't be a witness, or any person who provides financial services to me for

compensation — in other words, my mutual fund manager — as opposed to reading it

to say that if I provide personal care and I'm paid for it, I can't do it. But

if I just provide personal care and I do it for free, then I could be a witness.

It's a linguistic and grammatical issue, but I just want to

understand that my reading of this

section is correct.

Hon. W. Oppal: It's a person who provides care to the adult

for compensation, other than a practising member of the Law Society or a notary

public.

L. Krog: Over to page 39. That's 19.7(3). "A health care

provider is not required to make more than a reasonable effort in the

circumstances to determine whether the adult has an advance directive or a

personal guardian or representative."

I'm just wondering: is the government contemplating some kind of

registry, like we have with the wills registry now, with the division of vital

statistics, which unfortunately, because of the charge that is levied, is

ill-used by the public generally in British Columbia? Is a central registry

contemplated so that people could, in fact, register the creation of a health

care directive and its location?

Hon. W. Oppal: Registry options will certainly be

considered, but not necessarily a registry. There will be something that will be

considered.

L. Krog: I think the ghost of Mackenzie King is inhabiting

the chamber — conscription, but not necessarily conscription. If I may say, I am

satisfied with taking us through to

section 37.

Sections 29 to 37 inclusive approved.

section 38.

L. Krog: I'm making reference in particular to

section 38,

paragraph 12. That's the power to make an enduring power of attorney unless

incapable. The test set out there provides that an adult "is incapable of

understanding the nature and consequences of the proposed…power of attorney if

the adult cannot understand all of the following." It goes on to list a number

of things — the property he has, the approximate value, obligations to his or

her dependents, etc.

[1535]

I'm just wondering: is there any precedent in any other

jurisdiction for this new definition section? I would support it, frankly. It

seems to me to be a reform, but is there some precedent for the language that is

used in this section?

Hon. W. Oppal: This test really adopts what's the practice

now in Ontario. It has been in force for over a decade. The test is clear, then,

that recently decided on in relation to an old

section 8 case relating to an

enduring power of attorney by the B.C. Court of Appeal…. So it clarifies what

the Court of Appeal said in a case called Egli v. Egli.

L. Krog: Referring to, again, subsection 38(16). This

provides that subject to subsections (2) to (6), which allow a power of attorney

to be witnessed by a member of the Law Society or notary public…. It says simply

that an enduring power of attorney must be in writing, signed, dated in the

presence of two witnesses and both present in the presence, much like we execute

a will. It then goes on to talk about other provisions.

This is a fairly dramatic change. Right now I can wander into my

bank, and I can sign a power of attorney and allow someone to, you know, look

after my bank account. But this change contemplates that the document now that

would give me authority, if you will, to deal with a person's assets must be

signed in front of a notary public or a lawyer, the presumption being that there

would be some kind of advice or explanation given. But the way I read this is

that I can sign it now in front of two of my neighbours, who may not be the

brightest bulbs in the candelabra. That's my reading of this section.

I just wonder if the Attorney General can confirm that. If so, has

he considered what I think could be the fairly disastrous consequences of people

doing self-help legal work or being influenced, if you will, by unscrupulous

parties saying: "Look, you really should have one of these. Every lawyer says

you should"? So I'm going to trot down to the stationery store, pick up the form

and have it witnessed by my two friends, who happily get me to sign away my

authority to manage my affairs.

Hon. W. Oppal: Well, the current practice is that only one

witness is required. So the objective is to avoid the possibility of some

wrongdoing. What this legislation will do is mandate two witnesses to provide an

added safeguard against financial abuse. However, if there's a lawyer, then one

will be required, and only one witness is required if the witness is a

practising member of the Law Society or is a notary public. As well, if an

enduring power of attorney is to be effective,

[ Page 8702 ]

then the Land Title Act must be considered, and there an enduring power of

attorney must be executed, witnessed in accordance with the provision of that

act.

L. Krog: I just want to confirm…. Further on in subsection

38(24) it talks about an "attorney must not be compensated for acting as an

adult's attorney unless the enduring power of attorney expressly authorizes the

compensation and sets the amount or rate." I take it that would not apply

retroactively but will apply to any powers of attorney that are made hereafter.

[1540]

In other words, if you take on the job and it doesn't provide for

payment, you're not going to be paid, even though you may be acting in

historically "a trustee capacity," if you will. It seems to me the Trustee Act

now provides, and the presumption is, that you're acting in a trustee capacity.

Hon. W. Oppal: There's no provision here for retroactivity.

If any act is going to be retroactive, then of course it must be spelled out in

clear and concise terms.

L. Krog: I am satisfied, unless some other members wish to

raise questions, that we pass sections 38 through 44. I understand there is an

amendment to be made to 45.

Sections 38 to 44 inclusive approved.

section 45.

Hon. W. Oppal: I move the amendment to

section 45 standing

in my name on the orders of the day.

SECTION 45, by deleting the text shown as struck out and adding

the text shown as underlined:

Section 7 is amended

(

a) in subsection (1) by adding “made under

this section,” after “In a representation agreement”,

(

b) by repealing subsection (1) (

a) and

substituting the following:

(

a) the adult’s personal care; , and

(

c) by repealing subsection (2.1) and substituting the

following:

(2.1) A representative may not be

authorized under this

section

(

a) to help make, or to make on the

adult’s behalf, a decision to refuse life-supporting care

or treatment health care necessary to preserve life , or

(

b) despite the objection of the adult,

to physically restrain, move or manage the adult, or authorize

another person to do these things.]

On the amendment.

Hon. W. Oppal: This amendment would make a technical change

to the provision that limits the authority of a representative acting under

section 7 of the Representation Agreement Act to refuse life-sustaining

treatments.

The purpose of the amendment is to make the language about this

kind of treatment consistent with that language under the proposed

section 9 of

the Representation Agreement Act and with the Health Care (Consent) and Care

Facility (Admission) Act.

Amendment approved.

Section 45 as amended approved.

Sections 46 to 51 inclusive approved.

section 52.

Hon. W. Oppal: I move the amendment to

section 52 standing

in my name on the orders of the day.

SECTION 52, by deleting the text shown as struck out and adding

the text shown as underlined:

Section 13 is amended

(

a) by repealing subsection (1.1) (

b) and substituting the

following:

(

b) all certificates required under this

section and sections 5, 6 and 12 are completed., and

(

b) by repealing subsections (2), (3.02),

(3.1) and (5) to (6) and substituting the following:

(2) A representation agreement must be

signed by the adult and

(

a) if the representation agreement

appoints more than one representative and the representatives

must act jointly, each representative,

(

b) if the representation agreement

appoints only one representative, that representative, or

(

c) if the representation agreement

appoints more than one representative but each may act

independently, at least one representative.

(2.1) Before a person may exercise the

authority of a representative granted in a representation

agreement, the person must sign the representation agreement.

(3.02) Only one witness is required if

that witness is a practising member of the Law Society of British

Columbia or a member of the Society of Notaries Public of British

Columbia.

(5) The following persons must not act as a

witness to the signing of a representation agreement:

(

a) a person named in the

representation agreement as a representative or alternate

representative;

(

b) a spouse, child, parent, employee or

agent of a person named in the representation agreement as

a representative or alternate representative;

(

c) a person who is not an adult;

(

d) a person who does not understand the type of communication

used by the adult, unless the person receives interpretive assistance to

understand that type of communication.

(6) A witness to a representation

agreement made under

section 7 , or signed under

subsection (4) of this section, must complete a certificate in

the prescribed form. , and

(

c) by repealing subsection (4) (

d) and

substituting the following:

(

d) in the case of a representation

agreement made under

section 7, the person signing the agreement and each

witness complete a certificate in the prescribed form. ]

On the amendment.

Hon. W. Oppal: This amendment would remove the requirement

for a certificate to be completed by a person who signs a representation

agreement on behalf of an

[ Page 8703 ]

adult who is making the agreement and who is physically unable to sign the

agreement on his or her own.

The purpose of this amendment is to make the execution

requirements similar to those proposed for advanced directives and enduring

powers of attorney.

Amendment approved.

Section 52 as amended approved.

Sections 53 to 73 inclusive approved.

section 74.

[1545]

L. Krog: This section, as I understand it — and I just want

to confirm with the Attorney General — provides that, essentially, if there is a

specific gift under a will and it's disposed of by an attorney or a statutory

property guardian or other person during the testator's lifetime, then the

beneficiary who would normally have received that item will, in fact, be

entitled to proceeds unless the disposition was made at a time they were capable

or contrary intentions were expressed in the will. So I take it this will now

give, if you will, a statutory right to lay claim to proceeds of an item that

has been disposed of during the testator's lifetime, but I'm wondering what the

Attorney General's view is.

Let us assume for a moment that the proceeds are disposed of

during the testator's lifetime, and let's assume the value, for example, is

$10,000. So you've sold a car that I was supposed to get, and the deceased's

estate at the time of death, after payment of taxes and funeral and testamentary

expenses, is $5,000. So I'm not getting my $10,000. Is this creating a statutory

right for me to make a claim against the guardian or the power of attorney?

Hon. W. Oppal: The scenario presented by the member would

be addressed as follows. The question would be dealt with in the same way, as

though there were insufficient funds in an estate. In the circumstances,

succession law would be applicable.

Sections 74 to 86 inclusive approved.

section 87.

Hon. W. Oppal: I move the amendment to

section 87 standing

in my name on the orders of the day.

SECTION 87 , by deleting the text shown as struck out and

adding the text shown as underlined:

Section 46 (1) (

a) is amended

(

a) in subparagraph (iv) by repealing clauses (

A) and (

B) and

substituting the following:

(

A) if the power of attorney is not an

enduring power of attorney, the individual had, at that

time, no knowledge of the mental infirmity of the transferor, or

(

B) in the case of an enduring power of

attorney, the individual had, at that time, no knowledge of the

suspension or termination of his or her the

authority of the corporate attorney under any enactment, , and

(

b) by adding the following subparagraph:

(iv.1) each change to the authority of an attorney under an

enduring power of attorney has been filed with the registrar under this

Act or a copy, certified under

section 51 (4) as a true copy of those

changes, has been filed, and.]

On the amendment.

Hon. W. Oppal: This amendment would make a technical

correction to the consequential amendment to the Land Title Act to ensure that

the appropriate reference is made to a corporate attorney.

Amendment approved.

Section 87 as amended approved.

Sections 88 to 97 inclusive approved.

section 98.

L. Krog: This is a significant revision, and it will permit

the notaries to draw representation agreements, advance directives, powers of

attorney, enduring powers of attorney. I want to inquire of the Attorney

General: was consultation made with the Law Society of British Columbia, and if

so, what position did they take on this?

[1550]

Hon. W. Oppal: There was, surprisingly, no objection from

the Law Society, even though the notaries are getting more work here.

Sections 98 to 112 inclusive approved.

Title approved.

Hon. W. Oppal: I move that the committee rise and report

the bill complete with amendments.

Motion approved.

The committee rose at 3:51 p.m.

The House resumed; Mr. Speaker in the chair.

Reporting of Bills

ADULT GUARDIANSHIP AND PLANNING

STATUTES AMENDMENT ACT, 2007

Bill 29, Adult Guardianship and Planning Statutes Amendment Act,

2007, reported complete with amendments.

Mr. Speaker: When shall the bill be read as reported?

Hon. W. Oppal: With leave of the House, now.

[ Page 8704 ]

Leave granted.

Third Reading of Bills

ADULT GUARDIANSHIP AND PLANNING

STATUTES AMENDMENT ACT, 2007

Bill 29, Adult Guardianship and Planning Statutes Amendment Act,

2007, read a third time and passed.

Hon. C. Richmond: I call adjourned debate on second reading

of Bill 40, Tsawwassen First Nation Final Agreement Act.

Second Reading of Bills

TSAWWASSEN FIRST NATION

FINAL AGREEMENT ACT

(continued)

D. Routley: It's my privilege to rise in this House again

to speak on Bill 40. I had the brief privilege for three minutes on Thursday

afternoon to close debate. I did have time enough to wish Chief Baird the best

in her people's pursuit of reconciliation, and I'll offer again congratulations

to the Tsawwassen people, who have shown patience, strength, dignity and loyalty

to purpose and principle.

I also think we should thank all of the negotiators, all 15 years'

worth of them, many of whom we consulted in the opposition caucus before

arriving at a conclusion about this treaty.

[K. Whittred in the chair.]

I am proud to speak of the treaty in this historic place on this

historic occasion. I am always struck by the import of this place and its

ornateness, its beauty and its elegance. I always remind students who visit this

place that all of that was not put there to uplift the station of the powerful —

to make the elite more elite — but in order to raise up the interests of

ordinary people to the highest place possible. That's what we're here to do — to

lift up the interests of ordinary British Columbians to that highest place

equally.

I offer my support for this treaty, but with significant

qualifications. Before reaching a conclusion on the treaty, the opposition

caucus heard from former MLAs — one of whom I see entering the chamber now, Mr.

Harold Steves, who was one of the original architects of the ALR.

[1555]

We've heard many first nations' voices. We've heard from those who

told us we would be foolish to support and foolish not to. We've heard from all

angles, and it was with the most careful of considerations that the officers and

caucus reached their conclusions.

It's unfortunate that we've heard detrimental comments from many

government members towards the Leader of the Opposition. The Leader of the

Opposition has a parent who is Métis. She herself is Métis. Her husband Al Gerow

is a noted first nations artist and member of a first nations band. So that

places this issue at the highest level of importance for the Leader of the

Opposition. Our leader feels this issue in her blood, and it's unfortunate that

Ms. Baird, the Chief of the Tsawwassen people, who has sat through all of these

debates, has been forced to listen to such a politicization.

Before arriving at my conclusion, I spoke to many of my

constituents, and I promised all of them that I would bring their voice to this

place. So that's what I intend to do.

I spoke to the elders of the Cowichan Tribes and the elders of the

Hul'qumi'num Treaty Group. The elders remind us of much. They hold on tightly to

some well-earned cynicism when it comes to the words of politicians,

particularly white politicians. It's unfortunate that they've had to learn

through the bitterness of disappointment not to take political pronouncements

seriously. No, they look for material improvement. They look to the deed as

proof of the word. I'll have more to say about that momentarily.

The chiefs of my constituency are talking to me about overlaps.

Chief Shaver of the Penelakut Nation, Kuper Island, is completely engulfed by

this treaty. The interests of the Cowichan people overlap this treaty both in

terms of harvesting and resource extraction.

They talk to me about consultation and accommodation. They talk

about the word they heard from the Supreme Court when it comes to their inherent

and inalienable rights. They wonder how this treaty could have gotten to stage 4

and then ratification without the smallest consultation, without even a phone

call.

When they glance at the paper and they look to this House and they

hear words from politicians, perhaps even words in throne speeches, they compare

that to the disappointment of the elders — the disappointment of the elders and

a cynicism born through experience. Then they look to the word of the Supreme

Court, which has instructed the treaty process to consult and to accommodate

competing interests and overlaps, and they see a failing of that word.

So, Madam Speaker, the words of this House have not materialized

into real benefit in the lives of first nations people in my riding. It's not

only Stuart Phillip and nations outside the treaty process who are concerned.

The Hul'qumi'num Treaty Group and their chief negotiator Robert Morales have

fought for the establishment of the unity protocol.

I'd like to read one excerpt from a letter from Mr. Morales. This

letter was sent to the Premier and to Prime Minister Stephen Harper. This letter

was sent on June 1, 2007. Mr. Morales says:

"As we write to you today, the leadership of many treaty

negotiating first nations faces enormous pressure from our memberships to

consider withdrawing from a process that is not only viewed as a failure, but as

a further and deliberate victimization by the Crown. While the process is being

deliberately stonewalled, the lands and resources of our territories are being

extracted at an alarming rate. The level of anger and frustration is reaching

levels of which you have

[ Page 8705 ]

been repeatedly warned, levels that our leadership may no longer be

able to control."

[1600]

That is a very sad sign because despite all the injustices of the

past, despite all the deprivations, despite all the poverty — the numbers that

I'll speak of later that place first nations people from childhood to adulthood

and the seniors, the elders, in incredibly vulnerable circumstances…. All of

that and yet we still have willing partners on the other side of the table. We

still have a situation that has not devolved as in other jurisdictions, in other

nations, to violent conflict and to a turning of the backs to one another.

No, we have good partners but only as long as we treat them with

respect. Mr. Morales warns of a diminishing patience, of a patience

overstretched by hundreds of years of promises broken, of a patience stretched

and a patience broken by the past few years of increased poverty and increased

degradation of the living conditions of people in my own riding, on the reserves

and in the communities of my own riding.

The young people. In Cowichan, the largest band in B.C., more than

70 percent of the population is under the age of 26. How have their interests

been protected? How was their voice heard, and how will it be heard in the

treaty process as it exists today?

At a time of a demographically driven labour shortage, this

government is foolish in not making the absolute best of its youth. But what do

we see? We see a government that has underfunded school districts and caused

them to cut at the very programs that affect so many vulnerable first nation

students.

How will those young people judge this government? They will judge

as a failure the fact that B.C. spends the least of any province on

community-based literacy programs. They will judge this Liberal government as

failures, as students in inner-city schools have lost their lunch programs.

Vulnerable students have lost services, languishing in classrooms without

assessments and receiving no support.

This is not the way to address the low graduation rates of our

first nation students, and this is not the way to achieve reconciliation. This

points to more words and more vacancy of meaning in those words. This points to

a circumstance that is abominable and makes galling the pantomime that we see on

the other side of this House when it comes to reconciliation.

The broader community in my riding is concerned about the

sustainability of this treaty as template. Will the next wave of effort at

removing land from the ALR be driving the treaty process, or is it already

driving the process? This government has done nothing to protect the ALR, from

meat-processing regulations that are defeating the efforts of small farmers, to

this treaty, which allows the severing of the most productive lands of our

province. These Liberals now, and before when they were Socreds, have done

everything possible to break down the ALR and turn it over for development.

What commitment is this? It was pragmatism that opened the door to

treaty for the B.C. Liberals. A certainty for development drove the B.C.

Liberals. The marriage of convenience to principle that the Premier has embarked

on when it comes to reconciliation has its roots in a pragmatic need for a deal.

The aspirations of reconciliation go much further than the

pragmatic and include the notions of principle. The difficulty of separating the

treaty and its implications in terms of its historical significance from the

history of the abuse of the lives of first nations by this government is very

difficult. The difficulty of separating its pragmatic consequences from its

consequences on politics and principles is equally challenging.

How will this affect the pursuit of the higher goals of

reconciliation? Now that those tribes, those bands, those nations that have the

lever of negotiating power over this government are removed from the process,

how will the critical mass that's needed to pursue the higher goals of

reconciliation be affected by this fragmenting, this fractioning off of those

with the power of negotiating levers — like the need to expand a container

terminal, like the need for our Premier to act as land agent for some of the

biggest business people in this province?

[1605]

It's sad that only the pragmatic could cause the B.C. Liberals and

our Premier to open the door to this process that he himself and this party, the

B.C. Liberal Party, denigrated with the lawsuit against the Nisga'a agreement

and the terribly divisive referendum on treaty rights.

Yet somehow this Premier's flip-flop is seen as thoughtful, and

now our friends on the other side would have us see that as leadership. There's

never been a tokenism more revolting to me than the spectacle of this so-called

free vote on the other side.

There are four difficult areas: the historical, the pragmatic, the

political and the principled, and the political wedge, the political bludgeoning

instrument for which this treaty has been used. Historical, yes. This treaty is

historical. But will it stand on its own in history? Will this and other recent

agreements serve to dissolve that critical mass? Will we wind up in a paralysis

because this as a template is not sustainable?

As I mentioned, one of the architects of the ALR is sitting behind

me. Without the ALR, the riding I live in would look nothing like it does today.

It would look like the sprawl that surrounds Vancouver, but instead we have

small farms, an active agrarian economy and a lifestyle that people pursue from

all around the world.

That's true of the whole province. What would this province look

like without the ALR? What would Richmond look like without the ALR? What would

the Fraser Valley look like without the ALR? What would Vancouver Island look

like to its residents had we not had the ALR?

In terms of political issues and principle, the effect of this

treaty…. The UN declaration on the rights of indigenous people is something the

federal government refused to support. The UN declaration sought to address both

individual and collective rights, cultural rights and identity, rights to

education, health, employment, language and others. It outlaws discrimination

against indigenous people and promotes their

[ Page 8706 ]

effective and full participation in all matters that concern them. It ensures

the right to remain distinct, to pursue their own visions of economic, social

and cultural development. The declaration explicitly encourages harmonious and

cooperative relationships between states and indigenous peoples.

Yet when our federal government failed to endorse that

declaration, we did not hear a peep from the B.C. Liberal government. We did not

hear a peep from the Premier, who supposes to be in pursuit of reconciliation.

How can that be so? How can that be so from a government that claims to be

committed to these higher principles and this new relationship?

The Auditor General's report on treaty negotiations lists three

main concerns: (1) the new relationship is not defined, (2) the breakthrough

strategy takes away from the negotiation process, and (3) economic deals reached

outside the treaty process may prove to be a disincentive to successful

negotiations. That is because in a political pursuit of a pragmatic goal, this

government trod all over the concepts and principles of reconciliation. This

government trod all over the higher purposes that Stuart Phillip speaks of when

he describes this treaty process as minimalist treaty-making.

So we're going to now somehow celebrate this government and their

simple-minded, pragmatic approach that ignores a couple of generations, a couple

of centuries of pursuit of justice.

I wonder how Chief Baird feels now about her partners, after

witnessing this government and this Premier use her nation's pursuit of a treaty

as a political bludgeon. It has been a simple tool that they have stood up one

by one in order to attack in the most denigrating fashion the Leader of the

Opposition rather than speak to the values of this treaty.

[1610]

On this side of the House, Madam Speaker, you've heard thoughtful

debate about all the potential implications of this treaty. You've heard the

pronouncement of a belief that we have to go further. We've heard the voices of

British Columbia on this side of the House. On the other side, I heard the

member for Peace River South say that the opposition were acting almost as if

the Premier used it for political gain. Imagine that. We've heard leadership

jabs from every government member. How does Chief Baird feel about her partners

now?

We've seen an outburst of political immaturity. The very people

who have decimated the lives of so many British Columbians now offer the

pretence of reconciliation. The member for Delta South spoke of relationships we

can be proud of. How proud can the Chief be of a political program that has

starved the poor of relief, has condemned so many of her own people to live

homeless on our streets — a program brought to us by this B.C. Liberal

government with a heartlessness felt most severely by first nations,

particularly first nations in our urban centres?

The deprivation of these policies was not reserved for the

downtown core. First nations who couldn't find housing, who couldn't find social

services flooded back to reserve. The cup of inner-city deprivation flowed over

into the reserve, where federally supported services were overwhelmed and

paralyzed.

The gall of this pantomime. How does Chief Baird feel about her

partners now? Now that she sees this posturing amongst the wounded, how does she

feel about this Premier's marriage of convenience to these principles?

The current history. Well, the Cowichan, my own constituents, have

engaged a lawsuit opposing the territorial and resource provisions of this

treaty. The current history is one of a huge underclass. Employment rates,

homeless census, imprisoned rates, teen pregnancy, addiction rates all point to

a downtrodden people and a failure by this government to make material changes

in their lives.

Currently aboriginal people live seven years less on average than

non-aboriginal people. Infant mortality is at four times the non-aboriginal

rate. HIV and AIDS infection rates are double that of the non-aboriginal

population; diabetes, three times. Drug- and alcohol-related deaths, four to

nine times greater than the non-aboriginal population. Teenage motherhood, six

times greater. Child poverty, two times greater. Aboriginal children in care

have increased by 50 percent, as our leader pointed out, between 1997 and 2005.

Aboriginal youth are seven times more likely to be imprisoned,

while only ten years ago that number was three times. That's the measure of

progress that my constituents see every day — not the lofty words of a throne

speech but the lack of a home, the lack of good food, the lack of opportunity.

The Chemainus band in Ladysmith — over 90 percent unemployment.

There isn't one person of aboriginal descent from the Chemainus band working in

the town of Ladysmith. That's the reality today.

High school education. If you have a high school education in this

province, your average hourly wage has increased by 6.2 percent in the last

three years. If you're an aboriginal worker with a high school education, your

average hourly rate has gone down by 30 percent in that time.

Adding it all up, one could forgive those elders for clinging to

that cynicism, couldn't one? One could forgive them for turning a blind ear to

what's being said in this House.

[1615]

An Hon. Member: A deaf ear.

D. Routley: A deaf ear, pardon me. Deaf ear, because they

can't turn a blind eye to what they see in their homes every day and on the

streets of their reserves — unlike this Liberal government, who can return to

comfortable homes and slap themselves on the back for having negotiated a

pragmatic treaty in the face of deprivation, poverty, early death. Those are the

facts.

How did she feel when the Liberal government members said that the

NDP never made any progress on treaties in ten years? No progress? We initiated

the current treaty process under Mike Harcourt. We settled the Nisga'a treaty.

[ Page 8707 ]

Ignorance of the past is no foundation for understanding today. It

is the Premier of this B.C. Liberal government who went to court to contest the

Nisga'a agreement. It is the Premier of this province who initiated the divisive

referendum on the rights of aboriginal people. How can she feel?

How did the Chief feel when the Premier engaged in his insulting

legal challenge of that treaty? I don't know how she was feeling about her

people's pursuit, her treaty, her rights, the referendum. All of that, and now

she witnesses this theatre of the absurd. A government which danced with the

devils now parades with the saints. It's too much.

Are we, through our actions past and present, committed to the

real notion of reconciliation? Or is this Liberal government only engaged in a

heartless pantomime?

The Health Minister cautioned us to be careful as we oppose parts

of this bill. He said that we should not say a lot of negative things. Well, how

does she feel seeing her treaty used as a bludgeon politically by the government

members? How does she feel seeing her new partners degrade this document in such

a coarse way?

The leader of the loyal opposition in our caucus took the time to

study all of the interests. We have had experts and citizens from all sides come

to speak with us.

The ALR and the treaty process are two of the great achievements

of the NDP. We treat them both as our most cherished accomplishments.

It was only after the deepest consideration and difficult,

well-thought discussion that we've been able to come to our consensus. That is

what you have heard here, Chief — a debate characterized by thoughtfulness,

respect and seriousness on this side.

Conversely, from the government….

Hon. J. Les: Through the Chair.

D. Routley: Would the member from the government, the

Solicitor General, deny that I should turn to the Chief, as every one of the

government members has, pleading for her support while they bludgeon the other

side in the most coarse way? Or should I address my comments to the Solicitor

General?

Conversely, from the government side we've seen a pantomime, an

absurd posturing. It is as if those who started the blaze — the social cuts,

increasing poverty rates and exploding homelessness rates, particularly amongst

first nations — now appear at the fire holding an extinguisher.

Finally, we need the permission of the Chief to celebrate her

people's achievement but also to be a responsible opposition. We have a duty to

point the harshest finger of criticism toward the many irresponsible acts of

politicization and deprivation through policy that have characterized this

government's management of and effect on the relationship — not the new

relationship, just the ongoing relationship.

The continuing relationship is connected to the old relationship.

We can't escape its history with a few words in a throne speech. The obligation

to reconcile historically is just now being confronted, at such distance from

the origin of the injustices.

[1620]

At the same time that we begin to recognize our own responsibility

to reconcile, we recognize the depth of continuing injustice. The injustices

wrought on the lives of aboriginal people by the policies of the B.C. Liberal

government and this Premier, on the other hand, offer a much more current claim

for reconciliation. I wonder how far the Premier and his government will have to

get from their own conquest-driven damage before they are ready to reconcile

with it.

Hon. T. Christensen: I am fiercely proud, privileged and

thankful to have the opportunity to stand and speak strongly, proudly and fully

in support of Bill 40, the Tsawwassen First Nation Final Agreement Act.

I acknowledge that we are today gathered on the traditional

territory of the Esquimalt and the Songhees First Nations, two first nations who

earlier this year came to their own agreement in respect of a long outstanding

respect of these lands that these magnificent buildings sit upon.

First and foremost, Madam Speaker, I want to congratulate the

Tsawwassen people; their chief, Kim Baird, and her council; previous chiefs and

council members, all of whom have set out a strong vision for their community,

all of whom have persevered to pursue that vision, to find a path forward

towards reconciliation — a word that somehow gets bandied about in this place

from time to time, but a word that is at the heart of the work that is necessary

if we are to truly make progress in this province.

This treaty between the Tsawwassen First Nation, the government of

Canada and the province of British Columbia is a remarkable achievement, an

achievement that has only come because of perseverance, patience, clear and

consistent vision displayed by the Tsawwassen people and leadership both for the

Tsawwassen people, as well as at the national and the provincial level, to find

the compromises necessary to reach a tripartite agreement.

When I think of the leadership that we have seen from the

Tsawwassen people in respect of coming to this final agreement, I think we can

all in this House agree that it bodes well for implementation of this agreement,

because we can all recognize that coming to the agreement is certainly a

monumental and important step. But it is the implementation of the agreement and

the opportunities that the agreement provides and the harnessing of those

opportunities that is actually going to provide for a better life for the

Tsawwassen people and a better future, a better shared future, for the

Tsawwassen people and all British Columbians in a true spirit of reconciliation.

This treaty is the culmination of many years of negotiation. I

would be remiss if I didn't thank the negotiators for the Tsawwassen First

all of whom have been sent to the negotiat-

[ Page 8708 ]

ing table with mandates that they sought to achieve and with the need to find

where those mandates could be massaged, where those mandates needed to be

massaged, in order to find that final agreement that is so often elusive.

As a former minister responsible for treaty negotiations when I

was Minister of Aboriginal Relations and Reconciliation, I had some small

opportunity to experience the challenge of negotiating treaties directly, the

challenge of the give and the take that's necessary if we truly want to reach

these tripartite agreements. As Chief Baird has rightfully pointed out, there

are parts of this agreement that she finds offensive. There are parts of this

agreement that she needs to hold her nose at. Similarly, there are parts of the

agreement that both the province of British Columbia and, I'm sure, the federal

government look at and say: "You know what? That's not what we set out to

achieve initially."

[1625]

But that is the nature of a negotiated agreement. It is one where

all parties need to determine: what are the most critical elements to find a

positive path forward together? What are the compromises that we are each

prepared to make, notwithstanding that we hold principled views on what we would

like to see in the agreement? And what are the compromises we're not prepared to

make?

That is the nature of the negotiation at the table, and I am

thankful to all the negotiators who have provided those of us who were the

principals that were to provide direction to them with their wisdom from the

negotiating table, their wisdom of the history of the matters at hand, and who

assisted all of us as the principals to find the way forward.

I think it is worth repeating that this is truly a monumental

achievement, particularly when it's taken in the historical context of 150

years, more or less, of outright denial of aboriginal rights, title in the

province and very, very little progress in that 150 years towards true

reconciliation. This is a monumental and historic step forward.

I've listened carefully to some of the opposition debate and the

lecturing that those of us on the government side have tried to endure. Quite

frankly, Madam Speaker, it's hard to determine whether the opposition is

supportive of this treaty or not. In fact, in my own personal opinion, I have

found a number of the comments of the opposition to be quite offensive.

The member who spoke before me, the member for Cowichan-Ladysmith,

characterized this treaty as an instrument being used to bludgeon the

opposition. I can think of nothing more offensive than to characterize this

historic agreement that has been reached through the leadership of the

Tsawwassen First Nation, together with the province and the federal government,

as an instrument, a political instrument, that is being used to bludgeon the

opposition.

This is a hard-negotiated agreement, the first agreement in a

process that has been around since 1992 — the B.C. Treaty Commission process —

and it is a credit to all of the people at the negotiating table, all of the

participants that have contributed to coming to this final agreement that we are

there.

Of course, we know the opposition wasn't until recently sure

themselves about whether or not they wished to support this agreement. There was

a complete lack of any lea