1998/99 Legislative Session: 3rd Session, 36th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, JANUARY 19, 1999

Afternoon

Volume 13, Number 7

[ Page 11149 ]

The House met at 2:08 p.m.

B. Goodacre: Today I have the pleasure to introduce a constituent of mine from Smithers who's here representing his hotel at the hotels association's dinner. Al McCreary has a long history of community involvement in Smithers, most notable of which is that for the last 19 years he's been one of the instrumental forces behind old-timer hockey in Smithers and the northwest of British Columbia. I'd ask everybody to please make him welcome.

Standing Order 35 Motion

G. Campbell: Hon. Speaker, I rise this afternoon pursuant to standing order 35, as outlined in my letter to you of this date, for the purpose of debating a definite matter of urgent public importance -- namely, the closure of the Highland Valley Copper Mine and the loss of 1,046 jobs in the Kamloops region.

In Williams Lake, 267 families are losing their paycheques. In Fraser Lake, over 200 families are facing the loss of their jobs. Thousands more will be devastated by the spinoff effects. The Highland Valley mine generates about $500 million into the economy of B.C. It's the largest single employer in the Kamloops region and a critical cornerstone of B.C.'s mining industry. It is urgent that this House give a clear direction to the government to stop using B.C. Hydro to gouge industries in B.C., thereby costing thousands of B.C. workers their livelihoods and costing families their support.

Therefore I move the following motion: that pursuant to standing order 35, the House do now adjourn in order to deal with a definite matter of urgent public importance -- namely, the devastation of the mining industry in B.C. and the loss of 1,046 jobs in the Kamloops area.

The Speaker: Thank you, member, and I thank the member for the courtesy of providing me with the information about this earlier.

Hon. J. MacPhail: Hon. Speaker, I rise as Government House Leader to respond to the request under standing order 35, where the debate required is one of an emergency nature.

You know, it would be nice if the opposition didn't choose to grandstand on absolutely every issue and actually offered some valuable assistance and advice on the economy. There is no question that this is a very serious issue, and our government is dealing with it in a serious manner as we speak. The mine has suggested that the closing date is May 15 of this year. The minister responsible is working, as we speak, with all of the stakeholders involved and will begin those face-to-face meetings next week.

This is not about grandstanding; it's about taking a very serious, concerted, deliberate approach to a serious problem. That's what we're doing, and we would welcome the opposition's participation in some of those discussions. But this is not what is required -- a grandstanding emergency debate.

The Speaker: I recognize that the member for Kamloops-North Thompson is on his feet. This is not a debate at this point, and I'm sure the member recognizes that. I have heard from both sides, so I'm happy to . . . . Thank you for taking your seat.

M. de Jong: Upon review of the precedents and practices of this House . . . . It has not been unusual to allow individual members a very brief opportunity to partake in the submissions that are made to the Speaker. There's certainly precedent for that, and this being an issue affecting the member for Kamloops-North Thompson, I think it's appropriate for him to make those submissions.

The Speaker: I do appreciate the points that have been raised. If the member for Kamloops-North Thompson would like to say two or three words, I'd be prepared to entertain that.

Interjections.

The Speaker: The member will take his seat.

I recognize the Minister of Finance.

Hon. J. MacPhail: Hon. Speaker, I fully appreciate that it's your prerogative to make the ruling, but if we are to allow debate, then that precludes your making a decision about the nature of the debate.

The Speaker: When I have determined that those who have spoken have done so, then I will pronounce at that point.

The member for Kamloops-North Thompson -- very briefly, please.

K. Krueger: Hon. Speaker, this government may not think that Highland Valley Copper's closure is an emergency situation, but my constituents and I do. I call upon the member for Kamloops and the member from Merritt to stand up for our constituencies . . .

The Speaker: Hon. member . . . .

K. Krueger: . . . stand up for our constituents and communities, and join us in this emergency debate.

Interjections.

The Speaker: The member will take his seat.

Interjections.

The Speaker: Hon. members will come to order. I think those were rather more debating comments than adding materially to the information that I will need to make a ruling on this.

[2:15]

Hon. D. Miller: Very briefly, in terms of contributing to the specific point about emergency debate, I just want to inform the House that in the past three to four weeks I have had three conversations with Doug Horswill, the VP of Cominco. The latest was prior to the announcement . . . .

Interjections.

[ Page 11150 ]

Hon. D. Miller: I'm just trying to make a point, hon. Speaker.

The Speaker: The minister will conclude his very brief remarks.

Hon. D. Miller: Just in terms of the emergent nature, this is a very serious issue. But, hon. Speaker, I just want to inform the House that Mr. Horswill and I have discussed the matter. We have agreed that they will meet with government. I just want to say on behalf of the company that they think there is an opportunity to discuss these questions . . .

The Speaker: Thank you, minister.

Hon. D. Miller: . . . and arrive at a solution prior to the deadline.

The Speaker: I appreciate the points that have been made. I reserve my decision and will get back to the members and to the House as soon as works out. Thank you very much.

Oral Questions

FAST FERRY PROGRAM COST OVERRUNS

G. Campbell: Yesterday, after years of denial, the government admitted what it has known all along: the fast ferry project is massively over budget and way out of control. The minister responsible has tried to pin the blame for this on everyone except himself.

Well, perhaps part of the blame should go to the Premier, because today we heard from the Premier that he did not know that the fast ferry project was being managed on the basis of cost-plus contracts. The Premier was the minister responsible at the time. The Premier surely should have known, as the minister responsible, that shipbuilders would not get involved -- would not have been involved in this project -- without a cost-plus contract.

My question to the minister responsible for B.C. Ferries is: why didn't he inform the Premier, after two years of negligence on the Premier's part, that these were cost-plus contracts? Does the minister himself know that they were cost-plus contracts? That's why we've seen such a massive budget overrun on this project.

Hon. D. Miller: I've spoken previously about one component of the decision to proceed with fast ferries. It was not simply a policy based on replacing or acquiring new vessels for B.C. Ferries' own use but rather a multifaceted strategy that dealt with both transportation issues and the congestion at Horseshoe Bay and Nanaimo -- those kinds of questions.

A very vital component of the program was an attempt to revitalize the shipbuilding industry in British Columbia. At the time we made the decision to proceed, the shipbuilding industry had been decimated by years of neglect. We consulted with the shipbuilding industry in British Columbia. We wanted one of those yards to take the lead position with respect to the project. None of the yards was capable of doing that. Therefore we formed Catamaran Ferries International. We took the lead. We expended a lot of effort to help assist those yards to upgrade their facilities, to train their workers.

Under the circumstances, none of them was in a position to offer fixed-price contracts, because this was new technology. This was a new venture.

The results of the investigation will speak for themselves. But I am pleased to note that as a result of the effort we have made for the fast ferry project, companies like Alberni Engineering, for example, have won other contracts to supply aluminum vessels -- in this case, to the Department of National Defence -- and look forward to taking that technology and skill they now have and gaining more contracts -- in other words, developing a new economic base in our province.

The Speaker: First supplementary, Leader of the Official Opposition.

G. Campbell: The reason this project has gone so far off the rails is because of answers like that. Here we have a Premier, the minister responsible, who says today he did not know these were cost-plus contracts. Now, today, the Minister of Energy and Mines is saying to us that, well, it was always supposed to . . . . Which is it, hon. Speaker? Who's telling the truth -- the Deputy Premier or the Premier? That's what people in B.C. want to know.

The Speaker: Second supplementary.

G. Campbell: Again, the problem with this government is that the people of British Columbia don't trust them anymore. They don't have the answer for who's telling the truth, because they can't keep their story straight.

The issue for us is this: how are we going to get the costs under control? How are we going to bring back public confidence in B.C. Ferries? How are we going to stop B.C. Ferries from sinking into bankruptcy? There is only one way: an open, independent, public inquiry. I ask the government if they're willing to commence one today.

Hon. D. Miller: I don't know what the hon. Leader of the Opposition's personal experience is in shipbuilding. Perhaps he has a lot; I don't know. But, hon. Speaker . . . .

Interjections.

The Speaker: Members, members.

Hon. D. Miller: Quite frankly, I understand the situation. But despite that, I would like to reference some of the comments made by people in the shipbuilding industry. Malcolm McLaren is one of those. His father developed Allied shipyards. In the news this morning, he says that he has confidence, and he talks about the employment it has created. Mr. Ramsay of Ramsay Machine Works says: "I have been working on this for five years, and I have total confidence in the technology . . . . " I would submit that . . . .

Interjections.

The Speaker: Order, members.

Hon. D. Miller: Notwithstanding the very serious fiscal issues that ought to be examined and made public -- and they will be -- I would urge members not to rush to judgment on a

[ Page 11151 ]

program that, for the first time, will give an opportunity for revitalization and continued employment in B.C. shipyards. That means people working in North Vancouver; it means people working here in Victoria; it means people working in Port Alberni. It's not something that ought to be dismissed lightly simply because there is a very serious issue with respect to the cost of these vessels. We'll get to the bottom of that, and we'll make it public.

FAST FERRY PERFORMANCE

M. de Jong: Well, here's a simple question for the minister responsible for this fiasco. Are they going to work?

Hon. D. Miller: I have been on the vessel. I went out on a sailing that was put on when we had three representatives from around the world who were looking at what we're doing and considering whether or not to purchase vessels for their own use at some point in the future. We put on, I think, a demonstration . . . . I was impressed. I was on the vessel; it was doing about 39 knots. You can't feel any rock.

But I want to say this and make it very clear.

Interjections.

The Speaker: Members . . . .

Hon. D. Miller: Given the doubts that have been raised because of the fiscal issues, I now have doubts. I think it is important that we demonstrate -- we have an obligation to demonstrate -- that in fact this vessel works technologically, that it will do what we think it will do.

Interjections.

The Speaker: Members, order.

Hon. D. Miller: It's very clear that there is an obligation for us -- the government and B.C. Ferries -- to live up to that. It's a serious obligation; we take it seriously. I hope we can demonstrate that that is the case.

The Speaker: First supplementary, the member for Matsqui.

M. de Jong: Words aren't good enough. This is the minister and the Premier who told us repeatedly that the project was going to be on budget. This is the Premier and government that told us repeatedly after Hydrogate that there was a system of checks and balances in place to watchdog Crown corporations. The words didn't mean a thing. What we're hearing from everyone now is that not only is the Premier's pet project way over budget -- millions of dollars over budget -- but everything we're hearing says these ships won't meet the performance objectives that the Premier used as an excuse to build them in the first place.

My question to the Premier is: will he table all of the performance documents, all of the sea trial documents, so that British Columbians can see, once and for all, what it is they bought for the $300 million in tax dollars this government has squandered?

Hon. D. Miller: I have been the minister responsible for B.C. Ferries for, I guess, almost three years. This is my responsibility. The member should be aware that before a vessel can be certified to operate, it must receive its certification from the federal government under the Coast Guard. There are international . . . .

Interjections.

The Speaker: Members . . . .

Hon. D. Miller: Hon. Speaker, this is a serious issue. The vessel must be certified not by the B.C. government, not by the B.C. Ferry Corporation; it must be certified by the federal government. It must pass those tests. They make the decision.

Hon. Speaker, I would urge . . . . If people are serious about being responsible, then I think people have to examine what they have said as well. Was it responsible for the Leader of the Opposition to say, as he said in his speech in Nanaimo, that the vessel would sink? Or was that some kind of cheap throwaway line that he thought kind of fit into the anti-government mood of the day? So if people want . . . . You know, they ought to examine what they've said themselves.

There will be an independent certification of this vessel -- independent, hon. Speaker . . .

The Speaker: Finish up.

Hon. D. Miller: . . . and I say we have an obligation to show that it works. We are going to work very hard . . .

The Speaker: Thank you, minister.

Hon. D. Miller: . . . to ensure that it does work, and I think British Columbians will be pleased with the vessel when it is put into service.

REGULAR B.C. FERRIES FLEET UPKEEP

G. Wilson: Hon. Speaker, one of the problems with having concentrated so many millions of dollars into this one project is that it hasn't allowed sufficient money to keep the remaining fleet in proper service. It has come to my attention that on June 14, 1998, 5,000 litres of bilge oil-water was pumped through the sewage system of the Queen of Chilliwack directly into the strait because the Canadian Coast Guard-approved oil separator wasn't working on the vessel.

Furthermore, it has come to my attention that despite a notification in 1997 of diesel oil mists in the Queen of Sidney , no repair has been done -- despite WCB requirements that those repairs be done. Now we have workers who have been contaminated to the point that they may have to be filing WCB claims.

My question to the minister is this. Will the minister, first of all, reopen the investigation into the pumping of 5,000 litres of bilge oil-water and make sure that the engineer who reported it is not disciplined within B.C. Ferries? Secondly, will the minister make sure that when the Queen of Sidney , which is now sitting in refit, is given its work manifest, that engine is properly secured so there is no longer a threat to workers on the Queen of Sidney ?

Hon. D. Miller: I do not have any detail relative to those questions, hon. Speaker. I will take it on notice and get back to the member very, very quickly.

The Speaker: First supplementary, member for Powell River-Sunshine Coast.

[ Page 11152 ]

G. Wilson: On my supplementary, to the same minister. Given the fact that we have also seen serious problems with respect to the reverse gears in the Bowen Queen because the wrong engines were put in and there was insufficient torque to allow the engines to hold in reverse, I wonder if the minister would have the B.C. Ferry Corporation rethink the $9 million refit for the Spirit of Vancouver Island , which is being refit to improve its cappuccino bar and its cosmetic facilities for the patrons that unfortunately have to suffer through some of the problems on B.C. Ferries -- having dined in that cappuccino bar . . . .

The Speaker: Thank you, member.

G. Wilson: Perhaps the minister might take that $9 million and put it into the proper upgrading of vessels that are currently operating substandard to the Canadian Coast Guard's requirements.

Hon. D. Miller: Again, I don't necessarily agree with the member's contention with respect to the engine issue. In fact, I think there is some advice to the contrary, but I will get a full and complete answer to all of the questions that he's asked. I'll take the question on notice.

FAST FERRY PROGRAM COST OVERRUNS

G. Campbell: We have heard yesterday and today about the fact that the fast ferries are over budget, that they are way overdue, that they are not going to perform as advertised. We have a minister today who has said he is going to assume responsibility. We know from yesterday, hon. Speaker, that this minister has not assumed his responsibility. His responsibility was to resign yesterday. He did not carry out that duty to the public.

My question is to the Premier. Will the Premier have enough guts to carry out his duty and fire the minister responsible for B.C. Ferries?

[2:30]

Hon. G. Clark: Hon. Speaker, I have full confidence in the Deputy Premier, the minister responsible. As soon as information was made available to him which was different and which was not public, which showed an overrun, he took immediate action.

I know it's tempting for the opposition to oppose every project that builds British Columbia. We know they were opposed and are opposed to the West Coast Express. We know they're opposed to the SkyTrain extension. We know they're opposed to the convention centre. We know they're opposed to the Keenleyside Dam. We know they're even opposed to raising the minimum wage. They're opposed to every single step that we take to build British Columbia and build jobs in British Columbia.

Six hundred people have been working on the fast ferry project. I have confidence in them, I have confidence in the corporation, and I have confidence in this policy decision. But clearly we have problems with respect to cost containment, and we are taking action today -- this minister is taking action today -- to rectify that situation.

The Speaker: First supplementary, Leader of the Official Opposition.

G. Campbell: To be blunt, this Premier's confidence means nothing. He didn't even know he had signed cost-plus contracts, for goodness' sake. This Premier has gone about promoting this project, promising returns on this project, telling us it would be on budget, telling us it would be on time, telling us he could deliver it, and none of those things has come to fruition. The fact of the matter is that this Premier is standing up for a minister who has not just been incompetent but negligent.

My question to the Premier is: would he rather the public think of him and his government as totally incompetent and utterly inept, or would he prefer them just to think him dishonest?

Hon. G. Clark: I recognize that if we had not built commuter rail, if we had not built SkyTrain . . . .

Interjections.

The Speaker: Members will come to order.

Hon. G. Clark: I recognize that if we had not taken those steps, you would then have nothing to criticize. But I would rather be a government that takes steps to create jobs in British Columbia, to revitalize the shipbuilding industry and to take us into the twenty-first century with new technology, and yes, that takes the risks associated with that, than do nothing and criticize every step and every industry in British Columbia.

The shipbuilding industry in this province has a proud tradition, and I have faith and confidence in the workers of British Columbia that we can compete with anybody in the world, whether it's high-speed catamarans or otherwise. I expect them to oppose that, because they oppose every attempt to rebuild industries and to use Crown corporations to invest in the future of this province. That, frankly, is why they're on that side of the House and we're on this side of the House.

Interjections.

The Speaker: Members, come to order. Question period is over.

R. Thorpe: I ask leave to make an introduction.

The Speaker: Yes, you may proceed.

R. Thorpe: It is with great pleasure that I introduce two constituents from Penticton, Evelyn and John De Yaeger, and I would ask the House to please make them welcome here in Victoria.

The Speaker: I'm sorry; I didn't get the procedure quite right.

I now recognize the Minister of Transportation and Highways -- who rises on what matter?

Hon. H. Lali: I request leave to make an introduction.

Leave granted.

[ Page 11153 ]

Hon. H. Lali: With us today in the Legislature is Michael R. Harding, who is the director of public affairs for MacDonald Dettwiler. Would the House please make him welcome.

Tabling Documents

The Speaker: Members, I have the honour to table public report No. 37 of the ombudsman, "Fair First: An Ombudsaudit of the WCB Ombudsman."

Orders of the Day

Hon. J. MacPhail: I call Committee of the Whole to debate Bill 51.

NIS G A'A FINAL AGREEMENT ACT

(continued)

The House in committee on Bill 51; W. Hartley in the chair.

On the schedule,

chapter 2 (continued).

Hon. D. Lovick: Before we proceed carrying on with

chapter 2, "General Provisions" in the treaty, I have been remiss in not introducing the staff we have with us in the chamber. I thought I would take advantage of this hiatus to do that.

Seated next to me on my immediate right is Mr. Pat O'Rourke. Pat is an assistant deputy minister in the Ministry of Aboriginal Affairs and is our constitutional law authority within the ministry. On my immediate left is Mr. Boris Tyzuk, who is a lawyer working with the Ministry of Attorney General and was lead counsel on the Nis g a'a team for the Attorney General. Next to Mr. Tyzuk is Maureen Maloney, who is the deputy minister for the Attorney General. On the left of the Attorney General is Mr. Jack Ebbels, formerly Deputy Minister of Aboriginal Affairs, who was the chief negotiator at the Nis g a'a table and presently is the Deputy Minister of Energy and Mines.

I'm sorry, again, Mr. Chairman, that I didn't do that earlier. But I thought everybody ought to know who is here and indeed that we are well equipped with expertise, background and knowledge. Having said that, I will defer to my colleagues in the opposition.

G. Plant: This morning we had a discussion about

section 7,

chapter 2 -- "General Provisions." We explored the relationship of

section 35 of the 1982 Constitution Act to the term "Nis g a'a citizens," which is used in

section

Section 7 gives Nis g a'a citizens the right to practise Nis g a'a culture and to use Nis g a'a language.

In the context of that discussion, I think we may have oversimplified the groups of persons who are potentially caught by the definition of Nis g a'a citizens, and I want to repair that omission. First of all, there will be people who will be Nis g a'a citizens and who are members of the Nis g a'a nation, as that term is defined -- that is, they are Nis g a'a by ancestry, within the meaning of this agreement. They will be able to rely upon the provisions of

section 7 and to assert that those provisions are protected by

section 35 as treaty rights, because they're aboriginal persons.

The second group is the group of persons who may become Nis g a'a citizens but who are not aboriginal. Of course, whether or not such a group comes into existence at all is a function of how Nis g a'a government exercises the powers that it has to determine citizenship. As I understand the position of the government, there may be people who are not aboriginal who will be able to become Nis g a'a citizens. They will enjoy such rights as flow from the decision by Nis g a'a government to confer citizenship upon them. But those rights won't be

section 35 treaty rights, because they're not aboriginal persons within the meaning of

section 35.

The group we left out, in the middle, is this group: people who are aboriginal by ancestry but not Nis g a'a. They may become Nis g a'a citizens. I assume that they would be able to assert the right to practise Nis g a'a culture and to use the Nis g a'a language in a manner consistent with the agreement, and that because those persons are aboriginal, those rights under

section 7 of this

chapter would actually be protected by

section 35. Is there something that I have gotten wrong?

Interjection.

G. Plant: So it is the view of the government that persons who are not Nis g a'a by origin but who are aboriginal by origin can legitimately fall within the zone of persons who ought to be able to exercise the rights afforded under this treaty, and to do so as

section 35 treaty rights.

Hon. U. Dosanjh: I think that for aboriginal people who become Nis g a'a citizens and receive those rights within this treaty, those rights then receive the

section 25 and

section 35 protection.

G. Wilson: I've been trying to follow this debate with some interest, because it relates to a couple of issues that I think came up in second reading, which we need to get some clarification on. Prior to lunch, the member for Richmond-Steveston made a comment. I haven't got Hansard . I don't want to be incorrect, but I understand the comment to have been that the Nis g a'a government may pass a law that would make non-aboriginal people Nis g a'a citizens. It is my understanding that while they can do that, they cannot do it against the will of people who are non-Nis g a'a and who are living there.

They can't just arbitrarily come and, against the will of somebody, say: "De facto, now that we have passed this law, you are a Nis g a'a citizen." They can't come in and just de facto, by passage of a law, say: "You are now a Nis g a'a." Am I wrong on that? That certainly is not the way I read this treaty.

[2:45]

Hon. U. Dosanjh: The hon. member is right.

G. Wilson: Okay, so then let me get to this question of whether

section 35 rights apply or do not apply. Let me try . . . . I'm not a lawyer, and I really tread with some trepidation into this sort of debate between lawyers. I have had occasion to read the LSAT, and it's kind of like an LSAT question. It would go somewhat like this: some aboriginals will also be Nis g a'a citizens; all Nis g a'a who are aboriginals remain aboriginals; some European Canadians will be designated Nis g a'a citizens. Which of the following can be logically inferred? I think that the correct answer wouldn't be that European Nis g a'as are therefore aboriginal. Neither would it be that European Canadians are now aboriginals. Is that the

[ Page 11154 ]

correct inference? It's kind of like what the LSAT question says: if A equals C, and some of B are A, can we infer, then, that all of B are C? The answer to that is no, because you can't, by virtue of becoming a Nis g a'a citizen, become an aboriginal person. I think that's correct.

If the Nis g a'a can't, by passage of a law, force you to become one, then it seems to me that it becomes a rather moot point. If you are already an aboriginal and become a Nis g a'a citizen, presumably you already have, through application, the right to

section 35 protection or rights under the Canadian constitution. Am I close here?

Hon. U. Dosanjh: For the latter part of the argument, correct.

G. Plant: I must admit, hon. Chair, that I -- no doubt like you -- was so enthralled there, temporarily, with A and B and C and trying to remember if I'd even taken the LSAT exam that I thought that the interesting line of questioning was about to continue.

I understand the Attorney General to say that non-Nis g a'a government won't have the right to impose citizenship on anybody. I expect that the way this is likely to happen is that Nis g a'a government will make rules about citizenship. And in respect of people who are not Nis g a'a by ancestry, those people can determine whether or not they wish to avail themselves of whatever the procedures are for becoming a Nis g a'a citizen. Should they do that, they would then acquire the protections and the rights and obligations, I suppose, of this agreement. Is that correct? I'm sure I don't need to repeat myself.

Hon. U. Dosanjh: Yes.

M. de Jong: I presume to move on, although I will say this: I think the discussion that took place before lunch and the Attorney General's reference back to the constitution as somehow assisting in the

interpretation of

section 7 of

chapter 2 is helpful in light of the discussion we're about to have with respect to

section 8.

I guess the quick and simple question I would have for the government is: is it the government's view that the inclusion of the phrase "This Agreement does not alter the Constitution of Canada, including: (

a) the distribution of powers . . . . " That

section 8 -- is that determinative of the issue? Is that, as far as the government is concerned, the issue? Is it dealt with? Is that the answer -- period?

Hon. U. Dosanjh: Paragraph 8 obviously goes to the intent of the parties. The parties are stating, by including this paragraph, that parties do not intend to alter the constitution of the country. This is not a constitutional amendment. However, whether or not it's a constitutional amendment is a question for constitutional law, and it can't be determined simply by three parties coming together and stating that it's so.

M. de Jong: While that is helpful, it is also entirely inconsistent with what we have heard from the Minister of Aboriginal Affairs, for example, who has said categorically, without any reference to what the intentions of the parties might be, that this agreement does not represent an amendment to the Canadian constitution. Now, I understand that he or the Attorney General is entitled to have that opinion. But that is something far different than what the Attorney General is saying today -- that as far as he is concerned,

section 8 represents an articulation of the intention of the parties to this agreement. That's not what we have heard in the past from the Minister of Aboriginal Affairs.

Hon. U. Dosanjh: I think this argument is essentially, really, not beneficial, because it doesn't get us anywhere. The fact is that we've stated in this chamber . . . . In response to the Leader of the Opposition's question, I stated very clearly that this treaty does not represent a constitutional amendment. The hon. member asked me about what paragraph 8 means -- whether that in itself decides whether what is represented in the treaty is a constitutional amendment -- and I am saying no.

It is in fact an indicator of the intentions of the parties, but that in itself is not conclusive of whether or not it's a constitutional amendment. I have said in the House very clearly that we believe it's not a constitutional amendment, and scholars like Dr. Hogg and others agree with that view.

M. de Jong: The fact of the matter is that when pressed on the point, the line of defence that members of the government -- including the Minister of Aboriginal Affairs -- have relied upon time and time again is

section 8. "Read the agreement" is the response one gets on the question. "Read the agreement" -- that is the line of defence that they draw. "It can't possibly amend the constitution." Well, I think the Minister of Aboriginal Affairs -- and I'm referring to comments that he made -- should participate in the discussion, and he can defend those comments. That is what we have heard: "It is not possible; we've dealt with that. The parties themselves have said it's not an amendment, and therefore it isn't."

We will, during the course of this discussion, test that theory as it relates to both the constitution and the provisions of this agreement. It is akin to the government saying that something isn't so "because as parties we have decided that it isn't so." And it's not just an issue for constitutional lawyers or constitutional theorists to decide. It's obviously a very significant issue when we consider the impact that this agreement is going to have on the way we're governed and the way the constitution operates in Canada.

So as we start out on this discussion, let me pose this question. It was something that I hadn't thought of until it was brought to my attention. In terms of passing laws in this country, when we pass a bill through this chamber, it doesn't take effect until it has received royal assent -- in this case, via the Governor General in Ottawa. A bill will pass through the House of Commons; it requires royal assent. That is a function of our parliamentary democracy, our constitutional monarchy.

Some people question its relevance, but it is still a function of how we govern ourselves and how laws take effect in this country. That won't happen; that function of obtaining royal assent, as contemplated presently by the constitution of Canada, won't occur here. This is a different mechanism. These will be laws . . . . Correct me if I'm wrong, but now we will have a body of law in Canada that has never received royal assent. Tell me if I'm wrong and whether, in the Attorney's or the minister's mind, that is not a distinguishing feature of this body of law.

Hon. U. Dosanjh: As I understand the procedure, all legislation that passes through this House may be submitted to the Lieutenant-Governor for royal assent; then it's at his

[ Page 11155 ]

discretion to provide that assent or not. In a similar way, this legislation will be submitted to the Lieutenant-Governor. I don't see what the hon. member is really talking about.

M. de Jong: It's likely that I wasn't clear about the body of law that I was talking about. I'm talking about the law that the Nis g a'a government will pass, which in some cases will be paramount to laws of this chamber and the chamber in Ottawa. There will be a body of federal laws and a body of provincial statutes, both of which have received royal assent as contemplated by our constitution. After this document takes effect, there will be a third body of law in Canada that affects some Canadians. Explain to me how that process of bestowing royal assent will operate in the case of that third body of law.

Hon. U. Dosanjh: That point made by the hon. member precisely proves the point that we've been making for the last many months -- that this does not create a third order of government. These are rights given to Nis g a'a, a municipal-like government. A municipal government passes bylaws. This government will pass laws or bylaws, whatever they might be called, that would not require royal assent. That in fact is the very question posed by the hon. member that proves the point that we've been trying to prove for a long time.

J. Cashore: I ask leave to make an introduction.

Leave granted.

J. Cashore: Visiting us in the gallery today are members of Coquitlam Alternate Basic Education. These young people, with their teachers, are learning how our democracy works in British Columbia and in this Legislature. I'm very grateful that they're here during this historic discussion in committee stage on the Nis g a'a treaty. Would the House please join me in making them welcome.

M. de Jong: Can the Attorney General explain to me how the constitution of Canada contemplates laws being passed by any agency in this country, but which have never received royal assent, taking precedence and being paramount over laws which have passed through either a provincial or federal parliament and have received that royal assent? How does our constitution contemplate that?

Hon. U. Dosanjh: I think that we have to go back to the discussion that we've been having. These are rights -- treaty rights -- that all parties have agreed Nis g a'a would have the right to enjoy. We have agreed that they would have certain law making powers that are integral to the sustenance of that community, its language, its culture. In a sense, three parties have agreed to create an institution to which the Charter of Rights and Freedoms and the Criminal Code and other laws apply.

Within the context of the constitution of the country and all of the laws of general application, they will pass laws to govern their own lives, to the point that it's beneficial for them to sustain their culture, their language and their community in the context of the province. I don't see that there is any necessity for royal assent. Royal assent would be given to this particular piece of legislation, which contains the treaty.

[3:00]

M. de Jong: I'm not distinguishing between Nis g a'a Canadians, non-Nis g a'a Canadians, aboriginals and non-aboriginals; I'm talking about how laws operate in Canada. With the greatest respect, the Attorney General hasn't answered the question. What he has said is that the parties to this agreement intend something. Fine; I accept that. I think I understand what they intend to have happen. I can intend all sorts of things. The fact of the matter is that what they intend to do . . . .

When they seek to achieve that objective, they must -- as is apparently their intention -- achieve that objective within the confines of the Canadian constitution, within that body of laws that we call the constitution.

Interjection.

M. de Jong: The Attorney General says that's the case that is before the courts. We're not talking about what is before the courts. We're asking the Attorney and the government today how the Canadian constitution contemplates that a body of law governing Canadians could take precedence and be paramount over laws that have been duly passed and assented to royally by the federal Parliament or a provincial legislature. With the greatest respect, if there is a

section of the constitution that the Attorney relies upon to say that that can happen, let's hear it. I know what the parties' intentions are.

G. Wilson: On the same point that the member for Matsqui is discussing, it seems to me that in this debate we have to recognize that within the constitution . . . . The description of laws as provided for within the constitution provides for powers of a Lieutenant-Governor or the Governor General with respect to royal assent, but just because you call something a law doesn't put it into the same category as a statute.

There are numerous examples in many jurisdictions in Canada where we implement what are deemed laws that have specific application -- rarely general application -- and that are not deemed statutes and that don't require the Lieutenant-Governor's assent or the consent of the Governor General.

So what's being proposed here is really no different than what is being put forward by many authorities, if I can use that term, whether they're municipal in some sense or whether they're a membership of a broader context that might even have cultural or social definition by virtue of the fact that . . . . People living in a particular commune in southern Alberta -- in the Hutterite communities, for example -- may have within the rules and regulations of their community what they deem to be laws of their society, but they are not laws of general application. They certainly cannot override . . . .

Notwithstanding the kind of rhetoric we've been hearing, nothing in this treaty provides for the Nis g a'a to pass laws that bind me, as a British Columbia citizen, in any way, shape or form -- unless I'm on private property, in which case private property regulations and laws will apply.

If I can help by way of contributing, certainly for my contribution to this . . . . I share the concern that I have with my colleague from Peace River. As someone on the opposition benches who generally, by and large, supports this agreement, it's sometimes difficult to get into this debate. A different format might be more useful. It seems to me that the Canadian constitution provides in many, many, many cases for what are deemed laws but are not put in the category of statutes, and therefore do not require the assent of the Lieutenant-Governor or the Governor General. Frankly, I don't think this is a point that has any legal merit at all.

M. de Jong: By way of responding to that, I'm going to pose this question to the government benches. If the argument

[ Page 11156 ]

that the member for Powell River-Sunshine Coast has made is correct -- and I'm not sure that the government accepts it -- then I would like to know which of those authorities, which of those agencies that the member for Powell River-Sunshine Coast referred to as having some regulatory authority, can pass regulations that if inconsistent -- or to the extent that there is an inconsistency with a federal or provincial statute -- would take precedence? I'm not aware of any.

Hon. U. Dosanjh: We'll go to the real issue here. The real issue is that the hon. members oppose and have opposed for some time . . . and have in fact counted the number of times that Nis g a'a law, which is integral to their need to be able to protect their culture and language, overrides a provincial or federal statute. It's about 14 different times in the treaty. There are explanations for each and every one of them, and we'll provide them as we come to them. That's the question the hon. member is asking, and I'm now going to provide a general answer.

There will be a satisfactory answer to each of those particular issues as we come to them. The fact is that all parties have agreed -- three parties have agreed -- that the Nis g a'a ought to enjoy these rights enshrined in this treaty, and the authority to do so is within sections 25 and 35 of the constitution of Canada.

M. de Jong: Much debate has taken place around the issue of self-government and the degree to which the model adopted and constitutionalized in this agreement represents some manner of alteration to the Canadian constitution. Members on the government side have said repeatedly . . . . They've said two things. They've said that the constitution isn't amended, and they have said that the effect of this is not to amend the Canadian constitution in any way, shape or form. And they have said that what this agreement purports to do can in no way be construed as creating a third order of government.

Let me try to put this to the Attorney, dealing with the second point first. Even those authorities who might be inclined to agree with the Attorney General on the first point, about the effect this agreement has on the constitution . . . . Those who would utilize

section 35, for example, in defence of the argument that this doesn't amount to a constitutional . . . . Even those authorities -- some of them -- will acknowledge that what is being created here is a third order of government. I'll cite one of those authorities: John Olynyk, in a recent

article in the University of Toronto Faculty of Law Review. I thought it was helpful to listen to what he had to say, as one who (

a) utilizes the

section 35 argument and (

b) is by and large supportive of the direction that the government is headed in. He writes in that article, in volume 53, No. 2, page 32:

"Self-government agreements will result in the creation of a coordinate third order of government within the Canadian constitutional framework . . . . It appears likely that self-government powers of first nations will eventually be recognized and constitutionally protected as a third order of government. This means that first nations' law making jurisdiction will not be delegated federal or provincial jurisdiction, but rather will be an independent third order of government, in the same way that the provincial legislatures are an independent order of government from the federal Parliament."

In fairness to Mr. Olynyk, he would go on to argue that that doesn't necessarily require a constitutional amendment, by virtue of the

section 35 argument. I don't agree. But at a minimum, he makes the point -- effectively, I think -- that our constitution presently doesn't contemplate the manner of government that this agreement purports to create.

Hon. U. Dosanjh: With the utmost respect, we beg to differ with the opinion just cited on that particular issue. Our view is -- and we have ample support for that view -- that

section 35 entitles all three parties to do what we're just doing.

G. Plant: Earlier today we had a discussion about the definition of Nis g a'a nation and the relationship, if any, between the Nis g a'a tribal council and the various Indian bands that are in the Nass Valley, on the one hand, and on the other hand, what is to become the Nis g a'a nation. The Nis g a'a nation is something that's defined in the agreement.

In answer to some questions attempting to probe the way in which something called the Nis g a'a nation would acquire the ability to become a party to this agreement and to give the representations and warranties that are the subject matter, for example, of paragraph 5, the government said in part that it's not that necessary to go down that road, because the agreement solves that, in the sense that through the mechanism of this agreement the government will give effect to its recognition of the Nis g a'a nation. It will have the rights that the agreement says it has.

Then we have, in paragraph 8(b), this provision: "This Agreement does not alter the Constitution of Canada, including . . . (

b) the identity of the Nis g a'a Nation as an aboriginal people of Canada within the meaning of the Constitution Act, 1982 . . . . " I'm not sure what that means. From one perspective, it looks to me as though, on the one hand, the agreement says a bunch of things to define something called the Nis g a'a nation. But on the other hand, the agreement goes out of its way to, in effect, make that a without-prejudice definition, because there may be something else out there in the constitution which is the identity of the Nis g a'a nation as an aboriginal people of Canada, and which is different from the definition of Nis g a'a nation in this agreement.

Maybe there are two ways of describing or defining Nis g a'a nation. I just don't know on what basis it is important to include 8(

b) in this agreement and how I am to understand the relationship between the Nis g a'a nation that's referred to in that clause and the Nis g a'a nation that's referred to everywhere else in the agreement. Perhaps the Attorney General could tell me what 8(

b) is all about and answer those questions.

Interjection.

Hon. U. Dosanjh: Oh, I'm being encouraged by the Premier to simply read the section, and I will do that before I comment on it. It does say: "This Agreement does not alter the Constitution of Canada, including: (

a) the distribution of powers between Canada and British Columbia; (

b) the identity of the Nis g a'a Nation as an aboriginal people . . . . " It's important for us to recognize that these clauses do not stand on their own. The argument that the hon. member is making is that somehow 8(

b) might give to Nis g a'a rights that are not specified in this treaty. That is not the case. It cannot be the case, because sections 22 and 23 of the general provisions indicate that this is the full and final settlement. The rights are specified. They have no more rights that are not specified here.

[3:15]

G. Plant: Why is paragraph 8(

b) in the agreement? What is 8(

b) about?

[ Page 11157 ]

Hon. U. Dosanjh: I think paragraph 8(

b) is in the same vein as is 8(a), which is that it is not the intention of the parties to alter the constitution of the country, and it is not the intention of the parties to alter the identity of the aboriginal nation that's called "Nis g a'a nation."

G. Wilson: I would also offer on that point that without some definition and clarification of the identity of the Nis g a'a nation, it would be hard to know who it is we're negotiating with and who's agreeing to this treaty.

Having said that, in terms of the spirit and the concept of what is being proposed, I might offer that with respect to the provisions and powers here, the members who have some difficulty grasping this concept might look at Bill M222, called Community Charter, which in fact was put forward by the Leader of the Official Opposition. In that it talks about the province recognizing the communities as an order of government. It talks about the community charter guaranteeing communities the rights and powers set out in it. It says that the powers of a community shall be adequate to meet its local needs and that it shall have full discretion in the exercise of its powers to meet those needs.

I don't think the community charter provisions and what is anticipated there is a whole lot different, frankly, from what is being negotiated in this agreement with the Nis g a'a. Perhaps the only difference is that in this case, the land is owned fee simple and therefore the paramountcy that the federal government has with respect to rights over aboriginal land is altered. Now the Nis g a'a have a right to be able to administer that private land in a manner not inconsistent with what the official opposition have put forward by way of their own community charter. It's exactly the same kind of principle as is offered there.

I would like, on paragraph 8(a), to emphasize . . . . This is a point that has been brought up, and the Attorney might comment on it. It seems to me that a point that needs to be made very clear in this debate is that by way of constitutional authority, the province never has had paramountcy over aboriginal land. I think it's important to note that by defining the Nis g a'a nation and recognizing that they are the legal entity with which we are entering into an agreement, that provides, on fee simple land, some finality to the text of this agreement. It can't be bridged to any other aboriginal people.

Hon. U. Dosanjh: That's absolutely correct, hon. Chair. No provincial laws of general application apply to reserves under the Indian Act. Under this treaty, laws of general application, with the exception of what's contained in these rights and obligations in the treaty, will apply.

G. Plant: I want to come back to the issue . . . . I can't help but say that I'm sure there are lots of municipalities in British Columbia that wish the powers they exercised under the Municipal Act were protected in the constitution under

section 35. But that is not the case; in fact, that is a pretty fundamental distinction between municipalities and Nis g a'a government.

I want to come back to try to understand 8(b). It is, in this context, quite legitimately . . . . I'm just trying to figure why it's here. The apprehension I have -- and it may be just too remote to worry about -- is that this language, taken in conjunction with the definition of Nis g a'a nation, which the member for Powell River-Sunshine Coast may not have read . . . . There may be some argument that there are two things being talked about in this treaty. One is the definition of Nis g a'a nation in the

definitions section, and the other is this idea of Nis g a'a nation that is recognized out there in the constitution.

It may be that it's there, or it may be that it's not there. As much as anything else, part of this is to find out what the government's intention is here. If the government's intention is to say, "No, we're not intending to be inconsistent in this way," then that begins to answer the question -- that is, it sounds like the government's intention around 8(

b) is really to simply say: "Look, we're not trying to do anything in this agreement that would compromise or undermine the sense of identity which the Nis g a'a nation have of themselves as an aboriginal people." That's what 8(

b) is about. If that's the government's intention, then understanding that is a step forward in the debate.

Hon. U. Dosanjh: The member understands our intention correctly.

M. de Jong: I want to draw the Attorney General's attention to the

section of the general provisions that relates to the interplay between the Canadian Charter of Rights and Freedoms and Nis g a'a government,

section 9. This is a question that we dealt with when we had the AIP. The significance of the words in that section, "bearing in mind the free and democratic nature of Nis g a'a Government . . . . " I want to have the Attorney set on the record how those words operate to limit, if in fact they do limit, the application of the Canadian Charter of Rights and Freedoms to Nis g a'a government.

Hon. U. Dosanjh: That phrase, in fact, is right from

section 1 of the Charter itself. The reference to the free and democratic nature of Nis g a'a government is obviously intended to clarify that Nis g a'a governments receive the benefit of

section 1 of the Charter, as well, subject to the same restraints that provincial or federal governments are.

This is obviously an issue, and we believe the Charter does apply to the particular government that will be created under the treaty. They would have the same restraints and same benefits that flow from the Charter.

M. de Jong: If it's helpful, I don't doubt that the parties to this agreement worked with the intention of ensuring that the Charter applied to Nis g a'a government. That's not the issue here. I accept that and did at the time the negotiators discussed this matter around the agreement-in-principle.

The issue is, rather, how the Charter will apply and whether, in light of the presence of

section 25 of the Charter, it will operate differently with respect . . . .

Interjection.

M. de Jong: The Premier says no, and I'm sure that is the intention. Yet the Charter itself includes some qualifying words, and the question is: to what extent do those words operate to affect the manner in which the Charter applies to people who are governed by Nis g a'a government?

Hon. U. Dosanjh: I alluded to the fact that the reference to the free and democratic nature of Nis g a'a government obviously allows the Nis g a'a to deal with the Charter as a

[ Page 11158 ]

provincial or federal government might. There is a restraint on the Nis g a'a that we don't believe . . . . It's our view that they will not be entitled to use the notwithstanding clause. That's something the provincial and federal legislatures can do. A simple reading of the Charter would lead us to believe -- and it's our view -- that Nis g a'a government will not have the benefit of the notwithstanding clause.

M. de Jong: We'll get to the notwithstanding clause.

Let me read

section 25 of the Charter: "The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada," including any rights or freedoms that now exist by way of land claims agreements or may be so acquired. Those are words within the Charter itself.

Does the Charter affect aboriginal government differently, depending on whether or not those governments are exercising inherent powers or delegated powers? Clearly, the Charter itself distinguishes aboriginal government from other governments.

Hon. U. Dosanjh: I want to come back to the same point, and it's very clear. What we have said is that all parties have agreed that these are the rights to be enjoyed by the Nis g a'a, with appropriate limitations and conditions that attach to the exercise of those rights. We also believe that the Charter applies to Nis g a'a government, and we believe that the Charter would apply notwithstanding the wording in sections 25 and 35.

M. de Jong: In the Attorney's mind, does the Charter operate with respect to Nis g a'a government today? Is Nis g a'a government today captured by the Charter provisions?

Hon. U. Dosanjh: Band councils exist under the Indian Act, and I'm certain that the Charter applies to whatever happens under the Indian Act.

Hon. U. Dosanjh: I believe that paragraph 9, or

section 9, is an indication of our intention and our resolve that the Charter apply to Nis g a'a government and Nis g a'a institutions. However, the Charter applies independently of paragraph 9, because it is inconceivable that two levels of government, provincial and federal, could create an institution to which the Charter will not apply.

Hon. G. Clark: In other words, even if it was silent, it would still apply.

G. Plant: The government of British Columbia created the University of British Columbia, and the Charter doesn't apply to it, so maybe we could try again.

Hon. U. Dosanjh: In some circumstances it applies even there.

G. Wilson: I think, however, that there is a point to be made with respect to how this is going to apply. I think the Attorney would have to acknowledge that there's a bit of a leap of faith being taken here. I think in most instances the general application of Charter provisions in a non-aboriginal context is dealt with by virtue of individual rights. It's primarily a document that's designed to protect the right of the individual. By and large, aboriginal people administer themselves in a collective, and there is generally a broader base of collective interest.

Now, that's not to say that there aren't some challenges with respect to Charter provisions on the rights of individuals being made by people who deem themselves or see themselves to be part of a collective within our society. But I think that the Attorney, to be fair here, rather than simply looking at this line and saying: "Therefore we won't have any problems on this side . . . .

" Well, I know he didn't say that -- he's quick to say that he didn't say that -- but I'm putting out that, in fairness, in this argument there is really a bit of a leap of faith being asked of us here, because we are trying to mesh two quite distinctly different social systems together under a Charter that is largely written with a view to individual rights. I think the Attorney might want to comment on that.

[3:30]

Hon. G. Clark: I don't think I'd agree with the characterizations of the member. The member's correct, I think, in this: the Charter of Rights is primarily a vehicle to protect individual rights against infringements upon those rights by government. So it stands to reason that we are establishing a government for the Nis g a'a through this treaty and, obviously, therefore ensuring -- we've negotiated this -- that the Nis g a'a are abiding by democratic principles -- which perhaps are not necessarily of long standing with aboriginal people, for a thousand years in British Columbia.

But the Nis g a'a have adopted, if you will, a western democratic style of government with voting rights, etc., in their constitution, which is reflected in the treaty.

As such, the Charter of Rights therefore applies to Nis g a'a citizens with respect to the operations of Nis g a'a government. That's a very important principle, albeit a relatively new one in Canada -- an important principle to protect the individual rights of Nis g a'a citizens from infringement upon those rights by Nis g a'a government. Notwithstanding -- I shouldn't use that word . . . .

The Nis g a'a government, however, is bound by the Charter of Rights as well with respect to its exercise of its authority, as are provinces and the federal government, including reasonable, if you will, infringements upon those rights based on the standards of the day set by the Supreme Court of Canada. They are bound by that, as are individuals.

I don't think it's a leap of faith at all, frankly. I think it's a reassertion of those principles in this treaty to give complete confidence that individual Nis g a'a citizens have Charter of Rights protection from infringement upon their individual rights by the Nis g a'a government, save and except the reasonable limits on those individual rights that a government can impose -- of course, subject to court challenges over time. I don't think it's a marrying of the two concepts at all, frankly. I think that in this case it's an explicit recognition that this new

[ Page 11159 ]

government -- this treaty government, government created by treaty for the Nis g a'a -- is subject to the same rules and regulations with respect to the Charter that other governments in Canada are.

[E. Walsh in the chair.]

G. Wilson: Except insofar . . . . We will get to

section 15, which I think is a point to know, where it says: "Nis g a'a citizens who are Canadian citizens or permanent residents of Canada continue to be entitled to all of the rights and benefits of other Canadian citizens or permanent residents of Canada, applicable to them from time to time." Now, I don't argue that's a bad thing; I think that's a good thing.

What I am suggesting is that by virtue of the social structure of the Nis g a'a people, there may be times when people see that the rule of law, as applied to them through the Lisims government, may in fact run counter to or may collide with a right that may be protected under Canadian law. Where those rights collide -- and I'm quite confident that there will be times, from time to time, that they're going to -- it's going to be difficult to know what precedent will be given, because the agreement does say "bearing in mind the free and democratic nature of Nis g a'a Government . . . .

" That's caused some concern that this may be a broad enough latitude to allow . . . . People who may deem their rights better protected as individuals under the Charter through the application of Canadian law may find them abridged as a result of an entrenched and perhaps well-established social system within the Nis g a'a people.

Now, I'm not saying that it's something that should derail this agreement. I'm just saying that this is something we ought to go into with our eyes open, because I do think there are likely to be times when that will be tested. It could cause us some considerable concern. There are definitely two cultural models coming together here. There are likely to be times when those individual rights conflict or collide.

Hon. G. Clark: I accept the general point from the member. But the possibility of that happening is dramatically reduced by the treaty, presumably, because these are the codified rights -- the aboriginal rights, if you will -- of first citizens. There are no more than this, nor no less. So in that respect we should dramatically reduce any of that conflict between collective rights asserted by aboriginal people and individual rights guaranteed by the Charter of Rights and Freedoms. I think that's true.

I will say that the Nis g a'a government here is bound by the same Charter and the same rules with respect to infringements upon that Charter that the province and the federal government are -- in other words, technical infringements, if you will, that are viewed as reasonable by courts. The question that perhaps the member is asking -- maybe other members opposite -- is: will there be a different standard with respect to what is reasonable for first nations governments with respect to the Nis g a'a as opposed to the province and the federal government? I say that the answer to that is no.

I think it's quite clear, and there is now a body of evidence here -- and we've explicitly stated here -- that the Charter of Rights applies to the Nis g a'a government.

But there may be, from time to time . . . . No one is pretending that there is not going to potentially be, over time and looking out ahead, some challenges or some conflicts, to try to perhaps assert that a future Nis g a'a government is infringing upon individual rights, for which it will be challenged in court at some future date. One can surely envisage that happening, and we believe that this gives protection for those rights by inserting them here.

The member opposite made a point earlier, which I think is valid based on our information: if the treaty was silent on the Charter of Rights, would it apply? And the answer to that -- our legal answer, I think it's fair to say, and our real answer -- is yes. Why, then, is it in here explicitly? It's simply to assert and to give further comfort to the fact that the Charter of Rights applies, and because all three parties, including the Nis g a'a, want to give people the comfort that the individual rights ascribed under the Charter of Rights apply to Nis g a'a citizens even insofar as they deal with Nis g a'a government.

G. Plant: There are a number of questions, I think, arising out of the things that the Premier has just said. I think that the member for Powell River-Sunshine Coast is right in one respect, in that the tension that is likely to arise will in some respects be between individual rights and collective rights. There may arise a situation where Nis g a'a government representing the collective, if you will, will make a law or, having made a law, will enforce a law against a Nis g a'a citizen who says: "I don't really want you to enforce that law against me. Not only do I not want you to, but I think that the law or your enforcement of it violates my Charter rights."

The government's answer to that apprehended risk or situation is to say: "Well, in fact, the treaty is pretty clear. Nis g a'a government is subject to the Charter, so you the individual citizen, who considers that your Charter rights are being violated by Nis g a'a government, will be able to make that argument."

I think there are a couple of interesting byways in terms of how that argument might be made, one of which arises out of the fact that the person challenging the authority of Nis g a'a government will presumably have a hard time making the argument that Nis g a'a government is not free or democratic. As far as the parties to the treaty can determine that issue, they have done so conclusively by deeming Nis g a'a government to be free and democratic.

It's certainly open to governments to attempt to foreclose questions by deeming things to be the case. But at the end of the day, I think the most serious question is: what happens when the Nis g a'a government says: "Hang on, we've made a law. We're enforcing a law, which is a law making authority conferred upon us by this treaty. So in effect, we are exercising a treaty right"? It seems to me that the whole point of

section 25 of the Constitution Act was to resolve that conflict -- that is, the conflict between a treaty right and an individual Charter right -- in favour of the treaty right.

That may not be the government's view, but that is, I think, what

section 25 of the Charter is all about. It says: "The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights . . . . " It may be that the government can persuade me that this reading of the

section is wrong, but I've certainly heard people suggest that the way that that is intended to be read is to say to the individual: "No, we are not going to give effect to your individual Charter right in a way that would diminish or derogate or abrogate or take away from the treaty right." So whenever there is a conflict between the individual Charter right on the one hand and the

[ Page 11160 ]

Nis g a'a government power asserted as a treaty right, the treaty right will prevail. That, it seems to me, is a big part of the reason why simply saying that the Nis g a'a government is subject to the Charter is not enough. I leave it to whichever minister is going to answer the question to explain how the analysis of

section 25 is different from that which I've just given.

Hon. G. Clark: We disagree with the premise of the analysis insofar as the member states that

section 25 takes precedence over the Charter of Rights -- I'm crudely restating your view. Our view is that

section 25 protects, as a constitutional right, the right to self-government. But the exercise of that right is not therefore free from the Charter of Rights and Freedoms. The exercise and the implementation of the self-government provisions which are now in the treaty are covered by Charter of Rights protection. I think that is a very important distinction that we make and have made consistently through this.

One final point I want to make further to your previous questions, as I may have misstated this . . . . I stated that the Charter of Rights and Freedoms applies to Nis g a'a citizens with respect to dealing with Nis g a'a governments, as it does with the provincial and federal governments. There's one rather large limitation, and that is that the federal and provincial governments can use the notwithstanding clause should they be found by a court to have violated the Charter of Rights,

whereas the Nis g a'a have no such notwithstanding clause. So the Charter of Rights and Freedoms prevails subject to, if you will, technical breaches by that government which are reasonable and set a standard of reasonableness -- which a court might interpret, but if the court rules that it is not reasonable, then it must be altered. They have no recourse to the notwithstanding clause -- which, admittedly, may be somewhat theoretical for the provinces and the federal government, but I think it's real.

G. Plant: We'll come back to the effect of

section 25 in a minute. But the government has, twice now, taken the time and trouble to make a point about the notwithstanding provisions of

section 33. Now, I understand that the government takes the position that even if

section 9 were not in the treaty, the Nis g a'a government would be subject to the Charter -- that is, in some respect, the Nis g a'a government is a government within the meaning of

section 32, irrespective of what

section 9 says. I certainly don't want to pretend for a moment that I have, in my capacity as a lawyer, given disciplined consideration to that argument. It just seems to me at first glance that the government wants to have the benefit of the issue with respect to the application of the Charter but not take the burden. Which is to say that if the Nis g a'a government is in fact a government within the meaning of

section 32, why would it not have the power under

section 33 to expressly declare something to be "notwithstanding"? I just don't understand how, having said that you think that

section 32 applies automatically,

section 33 doesn't.

[3:45]

Hon. G. Clark: I'll try this

interpretation. The advice I'm receiving is that

section 32 of the Charter applies to the governments of Canada and of British Columbia. Therefore, in creating a treaty, we must have it covered by the Charter, or we ourselves would be in violation of the Charter of Rights of Freedoms by creating the treaty.

G. Wilson: I think we could very quickly run into a pretty difficult argument here, and I'm not sure that we necessarily want to do that. It strikes me that when the Premier talks about

section 32(2) of the Charter, what he's . . . . Really, in effect, the Charter acts as a limitation of powers for both Parliament and the Legislative Assembly. To the extent that the treaty already defines and limits powers within the treaty, I'm not sure that we can equate the magnitude of the Charter on its application to both the federal and the provincial governments with that of the Nis g a'a.

I think the Nis g a'a government, within its constitutional framework, has a further limitation of authority. By virtue of the Nis g a'a constitution, there are limits of powers that are determined with respect to their right to be able to do what they do to Nis g a'a people.

Interjection.

G. Wilson: Right, as the minister says. So there is a coercive ability already built into this argument.

What is more relevant to the average person, I think, is the extent to which individual Nis g a'a citizens, if they deem that there is somehow a matter that breaches an individual right or liberty, have access to that protection under the Charter provisions. I think it's absolutely explicit in what we've talked about here today that they have access to that, through the Canadian courts if necessary.

M. de Jong: With reference to an example that we heard when the select standing committee was in the Nass Valley, it goes something like this, hon. Chair. This document will create Nis g a'a government. The Nis g a'a government, as governments are wont to do, is going to start passing laws -- Nis g a'a laws within areas of their jurisdiction as defined by this agreement.

In all likelihood, someone is going to come along and . . . . One of the groups that we heard from when the select standing committee was in New Aiyansh was some Nis g a'a women who are concerned, even now, about how those laws will operate on Nis g a'a women. I don't know to what extent that is a well-founded concern, but it was a concern that we heard. They will, if I look ahead to this hypothetical, bring the argument that this theoretical Nis g a'a law operates in a way that contravenes their Charter argument.

It seems to me that the argument that one can anticipate hearing back from Nis g a'a government, in defence of the particular law that it has passed, is that while we acknowledge that we are governed by the provisions of the Charter, we are also mindful of the significance of the presence of

section 25 of the Charter. I'll read it again: "The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada," including any rights or freedoms that now exist by way of land claims agreements or may be so acquired. So the Nis g a'a government will seek refuge in the provisions of

section 25 to make the argument that whilst the Charter does apply, it applies differently.

What I haven't heard in this exchange is some explanation from the government as to why

section 25 is there. It is presumably there for a reason; it presumably incorporates those words for a reason. I haven't heard how the government

[ Page 11161 ]

believes that those Charter provisions will operate to affect how other Charter provisions operate on Nis g a'a government and Nis g a'a laws.

Hon. G. Clark: On the very specific example the member used, I refer him to

section 28 of the Charter, which says: "Notwithstanding anything in this Charter," including

section 25, "the rights and freedoms referred to in it are guaranteed equally to male and female persons." So with respect to the women he referred to, in the notwithstanding

section that deals specifically with aboriginal rights, their rights are protected equally -- "to male and female persons."

M. de Jong: But with the greatest respect, that doesn't answer the question about the presence of

section 25 and how it operates to affect the laws passed by Nis g a'a government. The Premier can suggest that a court would look no further than the general equality provisions. But I'm going to suggest to him that the court's attention will be drawn, by lawyers defending the statutes or the laws passed by Nis g a'a government, to

section 25, because it is a more specific

section dealing with a specific group of people. Therefore the court will be asked to be cognizant of that in interpreting how the Charter will operate.

Hon. G. Clark: If you look at the

chapter on Nis g a'a government, it says very clearly: "The Nis g a'a Nation has the right to self-government, and the authority to make laws, as set out in this Agreement." If you go back in this agreement, they're set out. If you go back and look at . . . . This agreement limits their right; it says that the Charter of Rights applies. Follow me? So if you're arguing on

section 25 rights, you have to look to

chapter 11 on Nis g a'a government, which defines self-government. It states that it is subject to "the authority to make laws, as set out in this Agreement." As set out in the agreement, it says that the Charter of Rights applies. Therefore it's our contention, of course, that it's self-evident that the Charter applies.

I am advised that the point the member makes with respect to

section 25, which . . . . I'm not a lawyer. But there have been only two cases testing

section 25, not even necessarily at the Supreme Court. It is an area where perhaps the member may have a point -- I don't know -- with respect to future challenges under

section 25. We've only had two cases. In those cases, it was viewed as more of a shield than a weapon, as I say, with respect to aboriginal rights.

So I think that the member is wrong, and I think he's stretching the point -- because of the points I made a second ago with respect to Nis g a'a government being subject to the Charter of Rights and Freedoms explicitly in the agreement. But even if he has a point, I think it's an obscure one and one which we won't know unless it's tested before the courts.

G. Plant: Part of the reason that I'm concerned about this is in fact because there is not as much certainty about some of these issues as there could be. Therefore, when the government gives a blanket assurance that people interested in the civil liberties of Nis g a'a citizens should have no concern, because the Charter will apply, I want to go behind that fairly blanket assurance and test the extent to which it is in fact a legitimate, reasonably held view by government -- particularly in this case, having regard to the provisions of

section 25, which are at the very least, intended to create a tension between Charter rights and treaty rights.

Perhaps I'll just also give a bit of an example to indicate that these things that motivate some of my concerns are not merely hypothetical. The Premier may be aware of a judicial decision, and I think the case is called Thomas v. Norris. I have not read the decision for a long time, so I don't claim that I'm about to get the facts correct, but the gist of it is something like this. Some adolescents, who were, I believe, Coast Salish, were apprehended by other members of their community. They were kept against their will for two or three days by the members of their community, and they were, essentially, forced to participate in some of the important cultural practices of their community.

At the end of this exercise or some time after that, they -- I think there were two or three young men -- sued for assault the people who had taken them, arguing that what had been perpetrated on them was an assault. Interestingly enough, in answer to the claim, the defendants argued that they in fact enjoyed the protection of aboriginal and treaty rights and that therefore the court should resolve the contest between, on the one hand, the ordinary, general law of negligence or whatever the tort was and, on the other hand, the constitutional rights of aboriginal people in favour of the aboriginal people.

It's important to make two points. First of all, I don't believe that the individuals in that case asserted that they were acting on behalf of an aboriginal government. I may be wrong about that. Secondly, the important point to make is that the defence based on aboriginal rights failed -- that is, in that case the court resolved the tension between the two competing sets of rights in favour of the plaintiffs, who, I think, succeeded in their cause of action.

I don't draw attention to that analogy for the purpose of conclusively demonstrating that there are problems here. I do so only for the purpose of illustrating the potential kinds of situations which could conceivably arise at some point over the next many, many years in some aboriginal government in British Columbia and, to come back to this, with that context in mind, continuing to ensure that in fact the government has drafted this treaty in a way that will ensure that the outcome of any subsequent case that is remotely analogous will be as it was in Thomas v. Norris.

That is, we won't be faced with a situation, for example, where an aboriginal government, having been expressly given treaty rights in respect of preservation of culture, public order and safety and the host of rights that the Nis g a'a will have, will be able to say in a court: "You don't have the Charter rights you think you have, because we have the protection of

section 25."

I am still of the view that the issue is not as clear as the government would like it to be, but it may be that the farthest we can go now is to have the government say that those are interesting questions, that they understand the risks or the issues, that they have done what they think is necessary and effective in order to avoid those kinds of situations and to prevent them from arising in the kind of way that I've talked about.

[4:00]

Hon. G. Clark: I don't have any hesitation in agreeing with the member in his last remarks. I'd simply say this. It is true that the treaty is not constructed in a vacuum, so the case the member referred to, which I'm not familiar with but certainly grant face value to, is the case today. So the question, then, to put it another way, is: does the treaty lead to an increased likelihood that aboriginal governments . . . . Will we

[ Page 11162 ]

come into more conflict in the future as a result of the treaty? I think that's the question: if we have this conflict today between

section 25 and the Charter, which has been tested -- albeit only a couple of times -- and, I think it's fair to say, found on the side of the individual, does the treaty do anything to upset that balance and tilt it further to the side of the collective? Our advice is: unequivocally no. That's certainly not our intention. In fact, our intention -- perhaps more to the point . . . . Because it's more definitive with respect to the treaty rights and laid out, we believe we've minimized the possibility of tilting the balance further that way.

G. Wilson: I think that this becomes an important point only to those who may be concerned that somehow the inclusion of

section 9 doesn't provide sufficient guarantee of protection. I think there's a sort of school of thought out there . . . . I don't think it's that large, because I don't think there are that many people thinking about this, to be honest. But for those people who are, I think there is a school of thought that somehow this provision doesn't give the protection, because of the language in

section 25. I might be coming back to the member for Matsqui, who asks: "Well, why is it there?" Surely this is a cautionary provision, not unlike

section 26 of the Charter.

Section 26 doesn't say . . . . Well, in fact, what it does say is that it "shall not be construed as denying the existence of any other rights or freedoms that exist in Canada." Neither does it provide a constitutionalized and exclusive list of rights that can't be further challenged in a court.

So I think that the language, surely, and the inclusion . . . . You can perhaps tell me if I'm wrong, but the reason to include that -- to directly answer the member for Matsqui -- is cautionary, because what it becomes then is consistent with the language of the Charter, and it is consistent with

section 25. Surely, I would think, the general equality provisions must have overridden

section 25 rights in the Alberta cases, where aboriginal women challenged with respect to their Indian-ness, because they won the case. And that's post-Charter. I mean, I don't know the cases in detail; I just know they won them. So surely the provisions of general equality had to apply, or they wouldn't have won, I would have thought.

It strikes me that we can argue this point ad infinitum without really getting very far, because it is cautionary in its language, which is not inconsistent with anything either in the Charter or within the intention of

section 25.

Hon. G. Clark: It is cautionary in language, in its tone, with respect to this. I'd say further, in response to the previous questions, that not only do we feel that we have not tilted the balance with respect to any future decision that might arise out of an individual pursuing a Charter challenge, but I think the public should take comfort in the fact that the treaty is replete with mechanisms designed, if you will, to either limit governmental scope or provide for administrative or other external reviews of government to further give comfort that not only does the Charter of Rights apply but certain rules and regulations apply with respect to the application of treaty rights. For example,

section 20 says: "No Party will challenge, or support a challenge to, the validity of any provision of this Agreement."

So we try to say that this is the full and final settlement with respect to that, including the Charter questions. In other words, the Nis g a'a cannot seek to use the Charter to try to intervene, nor can another party. We try to close the door with respect to that as best we can. For example, the questions on Nis g a'a government and the appeal and review of administrative decisions . . . . Again, it's a whole

section allowing people to appeal the decisions for fairness with respect to the Supreme Court of British Columbia. And there are other sections that deal with governance and the ability . . . and the way in which governance is managed and the limitations on the Nis g a'a government's ability to pass laws and to pass penalties, all of which clearly comply currently with the Charter of Rights and Freedoms.

In other words, it's to give people comfort that not only does the Charter of Rights provide protection, but the treaty itself circumscribes those rights in a way which is within the Charter of Rights and Freedoms. The members might take some exception to that perhaps bald statement, but it is certainly a huge improvement over the status quo with respect to aboriginal people and the application of the Charter, I believe, because Nis g a'a government is so circumscribed by the treaty itself.

M. de Jong: I was going to ask a different question, but I'm intrigued by what the Premier has just said in terms of the huge improvement. How is that? How is the protection afforded to individual Canadians -- in this case, aboriginal Canadians -- improved?

Hon. G. Clark: All I'm saying is that there's now more certainty with respect to it. People should take comfort with respect to the rule of the Nis g a'a government and the application of the Charter, but not . . . . If you put aside the application of the Charter for a second and look at the Nis g a'a government's prescribed role and the limitations on that role, the review procedures and the appeal procedures to the Supreme Court of Canada. All of those are a significant improvement over the Indian Act with respect to the rules that govern aboriginal people.

I think that those buttress the Charter arguments of individual rights for aboriginal people. I think that notwithstanding the potential conflict that was alluded to earlier, we clearly have not tilted the balance any further. I think you could argue -- because the rights are codified in the treaty with all the appeal procedures, etc. -- that we should give more comfort to people in this area.

M. de Jong: I say candidly, and not with any disrespect, that the logic of that argument eludes me somewhat.

Something the Premier said earlier, though -- and I didn't want to come back to this . . . . At a minimum, we have at least identified the question, which relates to the fact of whether anything in this treaty has tipped those scales away from the individual. We have different views about that, but we've identified the question.

In defence of the position that the Premier brought to the argument, he made the statement -- and I think I heard him correctly -- that aboriginal government is really a shield. I think he relied upon that in making the argument that he did. I think he was referring to the argument that the government took to the Supreme Court of Canada with respect to Delgamuukw. But there was another part to that argument, contained in the factum. I have that, and I'll read it to the Premier. I'm not certain that it changes his mind about his employment of that argument.

Quoting from the factum, this is what the province said to the Supreme Court of Canada:

"Most aboriginal rights, including aboriginal title, are in the nature of a shield" -- that's what the Premier said -- "that

[ Page 11163 ]

can be invoked by the aboriginal community or its members against unjustified infringement by provincial or federal laws. However, what really distinguishes the right of self-government is that it can be invoked as a 'sword' by an aboriginal community or one of its members to enforce compliance by the members with an aboriginal custom, practice or tradition relating to their internal affairs."

That was the province's argument when the province went to the Supreme Court of Canada in Delgamuukw. That is a far different

interpretation of how aboriginal government would operate and interplay with the Charter than what the Premier alluded to a few moments ago.

Hon. G. Clark: I think there's an important distinction between

section 25 of the Charter and

section 25 of the constitution.

Section 25 of the Charter, I believe I said, could be used as a shield and not a sword. But lawyers for the province, I believe, argued that the right of self-government, which is in the treaty -- which is different from

section 25 -- could be used as a shield.

M. de Jong: I think I know the distinction that the Premier is trying to make, but I don't think it's one that assists his cause. If we simply take the words that the province itself argued as signifying the powers it believes aboriginal government -- in this case, Nis g a'a government -- will have and how those powers should be interpreted vis-à-vis, presumably,

section 25 of the Charter, then I think it's possible to come to a rather different conclusion about how the courts will themselves interpret the interplay between the Charter and aboriginal self-government.

Not being nearly the legal technician that my friend from Richmond-Steveston is, I again try to fall back on how this is going to play out between the individual and the state. In this case, the state is embodied in the manner of Nis g a'a government. I must confess that I'm not persuaded that a court, by virtue of these provisions, wouldn't be persuaded to somehow apply those Charter provisions differently.

Hon. U. Dosanjh: The view of the government, of the Attorney General, is that the hon. member is incorrect.

M. de Jong: Let me try this, perhaps, by way of conclusion. It seems to me that during the course of this discussion, we have focused on two different mechanisms by which the usual operation of the Charter might be affected. One is

section 25, and one is -- I was going to say limiting words, but that might be unnecessarily argumentative -- the words attached to this

section itself -- the words "bearing in mind the free and democratic nature of Nis g a'a Government . . . . " Those are the two mechanisms that we have tried to argue might operate to alter the way the Charter itself operates in this context.

Let me ask the Attorney or the Premier this. The government presumably purposely chose not to have this

section read in the following way: "The Canadian Charter of Rights and Freedoms will apply to Nis g a'a government and its institutions in relation to all matters within its jurisdiction and authority" -- without those other words, and there was a reason for that. We've dealt with the

section 25 argument; let's deal with those words. What do we lose by deleting the words "bearing in mind the free and democratic nature of Nis g a'a Government," and simply confirming in this

section that the Charter of Rights and Freedoms applies to Nis g a'a government and all its institutions in relation to all matters within its jurisdiction?

Hon. G. Clark: This is just an esoteric argument. I think the answer is: "Nothing." But in the nature of the drafting, "bearing in mind the free and democratic nature of Nis g a'a government" -- which is lifted from the language of the Charter -- is simply to affirm by all parties that the Nis g a'a government is free and democratic and, secondly, to ensure that the Charter applies to the Nis g a'a government in the same way that it applies to the province and the federal government.

[4:15]

G. Plant:

Section 10 of the agreement contains the agreement, if you will, that all of the lands that will be held by the Nis g a'a nation or, I suppose, the Nis g a'a government or whatever, under and by virtue of this agreement, will not be " 'lands reserved for the Indians' within the meaning of the Constitution Act," which I guess, as much as anything else, is a statement of intention on the part of the government that if the issue should ever arise, the province, Canada and the Nis g a'a nation would all vigorously assert in a court that Nis g a'a lands -- fee simple lands -- are not lands reserved for the Indians and that they're not reserves as defined in the Indian Act.

Sections 11 and 12 of

chapter 2 talk about the situation where British Columbia may currently have a power delegated to it by Canada. And if Canada should revoke that delegation or some court should determine that the delegation is invalid, then the treaty provides for certain consequences, in effect, to cure the problem. I think

section 12 then goes on to say the same thing about an authority of Canada that may be delegated from British Columbia. Can the government give any examples of authorities that are currently in place and that are affected by either

section 11 or

section 12, just to put some flesh on these provisions? Or is this simply a "further assurances" kind of clause?

Hon. G. Clark: The administration of inland fisheries is an example.

G. Plant:

Section 13 of

chapter 2 speaks of the application of federal and provincial laws, and then it talks about what happens if there is an inconsistency or conflict between the agreement and the provisions of any federal or provincial law. It says, in part, that this agreement will prevail to the extent of the inconsistency or the conflict.

Later, when we get to

chapter 11 -- the government provisions -- we'll see the specific way in which particular Nis g a'a lawmaking authorities relate to provincial and federal law. What is the intention behind this general statement? How will it work, particularly when we get to

chapter 11, for example?

Hon. D. Lovick: This

section is simply the basis for

chapter 11, which, as the member points out, spells out in detail and with some specificity what is meant by self-government.

G. Plant: I know that my colleague from Vancouver-Langara wants to ask one or two questions, hon. Chair, but I want to pursue this line just one more time. The government points out that one of the objectives of this treaty is that provincial laws of general application will apply on Nis g a'a lands to some extent. How can that general statement of

[ Page 11164 ]

objectives be reconciled with this clause here, which appears to say that anytime there's a conflict between a provincial or federal law and the agreement, the agreement prevails?

Hon. D. Lovick: The qualifying phrase is "to the extent of the inconsistency . . . . " Then the agreement prevails.

Again, back to the answer I gave just a moment ago, those things are specified. All the particularities in which paramountcy is asserted by Nis g a'a are spelled out in detail with the particular conditions, caveats and explanations in

chapter 11. I think we ought to deal with that there.

In general terms, that's the purpose of this

chapter -- to lay out the basis of that. It's a concurrency model. It's worth noting, I think, that what is affirmed here is that the starting premise -- the basic premise of the whole thing -- is that federal or provincial laws apply except where . . . . And then we give some particular exceptions. But the basic model is that federal and provincial laws apply. I think we should note that.

G. Wilson: I think that these sections that deal specifically with land . . . . In taking sections 10, 11, 12 and so on, I think that there are a number of points that really do bear having some clarification here. Up until this treaty is signed, the province has no jurisdiction over what has been deemed aboriginal land, or lands that are set aside under

section 91. This changes that fairly dramatically. There is an Indian Act transition

section with respect to those lands, which we can deal with in a little bit more detail when we get to it. But it also develops Nis g a'a fee simple land. What I'd like to hear from the government is: where does the government believe the allodial title on those lands lies? Is it consistent? Is one with the feds and one with the province? Or have we moved now to bring that into a matter of, essentially, provincial supremacy with respect to allodial title?

Hon. D. Lovick: Two points, if I may. To answer the specific questions, first, our conclusion is that allodial title is with the provincial Crown. Second, the member is quite right: no jurisdiction on Indian lands except by agreement under

section 88, I guess, of the Indian Act.

G. Wilson: So, for greater certainty for those . . . . This, I think, speaks to the heart of those people who say that somehow we're creating a homeland, when in fact we're really not. If anything, from a provincial point of view, one would argue that the very fact that we now have some certainty with respect to the allodial title with the provincial Crown builds greater certainty for the province, I think, and therefore builds greater stability. Now, I know I might be walking into a little bit of hot water with the Sechelts when I say this -- they know where my stand on this is -- but nevertheless, I think that that is the preferred model.

It's interesting that under 11 and 12, it's anticipated, then, that the federal government, in this transition process, is now going to be able to delegate authority, and that authority cannot, essentially, circumvent in any way either the federal or provincial government. In other words, it can't be delegated directly to the Nis g a'a, therefore removing the ultimate authority from either the provincial or federal Crown. If I interpret that to be correct, then those who argue that we're creating an independent nation-state with powers equal to the provincial and federal governments are wrong. It doesn't do that.

It doesn't create a homeland. It does not create authorities that can in any way circumvent either provincial or federal laws of general application, except where it is expressly stated. In those areas where it is expressly stated, presumably, if the language is clear -- and we'll get to that -- that has strict application to the Nis g a'a people. Am I right on that?

Hon. D. Lovick: I think the member's analysis is very correct indeed.

G. Wilson: Okay. Then the last question that I have on these three sections is that if that's the case, even in a case where there's a challenge in court with respect to the right of the federal Crown -- and there's a bunch of case law on this, I know -- to delegate . . . . Where it's deemed, even if it's deemed . . . . For example, in a relationship where bands border the Alberta border, there may be a contest, and even if it's found in an Alberta court that that delegation to the province is not on, then still the federal government holds . . . .

Or it'll deem, essentially, the authority to have returned to the federal government. There's no way, even through a secondary court -- an Alberta court, for example; a provincial court -- to be able to somehow rule delegated authority out of the hands of the province and therefore turn it over to a first nations people. Is that correct? The way I read this is that even in the case where a provincial court which may be other than British Columbian -- and it has to be Albertan; I suppose it could be somewhere else, but it's more likely to be in Alberta . . . .

Even if that were to occur, there still cannot be authority transferred without the expressed will of British Columbia, unless it returns to the federal Crown. Am I correct on that?

Hon. D. Lovick: The member is correct.

G. Plant: That's interesting. I didn't think sections 11 and 12 had anything to do with this subject. I thought that, basically, 11 and 12 were intended essentially to protect the Nis g a'a in the event that British Columbia had some power that was delegated from Canada. It's a part of this agreement that the Nis g a'a are, in effect, relying on the validity of that delegation.

If some court should later undermine the validity of the delegation -- should say that the delegation was invalid -- then the Nis g a'a are protected, because what will happen is that the treaty will say that the power is to be deemed to be exercised by Canada, so there won't be a gap. There won't be a legislative lacuna, to use a word that I've always wanted to use on the floor of the Legislature of British Columbia. Really, 11 and 12 don't have anything to do with transfers or delegations of power to and from the Nis g a'a or any other first nation.

What they really are about is ensuring that the Nis g a'a are protected in the event of some challenge down the road to either a piece of delegated provincial legislation or a piece of delegated federal legislation. If I've misunderstood what these provisions are about, then I'm sure the minister will correct me.

Hon. D. Lovick: I don't disagree with what the member says, but I would emphasize that what he says is not in any way inconsistent with the point made. Frankly, those are two different perspectives on the same basic evidence. There's no problem there.

V. Anderson: I've been listening with a great deal of interest and intrigue, looking for some of the answers to the

[ Page 11165 ]

questions I raised in second reading. I've gained a great deal of knowledge, I think, from both sides, and I appreciate that. For clarification, I would like to raise a couple of questions, and they come around the area of trying to define who really are the Nis g a'a people, the Nis g a'a nation.

My first question: am I right in understanding that when it talks about direct descendants, they come from the female side of the family rather than from the male side of the family? Is that the understanding of direct descendant for the Nis g a'a nation, and therefore in this understanding . . . ?

Hon. D. Lovick: I'm struggling a little bit, because I want to know what the reference point is. We think in terms of "Eligibility and Enrolment" as the

section that addresses that. Perhaps the member has a more specific part he wants to refer to.

V. Anderson: In the

definitions, " 'descendant' includes a direct descendant notwithstanding any intervening adoption or any birth outside marriage." That's on page 5 of the original document. So is that direct descendant through the female side of the family?

Hon. D. Lovick: I understand the confusion now, and I'm sorry. I suspect that the member for Vancouver-Langara wasn't in the House when we discussed this. So if I might just clarify, we agreed that we would not look at the

definitions, which he is now quoting, except in the context of the particular sections. Thus, I must confess, he caught me by surprise. If he wants a short answer to that, I suspect that I could get it to him. I'll need to look at the definition.

V. Anderson: I was asking in trying to understand who the Nis g a'a nation and the Nis g a'a people are. So when I come to my next question, which would be related to that, it's: are the Nis g a'a participants in the enrolment, which would take into account the descendants -- and therefore we'll get to the citizenship as we build up on this . . . . The participants are chosen, I understand, under the

definitions of the Indian Act. Am I right there, that the participants come from the

definitions of the Indian Act rather than from the definition of the Nis g a'a nation?

[4:30]

Hon. G. Clark: With respect to my colleagues across the way, clearly we've no problem answering the question, but just because it's such a complex debate, I thought we had agreed that we were going to try to answer the

definitions as they arose. Again, we can do it now, but it seems to me that these questions are more appropriate when we deal with enrolment, which is

chapter 20 -- how people enrol and how they qualify -- as opposed to under sections 11, 12, 13 and 14, which is what we've moved to discuss. Just for the sake of trying to keep the debate orderly, I would ask the members across the way to perhaps confer, because we'll seek their guidance on it . . . . It would be very hard, very problematic, I think, for us to be jumping around the 206 pages of the treaty. It will just make for harder debate.

V. Anderson: I appreciate your comments. What I was trying to get at is dealing with Nis g a'a citizens under 7, which is in the

chapter that we are now dealing with -- to be clear in my mind who those citizens are that we're dealing with. That's why I left it to this point, feeling that we were dealing with culture and language and, therefore, there had been a fair bit of discussion on the nature of Nis g a'a citizenship. What I've been trying to define is who the people are that would be called Nis g a'a citizens and how they arrived at this point, because it makes a difference, then, as to the culture and language. But if you wish it to be later, that's fine with me.

Hon. G. Clark: Yeah, I'd prefer to leave it to

chapter 20, and I say it with great respect. Please, I don't mean to be provocative, but we spent several hours on

section 7 -- the member was not present, but it was at least an hour. They were excellent hours. There were profound questions from the opposition and equally eloquent answers.

An Hon. Member: You're going too far on that one.

Hon. G. Clark: Okay, you be the judge of that.

Hon. Chair, the question of Nis g a'a citizenship was canvassed at some length. Perhaps the member could review the Blues , and his questions may be answered, or we can revisit it when we deal with enrolment. It would be easier, because we canvassed

section 7 for several hours; I'm reluctant to answer questions about

section 7, having already gone through it.

M. de Jong: It may be that the questions relating to the issue of citizenship that my colleague wants to ask could be canvassed as part of

section 15. I might purport to ask some questions around

section 15 now, which deals very much with the issue -- in fact, 15 to 18 deal with the issues of rights, benefits and programs available to Nis g a'a citizens. That definition is certainly relevant insofar as that

section is concerned.

A couple of things. I just want to be certain -- and I think this is pretty clear -- that you don't have to be Canadian citizen to be a Nis g a'a citizen. That's a question, hon. Chair.

Hon. D. Lovick: We're checking, at the moment, with the Nis g a'a constitution because our understanding is indeed that in the Nis g a'a constitution it is stipulated that you need to be a Canadian citizen. That is primarily instruction for those who wish to apply to become citizens, I believe.

The

section on Nis g a'a government, paragraph 9(p), "Nis g a'a Constitution," says: "The Nis g a'a Nation will have a Nis g a'a Constitution, consistent with this Agreement, which will . . . provide that every Nis g a'a participant who is a Canadian citizen or permanent resident of Canada is entitled to be a Nis g a'a citizen."

M. de Jong: Well, that's only partially helpful, hon. Chair.

First of all, my question relates to this document, and the Nis g a'a constitution can change. A few weeks ago we heard about one change that they might make that relates . . . .

Interjection.

M. de Jong: The minister says 70 percent. I'm not particularly interested right now in the mechanism by which it can change; I'm more interested in who can qualify or not qualify pursuant to this document, which speaks to the creation of a Nis g a'a constitution which the Nis g a'a themselves can change. The provision that the minister refers to speaks to the question of satisfying certain criteria that allow for a Canadian citizen to be a Nis g a'a citizen.

[ Page 11166 ]

But I return to the original question, which is: would it be entirely proper, under the terms of Nis g a'a government in this treaty and the Nis g a'a constitution, if it were worded as such, for the Nis g a'a to bestow Nis g a'a citizenship on someone who wasn't a Canadian citizen?

Hon. D. Lovick: Yes, that is quite conceivable.

M. de Jong: I'll pursue that in a moment, hon. Chair. Well, maybe I'll do it now. The minister, I think, would suggest that somehow that is not a relevant point. I think it is. I think that citizenship -- in this case Nis g a'a citizenship -- carries with it a broad range of entitlements and rights. Some of those rights carry with them a cost, and Canadian taxpayers are responsible for meeting some of that cost.

I'm not suggesting to the minister that somehow we are going to be confronted by hundreds or thousands of non-Canadian citizens receiving Nis g a'a citizenship; I'm more interested in the question from the point of view of jurisdictional questions that might be relevant to other negotiations and other treaties. I've got to believe that this is a model and that this is something we will see in future treaties where, for example, there may be a circumstance where we're along an international border and there are other people, non-Canadians, who might feel entirely justified in having citizenship bestowed upon them.

G. Plant: We're only a few miles from an international border here.

M. de Jong: We are only a few miles from an international border here, and that's certainly the case.

The document, it seems to me, goes to some length to point out that Nis g a'a cannot control the right of entry into Canada for Nis g a'a citizens. I'm going to suggest to the minister, or the Premier, that inherent in the right of citizenship is the right to be present in Nis g a'a territory. That is certainly a right that we have as Canadian citizens: to be in Canada. That is a fundamental right that we have. We can be incarcerated in Canada. All sorts of things can happen to us. But as Canadian citizens, a fundamental right we have is to be in Canada.

I'm wondering how this treaty would operate to frustrate a similar argument brought by a Nis g a'a citizen who says: "As a function of that citizenship, I have the right to be in Nis g a'a territory."

Hon. G. Clark: I'm not sure if the member's being mischievous or not, but let me refer to

section 39:

"Nis g a'a Lisims Government may make laws in respect of Nis g a'a citizenship. The conferring of Nis g a'a citizenship does not:

"a. confer or deny rights of entry into Canada, Canadian citizenship, the right to be registered as an Indian under the Indian Act, or any of the rights or benefits under the Indian Act; or

"b. except as set out in this Agreement or in any federal or provincial law, impose any obligation on Canada or British Columbia to provide rights or benefits."

So it's absolutely, unequivocally clear that Nis g a'a citizenship is different from citizenship in the normal meaning of the word with respect to Canada. Their rights of citizenship are limited explicitly in the treaty, so as to not afford the rights referred to by the member.

M. de Jong: We had this discussion in a roundabout way when we were dealing with

section 7. I thought we agreed at that point that bestowing Nis g a'a citizenship on an individual -- be they of aboriginal or non-aboriginal descent -- did automatically . . . . There were rights that flowed from that, notwithstanding what the Premier just referred to in

section 39. He didn't read

section 40 and how that might impact on how this plays out. Presumably, bestowing Nis g a'a citizenship on a non-Canadian also provides for that person to have certain rights.

Hon. U. Dosanjh: Hon. Chair, I think the hon. member is actually trying to extend or stretch this a bit. It is very clear -- very, very clear -- pursuant to the

section that the Premier read, which is

section 39 in the self-government chapter,

chapter 11, that simply conferring Nis g a'a citizenship on an alien in Canada or outside of Canada does not give that person the right to cross the Canadian border without meeting all of the requirements. Even if they're here, they don't have the right to stay in Canada, because they would be in Canada illegally. They may be on Nis g a'a territory because they're Nis g a'a citizens, but that does not confer on them the right to live in Canada. You would have to have the right of Canadian citizenship or be a permanent resident to be able, as a non-Nis g a'a, to become a Nis g a'a citizen and then live in Nis g a'a territory.

M. de Jong: Let's take the example of an aboriginal person who is in Nis g a'a territory, who has Nis g a'a citizenship bestowed upon them and who avails themselves of a Nis g a'a law that says that Nis g a'a citizens have the right to reside in Nis g a'a territory. How does this treaty operate in the event that, for whatever reason, the federal government deemed that person an alien and incapable of being in Canada, or sought their deportation? How does this treaty, recognizing the presence of sections 39 and 40, operate to overrule the provisions of that Nis g a'a law and the rights of citizenship?

Hon. U. Dosanjh: Well, I understand. We would get to the section. It's

chapter 20, paragraph 2, I believe. Let me just look at that as I'm standing. It says: "Enrolment under this Agreement does not . . . confer or deny rights of entry into Canada, Canadian citizenship, the right to be registered as an Indian under the Indian Act . . . . " It goes on. And the right of Canadian citizenship or permanent residency is the right that confers on you the ability to live in Canada. Nis g a'a territory isn't suddenly something that's apart from Canada. I don't understand the logic of the question that the hon. member is asking -- honestly.

[4:45]

My question earlier, which relates to this question at the moment is . . . . "Participant" was decided on, I think, under

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the Indian Act -- in order to vote, to be enrolled in the enrolment and to vote. The question of the participant here -- who has brought into being the vote that enabled the Nis g a'a nation to have a constitution or to accept this document -- it seems to me, is the definition under the Indian Act which required that, enabled them to be a participant. Being a participant enables them to have citizenship. So there's a circular activity here that I'd just like to get clarified.

Hon. D. Lovick: Again -- with a certain exasperation that is not meant to be confrontation -- this is exactly what

chapter 20 is about and the eligibility criteria specified therein. Just to clarify for the member, it is not the Indian Act that determines. Indeed, if the member has a look at

chapter 20, he will discover that the eligibility to be enrolled under the agreement goes much beyond the Indian Act. As a matter of fact, it doesn't mention the Indian Act, if memory serves.

But again, I would like to pick up the same point, if I might, that the Premier made. We're in real danger, of course, of having an absolutely unmanageable kind of debate if we're asked to leap ahead to 199 pages later into the document. I would suggest that we did have an agreement by which we were going to proceed, and I would dearly hope that all members would try and stick to that.

G. Plant: There is another issue about

section 15 that I want to pursue for a moment.

Section 15 makes what appears to be a pretty straightforward and fairly broad statement: "Nis g a'a citizens who are Canadian citizens or permanent residents of Canada continue to be entitled to all of the rights and benefits of other Canadian citizens or permanent residents of Canada, applicable to them from time to time."

It's the last words I'm not sure about. Is it the intention that Nis g a'a citizens will have all of the rights and benefits which other Canadian citizens or permanent residents of Canada would have from time to time? Is that the intent of the clause?

Hon. U. Dosanjh: Yes.

G. Plant: Perhaps we could explore for just a minute, then, the relationship between this and

section 6 of the "Fiscal Relations" chapter.

Section 15 of

chapter 2 does not expressly qualify, by reference to

section or paragraph 6 of the "Fiscal Relations"

chapter . . . although -- depending on what copy of the document the government's looking at -- if you look ahead to

section 16, you'll see that this qualification is put there. I understand that one of the objectives of paragraph 6 of the "Fiscal Relations"

chapter is to say that where the Nis g a'a nation assumes responsibility for particular programs or public services under a fiscal financing agreement, then, in effect, the Nis g a'a nation stands in the place of the provincial and federal government with respect to the delivery of those services. I presume that, generally speaking, the intention is that a Nis g a'a citizen could not . . . .

But let's assume hypothetically here that the Nis g a'a government draws down all of its education powers. Then the issue is: what about the parents of a school-age Nis g a'a child who says: "Well, I want to be educated under the School Act of British Columbia"? The Nis g a'a government says: "No, we've drawn down our powers, and your eligibility to participate in or receive the public service of education is now limited. You are essentially going to be receiving public education as delivered by Nis g a'a government."

If that is a generally correct characterization, then I suppose

section 15 of

chapter 2 really is incomplete in a sense, because Nis g a'a citizens won't actually be entitled to all of the rights and benefits of other Canadian citizens or permanent residents. From time to time they may lose that right in lieu of and have replaced in its stead the opportunity to participate in a program that Nis g a'a government has assumed responsibility for.

It just seems to me that

section 15, standing alone, is perhaps a little bit open-ended. Really, it needs to be read more carefully. If I'm wrong, I'm sure the minister or ministers will correct me.

Hon. D. Lovick: I'm not sure that we need to qualify or clarify. I would simply say that paragraph 16 qualifies paragraph 15 -- if that's any help.

M. de Jong: Let's go to paragraph 16 for a moment, because I think this is actually one of those provisions within this treaty that many people, perhaps unconsciously, focus on -- those, quite frank