1989 Legislative Session: 3rd Session, 34th 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, APRIL 25, 1989

Afternoon Sitting

[ Page

6341 ]

CONTENTS

Routine Proceedings

Oral Questions

National sales tax. Mr. Harcourt –– 6341

Discriminatory entrance limits in independent schools. Ms. A. Hagen –– 6342

Sale of New Westminster property. Mr. Williams –– 6342

Speed limit on highways. Mr. Crandall –– 6343

Lease of former Highways camp. Mr. Guno –– 6343

Highways maintenance. Mr. Barlee –– 6343

Ministerial Statement

Fish-farming. Hon. Mr. Savage 6344

Mr. G. Hanson

Low-level military flights. Hon. Mr. Vander Zalm replies to question ––

Committee of Supply: Ministry of Attorney-General estimates. (Hon. S.D. Smith)

On vote [3: minister's office –– 6345

Mr. Sihota

Mr. Barnes

Mr. Guno

Mr. Clark

The House met at 2:06 p.m.

HON. MR. RICHMOND :

It's a pleasure for me to introduce another visiting minister today,

from the Northwest Territories. Would you welcome Hon. Tom Butters, who

is Minister of Housing and Government Services. He makes his home in

Inuvik. I know you'll all want to give him a warm welcome.

HON. MR. VANDER ZALM :

Sitting in the Speaker's gallery today are the Belgian Ambassador, His

Excellency Count Jean-Franois de Liedekerke, and his wife Countess de

Liedekerke, and also the consul-general of Belgium, Mr. Michel Delfosse

and Mrs. Delfosse. I would ask the House to make them welcome.

HON. MR. WEISGERBER :

It's a pleasure for me today to introduce two friends from Dawson

Creek, seated in the members' gallery. His Worship Mayor Bob Trail is a

strong supporter of mine and of this government and an enthusiastic

supporter of our decentralization initiative. With Mayor Trail is the

city administrator, Harald Hansen. Please join with me in giving them a

warm welcome.

MS. EDWARDS : May I be the first to

welcome to the Legislature today some of the members of the British

Columbia Professional Firefighters' Association, many of whom are here.

I particularly want to give a welcome to Keith Watson from Fernie, Jack

Watson, who is with the Cranbrook fire department, and Ken Skretting,

who is with the Cranbrook-Kimberley Airport fire department. Please

join me in making them welcome today.

MRS. GRAN : Mr.

Speaker, from the government side of the House, I too would like to

welcome the British Columbia Professional Firefighters' Association and

the executive members who met with us this afternoon. I was going to be

cheeky and ask how many of them had made the calendar, but I won't.

Would the House please make them welcome.

HON. S.D. SMITH :

Mr. Speaker, each year we have in association with Law Day a contest

for essays and debates on topics relating to the Law Day ceremonies.

Today in our gallery we have a number of winners of the Law Day essay

and debate contest. They are: Suzanne Kennedy of North Vancouver,

Tai-Li Letendre of Prince Rupert, Craig Moseley of Surrey, Erin Lemmon

of Kamloops, Jason Ford of Victoria, Duncan Moore of Nelson, Cindy Van

Ginkel of Coquitlam, Nicolas Nadeau of Nelson and Ira Parghi of

Kamloops. Would the House please make them welcome.

HON. MR. PARKER : In the gallery today are three regional managers from

the British Columbia Forest Service here to watch the goings-on. I'd ask

the House to welcome Ken Ingram, the Vancouver regional manager; Peter Levy,

the Kamloops regional manager; and Mike Carlson, the Cariboo regional manager.

MR. RABBITT :

Today in the gallery I have two longtime friends from the great little

city of Merritt in the beautiful constituency of Yale-Lillooet. They

are independent lumbermen, and I would like the House to give a very

warm welcome to Tara Singh Ghog and his son Surinder Ghog,

MR. SIHOTA :

I have several introductions I would like to make. Firstly, following

on my good friend the member for Yale-Lillooet, Tara Ghog is with us

today. Tara came to Canada in 1940, and settled, as many people in the

Sikh community do, in Paldi, and established quite a reputation for

himself in Hillcrest, where he worked with most of the pioneers in the

Punjabi and East Indian community. Mr. Ghog subsequently moved to

Kamloops and ultimately to Merritt. All of us in our ethnic community

are very pleased with the accomplishments of Mr. Ghog, who has

established himself as an outstanding businessmen. It certainly gives

me a great deal of pleasure to give a bit of a tribute to Mr. Ghog and

his son Surinder. I'll tell my father-in-law about this later.

would also like to welcome Julianna Stefanescu, a hard worker during

our campaign, who is here as well in the galleries. I also note that

Bob Clark, regional director for Sooke, is here as well. Would all

members please join me in welcoming both of them as well.

MR. PETERSON :

On behalf of the first member for Langley (Mrs. Gran) and myself, I'd

like to introduce a very good friend, the very dynamic president of the

Aldergrove Kinsmen Club, an individual who in his own mind thinks he's

a chef extraordinaire, Mr. Rich Coleman. Please join us in giving him a

very warm welcome.

Oral Questions

NATIONAL SALES TAX

MR. HARCOURT :

I have a question to the Premier. Two times this month I've asked the

Minister of Finance and Corporate Relations (Hon. Mr. Couvelier) to

communicate the strong opposition of British Columbians to the Mulroney

government's national sales tax, and the minister refused. Now the

federal government has decided to proceed unilaterally. Is the Premier

now prepared to pick up the phone and call Michael Wilson to tell him

once and for all that British Columbians are opposed to the national

sales tax?

HON. MR. VANDER ZALM : The Leader of the

Opposition must be aware that there have been numerous discussions, not

only between the Minister of Finance for British Columbia and the

Minister of Finance federally, but with all of the other provinces as

well. All along, our position has been that we would listen, but we

would not commit to or be party to any new tax that would affect the

economy of British Co-

[ Page 6342 ]

lumbia in a negative way or be regressive in its application. We continue to take that stance.

I have pointed out to those who have asked me — not only those involved

in government, federally or otherwise, but people from the media too —

if the federal government took a lesson from what our government did in

1983, 1984 and 1985 and since then they wouldn't have to consider these

massive tax increases now. The Leader of the Opposition should be aware

of what action we took then through restraint and cutting back on the

size of government. I recognize that the opposition was very much

opposed then to the restraint program and the actions we took which put

us in such good fiscal shape now — the best in Canada.

Hopefully,

the recognition by the Leader of the Opposition, through the phrasing

of the question, that such tax increases — federal or provincial —

place a tremendous burden on our people and cause inflation to occur,

will see the NDP support what we have been attempting to do all along:

to establish for us in British Columbia an example to the rest of

Canada of what fiscal responsibility in government is really all about.

[2:15]

MR. HARCOURT :

The Premier has caught the Minister of Finance's gobbledegook disease.

We know where Ontario, Quebec, Nova Scotia and Alberta are at; they've

said no. We don't know where B.C. stands. This government's refusal to

say no has led to the unilateral action of the federal government. Once

more, to the Premier: are you prepared to stand up and say no to the

national sales tax? Yes or no?

HON. MR. VANDER ZALM :

I will stand up and repeat it. We have all along taken the position

that we would not support a new federal tax that is regressive or that

would somehow affect the economy of this province in a negative way.

I've said it before, I'll say it again, and I'll continue to say it.

the same time, we recognize that the federal government and governments

elsewhere in Canada have not been as effective as we have in bringing

the budget under control, and they've allowed things to go to the point

where they are faced with some terrible choices. The choice, as I see

it, and as I read in the paper — and I assume, since you get much of

your information from the paper, Mr. Leader of the Opposition, that

this is correct.... The position of the Leader of the Opposition is

that we should continue to spend, that there shouldn't be cutbacks at

the federal level, and that a deficit, even a growing deficit, is in

fact okay. I've heard the same thing from the finance critic. We don't

view it this way. We say deficits at the federal level such as we see

today are very destructive and will need to be paid for one day by our

children or our children's children.

My recommendation to

the federal government, since I've been asked the question, is that

they look at what has been done in British Columbia over the past

number of years, that they learn from what we've done and do likewise.

They can then prevent these massive tax increases and bring about a

balanced budget and a strong economy for the country, such as we have

here in our province.

DISCRIMINATORY ENTRANCE LIMITS

IN INDEPENDENT SCHOOLS

MS. A. HAGEN :

Yesterday the Minister of Education denied that funded independent

schools that refuse Canadian students admission on racial grounds are

practising racial discrimination. Since the schools in question admit

that they limit enrolment on racial grounds, can the minister explain

why he exempts such discriminatory behaviour from his policy?

HON. MR. BRUMMET : I would suggest that the member read the legislation rather than interpret it for her political reasons.

MS. A. HAGEN :

I would like to ask the minister whether he endorses the use of public

money for schools that practise racial discrimination, and whether he

will use his power over accreditation of these schools to ensure that

racial discrimination is not practised in publicly funded schools.

HON. MR. BRUMMET :

The member has interpreted their limiting of students as racial

discrimination. They limit all kinds of students in the independent

schools. They are only partially funded by public money; they have to

raise the rest of the money themselves. They have some choices about

enrolment, and they limit their enrolment for all kinds of students;

it's not just the racial discrimination that the member chooses to

point out. Unlike the non-democratic party, we think people should have

some choice.

SALE OF NEW WESTMINSTER PROPERTY

MR. WILLIAMS :

To the Minister of Government Management Services. Last week you

indicated that you would provide detailed appraisal information from

the Enterprise Corporation on the New Westminster waterfront land flip.

Can you advise the House when you are providing that information?

HON. MR. MICHAEL :

I'm sure if the member would read the weekend paper, he would see that

an analysis was done with the B.C. Assessment Authority. At the time of

the sale, the property was valued by the B.C. Assessment Authority in

the neighbourhood of $800,000. The corporation sold the property for

$2.2 million. At a later date, in March 1988, on rezoning, the property

was reappraised by the Assessment Authority at $2,120,000 — $80,000

less than the sale.

MR. WILLIAMS : The minister

doesn't seem to understand the difference between appraisals and

assessments. The appraisal would be by professional people regarding

the value, not an assessment with respect to taxation. The Bank of

America indicated at the time of sale that the value was over $11

million.

[ Page

6343 ]

Do you have any material of the same date that would indicate otherwise?

HON. MR. MICHAEL :

Our internal valuation indicated a value slightly less than the sale

price. If the member has any information whatsoever that the property

was valued at $11 million, I'm sure the House would appreciate it being

tabled.

MR. WILLIAMS : Mr. Speaker, we would be more

than willing to provide the telephone number for the Bank of America

Canada. They have that information. Could the minister provide the

House with any copies of the advertisements for the sale of the site?

HON. MR. MICHAEL : I would have to take that question on notice.

MR. WILLIAMS : Well, keep looking, Mr. Minister.

SALE OF WESTWOOD LAND

MR. WILLIAMS :

To the same minister, Mr. Speaker. Hundreds of acres are now for sale

at Westwood Plateau. I think it's some 400 hectares. Can we be assured

that none of the privateers involved in the New Westminster land flip

will obtain the Westwood lands?

HON. MR. MICHAEL :

The Minister of Crown Lands (Hon. Mr. Dirks), I'm sure, will be making

an announcement on the sale of Westwood sometime shortly. The various

proposals are currently being evaluated, and the minister's staff are

currently negotiating with one of the lead proponents.

MR. WILLIAMS :

Can we be assured that you are not going to make the same errors that

you made on Expo and the New Westminster waterfront? Can we be assured

that it will be sold in more than one parcel, and that we will keep at

least 20 percent of it for social housing?

HON. MR. MICHAEL : The Minister of Crown Lands will make all that information known to this House shortly; it's future action at this time.

SPEED LIMIT ON HIGHWAYS

MR. CRANDALL :

I have a question for the Minister of Transportation and Highways. A

couple of weeks ago I asked if the speed limits on the highways across

the province that are presently 90 km/h could be raised to 100 km/h. I

would like to know if we have a decision on that matter.

HON. MR. VANT : I can sense that's a very important question. I'm not too sure how urgent it is, but currently....

Interjection.

HON. MR. VANT : Yes, I guess some people are in a hurry to get from point

A to point B. But as this government constantly improves our highway infrastructure,

there are certain sections of highway.... Because of this government over many

years, I can say that certain sections of highway, even in the interior of the

province, are in such good shape that the speed limit — subject to safety concerns

and proper signage — certainly could be raised. One

section of highway that

comes to mind, in the neighbourhood of Sicamous, is a very wide, straight highway,

and certainly a higher speed limit would be in order.

LEASE OF FORMER HIGHWAYS CAMP

MR. GUNO :

I have a slightly tougher question for the Transportation and Highways

minister. The former Highways camp on Meziadin Lake has been leased by

the local highways contractor. I'm told that the camp is being

developed as a trailer court and used for maintenance of forest

vehicles. Has the minister decided that this is unfair competition to

local businesses, and is he taking steps to recover a level of

effective public subsidy so that all businesses in the Stewart area can

compete on a level playing-field?

HON. MR. VANT :

believe the camp that the member is referring to is the one very close

to the Meziadin junction, where Highway 37A takes off from Highway 37.

I find the question amazing, because a lot of the contractors have

complained about the very high rent paid to B.C. Buildings Corporation

for some of these facilities. I'm happy to hear that the facility

they're renting is fully utilized to be of service to the total

community, and I don't think it is unfair competition.

HIGHWAYS MAINTENANCE

MR. BARLEE :

This is a question to the Minister of Transportation and Highways

concerning privatization. The minister has repeatedly claimed that

service would be maintained after privatization. Would the minister

confirm that this is not entirely correct and that British Columbians

in isolated areas of contract area 9, which is around Grand Forks, who

used to have the road cleared by ministry crews on a fee-for-service

basis, are now not being served by the local contractor for any fee? He

absolutely refuses.

HON. MR. VANT :

I'm quite

surprised to hear that allegation by the second member for

Boundary-Similkameen concerning the Grand Forks area. I will certainly

take note

of that. It's the policy of this government that the contractors

provide all the services previously provided by the government. Perhaps

the member is referring to the plowing of private driveways in the

area. Indeed, for senior citizens and the disabled it is the policy

that these services be provided absolutely free of charge, as was the

case in the past. Regarding other potential customers, most of the

contractors are very happy to take on any of that additional work on

the signed plow-board basis, such as the ministry did in the past.

[ Page 6344 ]

Ministerial Statement

FISH-FARMING

HON. MR. SAVAGE :

Mr. Speaker, today I have received a copy of a report commissioned by

the British Columbia branch of the Consumers' Association of Canada.

This report is entitled "Recommendations From the Task Force Studying

the Changing Production of Fish." I would like to commend the

Consumers' Association at the outset on the extensive work that they

and the associated task forces have undertaken in order to prepare this

report.

The task force makes a number of recommendations in

four broad areas: (1) the concern for safe food; (2) the need for

consumer education; (3) increased inspection; and (4) environmental

protection. This report reinforces my commitment to an action plan for

product safety that I had been working on in conjunction with my

federal and provincial colleagues. I have undertaken several

initiatives in this regard.

As I announced in January 1987,

a comprehensive regulatory framework for the inspection of B.C. farm

salmon is being implemented. I am pleased to report that parts of this

program are already in place, and that it will soon be fully

operational.

I have provided a $50,000 grant to the B.C.

Salmon Farmers' Association to implement a quality-assurance program.

This program includes independent laboratory analysis of random samples

of farm products by an international firm so as to ensure that consumer

confidence is warranted and maintained.

I have also

provided financial support for the development of rapid on-farm tests

for antibiotic residues. These tests will supplement the current system

of monitoring by allowing the farmer to ensure fish stocks are free of

residues before they are slaughtered. This will ensure that treated

fish are not harvested and delivered for processing.

[2:30]

1 have been working closely with my federal colleagues — in

particular, the Hon. Mr. Siddon, the Minister of Fisheries and Oceans —

and I expect that Canada will soon take some initiatives regarding the

existing regulations controlling fish-feed composition, antibiotic

residue testing and registration of drugs for use in aquaculture. In

addition, two new provincial initiatives will be before cabinet very

shortly: the first is regarding aquaculture licensing; and the second

will require additional affidavits of antibiotic use that will require

reports be provided at time of delivery of fish to the processing

system. Draft regulations and an order-in-council are being prepared.

I'm

sure you will all agree that this government acknowledges the paramount

right of the public to food quality in the marketplace. We are

concerned about safety for our own consumers, and food quality is an

essential component of our strategy for export marketing.

a further demonstration of our commitment to environmental and consumer

concerns, this past weekend saw a cooperative federal-provincial

enforcement effort relative to the proper harvesting, handling and

transport of fish and shellfish to processing plants. This enforcement

effort will remind industry that rules governing harvesting and safe

handling of seafood, particularly shellfish, are in place, and must be

followed if companies are to continue in the food business.

The

aquaculture industry must comply with all existing legislation to

protect the environment and the consumer. There are extensive testing,

monitoring, licensing and public input processes governing aquaculture.

We are fine-tuning all these to better serve the consumer and the

industry.

In closing, Mr. Speaker, I again commend the task

force of the Consumers' Association for its undertaking. The concerns

of the association are duly noted, and systems are in place to

safeguard the consumer interest. As recommended in this report, we are

continuing to refine these systems in a timely manner to ensure they

continue to protect the consumer and the foreign markets for our fish

products.

MR. G. HANSON : With all due respect to the

minister, this statement falls far short of the action required to

protect the wild stocks of this province and to protect the consumer.

have very serious concerns about the disease transfer that may be

occurring from pen-reared fish that have been released, as a result of

storms and accident, into the wild stocks that are traveling through

the Strait of Georgia at the moment. We are very aware of the Norwegian

experience, and they put far more resources — scientific and

governmental — into protecting and administering fish-farming in

Norway. There's totally inadequate protection for the consumer. One

step is to require that pen-reared aquaculture fish be labelled. That

would ensure that the consumer would know precisely what is occurring.

Recommendations

to the minister. First, label fish in the marketplace that are

pen-reared and not wild stock. Second, there must be an administrative

framework. As the ombudsman pointed out, there is no legislative

framework within which aquaculture is administered. The consumer is not

well served; the environment is not well served. The Norwegian

experience in the transfer of parasites from smolts to adult stocks and

infestation of rivers, which has killed entire river systems in Norway

that had to be poisoned with rotenone and then restocked with other

fish, is an experience we don't want to have in British Columbia.

have another concern on the brink of being entertained by this

government: the whole issue of offshore fish-processing. We want all

our fish processed onshore. We don't want them.... The Alaska example was

to start by having floating fish-processing plants and moving to

aquaculture farms. Now those fish processing plants process both wild

stocks and aquaculture-reared fish, and the shoreworkers' jobs have

gone offshore. We don't want that to happen in British Columbia.

[ Page 6345 ]

The

point of the Consumers' Association of Canada is well taken, as is the

ombudsman's and the United Fishermen and Allied Workers', that the

people of this province are not getting protection for the wild stocks,

nor are they getting a legislative framework for aquaculture. The whole

area of antibiotics and the use of drugs.... This effort between you and

the federal government is totally and completely inadequate.

Norway there's legislation on the size of fish farms, density,

proximity to estuaries, rotation time — they must be rotated every two

years to a different site. There are umpteen different things that you

could do to serve the people rather than give us a little press release

like this.

LOW-LEVEL MILITARY FLIGHTS

HON. MR. VANDER ZALM :

Last Thursday the second member for Vancouver-Point Grey (Mr. Perry)

asked if I had contacted Ottawa about a proposal to have low-flying

U.S. reconnaissance planes at Comox. I responded then that I had not

heard of this, and that probably it was another rumour, but that I

would take the question on notice and get further information.

now have the information after speaking to the minister responsible in

Ottawa. There is no such proposal for Comox, but there will be

reconnaissance flights from Seattle to the Northwest Territories. They

fly over non-populated areas as they cross B.C., except that they will

come within 20 miles or thereabouts of Houston. These flights will

occur four days per year. I thought perhaps that, in order to put the

people of Comox more at ease following the question and the impression,

it should be answered now.

HON. MR. RICHMOND : Before

proceeding to Committee of Supply, I would ask leave on behalf of the

Select Standing Committee on Energy, Mines and Petroleum Resources for

that committee to convene at 3:45 p.m.

Leave granted.

Orders of the Day

The House in Committee of Supply; Mr. Rabbitt in the chair.

ESTIMATES: MINISTRY OF

ATTORNEY-GENERAL

On vote 13: minister's office, $254,015 (continued).

MR. SIHOTA :

I want to continue with the comments that I was making this morning to

the Attorney-General with respect to his estimates. I want to continue

to respond generally to the comments that he made this morning before

asking some fairly specific questions with respect to different

components of his budget. Before we left, I was talking about the

recommendation of the Hughes commission.

Now I want to move

on to the matter of family maintenance and the enforcement program that

has been established by the province. As the Attorney-General fully

knows, we on this side of the House supported the introduction of that

legislation and the implementation of that program. Indeed, I offered

several suggestions during the debate on that legislation to the former

Attorney-General with respect to ways to improve the family maintenance

enforcement program.

Over the past year or so, we've had

the opportunity to assess the effectiveness of that family maintenance

enforcement program. I think it is fair to say that the program is

going through a number of growing pains. I don't want to stand up here

and be wholly critical of that program, except to say that it is now

emerging that there are some serious gaps with respect to enforcement

of maintenance orders in British Columbia. During his opening comments

on this matter, the Attorney-General, in response to comments made by

the first member for Vancouver East (Mr. Williams), alluded to his

comments as they relate to family maintenance.

I want to

tell the Attorney-General what my experiences were as counsel who

practised in Esquimalt. That experience led me to believe that there is

indeed an inordinate demand placed upon counsel in this province to

deal with the incredible galaxy of maintenance orders in British

Columbia that remain unenforced. Women particularly, and single parents

generally, often get maintenance orders from the courts that they have

no ability to follow through on or act upon. Often, as the

Attorney-General has admitted, there is default with respect to those

maintenance orders. Once default occurs, the injured party — usually a

woman, a single parent — then has to go to court to seek enforcement of

those orders.

All of us in this Legislature believe that

there must be a better mechanism to allow for the enforcement of those

maintenance orders so that single parents do not have to engage

expensive counsel or go through incredible delay, litigation and

harassment from the respondent in order to secure their enforcement

order.

I can think of literally hundreds of examples that I

had to deal with when I was practising law, where inevitably the client

had no means to pay for legal services. At that point, counsel was left

with a choice. They could turn their client away, which I would say is

wholly inappropriate; secondly, they could do it for nothing, which

most counsel did; and thirdly, they could canvass the possibility of

legal aid, which was generally unavailable. So it really left the

second alternative available to both counsel and the women.

would suggest that most counsel in British Columbia took it upon

themselves to deal as much as they could with the myriad of enforcement

orders, regulations and other matters ancillary to maintenance orders.

I don't know if anybody has ever calculated out the level of those

pro-bono services provided by counsel.

The hope was that the family maintenance enforcement program would fill that gap to help both

[ Page 6346 ]

single

parents and children in need of custody payments. We will, during

estimates, be building a case that there are serious deficiencies and

gaps in the family maintenance program. I'm not going to suggest that

the program is a failure. I'm going to suggest that it's going through

some growing pains, and those growing pains require two things:

(1) better resources to that program and (2) legislative intervention from

the Attorney-General's ministry to make that program better

administered.

Our comments today about that program will be

about the type of legislative and policy changes that ought to be

embraced by the Attorney-General's department.

If there was

one issue which motivated me to get involved in politics, it was this

issue: the number of clients I had to deal with in a street-front

office and the incredible volume of cases.

Over the years,

this government has paid incredible lip-service to that volume and has

said they will do all sorts of things. If one was to refer back to

speeches made by the first member for Vancouver-Little Mountain (Mrs.

McCarthy), by the former Attorney-General and by the current

Attorney-General it would become evident that it's taken seven or

eight years to arrive at the program we've arrived at now. I will be

pointing out specifically, later on in estimates, how that program has

still not met the need.

The point I want to make now is in

relation to what the Attorney-General said this morning. He said, with

some level of surprise, that there were 17,000 calls to their

toll-free number in relation to requests for family maintenance.

HON. S.D. SMITH : I didn't say that.

MR. SIHOTA :

The Attorney-General denies that there were 17,000 calls on the

toll-free number. The Attorney-General says that he wasn't surprised.

seems to me that the government ought not to have been caught as if

that number is large. Take out the element of surprise, and let's just

deal with it head-on. Anyone who knew the extent of the problem would

have designed a family maintenance program that was capable of dealing

with the volume of work that has now come to the government's

attention. Surprise or no surprise, the point still remains that 17,000 is what one would have expected.

When you compare the

measure of calls that this province has received with the measure of

resources that the province has put into the family maintenance

program, and add to that the gaps that exist within legal aid and

within the legislation itself, it is obvious that there still remain a

large number of single parents and children out there who are not being

covered by either the enforcement program or legal aid and who find

themselves in the same bind that we were endeavouring to correct in the

first place. Indeed, one could argue with some persuasion that the sole

purpose of the family maintenance program has really been to try to

deal with that element of the population that is on social assistance

and not with those who are not on social assistance but remain as

families and parents of modest means.

[2:45]

To be fair, I would congratulate the government on the decision to

provide some additional funding for legal aid to provide for some

flexibility in the criteria. I will grant you that. The Premier looks

astonished. I think the Premier, if he has read previous debates that

we have had in estimates, will understand that where credit is due, I

have been prepared to give it to that ministry.

What that

allotment will provide for — and I don't want to get into the quantum

of it, be it $500,000; I don't want to belittle the amount — makes

only a minor dent in the full breadth of the problem. In fact, many of

those 17,000 people who have called the toll-free number will continue

to remain unserviced. We will, through example, go through this during

the course of estimates and point out to the Attorney-General where

those gaps exist. In fact, I find it somewhat disturbing that only 900

clients, according to the Attorney-General this morning, have been

serviced in that six-month period under the program, after the issuance

of some 5,000 kits.

The comments that I have made to date

of course focus only on the difficulties faced by applicants who make

their reference to court to seek maintenance. Again, there are

difficulties that ought to be attended to by the government in fairness

to the respondent of the application. I would venture to say — and I

think the former Attorney-General and I have shared our views with

respect to respondents — that someone earning $700 or $800 a month,

living in Vernon, who is faced with a variance order to increase

maintenance ought to be entitled to the same level of access to the

courts as someone who is seeking to vary that order upwards. In that

regard, the program is totally inadequate. The program is also

inadequate in terms of the type of documentation it provides to the

respondent as a way of ascertaining the quantum of that individual's

assets. In any event, we shall be dealing with the matter of family

maintenance and the enforcement program in some depth.

Turning

to other comments that the Attorney-General made in his opening remarks

as we launch into these estimates: the government talked, through the

minister, about victim assistance programs in British Columbia. I would

agree that if there was a trademark to the previous Attorney-General,

it was indeed his work in terms of trying to make something out of the

victim assistance program in British Columbia.

I have a

couple of comments that I want to make with respect to victim

assistance. First of all, I want to put the Attorney-General on notice

that during estimates here we will be very specifically pointing out to

him where there are horrendous gaps in terms of victim assistance

programs in British Columbia and where the priority in respect to

allocation of resources ought to be but is not directed.

One

of these areas.... I would serve notice to ensure that we have full and

frank debate in keeping with the kind of tradition we developed with

the member for Oak Bay-Gordon Head (Mr. B.R. Smith). I

[ Page 6347 ]

will

be talking in some depth about sexual assault. In my view, and I will

be elaborating on these comments later on, I cannot think of another

crime that offends me as much as sexual assault. I cannot think of

another behaviour pattern that we are seeing emerging more and more in

society and that seems to be more prevalent, and where we are simply

not putting in adequate resources. There is inadequate funding for

assisting the victim of sexual assault, be it a woman or be it a child,

who has been left with the scars and trauma of that experience. During

our presentation we will be talking about the inadequacies of funding

around various regions of British Columbia in that regard. I want to

put the Attorney-General on notice as to that aspect of the

government's victim assistance program.

I also want to put

him on notice that we will be talking during these estimates about the

Criminal Injury Compensation Act. I know that the Attorney-General has

received representations from groups respect to amendments to that

legislation. Indeed, I was somewhat disappointed that during his

opening remarks the Attorney-General preferred not to talk about the

requirement for expanded legislation. I will be canvassing the

Attorney-General in that regard, as we will in the matter of youth

gangs in British Columbia, in particular, the actions of the government

with respect to the termination of funding to some groups. Also, what I

see as a real problem in British Columbia is the amount of ethnic

tension that exists, particularly in urban centres, and the inadequacy

of response through community programs by the Ministry of

Attorney-General.

The other comment that I have, with

respect to the Attorney-General's opening remarks, deals with legal

aid. I don't think it is a hidden matter that I have put considerable

stock on the matter of legal aid and over my two and a half years have

encouraged the government to take action. Again, it is my intention

during the course of the estimates, which will take us the next couple

of days, to talk about very specific gaps in legal aid funding in

British Columbia and the matter of who actually gets access to the

courts.

The case that we'll be putting from this side of

the House is that those who can afford to go to court got access to the

courts, and those people who are eligible for legal aid get access to

the courts, but in between remains a large....

Interjection.

MR. SIHOTA : I see my time is up. Would one of you guys just tell me....

MR. BARNES :

I would just like to give the member for Esquimalt-Port Renfrew an

opportunity to continue. I have some remarks I would like to make

myself, but I think it's appropriate that he be allowed to continue

without interruption at this point.

MR. SIHOTA : In response to legal aid, there is a series of deficiencies.

As much as the Attorney-General would prefer to provide us with statistics with

respect to 56 percent increases over a five-year period, the fact remains —

and I note that the Attorney-General did not refer to this — that the government

has not acted upon the recommendations of the 1984 task force to date, and again

has not acted upon the recommendations of the Hughes commission with respect

to full funding for a comprehensive legal aid program in British Columbia.

The

Attorney-General and I are both aware of what the statute requires in

terms of coverage to individuals. It is certainly — and I would grant

him this — an improvement with respect to the family area. I can

remember debates we had two years ago in the family area. But there

remain incredible gaps still within the family area where legal aid is

not provided, and we will go through each one of those. There remain

incredible gaps with respect to civil litigation. There remain

incredible gaps with respect to administrative law.

One

example of that is looking at someone who has to deal with a

bureaucracy like Workers' Compensation. The person is injured at work

and has no income coming in. That person can ill afford to go to a

lawyer to seek counsel and guidance in dealing with a huge bureaucracy

that is full of legal entanglements but cannot then get access to legal

aid to assist them with that type of a problem. So in the area of

administrative law there are incredible gaps with respect to legal aid.

The point is that none of that should come as news to this government.

Since 1984 they have received representations with respect to legal aid

and have failed to act.

Most noteworthy — because I see he

is here — of course is the representation the bar made to the Premier

shortly after his election in December 1986. I still remember, with

clarity in my own mind, the bulletin coming out from the Law Society at

the time with a great picture of the smiling Premier shaking hands with

all the representatives of the Legal Aid Society.

In the

honeymoon period, after the 1986 election, people believed that there

would be consultation; people believed that there would be open

government; people believed that there would be a government that would

listen. The government at that point had a tremendous opportunity

before it to act on the recommendations of the 1984 task force; to

listen to what the legal community wanted in terms of services for

people — not fees for lawyers, and I want to underline that point — and

this government chose in the subsequent fiscal year, 1987-88, not to

provide increased funding for legal aid.

Shame on the

Premier! He violated that trust that was established with the legal

community and himself during the course of that meeting in December

1986. At that point people honestly felt that this government was

prepared to make some commitments to make sure that people in this

province who are not covered by legal aid get those basic coverages.

Interjection.

MR. SIHOTA : The Premier says that that is a pretty weak argument. I would invite the Premier to

[ Page 6348 ]

enter

into this debate if he says that this is a pretty weak argument. It is

not weak to say that this government reneged on its promise. Indeed,

that is the record. It is the truth, and I would defy the Premier to

show otherwise.

The Premier has, if he remembers, the

actual submission made at that time to the Premier by the Legal

Services Society and the bar association. But the Premier again chose

to ignore it and gloss it over with some type of public relations

imagery that would be transmitted on the airwaves to create the

impression that the government is interested. Nonetheless there was no

action taken that year, the following year and even this year, as we

will prove during the course of examination of the Attorney-General's

estimates. The only reason we see some movement on the legal aid budget

this year is that the society on its own initiative increased the

tariff and forced the government through its actions in August 1988 to

cover both the increase in tariff and the expansion of services.

[3:00]

HON. MR. VANDER ZALM : Very poor debate, very poor argument, weak debate.

MR. SIHOTA :

The Premier says it is weak debate. I want him to know that I will be

taking the liberty of mailing these comments to the bench — to the bar

— so that they're aware that the Premier now considers the arguments

they made at the time to be weak.

While the Premier is

here, maybe we should go one step further and talk about another issue

which the Attorney-General did not touch upon, at least to the best of

my recollection — albeit, I missed a portion of his comments — and that

is the matter of native title. I want to serve the government with

notice that we intend to deal with vigour during the course of the

estimates with the matter of native title.

I would hope

that the Premier, as a consequence of his encounter at Musqueam, has

now had his eyes opened with respect to the need to deal with that

issue. There is before the government, I'm sure, a report by the

Canadian Bar Association, which highlights....

Interjection.

MR. SIHOTA :

The Premier wonders why he's getting the flak instead of the

Attorney-General. Let me explain why. He's getting the flak, first,

because he's seldom in the House, and secondly, because if there was

another example of violation of trust on behalf of this government with

respect to aboriginal title, it occurred shortly after the call of the

last provincial election, when for three days the Premier spent some

time with the aboriginal people of this province.

HON. MR. VANDER ZALM : Let's hear it. It's been weeks so far; maybe you'll improve with age.

MR. SIHOTA : Three days in a secluded area — with the hope that the Premier

would begin to have some understanding not only of native culture but of their

claim to title in British Columbia. If the government was not able to see it

through the sharing of that information and the understanding of different cultures

in matters of title, it could from the economics of the argument understand

why.

is noteworthy that during the Attorney-General's comments in his

opening remarks, there was no reference to the matter of native title.

Yet both the Attorney-General and I are well aware that there are

studies showing that billions of dollars of investment are being held

up in British Columbia because of the unresolved nature of native

title. We will canvass the extent of this with the Attorney-General.

Millions of dollars are being unnecessarily tied up in litigation

through the courts by the Attorney-General's ministry.

HON. MR. VANDER ZALM : What do you propose?

MR. SIHOTA :

The Premier asks what I propose. Third, the matter of title ought to be

negotiated instead of litigated. Instead of a policy of legal

harassment and legal confrontation, the government ought to be engaging

in a process of negotiation. That's the positive alternative.

he has not yet seen it or come to understand it during the opening days

of the 1986 election campaign and all the discussion that we have had

in the House, and if he has not yet seen it in the representations that

the Musqueam made over the weekend, surely he will.... If he takes the

time to sit through what I would suggest will be measured debate in

this Legislature with respect to that matter.... I would encourage him

to sit through it, because maybe that educational process will allow

the penny to drop and the government to shift its policy in dealing

with aboriginal title in British Columbia.

That concludes

my opening remarks on what the Attorney-General had to say on setting

the beginnings of what I'm sure would be a good debate on the

Attorney-General's estimates. Let me say this as well: I take great

pleasure in the fact that over the past few years the former

Attorney-General and I have tried to keep the level of debate in

keeping with what, I think, many would like to see in this House. It's

my intention to try to make sure that that happens during these

estimates with the new Attorney-General. I would, of course, expect the

same from the current Attorney-General in terms of style and sharing of

information.

I want to start now with some questions to the

Attorney-General about portions of his budget. I note that the

allocation for the Expropriation Compensation Board in British Columbia

is some $315,000. The total payment for salaries is in the

neighbourhood of $155,000. My first question to the Attorney-General

in relation to the Expropriation Compensation Board is: could he advise

the House how many cases were heard last year?

MR. CHAIRMAN : Before the Attorney-General answers the question, the second member for Richmond requests leave to make an introduction.

[ Page 6349 ]

Leave granted.

MR. LOENEN :

On behalf of the Premier and me, it's indeed a delight to welcome a

group of ESL students from Palmer School. I had occasion to be in their

tell you that these students, new arrivals though they are, have a

great deal of appreciation for our democratic processes. They are

accompanied by their teacher, Miss Hislop. In addition to that, Mr.

Kuo, the father of one student, is here from Taiwan. Would the House

make all of them very welcome.

In addition, with us in the

precincts this afternoon from Point Grey are two strong supporters of

Social Credit and our government, Bill and Gladys Nesbitt. I ask the

House to welcome them.

HON. S.D. SMITH : just before

I get to the question relating to the Expropriation Compensation

Board's activities, there are a couple of things I want to refer to. I

know the member for Esquimalt-Port Renfrew was in and out of the

chamber this morning, and there may be things he missed. By his

remarks, I think perhaps there are.

May I start with the

last first with respect to my style and that member — and indeed other

members of this House — in relationship to the office of

Attorney-General. I know the member was out this morning at the time I

said this, and I know he would want me to share with the House that I

extended to him, as critic for this portfolio, the opportunity to work

cooperatively with me where he considers it appropriate. The day after

my swearing in, for instance, I spent a considerable amount of time in

my office with the member, sharing my views about the challenges that

were then before the system — and there were some — and giving him

assurances that he could avail himself of my office and our support

staff for the supply of facts about matters that may be of concern to

him.

As well, I had the pleasure of hosting the member for

Esquimalt-Port Renfrew for a light breakfast but a full briefing by

myself and the deputy Attorney-General prior to the news conference

relating to the release of the Justice Reform Committee report, so that

the member would have the opportunity to be briefed in response to the

media. In addition, I invited the member to submit his nominations for

the designation of Queen's Counsel. I was pleased to provide

participation for him beside me at a public hearing of interested

persons convened to discuss court facilities in the Western Communities

and greater Victoria

I say this simply because I want to be

certain there is no doubt in anyone's mind about my view of my role in

this job and my style of operation. In the last couple of days in the

media there has been occasional castigation of members in this House,

apparently for not correcting quickly enough statements that were made

which may have tended to misinform the public. The media picked up on

them and ran with it; subsequently they were corrected, and there was

some scolding from the media that perhaps members ought to have done

that a little sooner.

With that in mind, I want to say that

I know the member for Esquimalt-Port Renfrew issued a press release

last week referring to comments I had made about the Charter of Rights

and Freedoms. I know the release had implied.... At least, the

inference drawn from it by the media was that I had been referring to

Madam Justice McLachlin's decisions specifically, rather than to the

Charter — as indeed was the case — in relationship to what I said about

the Americanization of Canada, which is something about which I feel

very strongly. I want to correct it again today. I know that this

statement was made in the House again, and a cursory glance at Hansard

would disclose that what I said was to suggest that the Charter does

more to Americanize Canada than any other single document I could ever

imagine in this country. That was the reference.

Last

Friday one of the major radio stations in Vancouver picked up on that

following the press release and corrected the member for Esquimalt-Port

Renfrew. I simply want to put it on the record, so we know what was

being discussed.

In addition to that, today I did indeed

refer to 17,000 applicants for the family maintenance enforcement

program, but most certainly I did not say that it surprised me. Indeed,

it didn't surprise me at all. I wouldn't want that to be left on the

record.

Mr. Chairman, it's interesting that the member

refers to the Gitksan case and others as legal harassment. These cases

are now before the courts and were initiated by the native community in

this province — very important cases. In fact, in terms of the Gitksan

case, the Chief Justice of British Columbia, Mr. Justice McEachern,

referred to it just yesterday or the day before as perhaps the most

important case ever tried in the province of British Columbia. I find

it odd that it would be characterized — or at least could be

characterized — as legal harassment. I don't think I would ever

characterize what's going on in the hon. Chief Justice's courtroom as

legal harassment. I don't think it would be fair to him to have

characterized as legal harassment what is taking place in his court and

what he has called the most important case ever tried in British

Columbia. I think we can do better than referring to something that

important as legal harassment.

Mr. Chairman, the member

referred to the Workers' Compensation Board. As I said this morning,

pleased as I am with the progress we've made in relationship to legal

aid, I understand fully that access to justice requires a well-funded

legal aid system. And pleased as I am to have been able to persuade my

colleagues and get the support of the Premier of the province and my

cabinet colleagues to enhance our legal aid program as much as we have

this year, I don't — by any stretch of the imagination — rest satisfied

that we are doing enough. Indeed, I think we can be doing more, and I'm

going to work hard to ensure that we are doing more with the

understanding always that the money we are spending is sent to us by

the people, and there are obviously limits on what they can send us.

[ Page 6350 ]

relation to the Workers' Compensation Board, I should also advise

members in the House — it's perhaps timely — that recently there was a

decision of a pretty important nature constitutionally in the Supreme

Court of Canada. I'm referring to a reference to the validity of

Newfoundland's compensation act, in which the court unanimously and

without hearing from the respondents or the interveners dismissed an

appeal and thereby sustained the workers' compensation schemes of

Newfoundland and other provinces which were being challenged.

The

challenge was based on an argument that somehow depriving workers of

their right to sue in the courts for accidental injury in the workplace

— which is the essence of the compensation scheme — violated

section 15

of the Charter of Rights, because it amounted to unequal treatment.

That was the guts of the argument.

In dismissing the

appeal, the Supreme Court of Canada yesterday relied on its earlier

decision in the case of Andrews v. the Law Society of British Columbia

as supporting the proposition that

section 15 of the Charter deals only

with discrimination based on the grounds that are enumerated in

section

15, or grounds akin thereto, reflecting similar personal

characteristics.

[3:15]

Mr. Chairman, this is important because this is an

interpretation of

section 15 which lawyers from this ministry had advanced in these and

other cases, and it has now been endorsed by the Supreme Court of

Canada. It means that the courts will not scrutinize every distinction

drawn by this and other legislatures in enacting legislation which

treats one group differently from another. After all, almost every

piece of legislation you can imagine treats one person differently from

another. That's what legislation does; it passes legislation which

enhances rights for one and consequently presumably diminishes them for

others. Virtually all legislation does that. Our legislation will be

now much less susceptible to judicial scrutiny under the Charter,

leaving it to this and other legislatures to make the kind of public

policy choices that should be left up to legislators to make without

the necessity of advancing arguments to the courts justifying our

enactments.

So I think, Mr. Chairman, this

interpretation

section 15 is very important to our workers' compensation system and

to ensuring the capacity of that system to be adequately funded and to

act as the insurance scheme it was intended to be — to act on behalf of

workers. It is also a strong constitutional case which I think is a

sensible and commendable decision that leaves free from judicial

scrutiny many social programs, such as workers' compensation, which

have been enacted by legislatures in this country, including the

British Columbia Legislature, for the overall benefit of our society.

That decision will stand well for all of us who are interested in

workers' compensation programs, because it would have been extremely

difficult to operate that system had that

interpretation of

section 15

been accepted. I was pleased to see that.

I will be dealing

in due time, as the member has requested, with my views on the effect

of the Charter. Knowing full well, as I do, that the easy thing,

because it is popular and the way the tide moves, is to go along with

the mob and pursue notions of perhaps more judicial activism.... I

understand fully, perhaps better than anyone, that it is politically

unpopular to take the other point of view. It will do one political

harm to take the other point of view, but I will continue to take that

point of view, because I believe it to be right. If I am the last

person in this province articulating that point of view, I will

continue to articulate it, because I believe fundamentally that it is a

position of caution, knowing as I do that the Charter is here to stay

and that there is nothing we can do about it. It cautions people that

there are two sides to these stories — two sides to Brown v. the Board

of Education in the United States, where the same court that was given

credit for opening up....

Interjection.

HON. S.D. SMITH : If the member for Esquimalt-Port Renfrew will reduce the chatter, I will tell you what the other side is.

The

same court that made the decision in Brown v. the Board of Education,

which advanced human rights in a fundamental way, had made the opposite

decision for the previous 80 years. That is what is wrong, Mr. Member,

with leaving it to people who are appointed, rather than to people who

are elected, to make fundamental decisions. It's a subtle distinction,

but it is one that is worthy of notation.

The 1984 task

force report, for the member's edification.... Indeed, I did discuss it

in my opening comments, and I pointed out that in some instances we

exceeded it. Of course, the Justice Reform Committee report with

respect to legal aid talked about implementation over three years. I

think we will be able to meet that target; certainly we have in family

law already.

With respect to the Expropriation Compensation

Board, the number of cases received in '88-89 was 28; the number of

decisions rendered in '88-89 was three; and the number of hearings

scheduled to date for '89-90 is six. The anticipated trend is to have an

increase in the caseload because of the number of capital projects

going on in the province relative to highways and other public works

which may require expropriation.

MR. SIHOTA : The

comments of the Attorney-General invite many comments in response,

particularly with respect to his curious reading of history on Brown v.

the Board of Education and his desire to ensure — which I also do —

that the Legislature remain supreme. I was most interested in hearing

his comments with respect to the notwithstanding clause. I am also most

curious, as we will canvass later, about his reaction to the striking

down of the Sunday opening legislation.

The question to the minister is this: if I heard correctly, then, that there were only three cases heard in

[ Page 6351 ]

'88-89

by the board, when there were 29 received.... I take it that 26

applications that were filed were resolved without the necessity of a

hearing. Is that correct?

HON. S.D. SMITH : I can

confirm that. In fact, what I said was that there were three decisions

rendered. The board, of course, works with the parties as well to

resolve the disputes.

MR. SIHOTA : It's my

understanding that in '88 there were three cases heard: the Feldman

decision involving the township of Langley, which was heard on October

4, 5 and 6; the Hughes decision in the city of Victoria, which was

heard on November 1; and the Nygaard decision, which involved a case in

the district of Surrey and was heard on December 13, 14 and 15, 1988.

There was only one other case on which they actually had a hearing, and

it was resolved on the fifth day of hearing. Apart from that, the

remaining 25 cases were resolved without the necessity of a hearing.

Would the Attorney-General agree with that

interpretation?

HON. S.D. SMITH : I would not, Mr. Chairman. I would like to defer to the member for South Peace River, who wants to make an introduction.

Leave granted.

HON. MR. WEISGERBER :

It's a rare pleasure for me to have the opportunity twice in one day to

introduce visitors from Dawson Creek. In the members' gallery are two

very good friends from Dawson Creek, Mr. and Mrs. Heinz Goldbach. Heinz

is publisher of the Peace River Block News , the daily newspaper in

South Peace River.

HON. MR. PARKER : Mr. Chairman, may I have leave to make an introduction?

Leave granted.

HON. MR. PARKER :

A very good friend from Terrace is here, Ray Tremblay, a firefighter in

Terrace and one of the sponsors of the Terrace air cadet squadron. He

has made the Terrace air cadet squadron tops in British Columbia, with

their own aircraft, their own glider and their own headquarters and

instructional hall. He's a tremendous citizen in Terrace. Would the

House please make him welcome.

MR. SIHOTA : A question to the minister: of those remaining 26 cases, how many required hearings?

HON. S.D. SMITH : Mr. Chairman, I'll have to get the number that will be requiring hearings from the expropriation board registry.

MR. SIHOTA :

To reiterate, it's my information that there were three cases where

there were decisions arrived at — I've already enumerated those — plus

one more where there was a hearing that sat on the fifth day. The

minister gave us the '88-89 year; would he agree with me that there

were no cases heard in the '87-'88 year?

HON. S.D. SMITH :

What we see going on here is the following: there is a transition

period in the legislation from the old Expropriation Act to the new

Expropriation Act. In fact, as the member for Esquimalt-Port Renfrew as

an up-to-date practising lawyer would know, the act was not proclaimed

until December, 1987, so it would be somewhat unlikely that there would

have been any matters heard under it prior to its proclamation. But

there is a system, a transition period, going on and some people in

fact have elected to stay under the old arbitration system, for reasons

which I'm not quite certain of but which would be best known by them

and their counsel. We had actually quite a backlog of old arbitrations,

where we had to bring on people in the usual way by ad hoc appointment,

but we're now 100 percent under the new system, or it would appear that

that is the case. We don't have a backlog of those old arbitrations any

longer.

MR. SIHOTA : I want to thank the

Attorney-General for confirming that there were no cases heard in the

year '87-88, that in the year '88-89 there were three cases heard, and

that in the year '89-90 there are six cases that may be heard. Could

the minister tell us, as to the portion of the budget which is broken

down as salaries, what the compensation payable to Mr. Heinrich is?

HON. S.D. SMITH :

Mr. Chairman, the salary is what is called — we have it recorded by way

of levels — level 12, which is a deputy minister's range, but I'll get

that converted. I don't have the table to convert it right at my

fingertips, so I'll get it converted for the member before the hour is

out.

MR. SIHOTA : While I wait for that information,

could the minister also confirm, with respect to that salary level and

range for deputy ministers: if a deputy minister is engaged partway

through the year, would his salary then reflect a percentage of that

salary paid to a deputy minister? In other words, if he worked for half

a year, is it reasonable to assume that he would get a half of a year's

salary, and if he worked for a quarter of a year, he would get a

quarter of a year's salary?

[3:30]

HON. S.D. SMITH :

That would be the usual practice. I presume that there could be

contractual arrangements that might provide for a different

arrangement, but that normally would be the practice, yes.

MR. SIHOTA :

Could the Attorney-General advise me whether or not there are

contractual relationships with Mr. Heinrich? Or is he paid the salary

payable to a deputy minister?

[ Page 6352 ]

HON. S.D. SMITH : Certainly since I've been Attorney-General it's been on the basis of a level 12 payment in the normal course.

MR. SIHOTA :

In a year in which there were no hearings — '87-88 — or for part of

that year... The legislation was introduced in December 1987, if I

remember correctly. For the fiscal year '87-88, it is my understanding

that there were no hearings, which the minister has confirmed. Would he

agree with me that the payment made that year to Mr. Heinrich totalled

some $51,000?

HON. S.D. SMITH : Yes. In fact, the act was not introduced in December '87; it was proclaimed in December'87.

Although

it predates my time in this ministry, it is my understanding that prior

to the proclamation of the legislation and his taking on the

responsibilities he now has, the gentleman you're referring to was with

the ministry — or at least on contract, presumably to the ministry — to

put together a number of things associated with start-up; for instance,

putting together rules of procedures and getting in place the somewhat

modest facilities they have for hearings and the like.

[Mr. Rogers in the chair.]

MR. SIHOTA :

Assuming that he was working for a four-month period, he would have

been paid approximately $12,000 for four months' work. Actually, he

was only there for three and a half months, because the legislation was

proclaimed on the day before Christmas and the office opened on

December 15, 1987. Assuming that he worked from December 15, 1987,

through to March 31, 1988, he would have been earning somewhere in

excess of $12,000 per month to get this modest office established and

to set the rules of procedures. I find that an incredible amount to pay

a former cabinet minister for those types of services.

First

of all, does the Attorney-General believe that it is an appropriate

expenditure to open up an office and draft rules of procedure?

HON. S.D. SMITH :

I guess, Mr. Chairman, we had understood that we were coming in here to

debate votes 13, 14 and 15 for the fiscal year 1988-89, not matters

that took place in fiscal '87-88 prior to my becoming the

Attorney-General of the province.

I'm certainly not going

to accept the positions being advanced by the member as fact, because

for obvious reasons I simply do not have any way of corroborating them

instantly. I will get that. If one wants to get information from a

previous fiscal year, I think the courteous and appropriate thing to do

would be to let us know so we can dig it up, or to raise it at Public

Accounts, where that information is readily available. It seems to me

that to pursue this line of questioning, which I think may well be out

of order to begin with, is really somewhat inappropriate; but we'll do

our best, if that's what the member wishes to do.

MR. CHAIRMAN :

On that point of order, Attorney-General, the Chair is aware that you

are only responsible for those expenditures in your term as

Attorney-General. Sharing that with the member, we'll proceed, keeping

that in mind.

MR. SIHOTA : Thank you, Mr. Chairman. I will then move on to the '88-89 budget, as it relates to the expropriation board.

point simply is this: an examination of Public Accounts, which is

tabled, reveals that for that short period of time Mr. Heinrich earned

a salary of $51,633, plus traveling expenses of $1,855. The following

year, as the Attorney-General has indicated, the board actually arrived

at decisions with respect to three cases it heard. I've given the dates

of those, and my information from the board is that there was only one

other hearing. So for four hearings we have this person being paid a

deputy minister's salary.

Again, it seems to me a rather

extravagant expenditure of taxpayers' dollars to pay someone at a

deputy minister level to arrive at three decisions and hear a fourth

case. Again, if I am to take the figures that the Attorney-General has

provided me with for the upcoming year, it is my understanding that

there are six cases that may be heard. In fact, it is my information

from the board itself that no more than two hearings per month are

scheduled by the government. It seems peculiar and a rather extravagant

expenditure of taxpayers' dollars if we are paying someone with Mr.

Heinrich's skills a deputy minister's salary to hear half a dozen cases

this year.

The question to the Attorney-General is: is he

prepared to re-examine the arrangement that the government has with Mr.

Heinrich to assure the taxpayers that we get better value for our

dollar, and that Mr. Heinrich is not kept on salary at that level to

hear only a handful of cases, but rather either on a case-by-case or

hourly basis, commensurate with the salary paid to counsel for this

type of work? Given the number of cases we're talking about, that would

take us into a much lower range of cost to the taxpayer.

The

question to the minister — while I await the actual salary paid to Mr.

Heinrich — is: would he agree that the arrangement ought to be changed?

HON. S.D. SMITH :

The short answer is no. Perhaps a longer answer might be appropriate

and it is this. The simplistic recitation of statistics often can

mislead one, and it is important to know that there are activities that

take place in that kind of quasi-judicial process other than simply the

numerical rendition of cases actually decided.

Of the 28

cases that may be before the board now — and other matters that are

going on I think there is a fair amount of work done not only by the

chairman but by those who work with him.

More importantly,

I would reject out of hand the notion of a piecework process for

payment of a person in the high responsibility of a quasi-judicial

position. One of the reasons why this Legislature specifically and

deliberately set up the expropriation board in the way it did, one of

the reasons why the debate

[ Page 6353 ]

took

the course it did and one of the reasons why Garde Gardom, who formerly

sat in this chamber, was a strong advocate of that kind of board, was

to set up in that very important area a system whereby we can have some

certainty and consistency of decisions. In order to do that, we have to

have some independence.

That process has generally been

very well received. I don't think you can get that kind of independence

by going, as the member suggests, on a kind of hire-a-judge or

piecework basis for someone in the judging business; I don't accept

that. I don't think that's the right way to go, and therefore the short

answer to him, as to whether we would go on a piecework basis, is no.

MR. SIHOTA :

Several comments in response to what the Attorney-General had to say.

First, in relation to his comment that there are he, Mr. Heinrich, and

others at work.... just for the Attorney-General's information, the

public accounts indicate that there were payments made to other

individuals who worked with Mr. Heinrich. He is the chairperson of the

board and there are two part-time board members — interestingly,

part-time. So other members are part-time but Mr. Heinrich is

full-time. The other part-time members, public accounts would indicate,

received: $33,247 in the case of Mr. Todd; and as best as we can

determine, $35,125.00 went to Mr. Grover, who through his firm would

have received payment.

We saw in the first year, '87-88 —

which, granted, the Attorney-General is not responsible for — payments

in excess of $110,000 for dealing with not one case by the

expropriation board. We have seen similar payments — and I wait for the

exact number from the Attorney-General — for having resolved three

cases in '88-89 and having six pending.

Putting aside

whether or not there were three cases decided, there may well have been

30 cases received. To be doing one case per month at that kind of

salary is an incredible expenditure of money.

The fact is

that there are other members of the board engaged on a part-time basis,

and it would seem to me that Mr. Heinrich could also be engaged on a

part-time basis. He does not necessarily have to be paid on a piecework

basis, but can be to ensure that the continuity and consistency of

decisions that the Attorney-General speaks to can be engaged again on

the same basis that other board members are engaged. Mr. Heinrich — as

I am sure the Attorney-General knows — enjoys a legal practice in

Prince George. Therefore I am sure he supplements his income as a

full-time board member through that employment. If he doesn't, I guess

he is receiving a tremendous amount of consideration for his services

on a full-time basis in his capacity as chairperson of the

Expropriation Compensation Board.

If one takes a look at

the estimates for this year, it is also evident that most of these

people get payments with respect to fees and travel expenses and other

allowances to supplement that income as well.

[3:45]

Within

that budget $178,680 is allocated to operating costs, which includes

an additional $88,000 for fees, allowances and expenses. I was

wondering if the Attorney-General could explain to me what that

additional $88,000 goes for? Is it in any way further remuneration to

the individuals involved? Or is it fees for outside professional help?

If so, what type of help?

HON. S.D. SMITH : The $88,000 for this year is the anticipated cost for the two part-time people

on the board. I have tried two or three times, but obviously I am not

very skilled at getting my point across. To characterize the six

pending cases as somehow the only ones that are going to be heard this

year could be erroneous. The number of cases received in '88-89 is 28.

Six matters have been scheduled for hearing. That means dates, times

and places are given out. The other matters are in various stages in

the process and may show up.

The member also said that the

expenses somehow supplemented income. In my view, expenses reimburse

someone for out-of-pocket costs. They are not designed to supplement

income. That is the way the system is supposed to work. If there is

some other matter that we can deal with, I would be happy to do it. But

expenses don't supplement income; they reimburse you for your costs.

With

regard to the member's plea to me to put the chairman on a part-time

basis, that's one philosophy of doing it, and that's fair enough. I

think that would be a retrograde step. I think this board — now that it

has gone through the transition stage — did a very good job of putting

together its procedures and procedure manuals and pieces of information

they have for people who are in this very specialized area. The

chairman worked with Cliff Watt in the drafting of the regulations in

the transitional matters that had to be dealt with. The office and the

support systems that are there are quite acceptable in relation to

other quasi-judicial tribunals that I have been familiar with around

the province.

I am concerned that in this very important

area of our society there be a certainty about the appointment of the

chairman because he is in an important quasi-judicial role. I think we

have to have some way in which we can maintain continuity of

decision-making in a way in which they can have the independence they

ought to have for making the kind of decisions they do.

think the fixed five-year term of appointment process that we have

adopted is one which is appropriate; we will just have to agree to

disagree about having a part-time chairman. The member asked me if I

would contemplate making that change and the answer is no, I won't.

With

regard to Mr. Heinrich running a law practice in Prince George, I think

it would be unfair to leave this House with the impression that Mr.

Heinrich is doing anything other than working full-time as the chairman

of the board he serves.

[ Page 6354 ]

MR. SIHOTA : Has the minister yet come up with the number as to the actual salary allocated to Mr. Heinrich in this year's budget?

HON. S.D. SMITH : Yes, the salary is $3,451.12 biweekly.

MR. SIHOTA : Does the minister have an annual figure there, or do I have to multiply it by 52?

HON. S.D. SMITH : I believe it translates to just over $90,000 annually.

MR. SIHOTA :

Again, if we want to get onto the issue of whether it's six cases, 16

cases or 29 cases, as the case may be, the point remains that we have

here a payment of approximately $90,000, to take the minister's

figure, being paid to a former Social Credit minister. In my view, it

is an appointment which has all the attributes of a patronage

arrangement. To provide someone with that level of salary for that

nominal number of hearings and decisions is an unnecessary expenditure

of taxpayers' dollars. The minister has admitted in his comments that

the other two people are paid $88,000 a year on a part-time basis, and

that may or may not be more realistic. But we are now paying three

people about $170,000 per year to hear no more than two cases a month —

because our information is that they won't book more than two cases a

month. For the first year there were about $110,000 worth of payments

and no cases heard — none.

I can understand that there is a

need for legislation to evolve and for determinations to be made by the

expropriation board, and it takes time for the hearing roster, so to

speak, to fill up. But it isn't filling up; there isn't a tremendous

volume of business, and we shouldn't be paying these people, and

particularly Mr. Heinrich, that level of salary for that little work. It

is not far removed from the salary that we pay to judges who are

required to hear a greater volume of cases.

It's not a

matter of agreeing to disagree, because I would beg to differ with the

Attorney-General on that matter. It's a matter rather of trying to make

sure that the administrative structure of the expropriation board works

efficiently, and that the taxpayer gets the best value for the dollar.

But to pay a former minister $90,000 a year to hear what may be no

more than six cases, and certainly has never been more than 29

cases.... Indeed, our information is only four, and I've provided the

minister with the exact dates, for 1988. To put those on the record

again: the Feldman case, heard October 4, 5 and 6, 1988; the Hughes

case, heard November 1, 1988; and the Nygaard case, heard December 13,

14 and 15, 1988; and one other case that went on for five days and was

settled after the fifth day of hearings. There were only four

representations made before that board, and we're paying people $90,000 to hear those cases.

I think rather than trying to simply defend that decision, it would be welcomed

if the minister took the alternative view and chose instead to recognize the

folly in that approach and agreed that these people would be engaged by government

on a part-time basis so the taxpayer would secure better value for the dollar.

want to now turn away from the expropriation board and to deal with

another matter. That matter is legal aid, which, as the minister knows,

I have some considerable interest in. It is my view that there are all

sorts of gaps in legal aid coverage.

I want to start with

the situation faced by duty counsel in British Columbia, because I

think it exemplifies the neglect that this government has shown towards

the provision of legal aid. I said earlier that we would build a case.

In 1984 the provincial government received a task force report which

made certain recommendations as to the level of services that ought to

be provided for legal aid. The government has been reminded in the

Hughes commission report that it has an obligation to fund at the level

of that 1984 task force report.

Duty counsel, who work in

certain courts in B.C., are paid a fee of $30 per hour, which can go up

to $100 in some communities. The point is that that $30 an hour fee has

not changed since 1974, notwithstanding the recommendation of the 1984

task force and the Hughes commission. The failure to provide duty

counsel in these courts means that some accused people will remain in

custody unnecessarily, which places a further drain on provincial

resources in terms of having to house them in provincial institutions.

Some accused, with a valid defence, will plead guilty to get the thing

over and done with, and others will elect unnecessary trials when the

case ought to have been disposed of through a guilty plea. It simply

adds to the burden of the system.

What is more worrisome

for me than the latter point is the fact that there are no duty counsel

in communities like Alert Bay, Ganges, Cold River, Sidney, Tahsis,

North Vancouver, Pemberton, Sechelt, Squamish, West Vancouver, Langley,

Mission, Ashcroft, Castlegar, Chase, Creston, Fernie, Grand Forks,

Invermere, Kimberley, Lillooet, Lytton, Nakusp, Oliver, Princeton,

Revelstoke, Rossland, Sparwood, Fraser Lake, Kitimat, Mackenzie,

McBride, New Aryans, Smithers and Belmont.

Under the legal

aid package of increases announced this year, what are the government's

intentions for this fiscal year with respect to increasing, first of

all, the rates paid to duty counsel and, secondly, providing coverage

in those courts which I have enumerated.

HON. S.D. SMITH :

In respect of the expropriation board, I just want to revisit it for a

moment, because I think one of the most compelling arguments for

independence for people who have to make quasi-judicial decisions was

just heard in this chamber a couple of minutes ago when there was a

not-so-subtle personal attack made on the individual who sits in the

chair of that organization. That is why, I am sure, this Legislature —

if I am not mistaken — passed that legislation unanimously. That is one

of the things they had in mind under

section 52(3) of that act where

it provides

[ Page 6355 ]

that members may be appointed part-time, which of course implies that the chairman is to be full-time.

any event, I am satisfied that the chairman ought to be a full-time

appointment. Among other things, it is because of the need for the

independence in that very important position. I also want to restate

that the workload of that board is expected to increase, and I can say

without qualification that it will increase. It will increase because

of the transition, as I stated earlier, from the old arbitration

procedure to this new legislation.

[4:00]

It will increase as well because there are more capital projects

being undertaken — Highways projects particularly — which will require

expropriation. Inevitably, that seems to mean that we end up with

disputes that need a program and a process for resolution. It's not

unusual nowadays for the cost of property acquisition to build a mile

of highway to be substantially higher than the cost of construction.

When you are talking about those numbers, you are talking more often

about disputes.

So it is unfair to leave the impression

in this chamber, even though we're talking about matters which occurred

prior to my assuming responsibility for this portfolio in terms of

expenditures which took place in the previous fiscal year.... I must say

that the chairman of that board has done a very good job of bringing

that new program into place, of providing the assistance with regard to

the rules and the procedures that are to be used, of setting up the

processes and doing all of that in a way that has not incurred, to my

knowledge, a single bit of public criticism in an area where, I can

tell you, there often is criticism.

Under the old system, I

spent a fair amount of time dealing with expropriation matters, and it

was a system that did not work well. It was a system that for many

years was heavily criticized in the province of British Columbia, and

it is why I supported that legislation. I think it was good

legislation. It was well-thought-out legislation. I think the people

who are serving — Mr. Heinrich, Mr. Grover and Professor Todd, who I

know well from another movie — do an outstanding job and serve the

province well.

If the member for Esquimalt wishes to heap

criticism on them in a personal way because of the nature of their

former employment and their former service to this province, then fair

enough. I don't play the game that way, nor do I think it should be

played that way.

With respect to the matter of duty

counsel, the member asked me our intention with regard to the provision

of duty counsel. We are dealing with the issue of duty counsel now in

the exciting reforms that will be put before this House by way of

legislation in relation to the Justice Reform Committee's report The

member can have the same certainty about that matter; indeed, I have

had lengthy consultation with the Legal Services Society board a

fortnight ago. We will be expanding considerably the coverage of duty

counsel in the province. We're presently covered in 60 percent of the

areas where we have courts sitting, and we will extend that coverage to

100 percent. In addition, we will be increasing the amount of

remuneration paid to duty counsel. I will have to ask the member's

indulgence to wait another week before I can provide the amount, simply

because of where it is right now in the process through cabinet.

MR. SIHOTA : Well, it's certainly welcome that — if I understand the

minister correctly — duty counsel will be expanded to 100 percent of the courts

that sit in British Columbia. With respect to that fee, I want to make it clear

to the minister that we're talking about a fee that has remained stagnant

since 1974. It's a fee that ought to be increased by more than just a nominal

amount. I want to get some clarification with respect to that and the other

question that I asked the minister. So I'll phrase them into two separate

questions.

First

of all, with respect to the minister's comments about regular duty

counsel — where the courts are sitting on an ongoing basis — expanding

to about 100 percent: will that be done within this fiscal year?

HON. S.D. SMITH : The answer is yes.

MR. SIHOTA :

And with respect to the fee increases, will those fee increases...?

I'm not worried about whether they'll be announced this year, but

whether they go into effect this year.

HON. S.D. SMITH : Not only will they go into effect this fiscal year, Mr. Chairman, they'll go into effect this calendar year.

MR. SIHOTA : Does the minister know how much the increase is going to be, or am I going to have to wait two weeks for that?

HON. S.D. SMITH : I do know how much the increase is going to be, and you are going to have to wait.

MR. SIHOTA :

That's fine. I want to serve the minister with notice that I'm going to

be listening with great interest to see what the payment is going to

be. So will those who haven't been paid an increase since 1974. I would

expect it will be more than just $10 or $15.

Turning to

another range of coverage, the minister made reference to legal aid

coverage in family matters. He also made reference to injecting a sense

of flexibility into the criteria that now apply. It is my understanding

that currently a single parent who is living in an urban area in

British Columbia with an income of about $1,200 per month and is

facing an application to have maintenance varied or reduced or arrears

cancelled is not eligible for legal aid. Would the flexible criteria

that the minister foresees this year allow for coverage in an instance

such as that?

[Mr. Rabbitt in the chair.]

HON. S.D. SMITH : Mr. Chairman, we now have coverage for urgent custody matters, matters bearing

[ Page 6356 ]

some

urgency with respect to the protection of children and matters relating

to restraining orders and the need for designation of urgency there.

Quite frankly, I think it's safe to say that there's a certain amount

of administrative flexibility in evidence today. Nevertheless, it is

our goal to have discretionary flexibility for approving people in the

Legal Services Society for all family law matters that are otherwise

now covered. So I think the answer to the member's question is that the

example he came up with would in all likelihood be covered.

MR. GUNO :

I'm glad to have the opportunity to participate in this debate on the

Attorney-General's estimates. I listened with great interest to the

opening remarks of the Attorney-General, and I will be addressing a

number of areas he has visited, but I really want to focus on some very

specific areas right now.

I live in a riding that is fairly

rural and sparsely populated, so there are some problems in terms of

the delivery of justice to many of the communities I represent. I've

looked through your Justice Reform Committee report, and I agree with

my colleague. I think it's a fine piece of work that has focused on

some very important problems relating to the delivery of justice.

However,

in the community of New Aiyansh, for instance, whenever there are court

hearings there we of course have to import duty counsel. Often there

isn't enough time for any kind of preparation. Generally speaking, the

kind of representation those people have is very cursory, and it

sometimes results in unfairness in terms of people who have to deal

with those kinds of conditions in places like New Aiyansh and further

north in Stewart and Cassiar.

I wonder if the

Attorney-General may comment on some of those shortfalls and the fact

that they were not addressed in the commission's report.

HON. S.D. SMITH :

Some of the issues you raise, which ought to be dealt with and in fact

will be dealt with, have been raised subsequent to the publication of

the report entitled "Access to justice, " and it is for that reason

that they aren't dealt with in the report itself.

We have

brought together a cross-ministry working group to look at some of the

issues you raise in their broader sense, and specifically the matter

you raise with respect to the lack of preparation time for duty counsel

in a place like New Aiyansh, or for that matter Clearwater in my own

constituency or Valemount in the constituency of the member for Prince

George. That is a matter which we are pursuing, and we'll be hopeful of

finding ways to improve the system.

MR. GUNO : I was

somewhat interested in your concluding remarks where you referred to

the serious problems that exist in the Chilcotin area with regard to

the whole range of issues surrounding the justice system, the police,

the courts and the native people. While you were correct in labelling

it as a very serious problem, you were rather sparse in any kind of

detail as to how you plan to address that very serious problem.

[4:15]

HON. S.D. SMITH :

The member is dead on when he says I was quite sparse in any specifics

about how to deal with the problem. It is for that reason that I have

undertaken to immerse myself in the communities following this House

completing its work — or certainly my completing my portion of the work

in estimates — to begin to assess directly, myself, in which directions

we might want to begin to pursue some of these issues. I take the

matters that have been raised very seriously, and I have some knowledge

of the area and the people and the issues from my own life's

experience. It is the case that we must do something to try to rekindle

the kind of trust for the system that is enjoyed virtually everywhere

else in the province. I'm sure that that process is going to take on

many complexions which we might not be able to identify in advance. If

we could identify them, I can assure you that we would deal with them.

But I want to begin that process directly and personally as the

representative of the justice system in the province, because I think

it is important to that community in the Chilcotin to understand that

the problem is taken seriously and that it is going to be dealt with as

a serious problem; but most importantly, that it is going to be dealt

with.

MR. GUNO : I think it's fair to say that the

problem in the Chilcotin is serious, and I am glad to hear that the

Attorney-General has reiterated his commitment to deal with it

directly. But I think we have to look at it in the overall context of

the delivery of justice to native people. As you examine the public

inquiries going on in Canada — the Marshall inquiry and those being

conducted in Ontario and Manitoba — it is very clear that there is a

problem and that the existing justice system does not work for the

native people of Canada.

The recent report of the committee

of the Canadian Bar Association on imprisonment and release, "Locking

up Natives in Canada," certainly focuses very specifically on many

aspects of this problem. It gives rise to the question of whether or

not we are going to be piecemeal in our approach to this, or whether we

will maybe contemplate a broader inquiry. In that context, I wonder if

the Attorney-General has any plans, or has allocated any resources, for

a more comprehensive, broader review of the justice system as it

pertains to native people in B.C.

HON. S.D. SMITH :

We have allocated resources through the Justice Reform Committee's

report, which recognizes that we have to provide ways to deliver

justice services to the native community that are acceptable,

understandable and fair-minded. I would not want us to mix up the

Donald Marshall inquiry, quite frankly, with any of the activities

going on in British Columbia.

I don't think it is the case

that there is an even concern around the province about the way the

delivery of justice impacts on native communities. There

[ Page 6357 ]

have

been specific examples in the province — for instance, in the Duncan

area, in relation to family law — where there has been some progressive

decision-making and innovation. There have been a number of examples

where native leaders themselves have insisted on helping to improve the

justice system. I think we can and should do more, and ought to be

doing more, in the creative use of diversion programs to deal with the

native community. I agree with the member for Atlin that our jails have

a sizeable number of people in them who ought not, frankly, to be

there, and who also happen to be members of our native community, One

has to use care in saying that, because there is a great body of

opinion that thinks that the way to mete out justice is to be tough

with people, and that jail is the best way to demonstrate toughness.

There

are a number of innovative ways in which we can handle some of the

matters that come before the courts. I think the diversion program

lends itself to the creative use of relationships and the development

of relationships in the native community. We ought to be making greater

use of the wisdom that can be provided to all of us — and particularly

to our justice system — by the elders in the native community. They

could provide us — in many areas of dispute resolution, not only in

relation to the courts — with a great deal of assistance with how we

might better serve those citizens who now are in conflict with the law

in a way that is of concern to them not only because of the conflict,

but because the process of resolving the conflict does not seem to be

one with which they are in tune and is not one that, in many instances,

makes any sense to them.

MR. GUNO : Just arising out

of the comments by the Attorney-General about the readiness to take a

look at some of the alternatives, that is certainly a very interesting

avenue to look at. There are some very effective resources within the

Indian community. You named one of them — the use of the elders; also,

the recognition of cultural values and methods of dealing with some of

these problems. In light of that, I wonder if the Attorney-General has

contemplated and allocated any resources to deal with looking into an

alternative mechanism to deal with native people.

HON. S.D. SMITH :

The answer, Mr. Chairman, is yes. We have spent a considerable amount

of time, and will be spending more, in the implementation of the

Justice Reform Committee report. I would invite the member, if he

wishes, to participate with us to whatever extent he would like and to

give us his views on some of the avenues we might pursue. I think it is

obvious and perhaps even trite to say that the system does not apply

itself well and evenly to all members of the native community, and that

we ought to put resources into seeing how we can improve that. To

answer your question specifically, yes we are and yes we will.

MR. GUNO :

Earlier I talked about the different processes going on in the rest of

Canada in terms of looking into some of these problems. I mentioned the

Marshall inquiry, but in no way was I trying to say that that sort of

thing exists in B.C. However, I think we have to recognize the fact

that there is still a disproportionate number of our people in the

jails. I think the figure for British Columbia is.... Of the total

prison population, 16 percent are native, while native people represent

something like 3 percent of the population. By any measure that's a

fairly overwhelming statistic which would show that there are some real

problems with regard to our people.

You also mentioned in

your opening remarks your administration for the role of the court

workers in the justice system. I certainly join you in that. As a

matter of fact, before I got into law school, that's where I got my

start. Although I didn't do actual court work, I worked in the

administration of that fine organization. So I do know the service they

provide in the major centres of British Columbia, in assisting native

people who are before the courts to wade their way through the

complexities of court problems.

I know there was a period —

I shouldn't say of "inactivity" — when the allocation of funds to court

workers was given a fairly low priority. I understand they're being

built up now, and I'm glad to see that, because I think it's a very

valuable service. I just spoke to some of the people involved, and I

understand that they want to focus on family cases and prevention work.

I just wonder if the Attorney-General has any thought of expanding the

services of the court workers to start looking into some of the very

serious problems our native people have in family court and into

dealing with some of the preventive work that can be done.

HON. S.D. SMITH :

Mr. Chairman, yes, we are contemplating doing that. But one of the

things I want to undertake as part of the JRC implementation is to

consult somewhat more extensively with members of the native community

who would be affected by improvements to the service, to find out if

that's the best way to deliver those improvements — through the native

court worker system. In any event, the answer is yes. We have

allocations for the implementation of our justice reform

recommendations, and they do include augmenting that service.

MR. GUNO :

Mr. Chairman, I hope the Attorney-General is not telling us that it's

going to be an either/or proposition. I recognize that the role of the

court workers is going to be ongoing for a while and that the

examination of alternative methods of dealing with native justice, if

you will, is also going to continue, but we're not going to get to a

situation where we're going to be playing one concept off the other.

HON. S.D. SMITH :

Mr. Chairman, if I left the impression that it was an either/or

situation, then by all means let me assure the member that that is not

the case. I think we should examine the possibility of

[ Page 6358 ]

fresh approaches to augment and buttress what we have, and that's what I intend to do.

MR. GUNO :

I want to shift the focus now onto the whole question of land title and

land aboriginal rights. I listened with some interest to the response

of the Attorney-General to a series of questions posed by my friend

from Esquimalt-Port Renfrew, and I think that the issue is sufficiently

complex or important to go over again, that being the concern that this

government has chosen litigation as the only vehicle in trying to

resolve the issue of aboriginal title.

My colleague from

Esquimalt-Port Renfrew referred to a study done by the Canadian Bar

Association entitled, "Aboriginal Rights in Canada: An Agenda for

Action" — you probably have read this, Mr. Attorney-General — and I

think it does provide a fairly realistic agenda for action. The policy

of going just by way of litigation, I think, is rather unfortunate and

expensive.

[4:30]

Yesterday the Attorney-General talked about deciding in 1976 to deal

with cut-off lands, and since then having dealt with 22 and fully and

successfully negotiated 14 of them. I think it's very important that a

distinction be made between what we call specific land claims and

comprehensive land claims. I quite agree that in 1976 the Social Credit

government did a 180-degree turn and reneged on their promise to sit

down — or as the then Attorney-General Williams said, "take their

historic place at the negotiating table" — and negotiate along with the

federal government with Nisga'a people. Shortly after that promise was

made, the government returned to its policy of stonewalling the whole

thing.

When you talk about the cut-off lands, I think the

term itself should indicate that it deals with a very specific kind of

claim, those that arose out of lands illegally acquired because there

were insufficient surrender documents or there were more lands than

were actually in the surrendered documents. It's important that we

distinguish that process from the comprehensive land claims process,

which involves the larger issue of aboriginal title and deals with

groups whose aboriginal title to traditionally occupied lands has not

been dealt with by treaty or superseded by law. It is sort of a

provision for modern treaty-making.

As I said, in 1976 this

province reversed its earlier commitment to take its historic place in

the negotiating process and since then has decided to embark on a very

expensive policy of litigation.

I would like to know if the

Attorney-General would, in view of the growing cost, the growing

confrontation and the uncertainties it is creating in the province....

I think my friend from Esquimalt-Port Renfrew pointed out a reference

to the Canadian Bar Association's report, which stated:

"This uncertainty means that appropriate aboriginal groups

can initiate litigation challenging the legitimacy of Crown mineral, timber

and petroleum leases in much of the country. The current allocation of fishery

resources could also be thrown into disarray, as could much of the hydroelectric

activity in Labrador, British Columbia, Manitoba and parts of Quebec."

"In

other words," the report goes on, "litigation could be pursued under

current law that could freeze billions of dollars of investment and

affect tens of thousands of jobs. Aboriginal groups have been reluctant

to force these issues to date, in part due to their sensitivity

to the impact on third parties and public attitudes."

So it

does point out that the potential is there to increase the

confrontation between aboriginal groups and the government in the

courts, which could have some very dire consequences for the investment

climate in British Columbia.

In light of that, I am

wondering if.... This morning the Attorney-General talked about

mythology in terms of the amount of money that they are allocating for

legal aid. I want to turn to another myth that has been created to try

and steer away from the whole process of negotiation: that is, if the

government were suddenly to say "Let's negotiate," suddenly there

would be a huge transfer of land that would mean a huge transfer of

dollars, and the third-party interest would be affected. I think that

is a serious distortion of the whole thing, and it really does not

serve the government while they continue to hide behind those kinds of

myths.

Yesterday, as I said, the Attorney-General talked

about the 22 outstanding cut-off claims they've been dealing with. I

would like to remind the Attorney-General that the process of dealing

with and negotiating cut-off lands began with the New Democratic

government in 1975. It was a process brought about by the fact that the

native people had been fighting for it for some time. In his reply to

the member for Esquimalt-Port Renfrew (Mr. Sihota) he talked about 13

timber agreements that have been reached. That sounds impressive until

you compare it with the huge resource extractions that have been going

on in the same period in areas that are under claim. So you see, it

just doesn't stand up.

The Attorney-General also referred

to the land use agreement with the Tahltan people which was reached

this year. He failed to mention that such an agreement was brought

about only after the Tahltan people closed the access road to protest

the fact that they were not being considered for jobs at that mine site.

Another mythology, or another way of trying to create the illusion of serious

negotiation: the minister trotted out the Sechelt agreement. We on this side

of the House have indicated that as far as the agreement goes, and as far as

the Sechelt people are concerned, it is, I would concede, a very worthwhile

step to take. But I certainly don't think the government would contemplate

that as a precedent or some kind of model that they visualize other aboriginal

groups as accepting.

Last,

you mentioned the Nisga'a School District. I want to remind you again

that it was not the Social Credit government that extended the right to

Nisga'as to create their own school district. In fact, it was in 1974,

under the leadership of then Education minister Eileen Dailly, that the

government made that

[ Page 6359 ]

unprecedented move to allow certain groups of native people to have a say in educational priorities in their areas.

Really,

what I am outlining to the Attorney-General is that yes, there are

opportunities, and I think this demonstrates that there are

opportunities. If we can somehow get over some of the fears that our

own rhetoric creates, we can see that real possibilities exist. My

first question in light of this is: can the minister tell me how much

was expended last year to deal with aboriginal titles in courts?

HON. S.D. SMITH :

If I may, I want to spend a little time on this subject. The member has

given me a potpourri of issues to touch on, and I shall try.

Let

me begin with the business of how much is spent by the ministry on

aboriginal title claims. I was invited to respond the other day in the

House to a suggestion by a member that well in excess of $10 million

had been spent in the last two years fighting aboriginal title claims.

The total is $3,632,501 in the last five years. The overwhelming

amount of that money has been spent in the Delgam Uukw case.

you know, a number of cases are involved there. The major Delgam Uukw

case and the Gitksan case, which the Chief Justice of British Columbia

has correctly, in my view, characterized as the most important case

ever tried in the province, has been ongoing for some five and a half

years now; it was referred to today in this House by the member for

Esquimalt-Port Renfrew as legal harassment by us. I don't think it is a

fair description to so characterize a matter that was initiated by the

native community following the Nisga'a decision, which was split at the

Supreme Court level. Unfortunately, Mr. Justice Pigeon did not decide

on the merits of the issue but, rather, on a process issue. Had he

done so one way or the other, we probably would not have had to have

some of the litigation that we now have. Nevertheless, we have been, as

has Canada, in this litigation to establish a very important question

in this country: whether or not aboriginal title is a notion known to

our law. Up till now, I think it is reasonable to say that in Canadian

jurisprudence the answer to that question has been no.

There

is a case, as well, going through the Ontario Court of Appeal to the

Supreme Court of Canada which will presumably get there before the

Delgam Uukw. I think they've made an application for leave now. I don't

know if it's formally being made, or if it has been made and has been

granted. It's the Bear Lake case, which will have an important impact

on how these matters are dealt with and, ultimately, depending on the

decision, how and whether they are negotiated.

I do not

find that process to be somehow illegitimate. I must tell you that. I

think that our courts, trusted as they are by all citizens, may very

well be the appropriate forum in which to decide the issue of

aboriginal title, the notion of title, the extent to which it may or

may not have been taken away by the acts of Confederation, and, if so

or if not, the consequences.

We have out of the cases that

I gave you for that total, not only the Delgam Uukw case — the main

body case — but the Delgam Uukw lis pendens case, which was important

to the province of British Columbia. In that decision, there was a lis

pendens — which means litigation is pending — attached to a title of

property, a free-standing title in the Prince Rupert registry. Had that

lis pendens been allowed to stand in the face of an application for an

aboriginal claim, it would have had extraordinary implications for the

land title system in the province of British Columbia and for

commercial activities that go on anywhere a claim is made. We litigated

that matter, and the court agreed with us that the lis pendens ought

not to stand. As well, in the Delgam Uukw case with respect to Westar,

there was a separate case involving a road into some timber, and of

course there was the Tsawout matter.

We've had litigation

with respect to Meares Island included in that total, a litigation

which now is generally stood down pending the disposition of the case

His Honour Chief Justice McEachern is hearing. We've sought and

received consultation only with Regina v. Sparrow, which is an

important matter before our highest courts. We have out of that money,

which is right up to the moment, expended some funds with respect to a

matter taking place in Kamloops involving a land claim which deals with

federal matters — the Dominion survey claims involving the Kamloops

band and Harper Ranch.

[4:45]

The

member said he wanted to seek some advice from me on my position

generally with respect to how I deal with a number of issues in terms

of litigation. I want to make very clear that what I'm saying stands

aside from what I call the generic aboriginal land-title issues,

because I believe we ought to pursue that matter, through the process

that it is now in, to a resolution. I think it is in the interests of

all citizens not only of this province but of Canada that the matter be

resolved in our law with finality so that whatever the result, we'll

all be singing thereafter from the same hymn book and not writing our

own script as we go along, as tended to be the case — on all sides of

the issue, I might point out — in the past.

I said this

morning, with regard to my view of how to deal with matters that create

some dispute, that as a matter of my own habit and practice I came out

of the solicitor's side of the business of law, as I believe the member

for Atlin did as well. I'm therefore inclined to seek resolution of

disputes otherwise than through litigation. That's my inclination, and

I think that that is a phenomenon you will see impressed upon this

ministry more and more as time goes along. Obviously there are times

when one is sued and one has to respond, or where it is clearly in the

public interest to use the litigation process. But that is my

inclination. I think, as you probably have seen over the last number of

months, there have been situations where we have been disinclined to

pursue certain matters on appeal and thereby, as a result of that

decision, to in fact change the course of our public policy.

[ Page 6360 ]

am also, I may say to that member, somewhat impressed by the successes

that have been found in dealing with a number of these disputatious

kinds of situations that arise in the states of Idaho and Oregon. I

think that there is something to be learned by me and perhaps by my

ministry and our society by looking at some of the ways they have found

to resolve disputes.

I might also say that in the document

from which the member quoted, "Aboriginal Rights in Canada: An Agenda

for Action," the foreword and part of the compilation is put together,

as you know, by a very well-respected barrister from the city of

Vancouver, Mr. Bryan Williams, QC, who you will doubtless be pleased to

know serves this ministry and me as part of the advisory committee that

is assisting with the implementation of the Justice Reform Committee

report. I will be pleased to introduce members of that ad hoc committee

to this House in due time.

This issue is very clearly many

things, but one thing it isn't is a partisan issue, and I don't think

anyone in this chamber wants to characterize it as such. When I have

responded as I have over the last number of days to questions that have

been put to me on these matters, I have been attempting to try — because

I think it's one of your responsibilities, my responsibilities and

every member in this House's responsibility — to provide good, clean,

solid information to the public about what we are doing. There is no

doubt in my mind that the press coverage you get about the position

between government and native communities in this province says we

never negotiate about anything. That just ain't true, folks, and I

think it's very important that we set out for the record very clearly

that it is not true and what the truth is. When I laid that out in the

House, one of the things that I certainly did not want to engender was

some kind of partisan response.

On the one hand, people say

to me that we don't negotiate; on the other hand, when I lay out a

whole list of things about which we have successfully negotiated, the

response comes back, "Well, maybe it was someone else who started those

negotiations, or maybe it is the case that you aren't doing enough,"

or whatever is the case. It's a critical response. I think that one of

the very important things we have to do in this society to deal with

those issues about which I've spoken is to start to build some simple

blocks of faith, trust and goodwill. I think you do that by negotiating

successes. Another way you do that is by ensuring that those successes

are seen to have happened and are seen to be positive responses to

problems that existed.

Yes, it is true that in the case of

the Tahltan peoples the agreement that was negotiated came about as a

result of a dispute or the threat of a dispute. What is important,

however, is to note that the response to that threat of dispute was not

to go to court; the response was to negotiate an agreement. We don't

have to take ownership of that, any one of us, but I do believe it's

important that it be pointed out as a response that was one that led to

a negotiated success.

Indeed, when I pointed out the other

day that we have successfully negotiated over half of the cut-off land

claims in this province that date back to the McKenna-McBride

commission, which, no matter how you slice it, was nothing more nor

less than an expropriation without compensation.... When I pointed out

we have negotiated half of those — and I am hopeful that the Minister

Responsible for Native Affairs (Hon. Mr. Weisgerber) will be successful

in negotiating the rest of them, even this year — I did so to point out

to the people of British Columbia that, indeed, we are negotiating in

the area of land claims. People don't understand in this province that

there are a whole host and variety of land claims. We are negotiating

in terms of land claims in those areas where we have sole and prime

responsibility; and where it is demonstrably the case that a wrong has

been done, it ought to be corrected. That policy was initiated in 1976

and continues.

HON. MR. REE : The subject matter the

Attorney-General is elaborating on is something that has to be said. It

has been said many times, and I think he should be able to continue so

the message gets out. I would ask the Attorney-General to continue.

HON. S.D. SMITH :

Thank you. I know the second member for Vancouver Centre (Mr. Barnes)

is concerned that I finish up, and I assure him that I'll do it as

quickly as I can. Sometimes when I speak with great rapidity I also

speak with greater emotion, so perhaps there's a trade-off here that we

might all enjoy.

In any event, you're quite right. I did

mention timber agreements the other day and that we had done 13 of

them. I was wrong about that; we've done over 30 of them.

think the mineral agreements we've done are good faith evidence of

where we can enter into agreements to share resources. I don't offer

the view — and I hope the member for Atlin (Mr. Guno) does not think I

do — that the Sechelt agreement is a panacea for every native group in

British Columbia. It would be extraordinarily arrogant of me to put

that view forward, and therefore I would not. But it is indeed one of

the most progressive pieces of legislated agreement ever undertaken in

this country, dealing as it does with an issue that governments

historically have not come to grips with, one that provides for a form

of self-government at the local level and one that holds whole the

jurisdictional integrity of both Canada and British Columbia. To me

that is something we ought to be proud of and is something I know many

native leaders and communities are taking a very hard look at to see if

there's some application to their own area.

Many of them

will reject it for reasons that it might impact adversely on claims for

aboriginal title — fair enough. But it seems to me that the public of

British Columbia benefits from knowing that these kinds of agreements

are within our capability of negotiating when people of good faith sit

down together, put their cards on the table and negotiate.

[ Page 6361 ]

Likewise

the Nisga'a School District, likewise the work going on now in the

tripartite discussions between Canada, the native fishing community and

British Columbia, discussions which have the potential to help resolve

some of the disputes that have occurred over the last number of years

about the allocation of that very important resource.

The

second member for Vancouver South (Mr. Rogers) led the way in resolving

the issue that had been long — obviously too long — outstanding and

kind of out-of-sight, out-of-mind forgotten in relation to the

Ingenika. We can't be proud of the fact that there are problems there

that haven't been resolved, but the fact that there is some attempt to

resolve them and to seek resolution is something we ought to talk about

and that we ought to put to the fore. We can always find a headline

about the downers, and it is within that public milieu that we must

resolve these issues. We must let the public see that there is a

positive side to what is going on and that there is hope for

resolution, because when we do other than that, we are being very

unfair to the public.

So I'm very pleased to see going on

in British Columbia right now a multifaceted discussion between the

Ministry of Finance, the Union of British Columbia Municipalities and

the native community, led by Chief Manny Jules, in relation to the

difficulties of transition which will inevitably occur from the

year — providing an opportunity for local bands to get into the area of

taxation. It's a very important issue that has the potential to raise

all sorts of fears among local municipalities, even ugly