2007 Legislative Session: Third Session, 38th Parliament

HANSARD

The following electronic version is for informational purposes

only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

MONDAY, OCTOBER 29, 2007

Afternoon Sitting

Volume 23, Number 7

CONTENTS

Routine Proceedings

Page

Introductions by Members

Tributes

Jean Southam

Roddick

Introductions by Members

Statements (Standing Order

25 B )

Olympic torch relay in Tri-Cities

Farnworth

Richmond Society for Community

Living

J. Yap

City of Terrace Forestry Task

Force

Austin

Army, navy and air force veterans

in North Vancouver

Whittred

Wark Street Commons community

garden

Fleming

Terry Fox Research Institute

Mayencourt

Oral Questions

Management of Vancouver

Convention Centre expansion project

Macdonald

Hon. S.

Hagen

H. Bains

Ralston

Fleming

Farnworth

Child protection investigations

Simons

Hon. T.

Christensen

A. Dix

Treatment of resident at

Retirement Concepts seniors facility

C. Wyse

Hon. G.

Abbott

Call for audit of tree farm

licence land removals

Simpson

Hon. R.

Coleman

Tabling Documents

British Columbia Ferry

Commission, Annual Report for the Fiscal Year Ending March 31,

British Columbia Human Rights

Tribunal, Annual Report 2006-2007

Petitions

S. Fraser

Committee of the Whole House

Tsawwassen First Nation Final

Agreement Act (Bill 40)

Hon. M.

de Jong

Fraser

Jarvis

MacKay

Lekstrom

C. Evans

Gentner

Ralston

Sather

[ Page 8887 ]

MONDAY, OCTOBER 29, 2007

The House met at 1:35 p.m.

[Mr. Speaker in the chair.]

Introductions by Members

S. Hammell: Members, on behalf of the Speaker, I'd like the

House to welcome the members of the Canadian Association of Former

Parliamentarians who have joined us in the gallery today. This association is

holding its regional meeting in Victoria from October 28 to October 30. We are

privileged to have them here and to have them as guests. Would the House please

make them welcome.

Hon. C. Hansen: I have two introductions to make. First, I

would like the House to welcome a delegation that's here from British Columbia's

sister province in China, the province of Guangdong. Professor Xu is the

president of the Guangzhou University of Chinese Medicine, Professor Lo is the

chief of staff for the Guangdong Provincial Hospitals, and they are accompanied

by Dr. Ken Fung, who is with the faculty of medicine at UBC. Would the House

please make them very welcome.

Also, as part of the delegation that's here from the association

of former politicians…. Sorry, former parliamentarians — and politicians, of

course…. I think we all at some point in our careers get to be former

parliamentarians, but you never get away from being a former politician. It goes

with you for the rest of your days.

A very dear and longtime friend, Sophia Leung, is a member of that

group, and I wish the House to make her welcome.

Tributes

JEAN SOUTHAM

V. Roddick: The daughter of H.R. MacMillan, Jeannie Southam

carried on with her father's philanthropy and contributed hugely to this

province. As former B.C. Lieutenant-Governor Garde Gardom said of her: "She knew

her stuff, and she spoke her mind."

Mrs. Southam died last week, three days before her 92nd birthday.

It's truly the end of an amazing era. I ask that the House join in recognizing

the life and legacy of Jean Southam.

Introductions by Members

M. Karagianis: I'd like to join with the introduction that

was made of all of the parliamentarians who are here, but in particular, I'd

like to acknowledge a friend and mentor of mine. That is Ms. Lynn Hunter, who is

here. I'd like to have the House make her especially welcome.

R. Lee: I'd like to also welcome the members of the

Canadian Former Parliamentarians Association: Sophia Leung, also her son Ken

Leung, member Douglas Rowland, the hon. Sheila Finestone and many others. Would

the House please make them welcome.

Statements

(Standing Order 25

B) OLYMPIC TORCH RELAY IN TRI-CITIES

M. Farnworth: In 2010 British Columbia will welcome the

world to the Winter Olympics, a tremendous honour for our province, and for many

communities an exciting opportunity to showcase the region and the towns where

they live, because part of that is the traditional Olympic torch run. It will

pass through many, many communities in this province.

I want to put it on the record now that the people of the

Tri-Cities are firmly working, as we speak, to ensure that that happens. Led by

the chamber of commerce and many activists in our community, we are working to

ensure that the Olympic torch relay comes through the Tri-Cities — that it comes

through Port Coquitlam, Coquitlam, Port Moody, Belcarra and Anmore. All of us in

the Tri-Cities are excited by the Olympics coming, and we want an opportunity to

showcase our communities.

So I am speaking on behalf of my constituents, and we are sending

a very strong message to VANOC that when the decision is made on the route of

the run, the Tri-Cities expects to be on that route. There are a lot of

dedicated volunteers, along with the chamber of commerce, working very hard to

ensure that that happens.

So from the Tri-Cities to VANOC: make sure we're on the relay

route.

[1340]

RICHMOND SOCIETY FOR

COMMUNITY LIVING

J. Yap: I rise today to bring attention to a wonderful

organization in my community, the Richmond Society for Community Living. Founded

in 1982 by a small group of concerned parents, the society has grown to become

an integral part of our community.

From its humble beginnings of ensuring that children with special

needs were receiving proper after-school care, the society has expanded to serve

over 800 individuals in Richmond. They now offer 13 programs that provide

support, services and information to individuals with developmental disabilities

and their loved ones. These programs range from respite care and family support

to early learning programs and adult day programs. The society is the only

organization in Richmond to provide services of this kind for every stage of a

person's life.

Not content to rest on their reputation for great care, the

society is continually improving their services and expanding the opportunities

for growth and learning. In January 2007 the Richmond Handycrew Co-operative was

incorporated as a social enterprise offering a variety of tasks such as

painting, yard maintenance and housekeeping. Providing individuals with

developmental disabilities the opportunity to

[ Page 8888 ]

contribute has been very successful and has only helped to include them in

the community as a whole.

This year marks the society's 25th anniversary, and I was proud to

be a part of the celebration gala event this past weekend. The support and

services they provide meet the highest of standards, and they have set the bar

in our community for understanding and compassion. They have been truly

successful in proving that inclusion of all people is not only the right thing

to do but enriches the lives of everyone in the community.

I ask the House to join me in wishing board chair Tanis Reimer,

executive director Janice Barr and the entire team of the Richmond Society for

Community Living continued success as they continue to make Richmond a caring

and inclusive community.

CITY OF TERRACE FORESTRY

TASK FORCE

R. Austin: Last week West Fraser announced the indefinite

closure of their sawmill in Terrace. This is a terrible blow to my community,

especially since it comes on the heels of the settlement of the coastal labour

dispute, because it dashed the hopes of the workers and the community that the

mill would get back to normal operations and people could get back to work. Let

me reinforce that this is the last major sawmilling operation in the region, and

they're being closed down indefinitely.

This effectively marks the end of an era for the northwest as a

forest-based economy as we've understood it for generations in this province.

However, while mineral exploration, mining and transportation may become the

economic drivers of the future of this region, the closure of this sawmill does

not signal the definitive end of forestry as an economic force in the northwest.

I'm pleased to stand here today to inform this House of the work

of a group of hard-working and dedicated volunteers who participate on the City

of Terrace Forestry Task Force. The task force initially formed in 2003 and made

various recommendations to both provincial and local governments. However, as

the task force's most recent report points out, these recommendations were based

on the premise that the community had a pulp mill and two sawmills to work with.

When the pulp mill and Terrace Lumber closed down permanently, the task force

reconvened and refocused its efforts based on this new reality.

As a result of this more recent work, the task force came forward

with a single recommendation to council and, by way of council, to the province.

They have simply and quite understandably asked that the province extend to the

northwest region the same "resources and initiatives currently in place to

support communities and industry impacted by the mountain pine beetle epidemic."

The task force included in this recommendation a specific request

that the province fund the northwest revitalization strategy that was developed

under the leadership of the Kalum forest district manager.

I want to thank the members of the task force for their

commitment, dedication and foresight, and it is my sincere hope that the

province will support their efforts, especially now that the last sawmill in

Terrace has been slated for closure.

ARMY, NAVY AND AIR FORCE VETERANS

IN NORTH VANCOUVER

K. Whittred: It gives me pleasure to stand in the House

today to give recognition to the Army, Navy and Air Force Veterans in Canada,

North Vancouver branch 45. On October 14 the ANAVETS of North Vancouver

celebrated their 85th anniversary year. I was honoured to be part of their

special day.

[1345]

The North Vancouver branch is part of the Canadian ANAVETS, the

oldest veterans organization in Canada. Although its precise year is lost in

history, 1840 marks the ANAVETS official charter, given by Queen Victoria. The

Army, Navy and Air Force Veterans North Vancouver branch was formed in 1922. The

branch maintains strength in loyalty, and in fact, some of their oldest members

received a 60-year pin at their recent celebrations.

To this day the organization continues to give back to the

community. The branch offers an affordable venue to socialize for the men and

women who fought for our country, and through their ANAVETS Senior Citizens

Housing Society, the society operates nearly 90 units of low-cost housing for

seniors in the lower Lonsdale area of North Vancouver.

The ANAVETS are a tribute to the men and women who fought for the

freedoms we are privileged to enjoy today. I ask the members of the House to

join me in recognizing the service given by the ANAVETS North Vancouver branch

WARK STREET COMMONS

COMMUNITY GARDEN

R. Fleming: Last month, on September 15, the Wark Street

Commons garden celebrated their first anniversary of providing food to the

Hillside-Quadra community. The community food garden, located by the Blanshard

Community Centre, is situated on land donated by the city. It's tended by

volunteers and offers free fresh produce to local residents.

The purpose is to provide food for all those who need it and

demonstrate to community members the variety of fresh fruits and vegetables that

can be grown locally here on the south Island. Although it is only one year old,

there is already ample evidence the community garden is improving the health of

the neighbourhood by giving low-income families in the area access to fresh

food.

The Wark Street community garden also gives something to all who

simply enjoy its presence in the neighbourhood. In place of a disused small

parkette, which some felt was unsafe and at risk of attracting criminal

activities, there is now a thriving, productive public space for community

members to enjoy.

This community garden is the result of hard work by many in and

around Wark Street. Since fall 2006

[ Page 8889 ]

volunteers have been weeding, watering and planting to cultivate this little

piece of land. People have donated their own herbs, seedlings, irrigation

materials and artwork. The volunteer hours that go into maintaining this

community garden are too many to count. The Wark Street Commons garden committee

have also offered a series of workshops identifying the different plants in the

community garden.

Although there had been an interest in starting the community

garden in the Quadra village area for a long, long time, this project began as a

university health research project on community health. I would like to thank

Jackie Robson and Laura Funk, in particular, who were the coordinators of this

research project and now continue as volunteers, along with many, many dedicated

Hillside-Quadra community members — people like Leni Hoover, Pat Hunter, Vern

Wagner and many more.

As the MLA for Victoria-Hillside, I'd like to thank the volunteers

of the Wark Street Commons garden for their great work and their commitment, and

congratulate them on their first successful year of many more years to come.

TERRY FOX RESEARCH INSTITUTE

L. Mayencourt: Today I want to talk about someone that we

all knew very, very well, someone who inspired each and every one of us, and

someone we'll always remember.

At the age of 18 Terry Fox was diagnosed with cancer and was

forced to have his right leg amputated about 15 centimetres above the knee. This

happened in 1977, and while Terry was in the hospital, he was so overcome with

the suffering that other cancer patients were experiencing, particularly small

children, that he decided to run across Canada to raise money for cancer.

He called his journey the Marathon of Hope. Canadians from every

part of Canada in my generation can remember him dipping his leg into the water

in Newfoundland, but we can also remember a very important day, and that was the

day that his Marathon of Hope ended. I think all of us can remember seeing Terry

lifted into an ambulance, and that was sort of the end of the Marathon of Hope

as far as him running it.

But he ignited a passion and a desire on the part of every

Canadian to do something about cancer, and so he inspired us. Over the years

many, many people have helped to create the Terry Fox legacy and the Terry Fox

Foundation.

This morning our Finance Minister and other officials, along with

the Fox family, announced that the Terry Fox Research Institute for cancer will

be located here in British Columbia, in Vancouver. Terry Fox means so much to

each and every one of us. It is a great privilege for British Columbia to hold

that place of honour with his family.

[1350]

Researchers from across Canada will share in this. We will have

centres of excellence in Montreal, Toronto, Saskatchewan, Alberta and so on, but

the work here will be creating that foundation and making sure that other people

don't suffer the same kind of fate that he had.

Mr. Speaker, I know that Terry Fox is remembered very fondly by

all members in this chamber and in particular by the member for Port

Coquitlam–Burke Mountain. I ask you to please join me in celebrating this

amazing announcement of a new research facility in Terry's honour.

Oral Questions

MANAGEMENT OF VANCOUVER CONVENTION

CENTRE EXPANSION PROJECT

N. Macdonald: I'll begin with a quote. "This will be built

on time and on budget. Count on it." That was the Premier, November 8, 2004,

talking about the convention centre expansion project.

Interjection.

Mr. Speaker: Member.

N. Macdonald: He said it would be $495 million. The Premier

personally made that commitment, but when he made it, he knew it was inaccurate.

The Auditor General's report clearly shows the government was told

in May of 2003 that the cost would be at least $637 million, but the Premier and

a succession of cabinet ministers made inaccurate statements and used them

unequivocally. Those figures that were wrong — they used them again and again,

guaranteed their accuracy.

To the Minister of Tourism: why did he, the Premier and an entire

roomful of cabinet ministers choose to hide the true costs of the convention

centre expansion project?

Hon. S. Hagen: I've said time and time again, in this House

and in my estimates, that we are not happy with the cost escalations on this

project. We were the ones who asked the Auditor General back in February to do a

comprehensive review of this project. We take his recommendations responsibly.

We take them seriously.

To that extent, we have already embarked on changes with regard to

the project. Six months ago we appointed a new chair, and we started appointing

new board members who brought in construction and marketing expertise to the

board.

Mr. Speaker: The member has a supplemental.

N. Macdonald: If ever there was a definition of too little

too late, it is that explanation given there.

The current Minister of Small Business, the current Solicitor

General, the current Minister of Labour, the current Minister of Economic

Development and the current Minister of Finance all have responsibility for the

convention centre and its budget at some points.

Six ministers, six failures. But from the beginning what we all

know is that this project was the Premier's. It was the Premier who ran the

project. It was his pet project. He made the decisions that drove up costs. It

[ Page 8890 ]

was him that drove the mismanagement. It was the Premier who had his own

deputy chair on that board.

He knew what was going on, but consistently he used numbers that

were inaccurate. Why did six successive ministers and the Premier choose to

cover up the true costs of this boondoggle?

Hon. S. Hagen: As I've said before, we are not happy with

the cost escalations on this project. The decision about how this project was to

proceed was ours, and we take responsibility for that. Certainly, in hindsight,

if we had a chance to do it over again, we would proceed differently.

As the Auditor General states in his report…. He talks about the

pressures on the Vancouver construction market. In fact, the Auditor General

likens the situation to a perfect storm. In quoting the Auditor General: "The

cumulative…"

Interjections.

Mr. Speaker: Members.

Hon. S. Hagen: "…construction inflation in the…years from

2002 to 2006 was 47 percent…. The actual escalation rate caught everyone in the

industry by surprise."

Mr. Speaker: The member has a further supplemental.

[1355]

N. Macdonald: All of the excuses that this minister makes

about this project have been looked at by the Auditor General, and he has thrown

them out piece by piece. The cause of this problem was a Premier that mismanaged

the project from day one. But there are plenty of others on that side to share

responsibility, and in the clearest way, they have signed off on their

responsibility.

If you go back to 2003-2004, the service plan: "I am accountable

for the ministry's results and the basis on which they have been reported." The

same was done in 2004-2005: "I am accountable for those results as reported." In

2005-2006 — the same thing. In 2006-2007 this minister said: "I am accountable

for those results as reported."

What did the Auditor General think of those results? He said that

they painted an altogether too rosy picture. That is the politest way that you

could possibly say it. "Too rosy a picture" means inaccurate.

To the minister: if he is accountable, there is only one way in

this system that you show accountability. If you are wrong, then you are

responsible and you must resign.

Hon. S. Hagen: You know, it's always interesting to me to

listen to the NDP. They always want to go backwards, not forwards. Well, let's

go back…

Interjections.

Mr. Speaker: Members.

Hon. S. Hagen: …to 1995, when industry in British Columbia

told the NDP government that they needed an expansion….

Interjections.

Mr. Speaker: Minister, just take your seat so we can hear.

Continue.

Hon. S. Hagen: Back in 1995 the industry in British

Columbia told the NDP government they needed…

Interjections.

Mr. Speaker: Members.

Hon. S. Hagen: …an expansion of the trade and convention

centre. So the NDP government studied this until the year 2000. That's five

years of studying.

Then they decided not to go ahead with it. Why? Because they

couldn't get the federal government cooperation and they couldn't get the

private sector to contribute any money, unlike the board of directors at VCCEP,

who got over 300 million additional dollars from the federal government and the

private sector.

H. Bains: Minister after minister said that they were

accountable. Minister after minister hid the true cost of cost overruns from the

taxpayers. Now they've been caught. The Auditor General is very clear, and this

minister today apparently has accepted that he accepts the blame on behalf of

the government.

Mr. Speaker, in a Canadian parliamentary system the only way the

minister can be held accountable for the boondoggle that they have created here

is to resign. Will he do that today?

Hon. S. Hagen: I don't know what planet this member is

living on. We went public on July 11 with $883.2 million on this project. We

went public on July 11 with the new board, the new chair and the new board

members. We listed them out. For this member to suggest….

Interjections.

Mr. Speaker: Members.

Minister, just take your seat.

Interjections.

Mr. Speaker: Members.

Continue, Minister.

Hon. S. Hagen: Let me remind the member opposite. It was us

who invited the Auditor General to come in and review this project. We asked him

to, and we've asked him to come back again in the spring with a following

review.

Mr. Speaker: The member has a supplemental.

[1400]

H. Bains: Mr. Speaker, this minister cannot in one breath

say that he accepts the blame for $400 million of

[ Page 8891 ]

taxpayers' money to be wasted and causes a billion-dollar boondoggle….

The Minister of Finance last week accepted that this was a

boondoggle. Will the minister do the honourable thing and keep up with the

longstanding tradition of this parliament and resign?

Interjections.

Mr. Speaker: Members. Members.

Hon. S. Hagen: I can't believe what the member opposite is

talking about on this project. This project has 400 working people on that site.

Does he not care about that?

On top of that, let me talk about the success of this project. So

far, VCCEP has secured 77 conventions. That is up from 54, when I was doing my

estimates. We have 23 new conventions. Those 77 conventions are worth $1.6

billion in the economy.

B. Ralston: Well, there's one British Columbian who is no

longer on the worksite. That's Ken Dobell. The Premier's close friend and deputy

minister was removed as chair of the convention centre board but stayed on as a

director. Sometime in the last six months he was removed as a board director.

Can the Minister of Tourism explain why Mr. Dobell was removed?

Was he on the hunt for a fall guy?

Hon. S. Hagen: Let's talk about what that initial board

accomplished under the leadership of Ken Dobell.

Interjections.

Mr. Speaker: Take your seat.

Continue, Minister.

Hon. S. Hagen: If you recall, a few minutes ago I mentioned

that the reason the NDP government of the day — and thank goodness they're no

longer government…. The reason that they cancelled the project after five years

of studies was that they couldn't bring the feds to the table, and they couldn't

bring Tourism Vancouver to the table. Well, guess what. The new board of VCCEP,

back in the 2000s, actually brought over 300 million new dollars to this project

from the feds and from TVan.

Mr. Speaker: Member has a supplemental.

B. Ralston: Well, the overrun is now closing in on $400

million, so that $300 million appears to have been eaten up already.

The minister appoints members to the board directly himself. Paul

Taylor, president and CEO of ICBC, was on the board. He even chaired the

project's audit committee. He was re-appointed in April 2007 to that position.

But once again, since then, he became another fall guy and was removed.

These two top government officials reported directly to the

minister. When is he going to accept responsibility — he or the Premier — and do

the honourable thing and resign?

Hon. S. Hagen: As I said, we have taken responsibility for

this, and we've done the following things. We've put a new chairman of the board

in place, a person with 33 years' construction experience. We've put a new board

of directors in place. We have a fixed-price contract now with the contractor,

with a completion date of March 15 of '09.

Interjections.

Mr. Speaker: Members.

[1405]

R. Fleming: We know from the Auditor's report that the huge

cost overruns aren't just the board's to wear. The Premier's office, Treasury

Board and the minister have been involved intimately in all the key decisions.

The buck does stop there.

The minister talks about replacing the board chair in the past six

months, but Treasury Board of cabinet has now approved six major cost overruns

since December 2003 and three occasions under this minister since March 2007.

Under the budget transparency legislation, under balanced budget legislation,

this minister is supposed to be accountable when things go wrong. When will the

minister, when will the $900-million man make himself accountable to this House

and to the taxpayers of the province?

Interjections.

Mr. Speaker: Members.

Hon. S. Hagen: You know, talking very large numbers, let's

just consider the large number that not doing this project in the '90s, like the

NDP should have done, has cost the province — over $1 billion in economic

activity, because that government did not move on a project that everybody was

asking for.

Mr. Speaker: Member has a supplemental.

Interjections.

Mr. Speaker: Members.

R. Fleming: Among the Auditor General's report findings is

some discussion about the Vancouver Convention Centre's unique structure as a

Crown agency. Among other things, it had a deputy minister on its board of

directors from 2003 to mid-2006 and again later in 2006 through 2007. The

Auditor states that an outcome of this arrangement "is that the minister

responsible can have direct and timely access, through the reporting

relationship of the deputy minister, to board discussions and decisions and to

all governance and project-related material."

[ Page 8892 ]

My question is to the minister. You and your predecessors have had

every opportunity and every avenue to intervene in this project and make sure it

was well managed. You didn't do it. Why, then, has this government over the past

four years instead focused on keeping the true cost from the taxpayers instead

of managing this project properly?

Hon. S. Hagen: As I stated previously, we have taken

action. When we couldn't get a number from VCCEP, I appointed a new chair. I

appointed a new board. We got the number in July. We told the public the number.

The public number is $883.2 million. That's what it will be built for, and it

will be completed by March 15 of '09.

M. Farnworth: A very simple question to the minister: why

did it take you so long to take action — almost to the end of the project before

you took any action? Why, Minister, why?

Hon. S. Hagen: As the member well knows if he's looked at

the project, this is a very complex project. We're about halfway through the

project now in expenditures. It was time to make a change on the board. We knew

that we needed to bring a construction person in, which is why we brought in

David Podmore. David Podmore has said: "I can bring this project in at $883.2

million and by March 15 of '09."

CHILD PROTECTION INVESTIGATIONS

N. Simons: From one example of chaos and mismanagement to

another.

My question is for the Minister of Children and Family

Development. Documents provided to the opposition show that as of last month,

3,264 child abuse investigations remained open for more than 90 days. That's

three times what standards allow, and it's a 20-percent increase over last year.

In light of this clear evidence, what is the minister going to do about this

obviously worsening situation?

Hon. T. Christensen: As the member should know, the staff

within the ministry take all child investigations very seriously. We respond to

over 30,000 reports of a child that may be in need of protection each and every

year.

[1410]

In some cases, though, investigations remain open because they are

ongoing. Where any investigation is open more than 90 days, then supervisors

within the local offices as well as at the regional level ensure that they are

looking at those specific files to ensure that they're not remaining open

unnecessarily.

Mr. Speaker: Member has a supplemental.

N. Simons: Let's be perfectly clear. This is not a question

about the staff of the Ministry of Children and Family Development. This is

about the management of the ministry, and that's what's failing the people of

British Columbia.

We have over 3,000 cases of child abuse investigations that have

not been completed. This is not an issue of paperwork. This is an issue of the

needs of children at risk needing to be met, and this minister can't answer what

he's going to do. What's he going to do to ensure that the social workers in

this province have the resources they need to do their job?

Hon. T. Christensen: Unlike the previous government, what

this government is going to do is add resources. We're going to add human

resources on the front lines, which is exactly what's been happening over the

course of this last year. Over 200 social workers have been hired to enhance our

ability to respond to child protection investigations.

As I indicated in my initial answer, where any investigation is

open for more than 90 days, those are followed up by management within the

regions to ensure that there are good reasons for those investigations remaining

open. That is something that did not happen under the previous government.

A. Dix: That's simply, wholly unacceptable. Thirty days is

his ministry's standard. Some 3,264 cases are over 90 days — three times worse

than his standard. It got 20 percent worse in the last year. The hon. minister

can't sit there and say that that is good news. It is terrible news. Every

single one of those cases is a child.

I ask the minister: what's he going to do today about those 3,264

children?

Hon. T. Christensen: We're going to do what the NDP for ten

years did not do. As I said….

Interjections.

Mr. Speaker: Minister, continue.

Hon. T. Christensen: The ministry has taken steps to

address the number of open protection reports. As I indicated, we've hired more

than 200 new front-line workers over the course of the last year. Dozens more

will be added this year.

The regions are increasing the tracking of open investigations by

ensuring that team leaders review all cases that don't meet the 30-day mark, and

managers review all cases not meeting the 60-day mark. Designated directors in

each region then review any case that is open for more than 90 days.

These are not simply cases that are sitting on a shelf not getting

any review. The ministry staff are on top of those cases, and they are closing

them as is warranted.

Mr. Speaker: The member has a supplemental.

A. Dix: Well, the Minister of Children and Families must be

the only person in British Columbia who thinks his government's record on child

protection is good. Simply put, he says that he's taking strong

[ Page 8893 ]

action. The problem, during his strong action, got 20 percent worse.

I'm going to ask the minister — since, presumably, this action

that's taken after 30, 60 and 90 days is on his direction — whether he thinks

that 3,264 cases is acceptable, whether 20 percent worse is acceptable and

whether this is not a reflection of a botched reorganization in his ministry.

[1415]

Hon. T. Christensen: Well, it's interesting. We're well

aware of the member's penchant for revisionist history, but let's look at the

numbers.

The number of open protection reports of 30 days or less is down

when compared to 2001 figures. The most recent figures show that the number of

open protection reports in excess of a year is down dramatically — 230 this past

spring compared to 567 in February of 2001. Those in excess of two years are

down even more dramatically. There were only eight in February of 2007 compared

to 154 in February of 2001.

I take very seriously where investigations remain open. We have

put in place measures to ensure that those investigations are being monitored.

We will continue to do that, just as we will continue to add front-line staff to

ensure that we can close these investigations as quickly as possible.

TREATMENT OF RESIDENT

AT RETIREMENT CONCEPTS

SENIORS FACILITY

C. Wyse: Last week the minister told this House that there

have been no substantiated concerns raised with the Interior Health Authority

for the last 18 months about the treatment of seniors at Retirement Concepts in

Williams Lake.

On January 9 of this year — I repeat, this year — the verbal abuse

of a resident of the unit for seniors with dementia was captured on voice mail.

On the recording the senior is being yelled at by a staff member: "Now, you

listen. I know you are on effing drugs, but hey, what am I effing doing it for?

This is four effing times. Now listen to what I am saying." On January 10 of

this year, the wife filed a formal complaint with the senior licensing inspector

and copied Retirement Concepts and Interior Health.

How can the minister continue to say that everything is fine and

that there are no serious problems at Retirement Concepts? How can he continue

to ignore this situation and pretend that no problems have occurred over the

last 18 months when he hears story after story of inadequate care being given to

our most vulnerable seniors?

Hon. G. Abbott: Every day in this province there are

literally thousands of registered nurses, licensed practical nurses and care

aides who get up, go to work and provide the very best care that they can. Every

day those thousands of nurses and care aides provide care to about 25,000

British Columbians who are in residential care, who need complex, 24-hour care.

Now, the member has made a charge. If the member has a charge to

make, then he should make it. He should provide me…

Interjections.

Mr. Speaker: Members.

Hon. G. Abbott: …with all of the substance around the

complaint, because I can tell him, as I can tell every member of the opposition

and every member of this House, that whenever a complaint or allegation is

tendered about the treatment of someone in a residential care facility in this

province, it is followed up with rigour and it is followed up in a comprehensive

way.

Interjections.

Mr. Speaker: Members. Members.

CALL FOR AUDIT OF

TREE FARM LICENCE LAND REMOVALS

B. Simpson: Last week in an interview the Minister of

Forests said that he did not believe that compensation was required for

releasing private lands from tree farm licences because "the province has

received substantial stumpage benefits from those private lands over the last 50

to 60 years."

Mr. Speaker, we do not receive stumpage from private land logs.

The companies, in fact, get preferential property tax treatment for having those

private lands in a tree farm licence. They get exclusive rights to Crown timber,

which the companies continue to exercise today.

[1420]

My question to the Minister of Forests is…. Again, he only

represents the benefits that the companies get. He continues to give them those

benefits. The environmental law clinic last week called on the Auditor General

to do a review into this case to see if, in fact, this minister protected the

interests of the public. I ask the minister today to stand in this House and say

that if he's right, if we did not deserve compensation, if the people did not

deserve consultation, will he support that call for the Auditor General to look

into these private land releases?

Hon. R. Coleman: As I said in this House before, under the

Forest Act companies can apply to have it removed. It goes through a process,

comes to the desk of the minister. It's examined on its merit. You take the

recommendations; you make the decision. The decision has been made. It is not

being changed by this minister.

Mr. Speaker: Member has a supplemental.

B. Simpson: We've heard this minister say that over and

over again. However, there's been a first nations court case against the

previous minister where a judge said that they were not fairly consulted, ought

[ Page 8894 ]

be consulted and the minister ought to know he should have consulted with

them.

We have a continuation of those complaints from all the first

nations involved with Western Forest Products. We have the complaints from

Jordan River, Shirley and Port Alberni that they were not consulted with. They

ought to be consulted with. They want to be consulted with.

Now the minister is saying: "We don't need to compensate, because

I don't think we need compensation. I think they paid." Well, they didn't pay.

They didn't pay, and I'm challenging the minister again. I don't care what his

process was.

Mr. Speaker: Could the member put his question.

Interjections.

Mr. Speaker: Members.

B. Simpson: I don't care what his process was for making a

decision. The question to the minister is: if he's so sure he did the right

thing, will he call on the Auditor General to tell us whether he did or not?

Hon. R. Coleman: The Auditor General is an independent

officer of this Legislature, and nobody in this Legislature tells the Auditor

General what to audit and what not to audit.

Interjections.

Mr. Speaker: Members.

Hon. R. Coleman: I get the fact that the member opposite

doesn't support private property rights. I get that. I get the fact that the

member opposite….

Interjections.

Mr. Speaker: Take your seat.

Continue, Minister.

Hon. R. Coleman: I know the member opposite doesn't want to

admit to the fact that any of these properties that have come out of the TFL get

any other uses. They have to go through local zoning, and at that time there are

public hearings and input from the public on the use of those lands. That's

fine.

The reality is that this thing is done. It was done in January.

Consultation was done with first nations. The recommendation came to the desk of

the minister. It was recommended to allow this tree farm licence removal to

continue, and it was done.

[End of question period.]

Tabling Documents

Hon. W. Oppal: I have the honour to present the following

reports: the British Columbia Ferry Commission Annual Report for the Fiscal

Year Ending March 31, 2007 , and the British Columbia Human Rights Tribunal

Annual Report 2006-2007 .

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

Mr. Speaker: Proceed.

Petitions

S. Fraser: I present a petition with a thousand signatures

from across the province supporting legislation to protect animals, the

environment and children against antifreeze poisoning.

R. Fleming: I seek leave to make an introduction.

Mr. Speaker: Proceed.

Introductions by Members

R. Fleming: We're joined today by graduate students and

faculty from Portland State University, and I'd like the House to make all of

our guests feel welcome.

Orders of the Day

Hon. M. de Jong: I call committee stage debate of Bill 40.

[1425]

Committee of the Whole House

TSAWWASSEN FIRST NATION

FINAL AGREEMENT ACT

The House in Committee of the Whole (Section

B) on Bill 40; K.

Whittred in the chair.

The committee met at 2:27 p.m.

The Chair: Good afternoon, Members. Before we proceed, I

have a few remarks from the Chair.

Hon. Members, today we are embarking on committee stage of Bill

40, a bill to approve and give effect to the final agreement made between the

British Columbia.

I wish to take this opportunity, in light of the unique form of

the bill, to comment on the process to be used in committee debate. This bill,

like the Nisga'a bill of 1999, is intended to approve the final agreement, which

is attached as a schedule, and to enact ancillary legislation to conform with

various aspects of the agreement.

It is a Crown prerogative to make agreements. The role of

parliament is to debate, accept, reject or amend the bill, but subject to

technical amendments, it cannot amend the agreement. In the case at hand, the

Chair will not accept amendments to the

schedule other than purely technical

amendments to ensure that the

schedule contains the correct text.

[ Page 8895 ]

The Chair will not accept amendments to sections of the bill which

have the effect of amending the

schedule but will accept amendments to sections

of the bill that are relevant and otherwise in order.

It seems to the Chair that

section 3 of the bill embodies the

operative portion of the bill. It is to be remembered that the committee stage

of a bill does not provide an opportunity to recanvass all the arguments which

were applicable at second reading, where the principle of the bill was under

debate. During committee stage, debate must be strictly confined to the

section

which is before the committee.

Likewise, debate on proposed amendments must be strictly relevant

to the amendment as proposed. The agreement, while not amendable except as

provided above, will be open to debate when the

schedule is called, subject to

the observations made with respect to

section 3.

Hon. M. de Jong: Following from that statement, my sense of

how the debate was going to proceed structurally was that there was some

informal agreement that the final agreement would be the subject of focused

debate, sort of

chapter by chapter, when we got to

section 3 of the bill. I'm

getting an indication that that is the opposition critic's understanding as

well. Very good.

[1430]

S. Fraser: Actually, I'm responding to the comments made by

the minister. I'm just looking for clarification. So we're going to address

section 1 and then

section 2. At

section 3, we can engage in further

free-ranging conversation that will occur. Am I correct there?

Hon. M. de Jong: Right. I think that is a logical way to

proceed. I'm hoping that when we get to

section 3 and begin to address the

schedule, which is the final agreement, we can come to some sort of

organizational agreement on which chapters we're going to deal with in terms of

having the appropriate expertise available and to coordinate the participation

of members that may want to participate.

I think we had had some discussions about proceeding through it

chapter by chapter. If we have to change some of the order of those chapters, I

think that's something that the hon. member and I can work out.

S. Fraser: Again, I'd just like to confirm that that would

be acceptable to this side of the House. Be mindful that it's been many years

since we've had a discussion at committee stage on a treaty and that we're all

going through a bit of growing pains on this. So I appreciate the minister's

comments, which show some flexibility in order to make sure that the appropriate

critic is present with a bit of notice.

We're still not sure exactly on the time line on this, although my

last discussion with the House Leader from the opposition is that this will be a

much more abbreviated committee stage than certainly we saw under Nisga'a.

Am I correct in anything or in all that I'm saying?

The Chair: More general comments, Minister?

Hon. M. de Jong: Only to introduce the officials that are

here presently: ADM Mike Furey to my immediate left; Bronwen Beedle, who played

a key role in terms of the negotiations of the final agreement; and Frances

Statham. All of these individuals have worked diligently and with passionate

commitment to see this final agreement become a reality and are here to help

guide us through the discussion that is about to unfold.

section 1.

S. Fraser: All right. Again, please be gentle with me if

I'm off on the wrong step here.

Section 1. Are we specifically dealing with

definitions? Is that correct at this point?

Hon. M. de Jong: I think we can probably start with the

preamble and then go to

section 1 of the bill. The two combined address the

question of some of the

definitions.

Definitions in this legislation are actually dealt with slightly

differently, because they incorporate the

definitions as they appear within the

final agreement itself. So within the final agreement,

definitions for

particular terms are laid out. Unless I'm mistaken, what this bill does is

incorporate those

definitions. The instrument by which that is done, I believe,

section 1.

The Chair: Member, perhaps I could just interject here. The

preamble is normally dealt with at the end. If there is a wish to chat about it

earlier, that is at your discretion. However, I will not call for it to be

passed until the completion of the committee stage.

S. Fraser: I am comfortable with the

preamble. If there's

no statement from the minister or his staff as to justification, I have reviewed

the

preamble and don't require clarification at this stage. I'm glad that we're

not called to vote on it by

section here. That's heartening. So we can move on.

I have a couple of questions around

definitions as they appear,

but I believe that's coming up next.

[1435]

Sections 1 and 2 approved.

section 3.

Hon. M. de Jong: I think it is at

section 3 now where we

can move to the final agreement and start to deal with some of the substantive

provisions included there.

S. Fraser: Thank you again, hon. Chair, for your patience

on this. We're just learning how to do this also. In

section 3, I'm going to

touch on the nature of the agreement.

On the issue of boundary disputes, with this treaty there have

been a number of challenges, both legal and certainly verbal challenges,

regarding the boundary

[ Page 8896 ]

issue. I know we historically saw some challenges with Nisga'a. Considering

that there are a number of challenges with this particular treaty, how is that

to be addressed after the treaty presumably passes?

As challenges come forward potentially in court, my understanding

is that, according to this, there is room for changes based on a court

challenge. That's still allowed to be open. What mechanism will be used to

address those from the Tsawwassen people, and what role would the province play

here? As it's a tripartite agreement, how are the federal representatives

engaged at that stage? I'm being hypothetical here. I don't quite understand it

from reading it.

Hon. M. de Jong: The member is correct in pointing out some

of the activities, some of the litigation that has evolved and emerged around

this. The general answer to the question goes as follows.

There are, within the legislation and the agreement, what are

termed non-derogation provisions which explicitly set out that the agreement

cannot adversely impact the rights of other aboriginal peoples — other first

nations. There are other provisions in the agreement that say if, subsequent to

the effective date, it is determined that that has happened….

That can happen in potentially two scenarios. One, if it is

determined that the agreement does that or a specific provision of the agreement

does that, then changes to the agreement are contemplated. The member is

correct. That would involve a discussion/negotiation amongst all three

signatories to the agreement.

[1440]

Similarly, it is also conceivable that in the future a subsequent

final agreement involving another first nation, if it were found to adversely

impact on the aboriginal rights of the Tsawwassen First Nation…. Then there

would potentially have to be changes made, and that too would engage a

discussion amongst the three signatories.

The Chair: Before we proceed, I just want to be sure —

because of the complexity of this debate in terms of comparison to other bills —

to make it clear, including to myself, that we are discussing

section 3 of the

bill, which is the schedule. In the

schedule there are a variety of chapters.

So, Member, as we progress through this, I will ask you whether

you're still on

chapter 1, whether we're now moving on to

chapter 2 and so on. I

hope that will be clear to all the parties.

Proceeding with

chapter 1 of the schedule, Member.

S. Fraser: Thank you for that clarification, hon. Chair.

The way I'm reading it,

chapter 1 is all

definitions. Am I correct? Have I

jumped the gun already? I'm placing the question to the Chair.

The Chair: I think you can proceed, Member. Just keep me

apprised, as Chair, of where you are. If we can try to keep this in the order in

which it appears in the schedule, I think it will be simpler for everyone.

S. Fraser: And I agree. So I thank the Chair.

If she could indulge me for a moment.

Chapter 1 is essentially

definitions. We're going to go in order. That's fair enough.

Bill 41 has some amendments to

definitions. Is it appropriate to

touch on Bill 41? I mean, are we talking about the whole package here? There are

Bills 40, 41 and 42. They're inextricably linked. If I'm dealing with

definitions, for instance, out of Bill 40, out of the final agreement, are we

open then on Bills 40, 41 and 42?

Hon. M. de Jong: I don't want to constrain the hon. member.

I think when we get to Bill 41, that represents another opportunity to address

any of the issues that might emerge.

I should say, and I've checked quickly, I'm not aware off the top

of my head — nor, I think, is anyone with me — of a situation where a definition

in Bill 41 purports to amend a definition in Bill 40. But I'm not going to make

that unequivocally. I'm not aware of one at this point, but we will certainly

have an opportunity, when we canvass Bill 41, to test that thesis.

The Chair: Just for the benefit of members, technically the

bill before the committee right now is Bill 40. That, however, does not preclude

the member asking general questions in pursuit of information around the bill.

D. Jarvis: I'm a little bit confused, but I think I have a

rough idea. I was going to ask a question on the definition of the Pacific

fishery management area, regarding the earlier definition of Canadian total

allowable catch. I'm not sure whether I should be discussing any of that here at

this point….

It's really not a question as to amounts or anything like that.

It's how the federal government, which now, from what I understand talking to

various ministries of this Legislature, have said that they are not counting….

They've run out of money, so they are not counting the fish that go up, for

example, the Fraser River. How do we establish what the allowable number of fish

would be if we don't know what the total will be other than a guesstimate?

[1445]

Hon. M. de Jong: I think those are questions that obviously

elicit interest in many quarters. I do note that at

chapter 9 in the final

agreement, we get to the fisheries component to the treaty. Without trying to

suggest to the member what he should or shouldn't do, it might be easier to have

the conversation as part of the broader discussion around

chapter 9 and the

fisheries component than in isolation and abstractly. That's perhaps my

suggestion.

Interjection.

S. Fraser: Thanks to the minister for that, and the member

for North Vancouver–Seymour. We will be having some critics speaking to that

also. It would maybe be a time to do it, economy-of scale-wise, so the right

staff can be in place.

[ Page 8897 ]

A question on procedure again. But it does raise a question that

the member for North Vancouver–Seymour…. Fisheries, for instance, is not

exclusively but largely a federal issue. The role is very strong there, although

there's certainly a role for the province.

As this is a tripartite agreement, I am a little bit confused.

Excuse my ignorance, but we don't have representation from one party of the

tripartite agreement — the federal government — in this House. So as we are

debating this, I'm anticipating questions will come up on fisheries issues.

Will the staff that are brought forward — and this is no

disrespect to the good staff that we have working on this for the province — be

able to answer certain questions? Or will they be taken on notice if it's

specifically a federal responsibility, if the question is aimed that way?

Can I get some help there, just so I know? It isn't exclusively

fisheries. There's the federal component of every

section of this. So for my own

edification, could the minister maybe give us some clarity?

Hon. M. de Jong: Two good points, actually, that he raises

at this juncture in the discussion — the first being that two of the parties

have a provincial presence and one a federal, national presence.

We are engaged in a ratification process that's contemplated by

the final agreement that, now that the Tsawwassen First Nation has adopted the

agreement, would see that ratified by this chamber. There is a subsequent

proceeding in Ottawa that needs to take place.

Just as there are features to Bill 40 that are unique to the

provincial legislation, there will be features to the federal bill that are

unique to it, insofar as there are aspects of this final agreement that impact

exclusively on some of the federal constitutional authorities. That's the first

thing. The member is correct to point that out.

With respect to the second issue, notwithstanding the fact that

the fisheries components of this engage most directly the federal government, we

are a signatory to it. Therefore, I think it's fair to say that we accept the

obligation to have a sufficient appreciation and understanding of those

provisions to warrant us agreeing to them and to allow for questions from the

member or his colleagues or other members of the House, and to provide answers

to the best of our ability and demonstrate why it is that we are satisfied the

fishery has been dealt with in a fair, equitable manner.

S. Fraser: Thanks to the minister for that.

Just for clarity then, the

section I'm looking at is

chapter 2. I

don't have any debate of merit to deal with the

definitions at this point. I

don't see any other members standing up. So just for the minister and his

staff's clarity, I'm looking at

chapter 2. I've moved beyond the

definitions,

and we're into "General provisions" as such. That's how I proposed my first

question — going right to that. So I apologize for not giving clarity as to

where I was.

[1450]

In keeping with the first question that I had — and I thank the

minister for the answer — regarding the challenges potentially on the borders

issue, and with understanding of the answer to the question…. I guess the next

question is….

There are substantial challenges at this point — whether they are

legal or not or whether they become legal in the future — from certain other

first nations involved either proximally or around other issues with resource

use maybe up the Fraser. What resources, if any, are made available post-treaty

to address those?

I guess there are sort of three parts to that. The Tsawwassen have

some resources, my understanding is, which they receive through this treaty.

That's fair enough. That's one piece. But do other nations? Are they responsible

solely for the capacity to challenge historic uses to establish those? Is that

all their responsibility, whether they're in the treaty process or outside of

the treaty process?

Hon. M. de Jong: Thanks again to the member for the

question. It's a good question because it touches on an aspect of this that

captures, really, the entire agreement and what is taking place here. That is

the establishment of a relationship — a new relationship, as it were — that is

very much governed by the provisions of the agreement.

There will be ongoing interaction at a different level between the

Tsawwassen First Nation, the parties to this agreement — Canada and British

Columbia — but also other communities, whether they are the community of Delta,

the regional government or other first nations. That won't change.

The obligations that exist for the Crown in the right of the

province of British Columbia or the Crown in the right of Canada to consult and,

where it's appropriate, to accommodate other first nations' interests…. Those

continue. Nothing here in any way diminishes that.

In some cases some of those obligations will now be shared with

the Tsawwassen First Nation itself and its government. That is something I think

they're well equipped for and that the Chief accepts as a responsibility they

will have post–effective date.

I think the other component to this, though — if I understood the

member's question correctly…. What resources exist for other first nations? I

should say that we're not funding legal challenges. If someone were to do an

analysis, as some have, and have concerns they feel obliged to pursue through

the courts, they have made those decisions. We don't provide a funding

allocation or an invitation for other groups or first nations to do that. We

believe, as we have said, that the agreement is sound in that respect.

The point, which is an important one, that the member has raised

is that there will need to be ongoing dialogue. There will need to be an ongoing

relationship, and we will have, post–effective date, a new partner at the table

in that respect, which is the Tsawwassen First Nation and its government.

S. Fraser: Thanks to the minister for that. I appreciate

his comments.

[ Page 8898 ]

I guess I'll be more specific. On the opening day of our return,

there was substantial protest from nations from across the province that came

here because they had issues. They were critical of the new relationship that

the minister refers to and their ability to be heard on some of these issues.

I don't see a mechanism for that, and I understand that the

province — and the feds, I'm sure — will not fund court challenges of other

nations. I understand that role.

One of the things of the new relationship is to get beyond

litigation. So I guess it's in conflict resolution around this treaty, in this

section, in "General Provisions" and "Nature of Agreement."

[1455]

We have a motion on the order paper suggesting that the government

empower the parliamentary Standing Committee on Aboriginal Affairs to try to

address, among other things, these kinds of issues. It's a way of getting around

litigation, which I don't think any of us wish to see. We're hoping — and the

new relationship refers to that specifically — that we're trying to get beyond

an age of litigation on these issues.

I haven't got a response yet on that motion to empower the

standing committee, which met, I think, 27 times during the Nisga'a process. The

minister would know that better than me, because he was involved in the standing

committee. He sat on the standing committee. I guess what I'm looking for is

advice here.

There is a mechanism in place in this Legislature for, among other

things, addressing boundary issues and preventing — hopefully, averting — a

litigation situation from other nations that would maybe challenge the

boundaries and other sections of this treaty. I'd like to know if the minister

is considering that committee. And if not, what other mechanisms might be in

place to avoid wholesale litigation challenges of this treaty?

Hon. M. de Jong: Thanks to the member for raising the

issue.

The member is correct. I was part of a process, a select standing

committee that met fairly extensively around the Nisga'a treaty, in particular

the agreement and the agreement-in-principle. My recollection is that that did

not, in and of itself, prevent some similar litigation that emerged around the

overlap.

It's a vexing problem, and I think it's fair to say that we are

all still learning about some of the steps we can take. I actually have a

suggestion, or something that I'm at least turning my mind to, that I'd be

curious to know the member's reaction to.

Some of this has emerged, I'm told, from nothing more complicated

than a series of maps being transferred around. People look at them and go:

"Whoa, where are those lines on the map coming from?" and "That's our

traditional territory," and "Why is someone else claiming an interest of any

sort in our traditional territory?" So some of this very much relates to

communication.

I think there may be a role for the Treaty Commission here, in

terms of facilitating discussions amongst the parties who have an interest in a

particular final agreement and perhaps even to formalize some kind of dispute

resolution process. What that all looks like and how it all plays out, I can't

pretend to offer the details to the member now.

It has come up here in Tsawwassen. It was an issue in Lheidli

T'enneh, a final agreement that was not ratified by the first nation, but I

think the member knows that it also emerged as an issue there. It went away when

the ratification didn't proceed, but my guess is that it would not have gone

away as readily if the treaty had been ratified.

Involving the Treaty Commission in a more extensive and direct way

is something that I'm thinking may have merit and is something we're exploring.

I'm interested to know what the member thinks.

S. Fraser: Thanks to the minister for that. Addressing his

statement about the Treaty Commission, we do support an expanded role for the

Treaty Commission certainly in dealing with conflict resolution and the

boundaries issues.

It's very difficult. There are many first nations, as the minister

knows, in the province that do have potentially conflicting boundaries in any

treaty that's being addressed. We know that is a problem. It is with Tsawwassen.

It was with Nisga'a. It's more extensive here, and there's reason to expect that

it's not going to lessen in other treaties. So we endorse that — the Treaty

Commission's role expanded.

[1500]

The resources and the capacity in many nations are stretched very

thin, as the minister well knows, and their ability to legitimately challenge

boundaries as written through treaties or to challenge through litigation

afterwards…. Those resources are often not there, and the capacities within the

nations themselves are often not there, so having the commission involved is

important. But I think that's a separate issue.

The standing committee involves both sides of this House, and as

we need to debate and ratify these things, the level of understanding that's

provided to all members and to communities, first nations and non–first nations,

through the process of the standing committee is a valuable one in the province.

It's one that I know the minister, in his previous role as critic in the

opposition, took advantage of — and I mean that in a good way.

Certainly, he was able to voice his opinions. That, I think, made

for more fulsome discussion, and it led to all points of view being able to be

brought to the table, not just from members of this House but from communities.

I see that as not exclusive to…. I'm not saying that the commission won't still

have that expanded role, but there is a role that could help mitigate some of

the protests that we saw on the lawn here two weeks ago now.

We endorse from this side of the House, from the opposition. We

have no problem. We encourage the expanded role of the commission. But along

with that, the standing committee has a role. It's acknowledged here at the

beginning of every session by the Premier, but it has not been empowered.

[ Page 8899 ]

I'm asking the minister, based on that…. Of course, we have a

motion asking for that empowerment, because in the spring we, and I as critic,

saw a need. I saw a number of issues bubbling to the surface throughout the

province around this treaty, around the Lheidli T'enneh and potentially around

the Maa-nulth.

Does the minister not see a role there to help address many of

these issues around the very nature of the agreement and where that leads?

Hon. M. de Jong: Well, potentially, but I want to share

candidly with the member my thoughts around the subject.

Some of the criticisms, critiques we heard from a variety of

sources around the final agreement that we're discussing here went to the core

of the treaty process. Some people are opposed to negotiating treaties. I'm not

certain how to reconcile that kind of opposition — when we are trying to advance

a final agreement that is in a form that someone fundamentally opposes.

There are other questions around mandate from those who are

involved in the treaty process. The member is correct. We hear criticisms from

many quarters about the nature of the mandates that come to the table. I suppose

that's a natural component of any negotiation.

It's a good opportunity for me to say this on the record as well.

Sometimes the people that bear the brunt of that criticism are the people that

represent the Crown, the province of B.C., as chief negotiators. But in fairness

to them, they get their mandate from the government — ultimately from the

executive council, and they are bound by that.

The criticism — and I've said this to first nations as well…. To

the extent that there is criticism around what those mandates are, it is more

appropriately directed at the people who generate or provide those mandates to

the negotiators.

I think it's fair to say we haven't been shy about drawing on the

expertise of members via the committee process. In fact, I think the number of

committees that have been utilized over the past few years has been

unprecedented.

[1505]

Is there a role to involve an all-party committee around certain

aspects of the discussion that is taking place, the new relationship?

Potentially, but I don't think it's the best place to try and resolve overlap

disputes. I'll tell the member that candidly. I think the dynamic at play on a

committee like that…. Overlap disputes generally involve first nations who are

asserting competing interests.

Someone would have to spend some time convincing me how an

all-party committee represents a forum that would be of assistance in resolving

those kinds of specific claims and disputes. I can see a role for the Treaty

Commission there.

To the other extent, I wouldn't rule out some role as we move

forward for the all-party committee, but the member will have to do some work

convincing me that overlap disputes would be appropriately referred to an

all-party committee.

S. Fraser: I have a member from the government side that

wants to ask questions. I'm going to allow that in a moment, but I just want to

touch on this.

I don't know that an all-party committee would solve the

boundaries issues, but what I do know is that we on this side have…. You've

mentioned there's one party that doesn't believe in the treaty process. The

Union of B.C. Indian Chiefs is an integral part of the leadership council —

one-third of the leadership council. Their concerns are valid. They have signed

on to the unity protocol. That sum total of first nations in B.C. is

substantial, and they have criticisms.

Those within the treaty process, as it exists, and those outside

of the treaty process, as you point out — the Union of B.C. Indian Chiefs, I

think you were referring to — have valid concerns that need to be addressed,

that aren't being addressed.

If we are to incorporate, for instance, the needs of those two

groups that are working together to some extent, in the interests of

reconciliation, and maybe make amendments, address the concerns that are seen as

lackings within the current treaty process…. That's the opportunity to bring

members like the Union of B.C. Indian Chiefs into the negotiations for

reconciliation — maybe through the treaty process. I'm an optimist.

That is not happening now. Since I see that as a role,

potentially, for the committee…. I see that as a role for government, but I

don't see the government addressing that issue through the treaty process,

through this process. I see it dividing more, with other nations — not with the

Tsawwassen. I understand that.

My hope is that boundary issues…. Well, if that's all handled by

the Treaty Commission, that's great. That's one piece of this. But some of what

I've seen as fundamental flaws in the treaty process are preventing a great

number of first nations in this province from reconciliation.

I'm hoping that as we see court decisions happen…. There is

certainly a sentiment out there that those be incorporated, that those basic

changes in case law, for one, be helped to amend and grow a treaty process that

will involve all — all three parts of the leadership council, including the

Union of B.C. Indian Chiefs. That is my hope.

If the government would take that on, on their own, great. Seeing

that void, which I see as a void…. I do not believe that's being addressed

through the treaty process that we're standing here today discussing. I believe

that we're going to see great discontent increasing in the province. We're going

to see treaties coming forward here and there, and the process is going to get

stalled because there's going to be great numbers of first nations that are left

out of that process. They will feel they have no ability to get into the process

because there's no willingness to address some of the critical issues or what

are seen as failings in the treaty process.

With that gratuitous statement, I'm going to move on. I will cede

this next question to the government member who sits behind me.

[1510]

[ Page 8900 ]

D. MacKay: The debate in the committee stage of Bill 40

that we're into today is obviously going to be somewhat complicated. It's a very

complex issue. It took 17 years to get us here today, and there's probably going

to be some questions asked out of sync with what the

preamble to the committee

stage of the bill alluded to. Having said that, I'm going to try to stay on

track as best I can, and I will ask the Chair's forgiveness if I happen to

wander and get ahead of myself.

I wanted to touch very briefly on the overlap issues and the fact

that the minister, I believe, made the statement that we don't fund native bands

for overlap issues. I don't disagree with that. However, it's my understanding

that the federal government and, to a small degree, the provincial government

provide funding to the native bands as they're in the treaty process to work

through the process.

Given the fact that there are eight bands who are also claiming

territory that is included in the Tsawwassen band, given the fact that there are

eight other bands out there that claim the same territory, I would suspect that

one or two of those bands, if not all eight of them, as they get into the treaty

process, are going to be coming to government, going to the negotiators and

talking about the overlap issues.

Some of the funding that has been provided as they move down that

road is, in fact, going to be used to try to deal with the overlap issues. I

wonder if the minister would care to comment on that.

Hon. M. de Jong: Certainly, part of what the member has

alluded to or speculated about is potentially true. As parties become parties,

as first nations become involved or are involved in the Treaty Commission

process, they are provided with funding and repayable loans to help finance the

expertise they require to assist them whilst in that process. Some of that

funding, I am advised, can be utilized to address issues that arise with alleged

overlapping claims. To that extent, the member is correct.

It is in all of our interests to try and do everything possible to

avoid these kinds of disagreements from evolving to a point where litigation is

necessary, because for those that are involved in the treaty process, my sense

is that those resources are better spent on other issues.

I can say this in a personal way. As we moved through the

ratification process in Prince George with the Lheidli T'enneh and into

Tsawwassen and now the Maa-nulth, we certainly learned some things. I wish I

could follow that up with a statement that says "and therefore, we've learned so

much that these issues have disappeared." They haven't, but I think we've

learned a great deal about how to try and deal in advance of final agreements

being finalized.

It hasn't made it go away, and the member's right. When they don't

go away, when they aren't dealt with conclusively, it means further resources

are spent. Some of those resources, for people involved in the Treaty

Commission, come via the Treaty Commission itself.

B. Lekstrom: Certainly, it's my pleasure to be able to

enter into this discussion today, committee stage and on

chapter 2.

I have a question on

section 11 that refers to the full and final

settlement. It reads: "This Agreement constitutes the full and final settlement

in respect of the aboriginal rights, including aboriginal title, in Canada of

Tsawwassen First Nation."

When I read through the document, I ran across a couple of

sections further on, so bear with me. I'm going to relate to those, which would

chapter 4,

section 42, which states: "If, within 50 years after the Effective

Date, Tsawwassen First Nation owns any parcel of Specified Lands in fee simple,

that parcel of Specified Lands will become Tsawwassen Lands after completion of

the process set out in clauses 43 and 44." Then we go over, and it talks about

that process.

[1515]

Similarly, it would be

chapter 4,

section 47: "After the 50-year

period referred to in clause 42" — which I just read — "Canada will consider a

request from Tsawwassen First Nation to add land, including any parcel of the

Specified Lands, to Tsawwassen Lands."

I'm confused. I guess maybe I'm wondering if my definition of

"full and final settlement" as we sign this is different than 50 years in the

future. Could I get some explanation on that, please?

Hon. M. de Jong: I think it is important, as the member has

done, to both look at the specific provision and then recognize that the

agreement touches on a range of issues.

The certainty model that is contained in

section 11, as it were,

is designed, in effect, to make clear that this is not a case of coming back

later and seeking further benefits or further accommodation but that some of the

benefits or the provisions that are contained within the agreement crystallize

at a later date.

For example, there are ongoing obligations by the federal

government to provide moneys, and the member has pointed to one in terms of

land. So there are some options that exist.

There's an ongoing relationship created. For example, in some of

the chapters there is an ongoing obligation on the part of the provincial Crown

to consult around changes to legislation that might impact on the Tsawwassen or

on Tsawwassen lands.

The agreement is designed to be a full and final settlement, but

that doesn't mean that there isn't an ongoing relationship. It doesn't mean that

in certain cases — the member has referred to what are called, I think,

specified lands within the agreement — there aren't some options created around

whether or not and how those specified lands are incorporated into treaty

settlement lands.

The member has, I think, astutely observed this. Not everything

crystallizes or occurs on the effective date. There are some things that happen,

or could happen later, but those things are defined, and they are defined

conclusively and exhaustively in the agreement that we are discussing.

[ Page 8901 ]

B. Lekstrom: Just so that I'm clear on this, then. I think

that for most British Columbians, if they were to pick it up and read

section

11,

interpretation of this "full and final" would be: "This is it." What I think

I'm hearing, and I believe this is correct, is that it refers — under

chapter 4,

sections 47 and 42 — to 50 years hence — that this full and final settlement

document actually is an active document up until that time. Would that be a

reasonable assumption?

Hon. M. de Jong: Yes and, in some cases, beyond it, insofar

as defining what the rights, responsibilities, obligations might be. But yes, I

agree with the essence of what the member has said.

D. Jarvis: To follow up on that last question, Minister, I

was of the understanding that this sort of…. Well, it's an expression of me-too

clauses, and I was informed that they only pertain to the taxation part. But I

noticed in

section 49 of

section 2(

a) it says that in the event of any agreement

within sections 25 and 35 of the constitution, "Canada or British Columbia, as

the case may be, will provide Tsawwassen First Nation with additional or

replacement rights or other appropriate remedies."

[1520]

Is that what you would interpret as a me-too clause — that if

another treaty comes down the line, like, next week and if it had something

different, we'd have to top up the present bill that we're discussing?

Hon. M. de Jong: I think the member is referring to

section

49, but I want to be clear that I know what he's referring to.

D. Jarvis: Yes, 49 and 49.a, Madam Chair.

Hon. M. de Jong:

Section 49 relates specifically to the

situation that I speculated about a few moments ago where, following a

determination that other aboriginal rights had been adversely impacted or as a

result of a subsequent final agreement, it was determined that Tsawwassen First

Nation rights — as defined by this treaty — had been adversely impacted. It

provides both the obligation and the mechanism by which that is addressed.

So it would be incorrect to describe this as a me-too provision.

It would be correct to say that the sections in their entirety contemplate the

possibility of finding that aboriginal rights have been impacted and that the

agreement would need to be adjusted to address that.

S. Fraser: I guess I have a process question at this point.

Obviously, there are a number of government members that also have substantial

lines of questioning on Bill 40, as they have every right to have.

As a critic that's never been involved in this process before, I

am concerned. What's our time line here? If we're jumping from

chapter to

chapter now…. I mean, I have a hard time keeping track of this anyway, but we're

going to run out of time. We won't be able to fully address this treaty. Are

there any suggestions? Is there any process that maybe the Clerk can help us

with to make sure that doesn't happen?

Hon. M. de Jong: We're in

chapter 2, and I appreciate what

the member is addressing. I want the critic, members of the opposition and other

members to have the time they need to canvass the issues.

We're into our first leg of this debate. We won't do it now, but

following the conclusion of proceedings this afternoon, we can speak amongst

ourselves or those with questions and highlight where we think those questions

are so that as the critic, the member, has some understanding of where those

interjections might take place and proceed on that basis.

I think it's helpful for everyone if we can maintain the order of

at least the chapters, or we'll be bouncing all over the place, and that won't

help anyone. I'll endeavour to help in any way I can. By the way, I accept the

proposition that the critic has a primary responsibility on the part of the

opposition and needs to be accorded the time necessary to fulfil that role.

[1525]

C. Evans: I just want to belabour the point here. We jumped

chapter 6 a second ago and then back. That's great with me. It actually fits

with the way I think better than progression.

I just want a commitment from the Chair, the Clerk, the minister —

whoever it is. We're going to go through this. We're not having votes

section by

section, is my understanding. Ergo, if a member walks in this room, wants to go

back to

section 2 and we're in

section 20, nobody stops that person. Is that

correct?

The Chair: That is correct, Member. As has been pointed out

several times, we're all sort of treading new ground here, and I am endeavouring

to keep the debate focused. We are presently on

chapter 2, which is

section 3 of

the bill. There is a long way to go. But the whole

schedule is subject to

discussion, and it will be appropriate at some point, if you've left something

out, to come back to that discussion.

B. Lekstrom: Following through on

chapter 2, moving to

sections 26, 27 and 28 combined, just for clarification I again ask the

minister…. I read

section 26. It says: "Any Tsawwassen Law that is inconsistent

with this Agreement is of no force or effect to the extent of the

inconsistency." That makes extreme sense.

Reading the next one, it says: "This Agreement prevails to the

extent of an inconsistency with a Federal or Provincial Law." I note that

throughout this agreement we have different sections that talk about that

specifically, where Tsawwassen law would supersede provincial or federal, and

vice versa. Under

section 27,

chapter 2, why would this be…? Is it

all-inclusive, and would it override future comments on the issue of whose law

takes priority?

Hon. M. de Jong: Again, good question. What these sections

combined do is confirm that the agreement is paramount insofar as other

provincial and federal laws

[ Page 8902 ]

— the contents of the agreement. But within the agreement it sets out, in the

event of conflicting laws in various areas, which laws are paramount. So the

agreement takes precedence, and then within the agreement it lays out which laws

are paramount in various areas.

S. Fraser: An umbrella question, I guess, before proceeding

any further

section by section, for my own edification. Recently there was the

UN declaration on the rights of indigenous people, and it directly, I think,

refers to treaty.

As we're debating a treaty now, the Tsawwassen treaty, I note that

there was no position taken by government on the UN declaration, which I think

was pretty fundamental to treaty.

[1530]

I've got to ask the question, because it's been asked to me by

first nations. Was the silence on the part of government around the UN

declaration not supporting, just silent on, the UN declaration on the rights of

indigenous people? Were there provisions in that UN declaration that would

either have offended this treaty or caused a problem for future treaty

negotiations?

Hon. M. de Jong: The most direct answer I can give is that

I'm not aware of any analysis. I certainly didn't ask for any as between the

proposed UN declaration and this treaty. So I can offer the member very little

there.

I think I told the member at one point or made a comment somewhere

that I was disappointed that the federal officials responsible for transacting

business at the UN on behalf of our country weren't able to arrive at language

they deemed appropriate. But I think that is a matter best canvassed with

federal officials.

[S. Hammell in the chair.]

S. Fraser: I won't follow that line of questioning any

further, although I'm not happy with the answer given by the minister.

On constitutional issues. It's

section 8, and also dealing with

modifications, on the next page are sections 13, 14 and, to some extent, 15.

What happens in a constitutional challenge? I'm just wondering. I

don't see in this agreement a mechanism for dealing with that. If there's a

constitutional challenge — and you'll have to excuse my ignorance here — that is

successful in court to this or other treaties, would there…? I see there being

two ways of dealing with that. If that challenge was successful, either the

fundamentals of the treaty itself — or of a treaty, not necessarily this one —

could be challenged or the constitution could be challenged for amendment, which

is less likely, I assume. It's a federal issue.

Is there anything to deal with that? There is potential for

constitutional challenges, as the minister knows, in these questions.

Hon. M. de Jong: Well, I can advise the member that a

process by which a party would notify the members of its intention to raise a

constitutional issue is laid out in the agreement and in some of the provisions

within the chapter. I think I need more information from the member, though,

about the nature of the constitutional challenge he contemplates.

D. MacKay: Madam Chair, on the process for this committee

debate. I'm wondering…. I know the previous Chair allowed us some movement

within

chapter 2, but I'm wondering if we couldn't speed this up a bit if the

Chair was to go through

section by

section in each of the chapters. We're going

to be bouncing from the last

section in

chapter 2 back to the first chapter, and

I just thought it might move things along quicker if we were to go through

section by section,

chapter by chapter.

We're in

chapter 2 now, and the member for Alberni-Qualicum has

been talking about chapters 8 through 15. If we could continue on with that, I

just thought it might move things through a little faster.

The Chair: Members, to facilitate, we will move from

chapter to chapter. Right now we're on

chapter 2.

[1535]

G. Gentner: I'll jump over to

section 47, therefore. I have

many other questions on other sections, but this is still within the chapter.

Under

section 47, "Other aboriginal people," the discussion was

brought earlier relative to some of the protests out on the front lawns and some

of the concerns of other first nation peoples. I have a concern as well, and I

just want to read to you a statement made by Boas. He was one of the first

anthropologists who recorded history in the province.

This quote is something from 1887. "In the spring all the tribes

of the Cowichan dialects and the Squamish go to the Fraser River to catch

salmon. Only the Nanoose have the right to use the passage between Gabriola and

Valdes Island for this journey. The remaining tribes who live on Vancouver

Island own the passage between Valdes and Galiano Island."

My question, therefore, is: how did we ascertain that the TFN's

traditional treaty is so inclusive of the Gulf Islands?

Hon. M. de Jong: I'm not going to go through the B.C.

Treaty Commission process by which parties register their statements of intent

and their assertion of traditional territories. But I will say — and I touched

on this earlier in the debate — that as I understand it, the discussion and

debate that is taking place relates to provisions of the treaty that provide

certain rights to the Tsawwassen in certain areas, but they are not exclusive

rights. That is, they do not exclude others from exercising whatever rights they

may have.

G. Gentner: I don't mean to belabour the point. I'm just

trying to be informed so I understand the process.

The Treaty Commission has suggested that the area that encompasses

the Gulf Islands is the traditional

[ Page 8903 ]

territory of the TFN. Can the minister describe to me whether that's based on

territories that belong primarily to its residents? Or is it based on shared

territories? Is it based on the hunting, gathering and reef net locations? Or

does it also include that, based on the dialect that is spoken in the area?

Hon. M. de Jong: Thanks to the member for the question.

Much of that determination work that the member refers to is in fact conducted

by the B.C. Treaty Commission. It is important work and instructs much of the

negotiation and discussion that follows from that.

I need to emphasize again that where a question has arisen, as it

has here, nothing in the provisions we are discussing, either in this

chapter or

elsewhere in this final agreement, can adversely impact on the rights of other

first nations aboriginal peoples. To the extent that a body other than this will

make a final determination, that protection is set out distinctly and

specifically within the provisions of this agreement.

G. Gentner: Thanks to the minister for that answer. Can the

minister explain why there is such consternation among many of the bands who are

suggesting that this is their traditional territory, if he is suggesting that

they will not be adversely impacted by the boundaries that are in question?

Hon. M. de Jong: No, I can't. I am tempted to leave my

answer there, but I don't want it to seem like a flip answer.

[1540]

I take very seriously the concerns that have been expressed. As I

said earlier in this debate, it remains our stated objective to move through

ratification of treaties by having successfully, along with the other partners,

had all of these issues resolved. But I wouldn't presume to speak on behalf of

the people who have given expression to a concern. They have given expression to

that concern in a variety of ways, including the filing of court documents,

which have been referred to earlier.

G. Gentner: I look at some discussion…. There was some

history that was recorded, of course, years ago with the Semiahmoo. There was a

belief that there was a cross-cultural pollination, if you will, across the

Georgia Strait culturally and that there was a practice of sharing. There was

really no joint ownership or jurisdiction over these territories. Would the

minister concur?

Hon. M. de Jong: Thanks to the member for the question. I

am not an anthropological expert. I'm not in a position to offer a definitive

opinion on that.

B. Lekstrom: Moving along, under

chapter 2, sections 35, 36

and 37, "Other rights, benefits and programs." It reads: "Tsawwassen Members who

are Canadian citizens or permanent residents of Canada continue to be entitled

to all the rights and benefits of other Canadian citizens or permanent residents

of Canada applicable to them from time to time" — which is fine.

When I go down and read 36 and then 37, it reads:

"Tsawwassen Members are eligible to participate in programs

established by Canada or British Columbia and to receive public services from

Canada or British Columbia, in accordance with general criteria established for

those programs or public services from time to time, to the extent that the

Tsawwassen First Nation has not assumed responsibility for those programs or

public services under a Fiscal Financing Agreement or other funding agreement."

My question would be…. I'm trying to interpret this and how it could

have some, I guess, applicable meaning on the ground.

If, for instance, the Tsawwassen First Nation implemented a

K-to-12 system, which they have the ability to do under this treaty, if a member

chooses to send their child to a K-to-12 school outside of the Tsawwassen First

Nation, how does the financing work there? It's my understanding that if they

assume the responsibility to provide K-to-12, they'll recover the necessary

funds to run that jurisdiction.

What happens if a Tsawwassen First Nation family decides to send

their child somewhere else? Are they still eligible to do that, or do they have

to look to some taxation issue there?

Hon. M. de Jong: The best advice I have at this point is

that in the scenario described by the member, where the Tsawwassen First Nation

has established a K-to-12 system, they — any family, parents — are, first of

all, entitled to make any choices and send their child, alternatively, to other

schools.

If they have established the kind of program that the member has

alluded to, I believe that the provisions of the agreement and the agreements

that are contemplated at this point would impose an obligation on the Tsawwassen

First Nation to send funding to follow that student who has exercised that

choice.

[1545]

B. Lekstrom: A quick follow-up, then. I used the K-to-12 as

an example. There is other law-making authority, in the jurisdiction under this

treaty, for the Tsawwassen government to assume different responsibilities.

Would it be true, then, as was indicated by the minister on other issues that

are laid out in this treaty, that funding would follow if there was a choice

made to not participate in the program provided by the Tsawwassen First Nation?

Hon. M. de Jong: I'm going to be reluctant to make a

blanket statement because I'm cautioned that, depending on the specific program

or service we're talking about, there may be some specific and unique

provisions.

I think, though, that the point I also want to emphasize about

section 37 is that it does preclude members of the Tsawwassen First Nation from

receiving the same benefit program twice — the concern around, say, a

double-dip, once through a government-funded but Tsawwassen First

Nation–administered program and then directly from Canada or British Columbia.

The provisions are designed to provide some options but also some protections

against being double funded.

[ Page 8904 ]

D. MacKay: The

interpretation that I get from reading sections

36 and 37 would suggest that the existing programs that are in place today for

aboriginal people who live on reserves…. Sections 36 and 37 provide for those

allowances — health care, education, housing — and other benefits that they

presently receive to continue after the treaty is ratified or passed through

this Legislature.

That's my understanding of it, and I wonder if I could get some

clarification on that.

Hon. M. de Jong: I think I understand the member's question

and can say that programs of general application can continue to apply, but I

re-emphasize the caveat I attached a moment ago as contained in

section 37,

which precludes the opportunity to double-dip or collect the same benefit from

two different sources.

S. Fraser: I'm going to move ahead to the

section "Other

aboriginal people." It starts at

section 47 and continues onto the next page,

ending with "Information and privacy." The sections basically deal with the

section 35 constitutional rights from 1982 and challenges that could happen from

other first nations.

I haven't been able to find anything in this document that would

deal with challenges from, say, non–first nations. Am I just missing that? The

section 35 issue is covered off for first nations obviously because it's related

section 35 specifically about rights of first nations.

[1550]

But what if there was a non–first nations challenge — I'll give

you a hypothetical — on the agricultural land reserve from a group that might

have felt that they had land expropriated at a time. Say that challenge went

through. The challenges around aboriginal people in

section 35 are clearly

delineated here, but is there anything similar that I'm missing in this

section

or in

chapter 2 that would address the issues around a challenge from

non-aboriginal communities?

Hon. M. de Jong: The

section does contemplate the

possibility of a challenge to a provision not from one of the parties. I'm

looking at sections 42 and 43, which in part answer that question.

S. Fraser: Maybe I've just misinterpreted the legalese on

section 42, but in sections 47 through 49 there is remedy provided, the way I

read this, to the Tsawwassen people jointly from Canada and/or British Columbia

in the case that…. It says here in 49.a: "Canada or British Columbia, as the

case may be, will provide Tsawwassen First Nation with additional or replacement

rights or other appropriate remedies."

In the case of, I guess, a successful challenge from another first

nation, and this is in keeping with the protection of the

section 35 rights…. If

a challenge occurred that somehow pulls something out of this treaty from

another source, is that actually addressed through

section 42? Am I just reading

it wrong?

Is the minister saying that the same situation is addressed with a

non–first nation challenge? Is that covered off in

section 42?

Hon. M. de Jong: I wanted to make sure that I properly

canvass the scenario that the member alluded to. I get the distinction between a

successful challenge emerging in the circumstances contemplated in

section 49

versus a third party–generated.

I'm advised that, at the end of the day, the commitment to address

whatever impact that scenario might have on the final agreement is contained

within the agreement in one case in

section 49. But I am referred to, and refer

the member to,

section 42.a as that area where the parties are committed to

addressing the impact of the kind of challenge that he has described.

S. Fraser: Thanks to the minister for that.

Section 42 just

seems less than definitive. It's almost as though that would be a policy, not a

hard-and-fast rule. "Make best efforts" seems less than certain.

[1555]

With that, I'll move to another

section here next to it that I

find particularly challenging. I don't want to use "challenging" too many times,

because the statement is very simple: "No Party will challenge, or support a

challenge to, the validity of this Agreement or any provision of this

Agreement." No party, from the

definitions, is the parties being the province,

Canada and the Tsawwassen First Nation. Am I right that the

interpretation of

parties is that? Fundamentally, the parties referred to here — no party — are

the three parties involved in the treaty. Is that correct, first of all?

Hon. M. de Jong: Yes.

S. Fraser: Here's where my challenge is around this

statement. If no party will challenge or support a challenge to the validity of

this agreement or any other provisions of this agreement and if we have

subsequent treaties, which we are all hoping to see, and we actually get through

a reconciliation process in a timely and expedited manner based on the history

here…? Hopefully, we'll get that way.

There are almost always challenges between nations — for instance,

boundary issues — that by some

interpretations of first nations should have been

addressed before leaving stage 4 of the treaty process. There is an

interpretation — and I've got the paperwork here from the commission — that

suggests boundary issues should actually be reconciled prior to moving to stage

They're not, so I assume there's a reason for that — why we can

get from level 4 to level 5 without having addressed the boundary issues. I

would like to know that reason just for the record, because the question's been

put to me by first nations who believe that there is an obligation, that it's in

writing where it says you should not move to level 5 without those issues

happening.

If the parties, in this case I'll say the province since I'm

talking to the province, cannot support a challenge and we're going into a

process where we're going to

[ Page 8905 ]

have multiple treaties potentially at a table — level 5, for instance — where

the boundaries issues haven't been addressed and potentially affecting this

treaty…. If treaties were proximal to here — or in Maa-nulth, Nuu-chah-nulth

territories that are now coming forward that are challengeable with the

Maa-nulth treaties mapping — are you allowed as a party to address…?

If you can't challenge the treaty as it stands, say, on the

boundary issue, then are you automatically working against a nation that's

involved in a future treaty process that might conflict with this treaty? Are

you not penning yourself in?

I may have the

interpretation of this wrong, but if we're allowing

the treaty process to proceed right to stage 5 without addressing the boundaries

issues and the parties cannot challenge this ever, when this treaty comes in,

aren't other nations then prevented from having any support from the government

to reconcile through the treaty process? A question; I hope it's not too

confusing.

[1600]

Hon. M. de Jong: I don't have any hesitation in agreeing

with the hon. member that it is far preferable that any questions around

competing boundaries or overlap disputes be resolved as early in the process as

possible. Certainly, I will also agree with the proposition that it is

preferable that they be resolved prior to parties embarking upon ratification.

They weren't, in this case, to the satisfaction of some parties, who are now

identified and who have, in a couple of cases, brought the matter before the

courts.

The parties to this agreement have made the decision to proceed, I

suppose much as the parties to the Nisga'a agreement almost a decade ago said,

"Yes, we acknowledge that there is some dissatisfaction" — that eventually

manifested itself into court action — "but we want to get on with this."

By signing on or recommending this final agreement to this

chamber, we are obviously signalling that we believe the matter has been

resolved fairly and equitably and not to the detriment of any other first

nations.

I know that the member was relating an

interpretation, and perhaps

it's not one that he shares. That's not clear to me. But I don't think I agree

with that

interpretation that says the parties are boxing themselves in. I think

to the extent that other groups or first nations take issue with the other

provisions, they are free to pursue that.

What this

section says is that as a signatory, one of three

signatories to this agreement, we and Canada and the Tsawwassen First Nation

will not be providing support to a party that is seeking to challenge the

validity of this agreement.

C. Evans: I really would like to follow up on this line of

questioning. One of the underlying foundations, I thought, of how we function

here is that no government can preclude the options of a future government —

first nations government, federal government and the provincial government.

Every political party or individual has the right to run for office, state what

they believe, attempt to get a mandate for that and then carry it out if they

win.

You can imagine easily a time when, right or wrong, some very

sensible person or nutbar in one of those three governments will receive a

mandate to challenge a provision of the treaty. It's almost impossible that it

will not happen. I can't imagine a treaty between two countries in Europe that

nobody ever challenges.

Maybe the minister could say what this provision really means for

future governments. And if it is broken, what is the price to be paid by the

government who at some point in future supports or assists a challenge to a

provision of the treaty?

Hon. M. de Jong: Thanks to the member for raising the

question. I'll try to do this in three parts in terms of addressing the issues

that he raises.

The provision clearly represents an assurance the parties are

giving to one another that they will not bring or support any court proceedings

that challenge the validity of this Tsawwassen First Nation final agreement.

The

section does more than that. If one of the parties to this

agreement were to challenge the validity of the agreement at some point in the

future, undoubtedly this

section would be pled by one or both of the other

parties as a bar to that challenge to the validity of the agreement. So it does

purport, in that sense, to bind the parties now and in the future.

In that way it acts as a formal assurance amongst the three

parties that not only is, in our case, the Crown in the right of the province of

British Columbia today signing on and embracing this agreement as valid and

appropriate but that future governments will have to contend with a provision

that says that.

[1605]

If the member is correct and someone were to come along and

purport — either the Tsawwassen or British Columbia or Canada…. The other

parties would most certainly point to

section 43 and say: "You are precluded

from doing so. You have signed on to say that you would not do that."

S. Fraser: Just going back a step, I'm looking for

clarification from the minister.

Section 4 to

section 5, boundary issues. I've

seen documentation from the Tseshaht First Nation near Port Alberni, central

Island, and I've seen documentation from members of the unity protocol that

states in writing that boundary issues must be addressed prior to moving to

stage 5. At least they have an

interpretation of that. And I've seen documents

from the Treaty Commission that seem to verify that.

Can the minister comment about whether or not that's a

hard-and-fast rule? If it isn't, how come I've seen documentation from the

Treaty Commission and from these nations that states these issues should be

addressed — that they felt there was some obligation on behalf of the commission

and the government to address the boundary issues prior to moving to stage 5?

Hon. M. de Jong: Two things come to mind in response to the

member's line of questioning. It is fair to

[ Page 8906 ]

say that at its inception back in the early 1990s, there was very much a

sense that — and I believe this was enshrined in some of the principles that led

to the creation of the Treaty Commission and the work that it would do — primary

responsibility for the resolution of overlap claims would rest with the first

nations.

Now, we have to be realistic about the fact that that was a

principle that was embraced prior to some additional litigation which has

created some obligations for the Crown. Those are obligations that we take

seriously and seek to discharge.

Again, let me say that I'm not quarrelling with the assertion that

we are better off, all of us, if we can find a means to resolve these disputing

claims as early in the process as possible. I think we've learned some things

about how we can better do that. That's my answer to this stage.

D. MacKay: I'd like to take the minister back to sections

36 and 37. I know he gave me an answer that talked about double-dipping.

The question that I'm trying to get an answer to is pretty

straightforward. The question is: are the aboriginal people living on the

Tsawwassen treaty lands, settlement lands, entitled to receive the benefits that

they receive today, in spite of the treaty?

If we're talking about the delivery of health care…. I can

understand the double-dipping on health care. If health care is going to be

provided by the federal government, why would the Tsawwassen government provide

health care for them, if it's being paid for by the taxpayers of Canada? It's

going to be a big draw on their tax revenue.

Are the natives living on the reserve today entitled to the

benefits and privileges they have today, before this treaty is approved by the

province and the federal government?

[1610]

Hon. M. de Jong: Two things. There's no doubt as, in this

case, the Tsawwassen decide to embark upon the delivery of certain services,

that they will sign some fiscal financing arrangements with the federal

government. They will not be disadvantaged by virtue of the ratification of this

treaty in terms of accessing services that they enjoy, nor — and I think this is

important — in the future. As programs of general application become available,

as a community they will not be precluded from applying to participate in those

programs, but they will be limited in the sense that they won't be able to

access funding twice where it is being provided by government.

I don't know if that helps the member with the issue he's raised,

but that is the transition that is at play with this agreement.

D. MacKay: I think perhaps I'll save that question for

clarification when we get into the taxation side with the exemptions that are

provided and the provisions provided in the taxation

chapter in this treaty.

I'd like to now move to

section 66 on page 33, dealing with

official languages, where it says: "For greater certainty, the Parties

acknowledge that the Official Languages Act applies to this Agreement,

including the execution of this Agreement." I'm assuming they're talking about

the federal Official Languages Act, which to my recollection is French and

That then begs the question, and I think this is probably an

appropriate time to go into the appendix…. Appendix O-4 on page 307 talks about

the list of geographic features to be named with Tsawwassen names. Now, how do

those two marry up? If one is the official languages and it's acknowledged in

the treaty, how is it that we're allowing the Tsawwassen first language to be

placed on places such as the Pattullo Bridge, Burns Bog, New Westminster,

I can't quite get those two together, and I wonder if the minister

could clarify that for me.

Hon. M. de Jong: We will get to the provisions in the

agreement that the member refers to. I should say, though, for accuracy, that

the particular

section the member refers to is included as a requirement of

ensuring that pursuant to the Official Languages Act, this agreement is

translated and available in both official languages. That is the sole reason for

the presence of

section 66.

S. Fraser: I'm not sure where to ask this question. I

believe that general provisions is probably still the most appropriate. Along

with the agreement, are there side agreements concurrent that were negotiated

that are not showing up in the treaty, in Bill 40, which is what we're

addressing now?

Hon. M. de Jong: What I'll endeavour to do is provide the

member with an exhaustive list of those agreements. I tabled three of the actual

agreements two weeks ago, the member may recall, but I'll provide the hon.

member with a list of those agreements in their totality.

[1615]

S. Fraser: Just to finish that…. I appreciate that from the

minister, and I've received those. I guess what I want to know is: if issues are

dealt with, seemingly as part of the negotiation process here — certainly,

concurrent with the negotiation process that's led us to this final agreement

with Tsawwassen — and there are initiatives, if that's the right word, that are

not covered under treaty, that are not part of the treaty, is there the threat

of a lesser level of protection for the Tsawwassen people?

There are a lot of protections built into the treaty. So when

you're putting things beside the treaty that maybe look good but aren't

protected by the treaty, is that deemed to be appropriate? Is there

consideration for protections built into that?

Hon. M. de Jong: To the member: he is quite correct. They

certainly enjoy a different constitutional status, so one could use the word

"protection." But there's no doubt that the agreements that do not form a formal

part of the treaty certainly attract a different constitutional status than

those provisions which are

[ Page 8907 ]

within the treaty. The parties, through the process of negotiation, have

agreed to do that.

It does mean that some of the agreements are open for renewal and

renegotiation sooner. As well, there's no doubt as the member said, that they do

enjoy a different status and, generally speaking, are revisited more frequently

than the provisions within the treaty itself.

B. Ralston: I want to turn to

section 11, "Full and Final

Settlement." As the minister will be aware, one of the objections that some

aboriginal groups — I'm thinking of Mr. Morales in particular — have to

conclusion of treaties is that they are full and final settlements.

This clause here in the treaty crystallizes all aboriginal rights

including title, and there is not a possibility to augment or supplement those

rights by any subsequent treaty or agreement outside this document. Is that

correct?

Hon. M. de Jong: I think I understand what the member is

driving at. By and large, I think he's correct. I think that in fairness,

though, you have to read it in conjunction with

section 12 and the rights

modification provisions of the agreement. But if I heard the member correctly,

it is certainly part and parcel of the certainty model, if you will, that has

been employed to assign an element of finality to the agreement.

B. Ralston: How might

section 12 operate in the way that

the minister has talked about to, if you will, modify

section 11?

Hon. M. de Jong: I'm sorry if I gave a confusing answer.

When I used the term "modification," I was not intending to refer to the

relationship between sections 11 and 12. They do, however, operate in concert to

reinforce a rights modification model that is employed in this treaty.

[1620]

S. Fraser: Just taking a step back to the line of

questioning around the side agreements and concurrent agreements with the

Tsawwassen treaty. I understand the minister's answer.

I guess where I'm going with that is: will those agreements come

before this House for debate? Have they been signed off, independent of this

process? What would occur with those agreements should this treaty fail either

here or at the federal level, which we know won't happen, and how would we ever

have a chance to discuss all of those issues?

Hon. M. de Jong: The agreements that fall into the category

that I believe we are addressing today would be the taxation treatment

agreement, which was tabled in the House; the real property tax coordination

agreement, which was tabled in the House; and the harvest agreement, which was

also tabled in the House. Beyond that, there's an own-source revenue agreement,

a fiscal financing agreement and some fish operating guidelines.

The own-source revenue agreement and the fiscal financing

agreement are posted on the website. I believe the fish operating guidelines are

as well, but I'll have to check on that. They are all referred to in various

stages within the agreement. To the extent that the member has questions that

arise from them, I'm happy to try and answer them as they come up and are

referred to in the body of the agreement.

S. Fraser: I shall finish with this line of questioning,

but just the context.

Section 28 says "entire agreement."

"This Agreement is the entire agreement among the Parties in

respect of the subject matter of this Agreement and, except as set out in this

Agreement, there is no representation, warranty, collateral agreement,

condition, right or obligation affecting this Agreement."

How do we reconcile these other agreements with Bill 40 or with

this agreement, in light of that statement? I suspect I'm just confused by the

legalese nature of this statement. That's

section 68. Can somebody explain that

for me in layman's terms so that I can reconcile how this all works?

Hon. M. de Jong: It's not a foolish question, and it goes

to the heart of some constitutional idiosyncrasies. The member actually put his

finger on it a moment ago. The provisions contained within this agreement

attract and enjoy a certain constitutional status emanating from

section 35.

Some of the provisions of the other agreements, the substantive

provisions, do not. They are contemplated in some cases within the agreement,

but that is the significant difference. We'll probably get into that in more

detail.

[1625]

For example, we talk about the harvest agreement for fish and the

difference between the constitutionality of ceremonial food fish and a

commercial harvest entitlement contained within the harvest agreement and the

different status that those entitlements enjoy, again, because of our unique

constitutional makeup in this country.

S. Fraser: Thanks to the minister for that. Suffice to say,

we're going to be talking about fisheries and such as we get further into this.

I'm assuming, though, that every one of these side agreements is in keeping with

existing case law — whether it's Sparrowor it's Delgamuukw — and that they will

be consistent with the spirit and intent of those court decisions and also,

obviously,

section 35 of the constitution. Am I safe in assuming that?

Hon. M. de Jong: They are certainly the products of the

negotiation between the parties. I'm reliably informed that the fish guidelines,

as well, do exist on the website and are there for perusal.

S. Fraser: All right. I'll check that out. I'm not sure I'm

entirely happy with that answer.

chapter 2, on general provisions, as critic I have no further

questions. So I'll leave that. I'll just let the House know that, in case other

members have further questions on

section 2.

[ Page 8908 ]

G. Gentner: I was looking at the international legal

obligations, 30 to 34. I know that the language is primarily geared between

Canada and the first nation. However, to give you an example, today we heard

that the Premier was in Portugal looking at some protocols relative to climate

change. There is a new trend where the province is actually doing

intergovernmental protocols outside the purview of the nationhood, so to speak.

One example is the international protocols — Ramsar, the migratory

bird implications. That's certainly going to impact the mudflats of Boundary Bay

and Roberts Bank.

For example, there may be some agreement relative to or with

Washington State, where there's got to be some consensual buy-in from the first

nation. Where, in this part of the general provisions, can I find that?

Hon. M. de Jong: Sorry, I missed the essence of the

question.

G. Gentner: Again, I'm looking at the

section on

international legal obligations. I'm wondering where, in the general provisions,

there is similar language regarding arrangements or protocols signed between the

province and/or, for example, Washington State that doesn't involve the

Where, in the context of this legislation, does the Tsawwassen

First Nation have to fit in with those agreements outside the province?

Hon. M. de Jong: I'm obliged to the member. I better

understand his question.

Within the agreement, he's correct. The provision here deals

specifically with Canada fulfilling its constitutional duty in terms of the

international relations and the obligation to consult with the Tsawwassen where

the fulfilment of those obligations may adversely impact the Tsawwassen or a

Tsawwassen law or other provision.

There are similar provisions throughout the agreement that accrue

to the Crown in the right of British Columbia with respect to laws and

obligations we create and the obligation to consult with first nations where,

for example, British Columbia purports to enact laws that would similarly impact

on the Tsawwassen.

[1630]

That can happen in a variety of ways. It can happen in

circumstances, for example, where the Tsawwassen may have obligations to meet or

beat certain provisions of provincial law. The obligation to consult is laid

out. It exists in a variety of ways and in a variety of sections throughout the

agreement.

G. Gentner: Could the minister provide me with the basic

footprint where these sections occur in the treaty, so that I can flag them when

we come to them?

Hon. M. de Jong: For the moment I think I'm going to refer

the member to

chapter 16, the "Governance" chapter, which lays out certain

obligations on the Crown.

Section 29 is a good example of such an obligation.

The Chair: Any more questions on

chapter 2?

M. Sather: I'm just following up on what the minister was

saying in response to the last question about the fulfilment of international

obligations. I'm thinking, for example, of the migratory bird convention.

When it says in

section 32(b)