2002 Legislative Session: 3rd Session, 37th 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)

WEDNESDAY, MARCH 13, 2002

Afternoon Sitting

Volume 4, Number 5

CONTENTS

Routine

Proceedings

Page

Introductions by Members

Motions without Notice

Appointment of Kate Ryan-Lloyd as Table Officer

Hon. G. Collins

J. MacPhail

Statements (Standing Order 25 B )

Journée internationale de la francophonie

R. Stewart

Softwood lumber negotiations

R. Visser

Visit to Kincolith

B. Belsey

Oral Questions

Northern health authority and Sodexho

J. MacPhail

Hon. C. Hansen

J. Kwan

Public-private partnerships for health care facilities

D. Chutter

Hon. C. Hansen

U.S. duty on tomatoes

V. Roddick

Hon. J. van Dongen

Nelson health campus project

B. Suffredine

Hon. C. Hansen

Petitions

D. MacKay

B. Suffredine

Motions on Notice

Referendum on treaty negotiations (Motion 30)

Hon. G. Plant

J. Les

J. Kwan

M. Hunter

R. Hawes

J. MacPhail

Hon. G. Campbell

Second Reading of Bills

Deregulation Statutes Amendment Act, 2002 (Bill 8)

Hon. K. Falcon

Freedom of Information and Protection of Privacy Amendment Act, 2002 (Bill 7)

Hon. S. Santori

Hon. G. Plant

Gaming Control Act (Bill 6)

Hon. R. Coleman

Committee of Supply

Estimates: Ministry of Community, Aboriginal and Women's Services (continued)

Hon. G. Abbott

J. Kwan

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Education (continued)

J. MacPhail

Hon. C. Clark

[ Page 1871 ]

WEDNESDAY, MARCH 13, 2002

The House

met at 2:03 p.m.

Prayers.

Introductions by Members

Wilson: Today I have the great pleasure of introducing a longtime friend and

special guest of the House, Dr. Stephen West. Steve and I have been

acquaintances for 40 years now. I would like to make the point that Steve sat in

the Legislature in Alberta from 1986 to 2001 and has done a great deal of work

in that province.

Today we

have the honour of having him visit our Legislature, and he's really looking

forward to question period to see how things are done in British Columbia. I ask

that the House make him welcome.

[1405]

Johnston: Today it's a real pleasure for me to be able to introduce two

truly long-term great friends, special friends of mine from the lower mainland,

whom I've known for over 30 years. Brian and Susanne Galloway are here today to

watch the proceedings, and I would ask that the House make them welcome.

Sahota: I would like to introduce two hard-working entrepreneurs from the

forest industry: John Mohammed, who is the president of A&A Trading Ltd.,

and his colleague, Paul Muckler. They're here in the House with us. Would you

please make them welcome.

P. Bell:

Joining me in the House today from the beautiful riding of Prince George North

is my wife, Brenda Bell. Would the House please make her very welcome.

Stewart: It's my pleasure to introduce two guests today. First, M. Paul

Deroy. He's a member of the board of directors of the Fédération des

francophones de la Colombie-Britannique. My second guest is Mme. Monique Clébant,

who is the executive director, representing La Société francophone de

Victoria. [Would the House please make them welcome.]

[Translation

from French provided by R. Stewart.]

Mr.

Speaker: Hon. members, it is with pleasure that I wish to announce to the

House that Kate Ryan-Lloyd of the committees branch has been made a Table

officer of the Legislative Assembly of British Columbia. Kate has been with the

Assembly for nine and a half years and as a Committee Clerk for two and a half

years. I'm sure all hon. members will agree that this change of status is well

deserved, and the House will be asked to consider a formal motion conferring on

Kate her title as a Table officer. I would like the House now to join with me in

congratulating British Columbia's newest Table officer.

Motions without Notice

APPOINTMENT OF KATE RYAN-LLOYD

AS TABLE OFFICER

Hon. G.

Collins: I have the honour to move, seconded by the member for

Vancouver-Hastings, that Kate Ryan-Lloyd be and is hereby appointed Clerk

Assistant/Committee Clerk of the Legislative Assembly of British Columbia.

Motion

approved.

Hon. G.

Collins: If I'm permitted, I'd like a moment to say a few things.

Mr.

Speaker: Please proceed.

Hon. G.

Collins: I think perhaps the member, the Leader of the Opposition, would

like to speak also.

I want to,

first of all, congratulate Kate on her new position, although she's been working

tirelessly over the last number of years. Many of us have come to rely on her

good advice and stable and calm guidance through what are sometimes tumultuous

committee meetings. I certainly appreciate the work she's done. She's proven

herself to be of invaluable assistance to all members of the House. I want to

congratulate her on her position, and I also want to extend my sympathies for

her joining such a small club.

Interjection.

Hon. G.

Collins: "Disreputable," the Attorney General said, but I couldn't

possibly say that.

Being a

Clerk is often a very thankless job. It is a difficult job, and you're exactly

right in the middle of the crossfire. I always thought it interesting that while

they keep members of the opposition and government two sword lengths apart, it's

the Clerks that get to sit in the middle.

I wish her

the best. I know it's a tough job. Somebody has to do it, and you've done it

very well so far. We look forward to working with you in the future.

[1410]

MacPhail: Mr. Speaker, I join you and the Government House Leader in saying

absolute congratulations to Kate Ryan-Lloyd on this momentous occasion. It is

momentous for a couple of reasons. One is that I understand we're getting two

for one — two for the price of one in terms of the appointment. Secondly, it

is not the first time that we're bringing brains to the table. I can say that

virtually all appointments have brought brains to the table, but maybe it's the

first time — I don't know — we're bringing beauty to the table as well.

Congratulations.

[ Page 1872 ]

Mr.

Speaker: I've done the motion, but we'll do it again. You've all heard the

motion.

Motion

approved.

Statements

(Standing Order 25

b) JOURNEE INTERNATIONALE

DE LA FRANCOPHONIE

Stewart: Today I've invited M. Deroy and Mme Clébant to be here as

representatives of B.C.'s francophone community, as I want to announce the

proclamation of March 20 as la Journée internationale de la francophonie pour

la Colombie-Britannique. It was on March 20, 1970, in Niger that a treaty was

signed creating the francophone nations' first intergovernmental organization,

the Agence de coopération culturelle et technique. Since 1988, March 20 is the

date chosen to celebrate the International Day of the Francophonie, or the Journée

internationale de la francophonie.

This

government wants to mark March 20 as a special day for British Columbia in

recognition of Canada's two official languages. We also want to recognize the

fact that our province is home to a vibrant and dynamic French-speaking

community and to hundreds of thousands of other British Columbians who have

embraced the French language.

French-speaking

people have contributed to the development of British Columbia since their first

arrival as guides, as coureurs de bois , in 1793 with the expedition of

Alexander Mackenzie. Francophones played an important role in the colonization

and exploration of the Pacific coast. In fact, in 1838 francophones represented

60 percent of the non-native population on B.C.'s coast.

The B.C.

francophone community has been an important part of our society since then and

is proud of its heritage and contribution to our province and country. On March

20 we wish to give all of our province's French-speaking individuals the

opportunity to celebrate and share their contribution to our society. [Thank you

to our guests for representing this proud heritage.]

[Translation

from French provided by R. Stewart.]

There is

currently a Festival de la francophonie in Victoria with many joyous activities

taking place between now and March 21. I would invite all of you to participate,

if you can, to get an appreciation of francophones' famous joie de vivre .

Merci. Thank you.

SOFTWOOD LUMBER NEGOTIATIONS

Visser: Today I wanted to relay to the House what I believe Team B.C.

accomplished in its two-day visit to Ottawa and how proud I am of those folks

who, in the face of the crippling and prolonged softwood lumber dispute, have

stood focused and resolute in representing their communities' interests as we

approach this March 21 deadline.

This is the

first time anything like this has ever been attempted on such a looming national

responded in a very strong and meaningful way. I want to thank the Prime

Minister for his time and attention. I want to thank Finance minister Paul

Martin for listening to those British Columbians. I want to thank the Minister

for International Trade, Pierre Pettigrew, for all his hard work. More important

than their time was their understanding. They listened to us. They reinforced

our message, and they promised to take it onward to the meeting that the Prime

Minister has with President Bush on Thursday and as the negotiations continue.

This is the

largest issue we currently face as a country. For the first time in a long, long

time everyone, including the opposition parties here and in Ottawa, is working

cooperatively. I also want to thank the government of Quebec, with whom we met

on Sunday.

Mr.

Speaker, as always, I am most impressed with the passion, the intelligence and

the commitment that British Columbians have towards this issue. I want to thank

the mayors, who are from all parts of forest-dependent B.C. I want to thank

Harvey Arcand, the secretary-treasurer of IWA-Canada; Earl Smith of the

Ehattesaht first nation and the aboriginal forestry council chair; contractors;

and industry CEOs. They delivered a profound message to our nation's leaders.

They spoke with one voice. They set aside their often diverse and conflicting

issues to talk about softwood and its impacts. They reached out to Quebec, and

they spoke about Canada.

[1415]

The next

seven days are critical. There are no guarantees. While we may want a deal, the

delegation reinforced time and time again that we only want a deal that works

for British Columbia, works for Quebec but, most of all, works for all of

Canada.

I want to

thank the Minister of Forests for his leadership and thank those delegates,

because I think our nation became a little bit stronger on Monday afternoon.

VISIT TO KINCOLITH

Belsey: I am very fortunate to have the community of Kincolith, part of the

Nass community, situated in my riding. Chief Councillor Nelson Clayton and a

number of the councillors met in my office and invited me to their community.

Kincolith could well be one of the most remote communities in my riding. It has

access only by floatplane and ferry, when the weather permits.

From the

time I arrived in the community until the time I left Kincolith, I was made

very, very welcome. The visit included a tour around the village and a narration

by Chester Moore, the village cultural leader, who told me stories about

Sim'oogit Hymass, one of the great leaders of the village. I was made a guest of

[ Page 1873 ]

honour at a ceremony conducted by the community. I witnessed the drummers and

the dancers calling the elders, the matriarchs and the chiefs into the hall. I

witnessed the passing of the talking stick from elders to councillors and back

again.

exchanged gifts. I received a beautiful native print by one of the local

artists, and I presented a wooden carved bowl filled with fruit, which was

eventually passed on to the elders. I witnessed the singing of O Canada

in the Nisga'a language. I was treated to music from the Kincolith marching

band, songs from the Kincolith choir, ceremonial drumming and dancing by school

members and by the men and women of the community. From time to time I

participated in the dancing, and I had a wonderful time.

The

highlight of the evening was a feast that included fresh oolichan, moose meat,

sea lion meat, seaweed and herring roe, to name just a few of the delicacies

that were offered. No effort was spared to put this impressive display of

Nisga'a friendship and culture before me. During my stay in the village, I met

with school teachers, principals, students and families in the communities. On

Sunday I attended an Anglican church built more than a century ago.

My visit to

the Nisga'a village will never be forgotten. I would just like to say to the

people of the Nisga'a — simgigat , the elders; sigidimhaanak , the

matriarchs; sim-oi-ghet , the chiefs; gitginglox , to all the people

of Kincolith: [The member spoke Nisga'a.]

Mr.

Speaker: That concludes members' statements.

Oral Questions

NORTHERN HEALTH AUTHORITY

AND SODEXHO

MacPhail: Can the Minister of Health Services confirm that the Premier's

handpicked CEO in the northern health region is spending tax dollars, as we

speak, on a company called Sodexho to help privatize health support services?

Will the minister confirm for British Columbians a rundown of Sodexho's record

in the privatization of health care in other parts of the world?

Hon. C.

Hansen: We've certainly given the latitude to the health authorities to

explore options as to how they can get better value for the health dollars that

they have available to deliver patient care in these regions. I am aware that

the northern health authority has contracted a company called Sodexho to do

consulting work for them with regard to how services can be effectively

delivered.

[1420]

Mr.

Speaker: The Leader of the Opposition with a supplementary.

MacPhail: I asked the minister to provide the record of Sodexho, and he

refuses to do so, so I will provide that record. Sodexho is an international

company specializing in private health care. In Glasgow, Scotland, where Sodexho

provides support services to the city's largest hospital, an investigation

uncovered a horror story of filth and infection, the result specifically of

Sodexho's shoddy work. Just this week the hospital admitted fault in the death

of a patient through viral infection.

To the

Minister of Health Services: does the minister support the hiring of this rogue

company to privatize health services in northern B.C.?

Hon. C.

Hansen: There is no health authority in this province that is privatizing

health services through that kind of a process. We are looking at how we support

a publicly funded health care system in British Columbia and get the best value

for health dollars. We have given authority to the health authorities around

this province to make sure they explore all options in terms of how they can get

the best value possible and meet the needs of patients in all parts of British

Columbia.

Mr.

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

MacPhail: The minister's own briefing book, which had to be leaked to the

public to find the truth, says that there will be privatization to the tune of

where 14,000 health care workers will be privatized. Their jobs will be

privatized.

The

privatization scheme that led to Sodexho's hiring in Glasgow is exactly like the

one this government is embarking upon in British Columbia.

The

investigation in Glasgow found that piles of waste and garbage were being left

in hospital elevators and on the floor because there weren't enough workers,

just like the scheme that was revealed in his secret briefing book. Cleaners

were being forced to serve patients food after they'd cleaned toilets. Patients

were being infected with superbugs.

Again, to

the Minister of Health Services: why is he letting his handpicked chair spend

taxpayers' money to get advice from a private health care company with such an

abysmal record?

Hon. C.

Hansen: We expect our health authorities throughout the province to maintain

the highest standards when it comes to sanitation and when it comes to all of

the services that….

We have

asked the health authorities to explore opportunities to get more cost-effective

delivery of patient care in British Columbia, but we are not compromising any

standards in terms of safety and the effectiveness with which those services are

delivered around this province.

Interjection.

Mr.

Speaker: Order, please.

J. Kwan:

Sodexho was embroiled in yet another scandal in Great Britain. The government

and So-

[ Page 1874 ]

dexho cooked up a scheme to allow Sodexho to pay refugees 60 cents an hour to

provide support services at one of Sodexho's private refugee holding tanks.

That's 1/10 of the minimum wage. I wonder if the Minister of Labour knows

anybody over at Sodexho.

Sodexho

should not be allowed anywhere near patients or workers in British Columbia.

Will the Minister of Health Services take charge, step in and see that no more

money is being spent on paying this company for advice?

Hon. C.

Hansen: In this province we have standards when it comes to cleanliness. We

have standards when it comes to sanitation in our hospitals and health

facilities in British Columbia. We have standards when it comes to minimum wage

in this province. We will not compromise on those standards.

Mr.

Speaker: The member for Vancouver–Mount Pleasant has a supplementary

question.

J. Kwan:

The CEO of the northern health authority was handpicked by this government. That

CEO has gone out and hired one of the worst companies imaginable to help him

privatize health care — a company that is unethical, a company that is hurting

patients, a company that specializes in union-busting, a company that British

Columbians want nothing to do with.

Will the

Minister of Health Services show some leadership, take responsibility for the

decision of the health region CEO and immediately get Sodexho off the public

payroll?

Hon. C.

Hansen: Our commitment to British Columbians is that we're going to deliver

effective patient care in communities throughout British Columbia. We're going

to do that in the most cost-effective way possible, so we have given that

mandate to the health authorities. We will be holding the health authorities

accountable for the standards that they meet.

Interjections.

Mr.

Speaker: Order, please. Order, please. Order. The minister has the floor.

[1425]

Hon. C.

Hansen: We will be holding them accountable for outcomes. We will be holding

them accountable for the cleanliness of facilities. We will be holding them

accountable for the effectiveness with which they deliver good patient care.

It's the first time there's been that accountability in the health care system

in British Columbia in many, many years.

PUBLIC-PRIVATE PARTNERSHIPS

FOR HEALTH CARE FACILITIES

Chutter: I would like to ask a public written question submitted by Chris

O'Connor, the mayor of the village of Lytton, to the Minister of Health

Services.

"1.

Will the Ministry of Health Services be encouraging the interior health

region to vigorously pursue public-private partnerships (P3s) for the

construction of new health care facilities?

"If

the answer to this question is yes:

"2.

Municipalities have many local resources at their disposal. Could the

government consider municipalities as one of the suitable partners to a P3

health care facility?; and

"3.

If so, will provisions be incorporated in the new community charter which

may allow greater flexibility to communities who wish to participate in this

fashion?"

Hon. C.

Hansen: The short answer to the question is yes. We have asked health

authorities now to look at the network of facilities they need in the region to

make sure that patient care is delivered in a timely and effective way. We

certainly have seen local governments throughout the years take an active

participation through the regional hospital districts in capital funding

projects. We encourage local governments to continue to be part of that process

of providing capital initiatives in their regions.

We think

that local governments could do even more. They could be involved in terms of

fast-tracking health care projects. They could look at zoning considerations

that would help us to meet patient needs faster and at development cost charges,

which are an important component of that. Also, they have local resources, as

His Worship was mentioning, in the way of land and other things they could be

part of when it comes to public-private partnerships.

I have

talked to the minister of state responsible for community charter, and he has

assured me that the community charter will include the kind of flexibility that

His Worship is looking for.

Mr.

Speaker: Member for Yale-Lillooet has a supplementary question.

Chutter: My supplementary is to the Minister of Health Services again.

Increasingly, public-private partnerships are being implemented across Canada to

improve the delivery of important public services. Could the Minister of Health

Services tell us how implementing public-private partnerships will help to

improve patient care in British Columbia?

Hon. C.

Hansen: Certainly, if you look at the track record in this province of the

construction of health facilities, it is one of cost overruns. It is one of late

delivery of facilities. It is one of constant change orders that drive up those

costs of construction. Our purpose is to focus in on the needs of patients in a

timely way.

One perfect

example is the VGH tower where you had a shell built, and it sat empty. It cost

the taxpayers

[ Page 1875 ]

about $17 million a year to have an empty facility that the previous

government was not able to move on.

Interjection.

Mr.

Speaker: Order, please.

Hon. C.

Hansen: We believe that by going to public-private partnerships, we can get

the advantage of timely delivery of health facilities in this province in a way

that actually meets patient care and gets the Ministry of Health Services out of

the real estate business and allows us to focus on the patient care business,

which should be first and foremost.

U.S. DUTY ON TOMATOES

Roddick: Mr. Speaker, my question is to the Minister of Agriculture, Food

and Fisheries. British Columbians have been farming in my riding for over a

hundred years. In that time they have become world-renowned for turning out some

of the finest-quality produce. However, hothouse tomato farmers in my riding

have been unfairly attacked by heavy American duties, and that now threatens

their livelihood. Can the Minister of Agriculture, Food and Fisheries provide my

constituents with an update on the status of this dispute?

Hon. J.

van Dongen: Certainly, this is a very serious matter for B.C. tomato

producers. On February 20 the U.S. Department of Commerce issued their final

determination setting the anti-dumping duty for B.C. hothouse tomatoes at 18.2

percent. That would be 18.2 percent levied on the value of all tomatoes exported

to the United States, and that's about 80 percent of our tomatoes.

[1430]

The next

important date is April 6. At that time the U.S. international trade tribunal

will issue its final determination on whether or not there was injury to the

U.S. industry. If there is no injury found, then that ends the whole matter. If

there is injury found, then that puts in place the duty of 18.2 percent until

April 2004. This is a very serious matter for our producers. We feel that the

U.S. action is totally unfair and totally unfounded.

Mr.

Speaker: The member for Delta South has a supplementary question.

Roddick: The hothouse tomato industry plays a significant role in Delta

South. Any barriers to trade will no doubt have an impact on the workers in my

riding. Can the Minister of Agriculture, Food and Fisheries tell us to what

extent he expects this dispute to impact the future of the hothouse tomato

industry in British Columbia?

Hon. J.

van Dongen: Certainly, it will have a significant impact. There'll be a lot

of adjustments that have to be made, particularly in produce mix. Some product

will simply not get shipped.

The

Canadian industry has started an action of its own, which is starting to have

some impact. They are working through Canada Customs to pursue this action

through the whole system. Hopefully, this will bring the U.S. growers to the

table, and maybe we can negotiate some kind of reasonable outcome.

We in

British Columbia — and the British Columbia government — are working closely

with the industry and the federal government to try and find a resolution to

this unfair U.S. action.

NELSON HEALTH CAMPUS PROJECT

Suffredine: Prior to the last election the former government said that the

construction of the Nelson health campus was approved. Since then, one of the

members opposite has claimed that it was even fully funded. Health services are

the single most important concern we all share. Nelson and area residents want

and need to know about this project.

Could the

Minister of Health Services clarify the status of the Nelson health campus

project?

Hon. C.

Hansen: What is clear when you review the work leading up…

Interjection.

Mr.

Speaker: Order, please.

Hon. C.

Hansen: …to the Nelson health campus is that it was driven very much by a

political agenda of the previous government. For members…

Interjections.

Mr.

Speaker: Order, please.

Hon. C.

Hansen: …of the previous government to claim that that project was fully

funded is like saying that there are cheques in the chequebook, so therefore

there must be money in the bank. The project was never fully funded by the

previous government.

What we

have said to health authorities is that we are changing the way capital projects

will be proceeded with in this province in the future. Instead of them being

micromanaged out of Victoria with a debt service cost being carried by the

provincial government in a central way, we are actually allowing the health

authorities…

Interjection.

Mr.

Speaker: Order. Order, please.

Hon. C.

Hansen: …to determine what their priorities should be in their regions.

And then we're allowing them…

Interjection.

[ Page 1876 ]

Mr.

Speaker: Order, please.

Hon. C.

Hansen: …to put forward their own priorities, knowing that the

debt-servicing cost would have to be carried on a regional basis. So instead of

having operating budgets in one hand totally disconnected from the

debt-servicing cost, we're saying: "Let's make sure these things work

together in the best interest of patient care in region to region around this

province."

When it

comes to the proposal in Nelson…

Mr.

Speaker: Thank you.

Hon. C.

Hansen: …where the residents from Nelson have done a considerable amount

of…

Mr.

Speaker: Thank you, hon. member. Thank you.

Hon. C.

Hansen: …work, certainly they should be taking that…

Mr.

Speaker: Order.

Interjection.

Mr.

Speaker: Order, please. Thank you.

Hon. C.

Hansen: …to the health authority and ensuring that it gets the proper

consideration.

[End of question period.]

Petitions

MacKay: I wish to file a petition, Mr. Speaker.

Mr.

Speaker: Please proceed.

[1435]

MacKay: On behalf of 453 people from South Side, which is a small community

located near Burns Lake, I'd like to file this petition asking the province to

consider helping with the funding for an ambulance station in South Side.

Suffredine: I'd like to present a petition on behalf of the east shore of

Kootenay Lake. They have concerns about the proposed changes to the ferry, and

they're asking the minister to consult before proceeding with the changes.

Motions on Notice

Hon. G.

Collins: I call government motions on notice, and I call Motion 30 in the

name of the Hon. Attorney General.

REFERENDUM ON TREATY NEGOTIATIONS

[That the House urges the Government to conduct a

referendum asking the following questions.

Whereas the Government of British Columbia is committed to

negotiating workable, affordable treaty settlements that will provide

certainty, finality and equality;

Do you agree that the Provincial Government should adopt

the following principles to guide its participation in treaty negotiations?

1. Private property should not be expropriated for treaty

settlements.

be respected; fair compensation for unavoidable disruption of commercial

interests should be ensured.

3. Hunting, fishing and recreational opportunities on Crown

land should be ensured for all British Columbians.

4. Parks and protected areas should be maintained for the

use and benefit of all British Columbians.

5. Province-wide standards of resource management and

environmental protection should continue to apply.

6. Aboriginal self-government should have the

characteristics of local government, with powers delegated from Canada and

British Columbia.

7. Treaties should include mechanisms for harmonizing land

use planning between Aboriginal governments and neighbouring local

governments.

8. The existing tax exemptions for Aboriginal people should

be phased out.]

Hon. G.

Plant: This government sought election on a commitment to negotiate

workable, affordable treaty settlements that will provide certainty, finality

and equality. We believe treaties are the best way to forge a new relationship

with first nations, a relationship based upon mutual trust, recognition and

respect.

Treaties

offer the promise of a new era of hope, economic opportunity and greater

self-determination for all aboriginal people, but for too long most British

Columbians have felt shut out of the process. So we made two commitments to

bring the people of B.C. into the treaty process. We promised to give all

British Columbians a say on the principles that should guide B.C.'s approach to

treaty negotiations through a one-time provincewide referendum within our first

year. We also promised to ask an all-party committee of the Legislature to

consult with British Columbians, including first nations, to draft the

referendum questions.

We kept the

second promise. The all-party committee has consulted and reported to the

Legislature. Today we are putting in motion the steps to keep the first promise.

The

government will conduct a referendum on the principles to guide the province's

participation in treaty negotiations. The referendum will be held under the

Referendum Act. The vote will be by mail-in ballot. Ballots will be mailed to

B.C. voters commencing April 2. Voting begins when ballots are received. The

last day for returning ballots will be May 15, and the results will be announced

as soon thereafter as the counting is complete.

[ Page 1877 ]

The

referendum questions will be those approved by this assembly at the conclusion

of debate on the motion now before the House. As provided for in

section 4 of

the Referendum Act, if more than 50 percent of the validly cast ballots vote the

same way on a question stated, that result will be binding on this government.

Treaty-making

is a three-party negotiation process created as a result of the 1991 report of

the B.C. Claims Task Force. That report contained 19 recommendations. This

government has consistently affirmed its support for each of the 19

recommendations of the task force.

The first

and fundamental recommendation of the task force is that the first nations,

Canada and British Columbia establish a new relationship based on mutual trust,

respect and understanding through political negotiations. This recommendation

makes it clear that the treaty process is a political process.

[1440]

The task

force's second recommendation is also important to today's debate. That

recommendation is that each of the parties to the treaty process be at liberty

to introduce any issues at the negotiation table that it views as significant to

the new relationship. Implicit in this second recommendation of the task force

are two questions: what are the issues that the province as one of three parties

views as significant to the new relationship? And how are those issues to be

determined?

It must

surely be the case that each party to the treaty process can bring to the table

its own vision, objectives and mandate for what it seeks to achieve through

these political negotiations. As we know, first nations negotiators work hard to

connect with their communities to ascertain the vision, objectives and mandate

that they bring to the table on behalf of their communities. The government of

Canada is free to decide upon its goals for treaty-making and to pursue them as

it sees best. So, too, then must the government of British Columbia be able to

define its own vision, its own objectives and its own mandate for negotiations.

If these

are — as the task force said they were to be — political negotiations, then

it is surely right for this government to decide how to obtain a mandate

supported by those to whom it is politically accountable — namely, the

electorate of British Columbia. We choose to do so by asking the people

directly.

For too

long the province has sat at the treaty table without a clear sense of direction

or purpose. It's time to remedy that omission. This referendum does not seek to

tell first nations what issues they should introduce nor what goals or

aspirations they should pursue at the treaty table. Nor does this referendum

seeks from the electorate of British Columbia a mandate on principles to guide

the province's negotiators. With a clear set of principles, the province's

negotiators will have a clearer sense of purpose.

It is

important to say what this referendum is not about. This referendum will not,

indeed cannot, interfere with or compromise the constitutionally protected

aboriginal rights and title of the aboriginal peoples of British Columbia. I

have heard many people make a contrary claim. However, I have never heard them

defend that contention. The reason is simple: there is no basis for the

argument.

After 1982

no unilateral action by the province, whether in a referendum or in any other

process, is capable of determining or limiting the existence or the content of

aboriginal rights and title. Equally fundamental and important to make clear

here is the fact that the constitution of Canada, including the Charter of

Rights and Freedoms, will continue to apply to all British Columbians before and

after land claim settlements.

Treaty-making

is a political negotiation to find common ground that will form the basis of an

agreement, but no one is bound to agree to that which they cannot accept. If a

first nation finds it cannot achieve agreement with the province and Canada on a

mutually acceptable land claim settlement, then it will be free to determine its

rights by litigation.

[1445]

First

nations who choose to litigate will find that nothing in this referendum has in

any way compromised their constitutional rights. But litigation is surely not

the pathway to certainty or reconciliation. Litigation is expensive, adversarial

and time-consuming. In this area of the law, it seldom produces any certainty. I

only need one example to prove my point. After 13 years of litigation in the

Delgamuuk case, in which Gitxsan-Wet'suwet'en hereditary chiefs asked the court

to declare their ownership and jurisdiction over their traditional territories,

the Supreme Court of Canada refused to grant this relief and ordered a new

trial. That is neither certain, nor does it achieve reconciliation.

I want to

express the government's appreciation to the legislative committee chaired by

the member for Chilliwack-Sumas and to all those who made submissions to it. The

work of the committee has begun a conversation with the people of British

Columbia. That conversation is essential if we are to reinvigorate the treaty

process.

The

legislative committee made two recommendations. First, it recommended that a

process of reconciliation, including an expression of regret by the government

of British Columbia regarding the experiences of aboriginal people, be

undertaken. As a part of this recommendation the committee said it envisioned

treaties perhaps including specific language addressing reconciliation. It

emphasized that this is a process of community-based reconciliation and is not

meant to attribute blame or guilt to individuals. The government accepts this

recommendation.

Government

also accepts the committee's observation that this reconciliation process will

need to be undertaken in consultation with first nations. To put that in the

context of the language of the task force report, reconciliation, including an

expression of regret by government, is an issue that the government of British

[ Page 1878 ]

Columbia wishes to introduce at the negotiation table because we believe it

is significant to the new relationship between first nations and British

Columbia.

The

committee also recommended a ballot for the referendum. Government has given

careful consideration to the committee's recommendations for the contents of the

referendum ballot, including the referendum questions. In the days following the

tabling of the committee's report last November, I also listened as carefully as

I could to the opinions of British Columbians who read and responded to the

report's recommendations.

In thinking

about treaty principles it soon becomes clear that some principles are simply so

fundamental to the entire process that they are not open to question. These

fundamental principles include the following: treaty settlements should be

workable and affordable and they should provide certainty, finality and

equality. To put the point another way: no one could seriously contend that

treaties should be unaffordable or unworkable or that they should create

uncertainty, endless disputes or inequality.

considering the committee's recommended questions, we also took into account the

need to construct a ballot with a manageable number of easy-to-understand

questions. We also recognized that the primary objective of the referendum is to

provide negotiators with a mandate on substantive issues, not process. The

committee recommended three questions that have more to do with the process of

negotiation than with the substance of treaty settlements. These questions were:

1. Treaties

will be negotiated in as transparent a manner as possible.

2. Treaty

negotiation will be responsive to the input of local community and economic

interests.

2. Local

government participation in the treaty process is guaranteed.

Government

does not need to seek a mandate from the voters on those three points. They

represent the clear and unequivocal policy and commitments of the government.

[1450]

We also

considered the form of some of the proposed questions. The referendum is about

principles. Since this is a three-party negotiation in which some measure of

compromise is inevitable, the province cannot, as one among three parties,

guarantee a result. We wish to be guided by principles, and we will be held to

account for our adherence to them, but we cannot promise outcomes.

The

legislative committee also recommended a question with respect to the goals of

administrative simplicity and jurisdictional clarity amongst various levels of

government. Again, this seems to me to be practically self-evident. No one could

want administrative complexity or jurisdictional confusion. Settlement

agreements that fostered excessive complexity or confusion would, I respectfully

suggest, be unworkable. The need for jurisdictional clarity is important, but it

is forcefully raised by other questions.

Lastly,

government believes it is inappropriate to ask the electorate to vote on matters

essentially internal to first nations. I know the committee heard from

aboriginal women who expressed concerns about aboriginal governments

post-treaty, and I know others have concerns about access to treaty benefits for

those who live off reserve.

I do not

discount these concerns. They are important, and governments representing the

public interest will have to take them into account in the treaty process. But

the question of what vision, mandate and objectives ought to be brought to the

table by first nations is a question for first nations, not this referendum.

Mr.

Speaker, the product of the analysis I have just described is the questions

contained in the motion now before the House. The proposed ballot will read as

follows:

"Whereas

the government of British Columbia is committed to negotiating workable,

affordable treaty settlements that will provide certainty, finality and

equality, do you agree that the provincial government should adopt the

following principles to guide its participation in treaty negotiations?

"1.

Private property should not be expropriated for treaty settlements.

"2.

compensation for unavoidable disruption of commercial interests should be

ensured.

"3.

Hunting, fishing and recreational opportunities on Crown land should be

ensured for all British Columbians.

"4.

Parks and protected areas should be maintained for the use and benefit of

all British Columbians.

"5.

Provincewide standards of resource management and environmental protection

should continue to apply.

"6.

Aboriginal self-government should have the characteristics of local

government, with powers delegated from Canada and British Columbia.

"7.

Treaties should include mechanisms for harmonizing land use planning between

aboriginal governments and neighbouring local governments.

"8.

The existing tax exemptions for aboriginal people should be phased

out."

The

government takes a position on these questions. We would answer "yes"

to each of them. Answering yes to these questions will provide the province's

negotiators with a clear mandate on issues that have arisen and will continue to

arise in the course of negotiations. With a renewed and clearer sense of

purpose, better progress will be made at the tables, leading to agreements that

will enjoy public support and build a strong foundation for enduring

relationships built upon mutual recognition, reconciliation and respect.

Some will

say that some of these questions are, to use an outmoded term, motherhood

questions. I respectfully disagree.

[1455]

When first

nations politicians say that first nations own British Columbia lock, stock and

barrel, they don't make an exception for parks and protected areas. Provincial

leases and licences are routinely challenged by first nations in court. If and

when demands are made for exclusive hunting or fishing rights outside treaty

[ Page 1879 ]

settlement lands, I want our negotiators to be able to say that the people of

British Columbia have said they want continued hunting, fishing and recreational

opportunities on Crown land.

When

demands are made for self-government authority, I want to be able to say that

the people of British Columbia have told us we should insist upon negotiating

tools that will harmonize land use planning between aboriginal governments and

neighbouring local governments. Yes, aboriginal governments may have the power

to plan the use of their own lands, but equally importantly the province should

be at the table insisting that mechanisms be put in place so that first nations

and local governments can work and plan together for the good of both

communities.

These are

not motherhood questions. They are real questions about real issues, and they

are real principles.

Some will

ask: what would no mean? What would the answer no mean to any of these

questions? Simply put, the answer no to any question means that the provincial

government should not adopt that principle to guide its participation in treaty

negotiations. That might have different significance in different contexts.

illustrate the point, let's look at the first principle, the principle that

private property should not be expropriated for treaty settlements. If a

majority of voters vote no to this question, it means that government need not

be constrained by a principle against private property expropriation in

negotiating treaty land issues. Presumably, government would be less reluctant

to expropriate land if this principle were rejected. That's what no means in

this context.

I want to

set this point in a slightly larger context. I have said that the proposition

that private property should not be expropriated for treaty settlements is a

statement of principle that can usefully guide the province's participation in

treaty negotiations. Let me state the obvious: it is not put forward as a

statement intended to guide negotiators for first nations or for Canada.

Moreover,

nothing about this question, whether answered yes or no, in any way subjects

minority rights to the whim of the majority. This principle does not bind first

nations. It does not bind Canada. It does not bind the courts. Nor, for that

matter, does this principle bind the province in its dealings with ordinary

citizens and landholders outside the treaty process. It is simply a principle to

guide the province in negotiations with first nations. In limited, appropriate

cases this principle might permit the acquisition of land on a willing seller,

willing buyer basis — provided, of course, that that action was consistent

with other principles including, for example, the important principle that

treaty negotiation will be responsive to the input of local community and

economic interests.

A similar

analysis can be undertaken for each of the eight principles, with similar

results. Take, for example, the sixth principle: the principle that aboriginal

self-government should have the characteristics of local government with powers

delegated from Canada and British Columbia. This is not a legal statement about

aboriginal self-government. It is a political statement about the province's

interests in negotiating self-government at the treaty table.

[1500]

Voting yes

to this principle means that the province will seek to negotiate aboriginal

self-government arrangements with the characteristics of local government with

powers delegated from Canada and British Columbia. Examples of such

self-government arrangements already exist. They include Sechelt. They include

self-government under the Yukon land claim agreements, and there are other

examples across Canada.

Voting yes

to this principle does mean that the province will not seek to negotiate

self-government on the Nisga'a model with paramount powers entrenched in

constitutional concrete and limited democratic accountability for the

non-aboriginal citizens governed by the first nation.

What would

voting no to the sixth principle mean? Again, voting no means that the province

need not adopt this principle to guide its participation in treaty negotiations.

It does not mean that the province would refuse to negotiate self-government.

Voting no would mean, from the province's perspective, that the discussion about

self-government will not be guided by or constrained by the principle expressed

in the sixth question. Presumably, if a majority of voters voted no to this

question, the province's negotiators would be more receptive to proposals for

constitutionally entrenched self-government.

I have

already pointed out, Mr. Speaker, that the

preamble to the ballot, which I

earlier read, contains and will contain a commitment to affordability. This is a

critically important commitment. The best measure of affordability of a

particular settlement is the willingness of the province's elected

representatives to accept it. Accordingly, the government commits that all

proposed agreements will be presented to this House with a full accounting of

treaty costs. The former government failed to do this with Nisga'a. We will not

repeat that mistake.

Let me now

say more about how the referendum will be conducted. There will be no

large-scale government advertising campaign. Government will not provide funding

to support any other party in putting forward their views on the referendum

questions, nor will the law constrain or limit the ability of other parties to

conduct at their expense any information campaign that they wish to conduct.

Elections

B.C. will conduct the referendum. It will send out information about voter

registration and voting packages, and it will count the vote. I am informed that

the ballot count may take several weeks, depending upon the rate and the timing

of return of the ballots.

referendum office will be established to provide factual and timely responses to

referendum-related questions from the public. Commencing March 18, a few days

from now, the referendum office will send

[ Page 1880 ]

voters a householder which will provide them with information about the

referendum, including information about how to contact the referendum office.

There will be a 1-800 telephone line and a website. The householder will not

provide information about the questions, positions or arguments on the

questions, but the referendum office will be accessible by phone, website and

mail, and will provide information to people who request it. The referendum

office will maintain neutrality with respect to the questions. In some cases,

detailed questions asked of the referendum office may be referred to government

or Elections B.C. or a third party.

[1505]

Government

undertakes the responsibility of helping the public understand why we need to

negotiate treaties and why we urge the voters to vote yes in this referendum.

I want to

conclude with two general observations. Some have argued and I expect, in the

days to come, will continue to argue that treaties should be settled on an

all-cash-for-clear-title basis. That argument, if accepted, would doom the

treaty project to certain failure. When we speak as British Columbians about the

historic Indian land question, we need to recognize, as the courts have said,

that aboriginal title is a legal interest in land that is protected by the

constitution and that aboriginal title cannot be held by individual aboriginal

persons. It is a collective right to land held by all members of an aboriginal

nation. When aboriginal people speak about their traditional territories, they

do so in terms that connect their traditional territories to their sense of

identity as first nations. We must respect that reality.

Lastly, I

want to repeat again in the strongest possible terms my view that this project

is both morally and democratically legitimate. Some will argue that the issues

raised by these questions are too difficult for the average voter. This

referendum is about lands, resources, governments, taxes — the very stuff of

citizenship in a modern, complex world. Democracy requires that we trust

citizens with these questions while recognizing, also, that in our democracy the

rights of minorities enjoy constitutional protections as strong as any found on

the surface of the Earth — vigorously guarded by an independent judiciary.

This

referendum is a conversation. It can be respectful. We can disagree and listen

at the same time. We can even learn from our disagreements how to build a common

cause. Voting yes to these questions will establish essential parts of the

vision, objectives and mandate that the province's negotiators will take —

that they need to take — to the treaty table to build lasting treaties and new

relationships so that all British Columbians, including first nations, can work

together to build hope and prosperity.

J. Les:

I'm pleased to rise today and participate in the debate on this important

initiative which fulfills another commitment made to the people of British

Columbia by our government in last year's election. Specifically, the commitment

was this: to give all British Columbians a say on the principles that should

guide B.C.'s approach to treaty negotiations through a one-time provincewide

referendum within our first year.

I am proud

to be part of a government that keeps its commitments. Just as we are following

through on a commitment to double the First Citizens Fund to $72 million to

support native friendship centres, student bursaries and economic development

programs, we will be offering all B.C. voters an opportunity to express their

opinion regarding treaty-making principles — a public policy issue that has

enormous implications for aboriginal and non-aboriginal British Columbians

alike. Treaties are about how we are going to live together.

Treaty-making

today is clearly much more complex than the process of treaty-making previously

in the history of this country. The economy has advanced, and millions of

non-aboriginal people now live here. The complexities that flow from this

situation make it mandatory that there is a broad and, hopefully, informed

consent amongst all residents as to how we proceed and what the guiding

principles are to be that guide the treaty-making process.

[1510]

Let me be

clear. This referendum or its result in no way detracts or derogates from the

constitutionally guaranteed and protected rights that aboriginal people possess.

Further, we all strongly support the treaty-making initiative, and I believe

strongly that the proposed referendum will be an important and productive step

towards the goal of negotiating workable, affordable treaty settlements that

will provide certainty, finality and equality.

Treaty-making

is a matter of social justice and practical necessity. Aboriginal peoples have

rights under the constitution that need to be clarified and codified. Treaties

will accomplish that objective. I need to repeat again: this is not a referendum

on aboriginal rights. Existing aboriginal rights are already protected under the

constitution of Canada. They cannot be extinguished or surrendered without

aboriginal consent.

Those who

insist that this is a referendum on minority rights, quite simply, have it

wrong. This is an opportunity for the public to have a say regarding the

negotiating principles that guide B.C.'s negotiators in the negotiating process.

This is not an attempt to stall the treaty process. Arguably, it has been

stalled for years. If British Columbians respond as I believe they will,

treaty-making will be reinvigorated, re-energized and relegitimized — an

opportunity that we should then all seize and move forward with.

I was

pleased to act as the Chair of the Select Standing Committee on Aboriginal

Affairs that was tasked with the responsibility of conducting public hearings

and, subsequently, to make recommendations regarding questions that should be

put to the public in a one-time referendum on treaty principles.

There were

those who predicted that the public hearing process would be divisive and

destructive, leading to racial tension and all manner of unpleasant-

[ Page 1881 ]

ness and bringing out the very worst in people. Mr. Speaker, I am happy to

report that these predictions absolutely failed to materialize.

In the

event, we heard from some 500 people, both verbally and in writing, at 15 public

meetings convened in communities throughout the province. Practically without

exception, we heard from people who were respectful and who appreciated the

opportunity to dialogue regarding this important public policy matter. We heard

from an exceptional variety of British Columbians: academics, scholars,

homemakers, church leaders, municipal politicians, aboriginal individuals and

leaders, young people, loggers, miners and cattlemen — in short, a complete

cross-section of our province.

Of all the

presenters we heard from, I don't recall anyone telling us not to negotiate

treaties. On the contrary, I believe it's fair to say that everyone wanted us to

make the process better and more successful. No doubt, some of the suggestions

offered were unworkable or unrealistic, but many offered significant insights.

We heard of

the dreams and aspirations of aboriginal people themselves and from aboriginal

women with misgivings about what the treaty-making process means for them and

how it may impact their rights as women. In my view, a particularly significant

presentation was made by an aboriginal young woman, who later wrote an editorial

to one of the local papers in her area. I wish to refer to that in my remarks,

and I will quote from her editorial. It said this:

"Dear Readers,

"With

my blood boiling and my anger building like a volcano ready to erupt, I sat

before the Select Standing Committee on Aboriginal Affairs recently, and I

counted every native cliché that the non-natives voiced like an old,

boring, uninformed and ignorant record.

"With

a 15-minute time slot I told them how my mom paid off her home in Smithers;

I purchased my own new car 11 years ago, which the non-native community

assumed I had won at bingo. I talked about receiving a four-year

post-secondary education at several of the best schools in the province. I

spoke about working, paying taxes. I gave specific examples of blatant

racism in this community and how natives are rarely hired by local stores,

which I believe is a serious form of discrimination.

was pleasantly surprised that most of the ten MLAs on the panel genuinely

listened to my concerns, which I wasn't sure that they would do. I talked

about how the native community wanted similar things as the non-natives

like: a better life for the younger generation, a job, advancement on the

treaty process and hope for a better future.

ended up being in the hot seat for about an hour, but I left, feeling like I

gave them a new perspective. I felt empowered about being heard, because I

feel the native community is often ignored by all levels of government, all

forms of media and this community until a scapegoat is required, so it was

good for me to have a new, positive experience."

[1515]

That, Mr.

Speaker, I think, is evidence that the process of dialogue works in a very

positive way.

These

people articulately, in many cases, talked about their vision for the future,

how they saw aboriginal and non-aboriginal people living together in the future,

and what would or should characterize the new relationship. There is significant

divergence in points of view amongst the public. Much of this can be ascribed to

the fact that these are very complex legal and constitutional issues, but there

was one common theme throughout: British Columbians want to get on with a

productive and conclusive treaty-making process. They recognize the injustices

and shortcomings of the past and want a practical and pragmatic resolution to

treaty-making.

The public

is interested in treaties that are constitutionally sound and that will produce

justice and opportunity for aboriginal people. They recognize that treaty-making

will affect us all and that the cost in terms of resources, land and other

considerations will be considerable.

To those

who predicted chaos as a result of having the temerity to conduct public

hearings around these issues, I say: you seriously underestimate the willingness

and ability of British Columbians to engage in a respectful and useful

discussion on these issues. The average British Columbian is fair-minded and

resents the suggestion that they are incapable or should not be allowed the

opportunity to openly and rigorously consider, debate and discuss aboriginal

treaty issues.

Similarly,

I expect the upcoming referendum process itself will be a positive exercise in

public consultation that will enable us to move forward, post-referendum.

We know

that treaty-making has not had an illustrious history in the recent past. Other

than the Nisga'a treaty, which was negotiated outside of the B.C. Treaty

Commission process, no other treaties have been achieved — this, in spite of a

decade of negotiations and $500 million spent by all parties in the process.

Four

agreements-in-principle have been initialled at the treaty table and

subsequently rejected by the first nations people involved. These were the

Nuu-chah-nulth, the Sliammon, the Sechelt and the In-SHUCK-ch.

Clearly, we

need to take a step back. Clearly, we cannot continue to expend these enormous

resources without achieving results. Clearly, our constituents, be they

aboriginal or non-aboriginal, deserve better. Clearly, it is in all of our

interests to renovate the process to produce the certainty we all require.

The current

state of uncertainty that exists in British Columbia is detrimental to

everyone's interests. It inhibits investment in our economy. It slows economic

growth. It postpones the day that aboriginal peoples themselves get out from

under the burden of the Indian Act. It continues the economic underperformance

and social despair evident in so many aboriginal communities, both on and off

reserve.

The

opportunity for aboriginal people to more fully participate in the economy is

frustrated. We need to do better than to continue to wallow in fruitless

uncertainty while unproductive so-called negotiations grind on endlessly.

[ Page 1882 ]

Our

constituents demand a revitalized approach to treaty-making. They are asking us

to produce results and certainty. Even if we cannot achieve complete and final

treaties immediately, incremental treaty-making is an approach that should be

attempted. The B.C. Treaty Commission has also suggested that the big-bang

approach to treaty-making may not be the best. An incremental process that

allows capacity-building to occur, while some treaty benefits are realized, may

be a much more productive approach.

Let me turn

to the recommended referendum questions. I believe that these fairly and

reasonably reflect the recommendations put forward by the Select Standing

Committee on Aboriginal Affairs. If these suggested principles are supported by

the public, I believe they will provide a solid foundation for the provincial

position in future treaty negotiations. It is absolutely impossible to

presuppose or anticipate every nuance that might present itself in negotiations.

However, these suggested principles will provide an essential blueprint to guide

provincial negotiators.

[1520]

I am

particularly pleased that the recommendation to conduct the referendum by way of

a mail-in ballot is being acted upon. This will provide several beneficial

features. Firstly, it will be a less costly mechanism. More importantly, it will

provide British Columbians a more reflective and thoughtful opportunity to

consider and respond to the questions posed. Who knows? It may even lead to

discussion around the kitchen table and at other informal gatherings — all of

which will help to raise the level of awareness and discussion, which can only

help to develop the public consensus necessary to move forward.

Again, I am

confident in the public's ability to fairly consider these matters and guide us

in these important negotiations. Those who decry this process need to be very

careful indeed not to denigrate the B.C. public and their ability to understand

and appreciate what is at stake, what is fair and what is reasonable. Do not

sell the public short.

I would

urge all British Columbians to participate in this unique opportunity. Treaties

will be an important future feature of all of British Columbia's economic,

social and political landscape. It is vital not only that these treaties reflect

current realities but that they be able to stand the test of time and be equally

as relevant to our collective children and grandchildren as they may be to the

negotiating parties at the table today.

Mr.

Speaker, I commend this process to all British Columbians, and I would encourage

all members of this House to support the motion.

J. Kwan:

I rise to enter into debate on the Attorney General's motion on a referendum on

aboriginal issues. I'd like to begin the debate by telling a story that was told

to me by a member from Vancouver–Mount Pleasant when I first got involved in

community politics. Later on, when I was elected, this person reminded me, as

the elected MLA for Vancouver–Mount Pleasant, of this story.

I've told

this story to some members of the House, but other members might not have heard

it. It was impressed upon me that this story and the principles behind it must

guide us in all of our actions on the question around aboriginal issues.

The story

begins like this. Once upon a time there was this beautiful, vast land called

British Columbia. At that time this land did not have a name; it was simply a

vast, beautiful piece of land. On this land there was a bench, and on this bench

sat a nation of peoples who have now come to be known in western society, I

guess, as the first nations of British Columbia.

They

occupied this bench. They lived off this land. They governed each other. They

supported each other. They learned with each other. They respected each other.

Perhaps most important of all, in this story, is that they very much respected

the ability to work with each other not in a confrontational way but in a way

that often we now speak of — as the aboriginal people do — as a

resolutionary way, where they work with each other to overcome difficulties.

They listened to their elders. They took advice from their elders, and they

guided each other with those principles — first and foremost, guided by

respect.

[1525]

Over time,

on this bench where this nation of peoples lived, visitors began to show up.

They showed up on this vast land. As is the case with the aboriginal peoples in

British Columbia, they were great hosts. They not only allowed these guests to

have a seat on this bench — and the guests did ask for a seat on this bench

— but they allowed them to enjoy and share the resources that they had. As

time went on, more and more non-aboriginal people — visitors, if you will —

came to this land and sat on this bench.

Over time

it became so overwhelming that as the space on the bench got squeezed more and

more, the aboriginal people found themselves being pushed off that bench. They

found they no longer had a seat on the very bench on which they began, the very

bench on which they supported their families and their communities and they

cared for each other, to the point where they are now completely off that bench.

Not only are they off that bench; they're being governed by the people who came

and consumed the space on this bench.

Now the

aboriginal people, the first people of this land, are saying: "No more. We

want a seat back on this bench." They don't want the whole bench back.

They're not saying: "Get off our bench and go away." They're simply

saying: "We want our rightful place in history. We want a seat back on this

bench, and we want to be respected. We want to have the ability to live on the

resources. We've always done so. We want the opportunity to grow. We want the

opportunity for self-sufficiency, for self-determination." They want an

opportunity to be their nation once again.

They're

saying this to the people who came and consumed their bench and consumed their

space. They use a variety of different tactics to try and get their

[ Page 1883 ]

message through. In most instances they use approaches that are non-violent,

non-confrontational. They're saying they're prepared to share, but they're

saying: "We want our rightful place in history."

Hon.

Speaker, I'm often reminded of the story that was told to me by a good friend of

mine, a constituent of mine, especially as I entered the halls of the

Legislature to assume my role in 1996 as the elected MLA for Vancouver–Mount

Pleasant. I do know that the aboriginal issues run deep in our history. I look

around my community, and I see the damage that has been done to the first people

of this nation by the people who came and took that space on that bench.

That's one

story. I think it's a short story in that it captures the history of British

Columbia with respect to aboriginal people and aboriginal issues. Some, when

they hear this story, will perhaps think: "Well, you know, it's just

sentimentality. Jenny's always sentimental and emotional about these

issues." Maybe it's not even — some perhaps would challenge — legal in

terms of the rights aboriginal people have. Some may even challenge the

historical facts of the aboriginal people in this province.

As I engage

in the debate on this motion, I'd like to just walk through some of the legal

issues around aboriginal issues, because I think it is pertinent that we

understand the legal rights of aboriginal people and where they stand. It brings

us to the question that this referendum cannot be supported, must not proceed,

and I think the legal arguments will illustrate that very clearly. Then I will

have more points to make about why this referendum should not proceed.

[1530]

[H. Long in the chair.]

The courts

have said that the governments have a duty to negotiate, to negotiate treaties

in good faith. Chief Justices have made this conclusion. Working backwards…. I

guess it's not one of the most recent cases anymore — the Delgamuukw case. It

is one of the most prominent cases that spelled out more clearly the rights of

aboriginal people. In that case the Chief Justice had ruled: "Moreover, the

Crown is under a moral, if not a legal, duty to enter into and conduct those

negotiations in good faith. Ultimately, it is through negotiated settlements,

with good faith and give and take on all sides, reinforced by the judgments of

this court, that we will achieve…'the reconciliation of the pre-existence of

aboriginal societies with the sovereignty of the Crown.' Let's face it, we're

all here to stay."

That is

from the judgment of the Delgamuukw case. It speaks very clearly of the rights

of the aboriginal people: that the aboriginal people have a legal right and that

the Crown, meaning the province, has a legal responsibility to negotiate

treaties in good faith — and, although not legal, I would argue a moral

responsibility, as the courts have recognized. The Delgamuukw case is not the

only case. It's one case that really highlighted and more clearly defined the

rights of aboriginal peoples in saying to the province that they have a

responsibility to negotiate treaties with the first nations.

The

constitutional position of aboriginal peoples begins with the simple fact — a

very simple fact — that the aboriginal people were here first. It brings us

back to that story where I say that once upon a time there was this piece of

land. On this land was a bench, and on this bench lived a nation of people known

as the first nations. The Supreme Court of Canada understood that and described

aboriginal title as follows: "The fact is that when the settlers came the

Indians were there, organized in societies and occupying the land as their

forefathers had done for centuries. This is what Indian title means."

It is very

clear. The case — this was the Calder case in 1973 — clearly laid out the

constitutional position of aboriginal peoples. It's very simple to grasp, a

simple historical fact: the aboriginal peoples were the first people on this

land.

To further

the constitutional question around the rights of aboriginal people, we only have

to go to the Royal Proclamation of 1763. The proclamation states:

"Whereas

it is just and reasonable, and essential to our Interest, and the Security

of our Colonies, that the several Nations or Tribes of Indians with whom We

are connected, and who live under our Protection, should not be molested or

disturbed in the Possession of such Parts of Our Dominions and Territories

as, not having been ceded to or purchased by Us, are reserved to them, or

any of them, as their Hunting Grounds."

In other

words, it simply means that aboriginal peoples are to be respected in their

possession, their claim, of the land until the Crown concludes a treaty with

them.

Actually, I

should pause for just a moment, because I used the word "claim." The

aboriginal community takes offence at that word, because it is not a land claim.

They're not claiming the land; it's land that belonged to them. They often point

that out to me. They say, "We're not claiming back land; it's simply

recognizing that the land belonged to us in the first place" — to the

first people of this land, which the court has already recognized. Really,

rightfully, it's their right to possess that land, and it's their title. The

Supreme Court has affirmed that pre-existing right and the continued right of

possession.

[1535]

Another

case, the Guerin case in 1984, said the aboriginal people were admitted to be

"the rightful occupants of the soil, with a legal as well as a just claim

to retain possession of it, and to use it according to their own

discretion." That was established in 1984.

This case

goes on to say: "Their interest in their lands is a pre-existing legal

right not created by royal proclamation by s. 18(1) of the Indian Act or by any

other executive order or legislative provision." So let's be clear: the

Crown does not have the authority to legislate.

The courts

have now recognized that aboriginal rights rest with the people, with the simple

fact that they were the first people here. The proclamation had nothing to do

with it, but even then the proclamation

[ Page 1884 ]

recognized the right of the aboriginal people to process title ( to own land

— and the courts reconfirmed that at a later date.

The courts

have concluded that, in fact, the pre-existing legal rights are much broader

than some people would like to have them. Some people would like to imply that

aboriginal people should only have the right to some of their traditional values

being honoured. As an example, on the resources of the land, they could go and

pick berries; they could go and hunt, perhaps, as some of their rights. The

courts have defined the rights of aboriginal people to be much broader than

that. It is not just ceremonial practices.

This is

what they have to say in the Delgamuukw case. First, aboriginal title

encompasses the right to exclusive use and occupation of land. Second,

aboriginal title encompasses the right to choose to what use this land can be

put subject to the ultimate limit that those uses cannot destroy the ability of

the land to sustain future generations of aboriginal peoples. Third, lands held

pursuant to aboriginal title have an inescapable economic component.

The

aboriginal community, amongst many communities, is one of the best communities.

It will be the first to come forward and say, "We live off this land, yes,

to feed us and sustain us as we live now," but they also say: "We will

only take from the land, the motherland, what we need today but no more, nor

will we abuse the motherland so that the generations to come would not be able

to benefit from the resources." They would say that in living off the land

and the resources, they would see economic development, not so that it would

destroy sustainability for future generations, but rather to preserve it for

future generations ( for economic gain, but not gain at all costs. That's what

the aboriginal community that I have learned from says, and those are the

principles they have always lived by. The courts have defined that very clearly

for us in terms of what their rights are with respect to the land, the title and

the resources that rest on that land.

[1540]

The

question always comes up: can the province, as the Crown, rid itself of its

fiduciary responsibility to the aboriginal people? The court has something to

say about that, too, because treaty negotiation is the premise by which

government can rid itself of that fiduciary responsibility. The principal

government that leads in this process would be the federal government ( Canada ?

not necessarily the Crown but the highest level, the highest order of

government.

To put it

another way, the Crown can only rid itself, if you will, of the burden of

responsibility of the aboriginal title through a treaty concluded by Canada. The

federal government must be the lead in this, and the lands become open for

disposition by the province. It is only through negotiations that you could

achieve that.

The

constitutional burden of aboriginal title on Crown title has also been

repeatedly upheld in the Supreme Court of Canada and again most recently, in

1997, the Delgamuukw case. The Crown title burden by aboriginal title…. That

burden can only be lifted through the federal government, the government of

Canada, through negotiations.

The

province has no power whatsoever to legislate in relation to Indians and land

reserved for Indians, because this power is assigned exclusively to Canada. As

for the province, you may want to say that through this referendum process,

you're going to want to get a mandate from the people. But no matter what

mandate you get, irrespective of the questions, Canada does not have the

authority, legally, to rid itself of the burden of the title. We do not have

that responsibility. This is another reason why — and I will go on later to

tell you — this referendum is a waste of time and money. It should be money

spent elsewhere, not through this process.

Keeping in

mind over — goodness — a century of time in terms of the courts defining,

further defining and further clarifying the rights of the aboriginal people, it

is important for us to understand where the courts have come from and to

understand, then, the history behind aboriginal title and the aboriginal issues.

The

relationship between the Crown and aboriginal peoples has been described by the

courts, as I mentioned earlier, as a fiduciary responsibility, a fiduciary

relationship. This means the government is bound to treat aboriginal peoples and

their land differently from other Canadians, because they have a fiduciary

responsibility. They're bound to do that.

The Crown

must safeguard and protect the aboriginal right of occupation and ensure a fair

process. If and when aboriginal peoples choose to give up land rights to the

Crown, what is the role of the province? The role of the province is to protect

that land, to safeguard it and to ensure there is a fair process. That is the

role of the province. When and if the aboriginal people choose to give up that

land, that right to the Crown, then that land could be shared. That is the legal

definition of when the province could intercede in terms of the rights of

aboriginal title. This has been established through the courts over a number of

years. Not only in the courts has that been established, it plainly says and has

been interpreted for us in the courts that the constitution under

section 35(1)

spells out the rights of the aboriginal peoples of Canada.

[1545]

Section

35(1) clearly states: "The existing aboriginal and treaty rights of the

aboriginal peoples of Canada are hereby recognized and affirmed." The

constitution has recognized that, and the definition of that

section has been

defined by the courts over the years with a number of different cases. The

Supreme Court, the highest court in Canada, has concluded that aboriginal title

is indeed incorporated under our Charter,

section

[ Page 1885 ]

35(1), and that they enjoy constitutional status and protection.

The

aboriginal community has always maintained that. Over the years many people

didn't listen. I recall in the last session with this government, when Dr. Joe

Gosnell stood at the bar of this chamber and told the story about how he and his

father before him and his father before him had travelled all the way to the

Legislature seeking justice in this House, asking to be heard, and how they were

barred from that process. They were sent back. They were not allowed to come

into the Legislature. They were not allowed to speak to the members of this

House.

Joe Gosnell

came when the Nisga'a was finally ratified by the three levels of government —

with the provincial government first. He came and told his story. He said he had

black, flowing hair and was at a young age when he pursued this goal of gaining

the rights for aboriginal people and achieving through that process a modern-day

treaty. He stood before us at that time, silver-haired and perhaps in the autumn

of his life.

It was very

moving. I remember members in this House sat and listened. Many of us had tears

in our eyes. I know my colleague here from Vancouver-Hastings, myself, the then

Deputy Premier and then Premier — we all had tears in our eyes, even Liberal

opposition members. I remember the Minister of State for Women's Equality. I

remember looking over at her, and she had tears in her eyes.

It meant

something — the modern-day treaty. That process was achieved outside of the

Treaty Commission. Nonetheless, it was a treaty-making process that achieved the

goals of what all people wanted.

You have to

ask if the referendum would help that process. Would it derail that process, or

would it hinder that process? I would have to argue that the referendum would

indeed hinder the process instead.

I digressed

from my legal arguments, and I should get back to that. The legal arguments are

important to lay the groundwork of what we're talking about. I focused around

the land issue and the title issue. I focused around the fiduciary

responsibility and the resource question. I want to touch on the resource

question a little bit more, because the referendum actually touches on that as

well.

The courts

have spelled out very clearly for the province and for others what the province

must take for the infringement to be lawful. That is to say, aboriginal peoples

must be given a priority in decisions affecting natural resources. Over the

course of the years it became more clear around what that priority must include

in the decisions affecting natural resources.

The court

case, again in Delgamuukw, stated that what is required is that the government

demonstrate both the process by which it allocated the resources and the actual

allocation of the resource which results from the process reflect the prior

interest of the holders of the aboriginal title in the land. That is to say,

aboriginal people must be given a priority in decisions affecting natural

resources. That is the Delgamuukw decision.

[1550]

It goes on

to say that aboriginal peoples must also be properly consulted. How did they

identify that in the courts? They have said: "There is always a duty of

consultation." The nature and the scope of the duty of consultation will

vary with the circumstances. Consultation must be in good faith and with the

intention of substantially addressing the concerns of the aboriginal peoples

whose lands are at issue. It is not just willy-nilly consultation. It is not

just consultation by a motion, but rather good-faith consultation. That

consultation must be reflected in the decision of the government.

The

Delgamuukw case goes on further to define that not only must you consult, not

only do aboriginal peoples have a priority in the decisions, but that if

resources or lands are taken away from them, there must be compensation for this

infringement — the infringement of their interests in the land, whether it be

the land or the resources associated with it.

The courts

have clearly defined that. In the Delgamuukw case: "In keeping with the

duty…and good faith on the Crown, fair compensation will ordinarily be

required when aboriginal title is infringed." That was spelled out in the

Delgamuukw case very clearly.

We've

recognized that aboriginal people are the first people of this land through a

variety of court cases and through constitutional areas. We have clearly

identified that in that definition, aboriginal peoples have the rights to their

resources; that the resources and the land are to be defined in a broad scope,

not only in limited ceremonial ways; that there is a responsibility of the Crown

to engage in consultation; that aboriginal people must be a priority in that

process; and finally, when there is infringement on the rights of aboriginal

people, that they must be compensated.

I know that

over the years various governments….

Deputy

Speaker: Member, I have to remind you of the time, please.

J. Kwan:

I'm the designated speaker, hon. Chair.

Deputy

Speaker: Proceed, member.

J. Kwan:

Thank you, Mr. Chair.

Throughout

the years people have tried to challenge those rights of aboriginal people.

They've tried to put forward extinguishment arguments. They were advanced in

1986, 1997 and throughout in trying to take away the rights of aboriginal

people. However, the courts have rejected that. They have rejected that

argument, and they said: "No. Aboriginal peoples do have rights." It

all goes back to the very first premise, the premise that on this land there was

this bench, and on this bench sat the first people of this land, and they have

the right to the title of this land. It's all premised back to that one simple

principle.

[ Page 1886 ]

The courts

have defined very clearly what aboriginal rights are. Aboriginal nations are

under the protection of the Crown. This means that British Columbia cannot treat

aboriginal peoples as if their rights are at the province's pleasure. It means

that aboriginal nations are not to be molested or disturbed in the territories

that they occupied, which are reserved for them. It means that British Columbia

cannot simply ignore the rights of aboriginal peoples or choose what rights, if

any, they'll seek a mandate to respect. It means that treaty negotiations and

the rights of occupation must be engaged and must be respected.

The Crown

cannot unburden itself of this responsibility; the province cannot. The only

level of government that could is the federal government, the government of

Canada. For British Columbia, until treaties are made, the province does not

have full power to dispose of the resources of the province and third-party

interests derived from the Crown, because the province has that responsibility

to maintain its land — to be a caretaker of the land, if you will.

[1555]

What is the

real question, then, before us given that the constitution, the Charter and the

courts have defined the rights of aboriginal people? The real question for us is

around treaty negotiations: how to implement those rights and the relationship

the courts have taken great pains to articulate. They have already told British

Columbia what your mandate needs to be. It's already all spelled out.

All we have

to do is look back in history and understand that history, document that

history, learn from that history and take that history as our mandate to go out

and negotiate. We don't need to spend $9 million asking referendum questions

around that. The courts have already defined it for us. If you say you don't

like it…. It's a legal responsibility. We cannot not like it. Mind you, I like

it. Even if you didn't like it, you cannot not like it, because it is a legal

responsibility that has already been defined in the courts. Don't we just need

to go there, learn from that wisdom and knowledge, and take that as the mandate

of British Columbia in the treaty-making process?

Yes,

treaty-making is a complex question. It is a complex question to determine how

Charter rights and aboriginal rights interact. It is a complex question on

negotiations and to conclude a treaty in good faith. The fact of the matter is

that the province cannot afford not to do that. The province cannot afford not

to do that.

When I

mentioned the cases around legal rights of aboriginal people, I talked about the

lands and resources. In the questions from the Attorney General in this motion

that is to go out on a referendum, it actually asks the question. One of the

questions is: hunting, fishing and recreational opportunities on Crown land

should be ensured for all British Columbians. The other issue relating to

resources and land is that parks and protected areas should be maintained for

and licences should be respected; fair compensation for unavoidable disruption

of commercial interests should be ensured. Provincewide standards of resource

management and environmental protection should continue to apply. These are the

key questions that deal with the resource and land question in this referendum.

I would argue that on all of these questions, the answers and the mandate given

to British Columbia have already been defined for us through the history of the

courts.

Moreover,

when I began my story about aboriginal peoples where people came and took over

their bench, the aboriginal people never said — even now, even today, even

with the abuse that they had endured…. Even now they're not saying: "I

want the whole bench back." Never have I heard any aboriginal leader say

that. I have never heard that in the course of my work, in the course of my

dealings with the community. They have always said that they're prepared to

share those resources in a fair and just way. They've always said that. All they

want is for their place in history to be recognized and to be self-sustainable,

self-determining and self-governing — all of those things that they enjoyed

before people came and took over their bench.

That, too,

was recognized in the court. The aboriginal people, to illustrate their hearts,

really, on this issue, in the courts…. Here's what, in the Delgamuukw case,

the aboriginal people did.

[1600]

The

aboriginal people have been sensitive to ensure that the neighbours who hold

land in fee simple are not affected in the efforts to have the Crown recognize

and respect their rights. In the Delgamuukw case, here's what they've done. The

aboriginal peoples in that litigation exempted fee simple interests from the

relief sought in that case. They said, even in a court case, that they would not

seek their rights. They're respecting the rights and exempted fee simple

interests in their court case. By that action, they demonstrated to all people

of all nations that irrespective of the abuse they have experienced and

irrespective of their place in history that ought to have been recognized….

They are saying they don't want to take everything back. They are saying that

they will respect those rights of people here, and they will share their

resources with people.

ourselves must recognize that there may well be instances whereby a fair

settlement would perhaps involve private lands, because they may well have

traditional value to the aboriginal people, whether it be for ceremonial or

sacred recognition purposes. They could be burial grounds that have significant

meaning to the aboriginal people.

ourselves ought to take on some responsibility and, wherever possible, say:

"Absolutely. We would not try to impact private lands and private land

owners, but there may be cases where we have to do that." When those cases

arise…. And, yes, you go through a negotiation process to engage in the

give-and-take exercise to determine whether or not to proceed and, if

[ Page 1887 ]

so, how much, where and all of those questions that need to be answered

through negotiations.

I want to

highlight this because I want to say very clearly that the aboriginal people

never said: "Get off my land. We're not prepared to share anything with

you." When you ask these questions in the referendum about whether hunting

and fishing rights and recreational opportunities on Crown land should be

ensured for all British Columbians, the aboriginal people themselves have

already demonstrated that they're prepared to share. They've already

demonstrated that.

One would

have thought too — and I think that British Columbians on the whole are

individuals who value themselves as being compassionate and fair-minded…. I,

too, would imagine that the non-aboriginal people would be prepared to say:

"Yes, of course we're prepared to share. Of course we are." Yet these

questions are asked on here as if maybe they won't or implying that the

aboriginal people want more, when in fact history has demonstrated that they

never have.

What is the

purpose of this referendum other than to not get an answer? Even if you did get

an answer, it doesn't really mean a whole lot from the point of view that the

mandate for British Columbia on the question around negotiations has already

been clearly set out in the courts.

On all of

the resource and land use questions, even on the question around management in

environmental protection, the aboriginal people are the first people who would

come forward and say: "We would not take more from our land other than what

we need to live on it." They need more than anybody else, in my own

experience. They want to preserve that land for future generations.

Is there a

question on the standard of resource management and environmental protection —

that somehow, if the aboriginal people came to have their rights recognized

again, the resource management would be at risk? It simply doesn't make any

sense at all.

[1605]

I've

touched on some of the referendum questions that are being asked and what, quite

frankly, a waste this referendum process is going to be. More to the point, I'd

like to illustrate that absent from the referendum would be the questions that I

think we need to ask, perhaps, around the mandate to British Columbia — not

asked through a referendum, but through discussions, engaging with aboriginal

and non-aboriginal peoples, and to put that information on the table….

I think

this is a critical question for us to try and grapple with — for the province

to have and own the obligation to aboriginal peoples, to try and do justice to

the aboriginal people. I think that is a critical question that we need to

grapple with.

Do we as

British Columbians and does the province have an obligation to do justice to the

aboriginal people — to do justice to them for over a century where their

rights and title have been denied, and where their traditional and ceremonial

practices have been condemned and even outlawed? Potlatches, as an example, have

been outlawed. Children of the aboriginal community have been taken away from

their own homes, brought into residential schools, told that they cannot speak

their language and that they must not act Indian and be Indian. I think this is

a moral question that we have…. Do we, as individuals who have come as

visitors on this land and taken this land as though it was our own, have a moral

responsibility, if nothing else, to say yes, we must redress these historical

injustices? We must do that now, hon. Chair.

How does

the referendum help in the process? The member from Chilliwack has said

throughout the consultation…. They've gone through this consultation process,

and people did come forward, and there wasn't any of the violence or protests

that took place.

understood that many people actually didn't come because they felt that the

question that the government was asking was contrary to their principles. Some

people, I know, chose not to participate in that process.

But what is

the outfall of this ongoing denial of this government to recognize the mandate

that has already been put in place for British Columbia through the courts and

through a moral obligation to negotiate within the terms that the courts have

already laid out for us? What is that denial? The denial, I think, perhaps only

rests with the stubbornness of the Premier and perhaps with some caucus members

who refuse even with this clear understanding and historical background of the

rights of the aboriginal people…. They will still insist that the aboriginal

people don't have these rights and perhaps don't deserve these rights. Maybe

that's what's driving the referendum process.

Why do we

fear that the referendum process would hinder the economic development, economic

progress and social progress for the province? Would it, through this process,

send a signal to the aboriginal people that the province is not interested in

negotiations and that the province is going to drag its heels in negotiations? I

think the referendum is sending that signal.

More than

that, through the government's action and through their budget approach, they

are sending that signal. They have cancelled the treaty negotiation process

unilaterally or set it aside until the referendum is completed. They have taken

away resources of negotiators at the treaty-making table. They have taken away

the consultative liaisons, if you will — the treaty liaisons that exist in the

province with the aboriginal and the non-aboriginal people. Those are all gone.

You add all these pieces together, and I think it sends a very strong signal

from this Liberal government to aboriginal and non-aboriginal people alike that

they are not very interested in negotiating and treaty-making.

What are

the impacts of that, hon. Chair?

[1610]

Actually,

before I go on to that, there is a member — the member for Kamloops–North

Thompson, when he was in opposition and was the opposition critic…. I found

this research on the Liberal Party's position on the referendum, and, quite

frankly, it's shocking. It

[ Page 1888 ]

says: "Calling first nations doing unauthorized logging 'thieves' should

be viewed as words of frustration and not those of a racist." He's calling

the aboriginal people — who owned this land first, the first people of this

land, who the courts have recognized have the rights to the title and to the

resources — thieves, hon. Speaker. This is in the Kamloops This Week

newspaper, November 25, 1999.

Then he

goes on to say — this is stunning, actually: "Natives instead should be

looking at litigation or negotiation. 'I think it's a huge error for aboriginal

people to inconvenience or negatively affect the rest of the population and

sabotage an already hurting economy,' said Krueger." In this

article on

August 16 in the Kamloops Daily News , he is accusing the aboriginal

people of inconveniencing the broader public. I wonder whether or not the member

would think of how much, for over a century, the non-aboriginal people have

inconvenienced the aboriginal people. For him to be on record saying that the

aboriginal people should just perhaps disappear, should just go away and not

bother us, and that when they utilize the resources on the land, the land that

they first lived in, somehow they're thieves…. Maybe it's that kind of

attitude from the member for Kamloops–North Thompson that's escalated the

Premier to continue with this referendum process.

By doing

this, what has the province to gain? By sending the signal of instability, by

sending out the signal to aboriginals and non-aboriginals alike that this

government is not interested in treaty-making, how does that help?

Since that

time these are some of the things that are happening and that have repercussions

for British Columbia economically and socially. In June 2001 the First Nations

Summit gave warning that if the Liberal government went ahead with a treaty

referendum, there would be repercussions.

On August

24, 2001, the Esquimalt and Songhees first nations claimed ownership of the land

on which the province's Legislature sits. I quote: "Two small B.C. Indian

bands filed a lawsuit Friday claiming ownership of the land on which the

province's Legislature sits. The Esquimalt and Songhees bands are asking the

B.C. Supreme Court for unspecified damages and a declaration that the province

is a trespasser on the land and that both the federal and provincial governments

have breached their duty to protect the bands' interests." That was August

24, 2001. It was reported in the Vancouver Sun on August 25, 2001.

[1615]

The 15-page

claim, which includes the ground under the Premier's office and covers 4.2

hectares fronting the capital city's inner harbour, is based on an 1850 treaty

that the present bands' forebears signed with the Hudson's Bay Company factor

and the colonial Governor, Sir James Douglas.

I believe,

because of the government's reluctance and insistence on not sending a signal to

the aboriginal people that we want to engage in good-faith negotiations with

them, that perhaps some of these claims are now escalating. We're seeing more

and more of those appearing before the courts, even though the courts have said:

"Government, go and negotiate. It is your responsibility to do that. It

should not be through litigation that these matters are dealt with. It should be

through negotiation." This process that the Liberal government has insisted

on, by delaying treaty negotiation opportunities, has escalated to more

litigation in the courts.

On August

29, 2001, two energy companies pulled out of the northeastern part of the

province because of unresolved land claims. I quote the editorial in the Sun ,

August 29, 2001:

"The

most difficult commitment promises to be the proposed referendum on native

land claims, which could undermine their ability to successfully negotiate

agreements. And we believe settling these claims is essential to ensure

certainty about land and mineral rights and to encourage investment. If we

needed a reminder of the urgency of the problem, we got it Monday when two

energy companies pulled out of the northeastern part of the province because

of unresolved land claims."

If the

government is interested in economic stability and inviting investment, then the

number one thing they must put their energy and resources into is negotiation,

not to cancel and delete funding of the negotiation team in this budget that's

been introduced. It's not to decrease consultation and community liaison on

aboriginal rights to ensure that people are kept in the loop and that the

consultation takes place.

It's not to

waste $9 million — I'm counting, because I think that amount's going to

increase — on a referendum and a set of referendum questions on which British

Columbia already has the mandate to legally act. We have a legal mandate to act,

and the terms of those actions for the negotiation process are clearly defined

in the courts. No. This government refuses to acknowledge that, and they are, in

my view, wasting $9 million of the taxpayers' hard-earned money in this

exercise.

Then we

have March 6, 2002. The Haida first nation launches a lawsuit. On March 6, 2002,

the Haida initiated a lawsuit against the provincial and federal governments,

saying that the first nations have aboriginal title not only to all the land

contained within the Charlottes, which they call the Haida Gwaii, but also to

the resources in and under the sea, including oil and gas reserves believed to

be under Hecate Strait. The writ was filed by lawyers Joe Arvay and Louise

Mandell, simply seeking a declaration that the Haida are the aboriginal owners

of the entire remote area of the north coast of B.C. and that all of the

activities within those lands that are incompatible with the Haida should cease.

They also want an accounting of all profits, taxes, stumpage, dues, royalties

and other benefits that the province and the federal government have collected

over the years.

The Haida

initiated their lawsuit in part to try to stop the provincial Liberal

government's apparent plan to lift a moratorium on oil and gas exploration in

Hecate Strait.

Then on

March 7, 2002, the Tsawwassen first nation laid claim to the Roberts Bank

superport and the B.C.

[ Page 1889 ]

Ferries terminal. The Tsawwassen band has launched a lawsuit to shut down the

giant Roberts Bank superport and the B.C. Ferries terminal. The Tsawwassen band

filed its lawsuit last Thursday, just one day after the Haida nation won a

landmark court decision that most lawyers concede could alter B.C.'s economic

and political landscape.

[1620]

These are

just some of the cases that have surfaced. Will there be more to come? I would

hazard a guess: yes. If this government continues to drag its heels, continues

to refuse to engage in a negotiation process, yes, I think that we'll see more

and more cases appear in the courts and that the approach of litigation instead

of negotiation will be sought by the aboriginal people. Quite frankly, they have

waited over a century to move forward only to find in 2002 that they are faced

with a major setback because of this Liberal government's principles, because of

this Liberal government's action.

One may

say: "Perhaps it's just you who are in opposition that would say these

things; nobody else will. Opposition always rises up and speaks against the

government, no matter what." You know what? Most of the people, the

majority of the people, have spoken against the government's action — even if

they're supporters of the Liberal Party.

In Business

in Vancouver , December 4, 2001, a column was written by Peter Ladner:

"B.C. Liberals' referendum on native land claims should be scrapped for

commonsense reasons." I'll just read one paragraph of this

article into the

record: "By the time you read this, the B.C. Minister Responsible for

Treaty Negotiations should have received a report on the wording of his

government's proposed referendum on native land claims. If only the report could

make this simple statement" — and if only the government today, now,

would understand and adopt this approach —" sometimes it's better to

break promises than to keep them." That is from Peter Ladner's column in Business

in Vancouver .

I spoke of

— and I know that my colleague from Vancouver-Hastings has spoken of — the

promises broken by this government. There's a whole litany of broken promises.

"We will not rip up collective agreements. We will not rip up

contracts." They ripped up contracts. The broken promise: "We will not

impose a tax." They've imposed a tax. They've imposed a provincial sales

tax of 7 percent to 7½ percent. The property tax and the fuel tax are imposed

taxes: broken promise No. 2. Broken promise No. 3: tax cuts will pay for

themselves, when tax cuts don't pay for themselves. Broken promise No. 4: they

would only give tax breaks to the two lowest income brackets. They gave tax

breaks to the highest income brackets, the wealthiest British Columbians, the

biggest corporations. I can go on literally all day to talk about the promises

broken by the Liberal government.

This is one

promise that I wish they would break: not to proceed with the referendum and to

proceed with treaty negotiations. It isn't just me who wishes that; many, many

people wish that to happen.

What did

the federal government, who really have a huge responsibility on this question,

say about the government's referendum proposal? I'll just read part of the

federal government's position into the record:

"Should

a referendum be held on treaty negotiations? Treaties seem to be the sort of

policies least amenable to popular input. Because of the delicate

compromises that must be extracted from parties engaged in a longstanding

dispute such as that between first nations and the provincial and federal

governments, it would seem that negotiations are best conducted away from

the pressures of the political arena and away from the public, which, at

this point at least, is not sufficiently informed about the complexity of

the issue. Evidence suggests that the public acts conservatively in

referenda and will tend to endorse the status quo, especially when the issue

appears to be complex."

[1625]

This is a statement from the federal government's Robert Nault, Minister of

Indian Affairs and Northern Development. Then it goes on to say:

"Moreover,

the B.C. non-aboriginal public has consistently been suspicious, if not

hostile, towards the treaty negotiation process. Putting treaty negotiations

to a referendum might be a way in which the government can tap into this

hostility and thus subvert the process.

"Would

a referendum on treaty process violate aboriginal rights under the

constitution?

"First,

the claim being made against holding a referendum is that constitutionally

protected aboriginal rights would be violated by asking the B.C. public what

principles ought to guide the treaty negotiation process.

"The

second and broader concern is that a referendum on this issue is unfair

because it imposes majority preferences on the aboriginal minority.

Aboriginal peoples constitute 3.8 percent of B.C.'s population.

"Other

problems: complexity, cohesion and trust.

"First,

the initial suggestion made by Campbell and the Liberals, to put treaties to

a referendum, would place the complex product of years of negotiations

before a public that has not been educated to appreciate the laws or policy

issues surrounding treaties and their absence. The public may be

insufficiently sensitive to the compromises made by both sides in the final

agreement."

These are excerpts from an

article by Cara McGregor at the University of

Victoria.

On July 26,

2001, in the Globe and Mail it was reported that the federal government

has recently expressed its opposition to such a referendum. "Treaty-making

in British Columbia is a tripartite process involving aboriginal groups, the

B.C. government and the federal government. Robert Nault, Minister of the

Department of Indian and Northern Affairs, argues that the treaty process is the

best process there is and therefore that the federal government has committed

itself to proceed with negotiations."

So the

federal government has said that the best process is through negotiations.

Academic scholars have said that the best process is through negotiations and

that the referendum should be scrapped. Business leaders have said that the

referendum should be scrapped. Even the media have said that the referendum

process should be scrapped.

[ Page 1890 ]

In the

March 16, 2001, editorial in the Vancouver Sun :

"The

Liberals' plan to hold a referendum on native treaties in B.C. is

impractical, divisive and morally repugnant. The party should immediately

abandon it. What the Liberals are proposing is a referendum on basic rights,

something that should never be done. Further, in the…climate of native

affairs, even the suggestion of a referendum on rights has already done more

harm than good as relations between the Liberal Party and the native leaders

are dangerously polarized.

"If

the Liberals are sincere in engaging all British Columbians in the treaty

process, they must dump their referendum plans. There are far less divisive

ways to accomplish this than referendums. Community meetings and public

forums, for example, would do much more to educate, engage and explain than

a referendum campaign run on a simplistic or even misleading question."

Vaughn

Palmer, March 17, 2001 — and he uses the name: "Mr. Campbell isn't

proposing to hold a referendum on native rights, which are, in any event,

recognized in the constitution. He's saying the referendum will deal with the

bargaining mandate in the treaty negotiations on native land claims. I think

that would be

an act of bad faith, given that the province has been involved in

treaty negotiations for the better part of a decade."

John

Winter, president of B.C. Chamber of Commerce, April 26, 2001. Here's what he

had to say. He also believes that the Liberals need to place a higher priority

on settling native land claims. The proposed provincewide referendum on the

issue could end up simply delaying the process, he warned, and business needs

certainty.

[1630]

The litany

of objections to the government's referendum is lengthy, and I have stacks and

stacks of third-party validators who say that, whether they be from the media,

the academic arena, the business community or the aboriginal community. I think

that we have often heard various aboriginal leaders who've come forward and

challenged the government on its approach. Here's what the chief of the First

Nations Summit, Chief Bill Wilson, has to say about the treaty process: "We

think it's a stupid, morally repugnant, illegitimate process." Then he goes

on to say, when asked about referendums: "Rob power from powerless people

and put it in the hands of those people with the money to buy newspaper and TV

ads and intimidate people into voting their way."

George

Watts: "Ninety percent of the population doesn't own anything; the 10

percent white people own everything in South Africa. They own it because they've

stolen it from the black people. That's what this reminds me of. Now that you've

stolen our country, you want equality."

These are

just some of the comments that have been made by various community leaders. In

fact, most recently, on a website there is a proposal — a petition, if you

will — to ask those British Columbians who wish to join with other British

Columbians and vote no to the referendum process and to propose that

negotiations are the route to go with the first nations. So far, on this

website, over 4,000 people have put their name, their address and their

affiliations, etc., onto this to send a signal.

Nine

million dollars on a referendum process — what will that yield to British

Columbia? The ballots are being mailed out to each of the different houses.

Let's just think about the validity in the process of this mail-out ballot

itself. There will be no scrutineers involved in this process. I suppose anybody

who picked up the mail-in ballot could mark the ballot in any way, shape or form

that they want, even if the ballot may not be mailed to them. It could be mailed

to the previous owner or the person who lived in that residence prior to that.

There is no monitoring in the voting process at all. I suspect that a lot of

people will simply disregard the mail-in ballot.

How will

that process somehow be a valid process? How will the government count the

people who find this process repugnant, as Bill Wilson has said? How will they

count those people who decide to boycott this process, who say that they

fundamentally disagree with this process, and therefore they will not

participate in this process and will boycott this process? How will the

government recognize the voice of the people who take this principled position

on aboriginal issues? There's no opportunity whatsoever.

If the

government is sincere that they actually want to ensure that negotiation is the

way to go and that treaty-making actually begins for this province under this

new regime, then government ought to redirect those dollars to consultation, to

negotiation and to bringing back negotiators who are to do that work and

bringing the aboriginal people to the table as opposed to alienating them.

Government ought to engage in the process and send signals to community leaders

all across British Columbia to say to them that this government wants stability

and wants certainty.

The court

cases that are springing up here, there and everywhere…. Government needs to

send a signal that litigation is not the way to go and that they're sincere in

the process of negotiations. What the government has done illustrates that

they're not sincere at all. The referendum process is not a sincere attempt to

ensure that negotiations do in fact take place in British Columbia.

[1635]

I will

close with a couple of other items I want to put on the record. This is very

interesting to me, because it is a letter that has been written by someone in

Victoria who wrote a letter to the Vancouver Sun editor. I'm not sure if

it got printed or not. This person e-mailed me this letter as well. I thought it

was a very good letter, so I'd like to put it on the record. It says:

"Premier

Campbell has promised that he will fix the ballot initiative, part of the

Recall and Initiative Act, so that British Columbians can correct the

government and initiate citizen referenda by gathering enough signatures to

bring an issue directly to the people during provincial or civic elections.

I would suggest he do this first so that

[ Page 1891 ]

the treaty referendum process is in line with referendums

and ballot initiative procedures throughout North America and the world. As

is, the treaty referendum will be a farce because they will do it via mail.

"Firstly,

the moment you put your ballot in the mail, it will be unguarded as there

are no scrutineers at the post office. It will also not be a secret ballot.

It will be addressed to your home. If your return address is not on your

ballot, they cannot cross your name off as having voted. So you may be able

to vote several times. Even if they use registered mail both ways at great

cost — still no scrutineers. Then there is the fact that the public no

longer trusts the mail since the viral mail attacks in the U.S.

"All

in all, this process is a hollow mockery of the kind of direct democracy we

have been promised by Mr. Campbell. It is basically a farce, and these forms

should be used to wrap fish when you get them."

This is a letter from a constituent, somebody in this riding in the Victoria

constituency, and that is their view of the referendum.

I have come

across many people in my constituency and outside of my constituency. I was just

in Williams Lake last weekend, and people in the northern part of British

Columbia, in the Cariboo Chilcotin, said to me that it behooves them…. If they

want to talk to an MLA or if they need to talk to an MLA, they have to invite

someone from the lower mainland to come. On the issue around aboriginal issues,

they said to me that the government needs to engage in negotiations, not

litigation, and not send a signal that will fuel litigation. The referendum

process is one that is offensive, to put it mildly, to the people who made the

presentation to me in Williams Lake.

When I go

and talk to the people in my community, they cannot believe that the government

is going to waste $9 million, and counting, on the referendum process. They're

saying those moneys should be redirected. If government is so short of money for

education, then they should put those moneys into education. If they're so tight

on money for health care, then they should put those moneys into health care.

For economic development from the resource sectors, the communities that are

hurting right now because of the resource sector downturn…. They should be

putting those moneys into economic development in those communities.

This is

what the community members are saying to me. It simply makes no sense. It makes

zero sense — what this government is doing. They're asking for a mandate which

has already been defined legally by courts. Moreover, government has a moral

responsibility to address the aboriginal issues through negotiations.

[1640]

We should

look back at the lessons learned through the Nisga'a treaty — the treaty that

was taken out of the Treaty Commission process but, nonetheless, the first

modern treaty in the province. Look at the lessons there and engage in good

faith. Do not break a trilateral, tripartite arrangement that has been set in

place